Exhibit 4(a)1
CONTRACT OF PURCHASE AND SALE OF ELECTRICAL ENERGY
By the present instrument made and executed by and between the parties qualified
below:
As one party, ENERTRADE-COMERCIALIZADORA DE ENERGIA S.A., electricity trade
agent in the ambit of the Electrical Energy Wholesale Market- MAE, authorized by
Agencia Nacional de Energia Eletrica- XXXXX, in the terms of resolution n. 62,
of February 16, 2001, with headquarters in the city of Sao Paulo, State of Sao
Paulo, at 2,300 Paulista Ave. 6th floor- party, its registration number being
04.149.295/0001-13, herein represented in the form of its Charter (hereinafter
referred to as "Seller" or "Enertrade");
and as the other party,
ESCELSA- Espirito Santo Centrais Eletricas S.A., concessionaire of public
services of electricity, constituted in the form of a stock joint corporation,
headquarters in Vitdria, State of Espirito Santo, 362 Sete de Setembro st.,
Downtown, its registration number being 28.152.650/0001-71, herein represented
in the form of its Charter (hereinafter referred to as "Purchaser" or
"Escelsa");
CONSIDERING that Seller obtained from EDP Lajeado Energia S.A., through a
contract of purchase and sale, an amount of electrical energy and power ensured
by the Plant (the "Lajeado Contract") "Contrato Lajeado";
CONSIDERING that Seller wishes to make available part of the electrical energy
and power ensured that it has acquired through Lajeado Contract, being paid by
Purchaser for such, and Purchaser wishes to obtain such electrical energy and
power ensured from EDP Lajeado Energia S.A., paying Seller for such;
have, towards each other, as just and agreed the celebration of the present
Contract of Purchase and Sale of Electrical Energy, which shall be ruled by Law
n. 9,648, of May 27, 1998, regulated by Decree n. 2,655, of July 2, 1998, and
other applicable regulatory norms, as well as by the following terms and
conditions:
CHAPTER I
Definitions
1st Clause- for the purposes of this Contract, the following terms, in the
singular and plural, shall have their meanings defined below:
a) "XXXXX": Agencia Nacional de Energia Eletrica- XXXXX, a special autarchy
with the finality of regulating, mediating and supervising the production,
transmission, distribution and commercialization of energy, created by Law
n. 9,427, of December 26, 1996;
b) "Gravity Center": is a virtual spot in the Submarket (as defined below) of
the interlinked electrical system, in the terms of the Rules of the Market
(as defined below), for means of accounting and liquidation by MAE (as
defined below)
c) "Concession": means the concession of usage for the exploration of the
Power Plant, ratified in the terms of Decree of December 15, 1997,
published in Diario Oficial da Uniao of December 16, 1997 and of the
Contract of Concession (as defined below);
d) "Contract": this Contract of Purchase and Sale of Electrical Energy with
all its attachments and amendments, if there be;
e) "Contract of Concession": Contract of Concession of Generation n. 05/97, as
modified by its First Amending Term, dated on July 17, 2000;
f) "Due Date": is the day determined according to First Paragraph of 6th
Clause;
g) "Working Day": means any day in which there are banking services in the
county of Purchaser, in the terms of the norms of Banco central do Brasil;
h) "Ensured Electrical Energy": is the amount of electrical energy of a
hydro-electrical power plant subject of commercialization and established
by XXXXX;
i) "Contracted Electrical Energy": is the amount of electrical energy and
associated capacity obtained by Seller by means of the Lajeado Contract to
be made available and to be sold by Seller to Purchaser in the Delivery
Spot (as defined below), according to the established in 4th Clause and its
Sole Paragraph below, through a symbolical delivery;
j) "Higher Power": event defined as a fortuitous or higher power case,
according to Article 1,058, sole paragraph of the Codigo Civil Brasileiro,
and, after January 2003, article 393 of Law n. 10,406, of January 10, 2002,
keeping the devices contained in Clause 18 of this Contract;
k) "Form of Price Readjustment": is the form of Price (as defined below)
readjustment, according to the agreed between the parties in 7th Clause
below;
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l) "IGPM": "Indice Geral de Precos do Xxxxxxx" (General Index of Market
Prices), published by Fundacao Xxxxxxx Xxxxxx, according to the published
in Conjuntura Economica Magazine or any rating that may replace it as the
indexing agent of the contract of concession, for purposes of readjustment
of fees of Escelsa, or, yet, in the lack of such, by the IGP-DI published
by Fundacao Xxxxxxx Xxxxxx, as published in Conjuntura Economica Magazine;
m) "Applicable legislation": means all the constitutional establishments,
laws, statutes, medidas provisorias, decrees, licenses, authorizations,
resolutions, deliberations, instructions, regulations, and other norms and
disposition applicable to the operations portrayed in this instrument;
n) "MAE": Electrical Energy Wholesale Market, a non-profit company of private
rights, subject to authorization, regulation and inspection by XXXXX, its
creation being authorized by Federal Law n. 10,433, of April 24, 2002, or
its successor;
o) "MW": means the megawatt;
p) "MWh": means the megawatt/hour
q) "ONS" : Operador Nacional do Sistema Eletrico (National Operator of the
Electricity System)- ONS- a non-profit company of private rights foreseen
in Law n. 9,648 of May 27, 1998, responsible for the coordination of the
operation of the interlinked systems South/Southeast/Midwest/ North and
Northeast;
r) "Party" or "Parties": means in the singular Seller or Purchaser, and in the
plural it means both Seller and Purchaser;
s) "Related Party": means, when referring to any company, any other company
that (a) holds, directly or indirectly, more than 50% (fifty percent) of
the capital or controls, directly or indirectly, the first company, (b) has
more than 50% (fifty percent) of its capital or the common control of a
third company, in association with the first company; the word "control"
and all the words derived from it shall have the meanings imputed by Law n.
6,404, of December 15, 1976;
t) "Accounting Period": period for the accounting of the contract positions in
the scope of MAE, as established by the Market Rules;
u) "Period of Supply": means the period with the beginning on January 1, 2003
and end on December 31, 2012, during which Seller shall make available and
sell the Electrical Energy to Purchaser, in the terms of this Contract;
v) "Delivery Spot": In the Gravity center of the Submarket where the agreed
amount of Electrical Energy shall be delivered by Seller to Purchaser by
means of a symbolic delivery, for purposes of accounting and liquidation by
MAE;
w) "Period of Validity": is the period of validity of the present Contract, as
established in 3rd Clause of this Contract;
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x) "Price": is the price for the MWh of the purchased Electrical Energy and
associated capacity referred to in 5th Clause of this Contract;
y) "XXX Xxxxx": is the price, published by MAE for each Accounting Period, in
the Submarket of Purchaser of the interlinked electrical system, for the
accounting of the contract positions in the scope of MAE;
z) "Market Procedures": a set of norms of conveyance and functioning for the
implementation of Market Rules (as defined below), ratified by XXXXX, its
further alterations or any other text that may come to replace;
aa) "Net work Procedures": rules established by ONS, ratified by XXXXX, that
define the procedures and technical requirements for the planning,
implantation, use and operation of the transmission system, its future
alterations or any other text that may replace it;
bb) "Rationing": Obligation of a temporary reduction of consumption electrical
energy by determination derived from Law;
cc) "Market Rules": commercialization, accounting and liquidation rules for the
electrical energy sold in the scope of MAE, ratified by XXXXX, its
posterior alterations or any other text that may take its place;
dd) "Sinercom": system of computer programs that allows the reception and
sending of information regarding counting and supply of energy of each
member of MAE, price setting, contracting, accounting, pre-billing,
financial liquidation, as well as any other commercial operations in the
scope of MAE, or its successor;
ee) "Submarket": a specific submarket of the interlinked electricity system,
where the Purchased Electrical Energy shall be delivered in a symbolic
manner;
ff) "Plant": the Hydro-electrical Utilization and Associated Transmission
System, with the minimum set potency of 850MW, located in the counties of
Palmas and Miracema do Tocantins, State of Tocantins; and
gg) "Normative Value": the cost of reference established in the resolution set
by XXXXX for the generating source of the competitive sort.
CHAPTER II
Object
2nd Clause-The present Contract has the aim of establishing the term and
conditions that shall regulate the purchase and sale of Electrical Energy
Contracted by the Parties, the delivery of which shall be made in a symbolic
manner by Seller to Purchaser at the Delivery Spot, during the period of
validity of this Contract, through the payment of the Price.
First Paragraph- For the purposes of this Contract, it shall be considered that
Seller shall have delivered the Contracted Electrical Energy to Purchaser, and
Purchaser shall have received the
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contracted Electrical Energy from Seller, independent of the amount of
electrical energy the Plant may have generated or been instructed to generate.
Second Paragraph- For the purposes of this Contract, it shall be considered that
to the quantity of Electrical Energy put available for Purchaser by Seller is
associated a generation capacity contracted with EDP Lajeado Energy S.A.
Third paragraph- It is understood and agreed that the rights over the Electrical
Energy commercialized between the Parties, according to the established in this
Contract, shall not be altered, in case of MAE modifying the form or frequency
of registry, accounting or liquidation of the Contracting positions of its
agents regarding the contracted volumes agreed on by the Parties. Such right
shall not be altered in case XXXXX modifies the methodology of calculation of
the XXX Xxxxx, be this alteration in terms of advancement or frequency with
which this price is calculated.
Fourth Paragraph- The volume of purchased Electrical Energy may be reduced,
keeping the same proportional percentages of contracted energy, due to the
reduction established by XXXXX for Ensured Electrical Energy or due to the
characterization of Rationing, both regarding reductions that may occur in the
Lajeado Contract.
Fifth paragraph- Purchaser agrees that the volume of Electrical Energy
contracted may be increased, by Seller, within the limit established in Sole
Paragraph of 4th Clause below, according to the variation of the consuming
market of Purchaser, due to the maintenance of consumers that have not opted to
become free consumers, which may cause the exposure of Purchaser to MAE.
CHAPTER III
Period of validity
3rd Clause- The Contract shall be valid from the date of its being signed until
the integral fulfillment by the Parties of all their contract obligations,
except if there be the expressed contrary manifestation of either Party, case in
which the specific dispositions for anticipated end shall be applied and,
depending on the case, there shall be an application of penalties.
CHAPTER IV
Volume and Load Standard
4th Clause- The volume of the contracted Electrical Energy shall be of 11.45
average MW in 2003 and 52 average MW for the remaining Supply Period. The
balance during the months, as well as the volume to be registered at Sinercom
for means of accounting shall be defined by Purchaser in the month of December
of each year, within the seasoning limit of the Plant.
Sole paragraph- The Parties agree that, during the year of 2003, Seller may, by
means of a notification to Purchaser until the last but one Working Day of the
month preceding every month of supply of the year 2003, at its shall and subject
to the terms of Fifth Paragraph of 2nd Clause above, to add to the contracted
Electrical Energy a supplementary volume up to 40 average MW
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for each of the months of year 2003, and in any of the months of year 2003, up
to not more than 45 average MW.
CHAPTER V
Price and Payment terms
5th Clause- The Price shall be of R$ 85.67/ MWh (eighty five Reais sixty seven
cents per Megawatt/hour), dated of August 2002, for the volume of contracted
Electrical Energy mentioned in the caption of 4th Clause, and shall be
equivalent to the Normative Value valid every month of year 2003, for the volume
mentioned in Sole Paragraph of 4th Clause. Each and any cost, liability, tax,
contribution, fee and tariff due in the terms of the Applicable Legislation for
the delivery of the contracted Electrical Energy at the Delivery Spot are
included in the Price, keeping the Paragraphs below.
First Paragraph- The parties agree that it shall be the entire responsibility of
Seller to deliver the contracted Electrical Energy at the Delivery Spot, Seller
shall take on all the risks, obligations, responsibilities, tariffs and
liabilities of distribution and loss of transmission perchance owed and/or
verified until the Delivery Spot.
Second Paragraph- The Parties agree, yet, that Purchaser shall take on all the
risks, obligations, responsibilities, tariffs, costs and liabilities of
transmission, distribution and connection, and losses of transmission perchance
incident and/or verified after the delivery of the contracted Electrical Energy
at the Delivery Spot.
Third Paragraph- It is understood by the Parties the Price corresponds to the
specific MWh and to the proper capacity necessary for its production, even if in
an ephemeral manner.
6th Clause- The charging of the contracted Electrical Energy shall be object of
invoices, to be issued monthly, in the period foreseen in Third Paragraph below,
independent of the number of Accounting Periods within the month, and must be
forwarded to by Seller Purchaser, with the following discrimination:
o Volume of contracted Electrical Energy, clearly made known in MWh;
o Price, in clearly made known in R$/ MWh;
o Total due sum, obtained by the multiplication of the volume of Electrical
Energy purchased for the Price.
First paragraph- The monthly invoice defined in the caption of 6th Clause shall
be object of a sole invoice, unfolded into 3 (three) installments, each one
equivalent to 1/3 (one third) of the global invoiced value, and the payment of
such must be made by Purchaser within the following deadlines:
a) 1st due date - until the 10th of the month following the supply;
b) 2nd due date - until the 25th of the month following the supply;
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c) 3rd due date - until the 5th of the second month following the supply.
Second Paragraph- In case the Due Date does not occur on a Working Day in the
county of Sao Paulo or Vitoria, the payment must be made on the first subsequent
Working Day.
Third Paragraph- The invoice, with corresponding due dates, shall be presented
by Seller to Purchaser at least 5 (five) Working Days before the first due date.
Fourth Paragraph- the sums of the invoices shall be deposited in the checking
account indicated by Seller.
7th Clause- The Price mentioned in 5th Clause above, updated according to the
caption in 5th Clause, shall be readjusted during the whole Period of Supply,
every 12 (twelve) months (or at the smallest periodicity allowed by the
Applicable Legislation, as long as this smallest periodicity be equally
applicable to the readjustment of fees of Escelsa, as foreseen in the contract
of concession of distribution of Escelsa) based on the accumulated variation of
the IGPM in that period, which shall correspond to the index obtained by the
division of the indexes of IGPM of the month preceding the readjustment and of
the month before the last readjustment.
8th Clause- In case, related to any invoice, there are undisputed sums and
related sums which Purchaser may have questioned the respective certainty and
liquidity, Purchaser, independent of the questioning presented in print to
Seller, before the Due Date, must, in the respective Due Date, make the payment
of the unquestionable parcel, risking, with the objection, to portray its
default. Solving the matter related to the questioned parcel within at most 10
(ten) Working Days, Purchaser must, within 5 (five) Working Days from the date
in which the composition between the Parties shall take place, make the payment
of the remaining parcel of the value of the referred parcel, plus interest, in
the terms of 9th Clause below. The interest shall be calculated pro rata die
between the Due Date of the respective invoice and the date of the effective
payment, being understood and accepted that the interest rate above mentioned
shall only be applicable to the remaining values, object of controversy, in the
hypothesis of the questioning by Purchaser being erroneous.
9th Clause- In case, for any reason, Purchaser does not pay the invoice or part
of the sum of the invoice issued by Seller on the Due Date or, in case of the
non-payment of part of the invoice, within the period established in 8th Clause
above, whichever the case, Purchaser shall be subject to the payment of the due
sum, plus a fine of 2% (two percent) and of interest at the rate of 1% (one
percent) a month, these being calculated since the Due Date of the respective
invoice until the date of the effective payment.
10th Clause- Any values owed by one Party to the other Party may be compensated,
on their due dates, with credits the owing Party may have against the Creditor
Party resulting from this Contract.
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CHAPTER VI
Declarations and Guarantees
11th Clause- Seller expressly declares and guarantees to Purchaser that:
(i) it detains all the legal, governmental and regulatory authorizations
necessary for the celebration of this Contract and to assume and
fulfillment the obligations resulting from it;
(ii) it has obtained all the board approvals necessary for the celebration of
this Contract and the assumption and fulfillment of its obligations in
the terms of this instrument;
(iii) the celebration of this Contract does not violate any contract of which
it is part and that it does not violate any obligation, administrative or
legal decisions that may be oppose to it or to which it may be subject;
(iv) the obligations taken in this Contract are legal, valid, and feasible,
according to the respective terms and conditions;
(v) it possesses all the legal, governmental and regulatory authorizations
necessary for the performance of its activities;
(vi) all the information furnished to Purchaser are complete and exact, be it
contained in written records, reports, mailings and any other instrument,
written or electronic;
(vii) there is no existence, at this date, of any action, investigation or
administrative or legal procedure instituted against Seller that affects
or may come to affect the sale and delivery of the contracted Electrical
Energy by Purchaser; and
(viii) it shall keep valid, when fit, all the statements listed in the above
topics during the complete Validity Period.
12th Clause- Purchaser expressly declares and guarantees to Seller that:
(i) it possesses all the legal, governmental and regulatory authorizations
necessary for the celebration of this Contract and to assume and fulfill
the obligations resulting from it;
(ii) it has obtained all the board approvals necessary to celebrate this
Contract and for the assumption and fulfillment of its obligations in the
terms of this instrument;
(iii) the celebration of this Contract does not violate any contract of which
it is a Party, or any obligation, administrative and legal decision that
may oppose it or to which it is subject;
(iv) the obligations taken in this Contract are legal, valid, and feasible,
according to the respective terms and conditions;
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(v) it possesses all the legal, governmental and regulatory authorizations
necessary for the performance of its activities;
(vi) all the information furnished to Seller are complete and exact, be it
contained in written records, reports, mailings and any other instrument,
written or electronic;
(vii) there is no existence, at this date, of any action, investigation or
administrative or legal procedure instituted against Purchaser that
affects or may come to affect its financialeconomical condition to buy
the contracted Electrical Energy from Seller; and
(viii) it shall keep valid, when fit, all the statements listed in the above
topics during the complete Validity Period.
CHAPTER VII
Obligations of the Parties
13th Clause- With no jeopardy to the other obligations herein foreseen, the
Parties obligate themselves to:
(i) observe and fulfill rigorously the Applicable Legislation in its social
deals and/or activities to be performed in the terms of the present
Contract, especially those of general or specific nature, derived from
XXXXX, ONS, XXX por of any other agent or regulatory agent of the
Brazilian electrical system with scope on the subject;
(ii) obtain and keep valid and effective, during the whole Validity Period,
all the licenses and authorization inherent to its social deals and/or
the fulfillment of the obligations assumed in the present Contract;
(iii) inform, in at least 48 (forty-eight) hours counting from the date of the
acknowledgement of the event, the other Party about any event, of any
nature, that may represent a threat to the full and punctual fulfillment
of the obligations assumed in the term s of this Contract; and
(iv) in the case Seller, proceed to registration, at Sinercom, of the
information in this Contract, and in the case Purchaser, proceed to the
communication of confirmation of the information in this Contract at
Sinercom, all in conformity with the deadlines of registry established in
the Market Rules and Market Procedures.
CHAPTER VIII
Cancellation
14th Clause- Any of the Parties may manifest, at any time, its intention to
cancel the present Contract, independent of justified reason, as long as the
other Party be notified, in print, with the advance of at least 90 (ninety) days
to the date of effectiveness of the cancellation, with no jeopardy of the
integral and faithful fulfillment by the Parties of all the obligations until
then assumed in the terms of this Contract.
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15th Clause - Any of the Parties may declare this Contract as expired in the
occurrence of any of the following hypotheses:
(i) declaration of bankruptcy, grant of a creditors agreement, legal or extra
judicial dissolution or liquidation of the other Party, independent of
notice or notification;
(ii) in case the other Party may come to have any legal, governmental or
regulatory authorization indispensable for the fulfillment of the
obligations foreseen in the present Contract revoked, or have any of its
rights as a member of MAE suspended due to the non-fulfillment of the
Applicable Legislation;
(iii) in case, by action or omission of the other Party, MAE refuses to proceed
to the accounting and/or liquidation of the present Contract;
(iv) in case the other Party does not fulfill or if it contravenes the
Applicable Legislation, Net Procedures, Market Procedures or Market Rules
to which it is subject for the fulfillment of its obligation in the terms
of the present Contract;
(v) in case one of the Parties does not effectuate the payment of any sum
owed to the Party in the terms of 8th Clause;
(vi) in case of a total or partial non-fulfillment, by any of the Parties, of
the established in topic (iv) of 13th Clause above; or
(vii) in case the other Party has stated in Chapter VI of this Contract,
information that may reveal itself as incorrect, incomplete or untrue on
the date in which it was stated.
First Paragraph- The non-fulfillment, by any of the Parties, of any obligation
foreseen in this Contract, including 15th Clause, if not amended in the deadline
of 30 (thirty) days, counting from the reception, by the transgressing Party, of
a notification in writing sent by the other Party, shall give the latter the
right to consider this Contract as expired, making the other Party subject to
the immediate penalties foreseen in 16th Clause below and obligating it to keep
the other Party exempted from any obligation or responsibility, including
towards MAE and others.
Second Paragraph- It accorded and just that, during the periods for the
compensation of non-payment referred to in 15th Clause, First paragraph above,
the transgressing Party shall be responsible to pay indemnity of the liabilities
borne by the other Party towards MAE and others during such period, based on the
XXX Xxxxx, in case the registry of the Contract be affected.
CHAPTER IX
Responsibility and Compensation
16th Clause- the Party that, by its action or omission, give cause to the
cancellation of the present Contract due to the non-fulfillment of any of the
obligations foreseen in the present Contract or in the occurrence of any of the
case of 15th Clause above, shall be obligated to pay the Party, with a deadline
of 5 (five days) counting form the effectuation of the cancellation, the total
set of penalties described in items (1) and (2), listed below:
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1. compensatory fine for cancellation equivalent to 10% (ten percent) of the
balance of the complete worth of the Contract, calculated according to the
formula described below:
Fine = 10% x balance of the complete worth of the Contract
Where:
"balance of the complete worth of the Contract" = the product of the
multiplication of the Price of the Contract on the date of effectuation of
the cancellation times the volume of contracted Electrical Energy, as
established in the caption of 4th Clause, for the remaining period of the
Validity Period.
2. direct losses and damages for the cancellation of the Contract, as shown
below:
(i) in case the cancellation of the Contract be caused by Purchaser: Purchaser
must by Seller for the losses and damages corresponding to the described
below:
LDs Contract = Volume of Contracted Electrical Energy x (Price - Price of
Replacement Electrical Energy)
Where: LDs Contract means the losses and damages suffered by Seller;
Volume of Contracted Electrical Energy means the volume of Contracted
Electrical Energy, as established in the caption of 4th Clause, for the
remaining Period of Validity of the contract between the date of
effectuation of the cancellation and the date of the end of the Period of
Validity;
Price means the Price at the date of effectuation of the cancellation of
the Contract; and
Price of Replacement Electrical Energy means the XXX Xxxxx of the
substitute electrical energy to be acquired in the terms of the contract of
replacement of electrical energy.
OR
(ii) in case the cancellation of the Contract be caused by Seller: Seller must
pay Purchaser for the losses and damages correspondent to the described
below:
LDs Contract = Volume of Contracted Electrical Energy x (Price of Replacement
Electrical Energy - Price)
Where:
LDs Contract means the losses and damages suffered by Purchaser;
Volume of Contracted Electrical Energy means the volume of Contracted
Electrical Energy, as established in 4th Clause, for the remaining Period
of
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Validity of the Contract, between the date of effectuation of the
cancellation and the date of expiration of the Period of Validity;
Price of Replacement Electrical Energy means the XXX Xxxxx of the
substitute electrical energy to be acquired in the terms of the contract of
replacement of electrical energy; and
Price means the Price at the date of effectuation of the cancellation of
the Contract.
First Paragraph - In case the difference between the worth of Price and XXX
Xxxxx for the Replacement Electrical Energy to be acquired by means of a
contract of replacement of electrical energy, in the terms of sub-item (i), or
vice versa, in the terms of sub-item (ii), referred to in item (2) above, be
negative, the transgressing Party shall pay solely the fine for advance
cancellation referred to in item (2) above to other Party.
Second paragraph- It is expressly agreed that the just Party shall not be
obligated to celebrate a contract of replacement of purchase/sale of electrical
energy, referred to in item (2) above, to count the direct losses and damages
due to the advance cancellation of the Contract.
Third paragraph- It is expressly agreed between the Parties that the complete
value of the indemnity to be paid in the terms of this Clause, shall be limited
to 24 (twenty four) times the average sum of the twelve last invoices preceding
the occurrence of the fact giving cause to the indemnity.
17th Clause- The responsibility for the indemnity for losses and damages of each
of the Parties in the course of this Contract shall be, in any hypothesis,
limited to the sums Established in 15th Clause, Second Paragraph and 16th Clause
above, being that none of the Parties shall take on any responsibility of
compensating the other for any emerging losses, including discontinued earnings,
moral damages or of any nature.
CHAPTER X
Fortuitous Case and Higher Power
18th Clause- In case any of the Parties cannot fulfill any of its obligations
resulting from this Contract for a reason of Higher Power, the Contract shall
remain valid, but the affected obligations shall be suspended throughout the
lasting of the effects of the Higher Power.
First Paragraph - The Party affected by the occurrence of an event of Higher
Power must communicate the fact to the other Party in the deadline of 3 (three)
days counting from the date of verification of the event, through written
notification, with a thorough description of the event of Higher Power, in which
must be information that indicates the nature of the event, to what level it
compromises the fulfillment of its obligations in the terms of this Contract and
the estimate of the period in which the event of Higher Power shall keep from
fulfilling the suspended obligations due to the referred event. The suspension
of the obligations due to the Higher Power shall not have the effect of
exempting the affected Party from the faithful and
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whole fulfillment of the obligations that had been due before the occurrence of
the event of Higher Power.
Second Paragraph - The Party affected by the event of Higher Power commits
itself to either adopt all the measures that may be at its reach to overcome the
effects resulting from the Higher Power that upset the fulfillment of its
obligations or mitigate the extension of these effect with a view on the
fulfillment, even if partial, of its obligations in the terms of this Contract.
Third Paragraph- Having ceased the event of Higher Power, the Party that had
been affected by such must communicate the fact to the other Party in the
deadline of 24 (twenty-four) hours, through written notification, and retake
immediately the fulfillment of the affected obligations in the terms of this
Contract.
Fourth Paragraph- With no jeopardy of the established in sole paragraph of
article 1,058 of Codigo Civil Brasileiro, and, after January 11, 2003, article
393 of Law n. 10,406, of January 10, 2002, The Parties shall consider as events
of Higher Power any act or fact, with its occurrence impossible for the Parties
to foresee, or that they could have foreseen to have unpredictable consequences,
as well as those against which its diligent action had not been enough to avoid
or is not enough to amend, among which:
(i) any phenomenon of nature, such as storms, floods, landslides, lightning,
earthquakes and other earth shakings; or
(ii) any unexpected events caused by man, beyond the control of the Parties,
that may affect the execution of the Contract, such as wars, sabotages,
military blockades, public riot, mutinies, embargoes, repression, civil
commotion, or other acts of public enemies, strikes or other industrial or
labor disturbances in a national or regional range.
Fifth Paragraph - By no means, for the purposes of this Contract, shall there be
the form of an event of Higher Power in the occurrence of any of the acts or
facts listed below that may affect an obligation of physical or financial nature
of any of the Parties:
(i) problems and/or hardships of financial-economical order of any of the
Parties;
(ii) loss of market by Purchaser or the impossibility of Purchaser using or
reselling, in an economical sense, the Contracted Electrical Energy;
(iii) adverse weather conditions that, considering the local weather condition
background where the Plant is located, be reasonably expected;
(iv) the promulgation of creation, extinction or modification of the
Applicable Legislation and any regulation, resolution or similar act by
XXXXX, XXX and/or of any other inherent governmental authority, as well
as the cancellation or expiration of or non-possession of any necessary
approval from a governmental authority;
(v) any failure on the installation of connection, transmission lines,
distribution lines, transformers, and other correlated devices, part of
the system of transmission of electrical energy necessary for the
delivery of the Established Electrical Energy ; and/or
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(vi) any failure on the premises of the Plant, as well as the non-payment or
anticipated cancellation of any contract necessary for the activity of
generation of the Plant, in case existent.
Sixth Paragraph- The Parties acknowledge and agree that the improper claim, by
any of the Parties, of the occurrence of any of the events mentioned in the
topics of Fifth Paragraph above to justify the non-fulfillment of its
obligations in the terms of this Contract, shall entitle the other Party to
promote the cancellation of this Contract, thus the Party which gave cause to
the respective cancellation becomes subject to the penalties foreseen in the
16th Clause of this Contract.
Seventh paragraph - In case an event of Higher Power may come to last 90
(ninety) or more consecutive days, any of the Parties may notify the other Party
of its intention of canceling this Contract, case in which there shall be no
indemnity from one Party towards the other Party.
CHAPTER XI
Taxes and Changes in the Applicable Legislation
19th Clause - Except if clearly agreed in a distinguished manner by the Parties
in this Contract, each of the Parties shall be responsible for the payment of
taxes collected for the operations contemplated in this Contract, in the manner
determined in the Applicable Legislation, the responsible Party committing
itself to keep the other Party free and exempted from responsibilities related
to the taxes withheld or that the payment of which be its responsibility.
20th Clause- In case of the beginning of the validity or alteration of the
Applicable Legislation, except what regards the corporate income tax and the
social contribution over the net profit, especially the related to the
electricity sector, that may financially overload, trouble or jeopardize the
punctual and faithful fulfillment of the obligations of the Parties in the terms
of this Contract, or that may directly cause a substantial alteration in the
initial financial-economical equation of the deal, based on which the terms and
conditions of Price established in this Contract were defined, the Parties shall
evaluate, by means of a justified request of the Party considering itself
jeopardized, within the period of 30 (thirty) days counting from the mentioned
request, the impacts of such alteration of the Applicable Legislation in the
obligations, in special those of financial nature, of the Parties in the terms
of this Contract, committing itself, from this date on, to adopt measures that
reestablish, as much as possible, the status quo ante of the beginning of the
validity or the alteration of the Applicable Legislation, in special alternative
solutions that may avoid a Price review. In the evaluation request referred to
in this Clause there must be information indicating clearly:
(i) the range of the alteration of the Applicable Legislation and its effects
on the fulfillment of the contract obligations of the jeopardized Party;
and
(ii) the additional costs to be accounted or, depending on the case, the cost
decreased due to the beginning of validity or the alteration of the
Applicable Legislation, accompanied, whenever possible of the respective
certifying documents.
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Sole paragraph- In case the alteration of the Applicable Legislation has as a
consequence the alteration of the ensured amount of energy and power of an
independent producer, the Contract must be altered in a way to adapt the
Contracted Electrical Energy to the new establishments of the Applicable
Legislation, as mentioned in Fourth Paragraph of Second Clause Above.
CHAPTER XII
Solution of Conflicts
21st Clause- Any disagreement derived from this Contract, including the ones
relative to its validity, range, interpretation, or application may be solved by
arbitration, respecting the terms of First Paragraph and of the other Paragraphs
below.
First Paragraph - In case of disagreement, as described above any of the Parties
may notify the other party, in the terms of 26th Clause, of the existence and
content of the disagreement ("Disagreement Notice"). Counting from the date of
the reception of the Disagreement Notice, each of the Parties shall have 5
(five) Working Days to indicate a representative to negotiate the solution to
the disagreement. As soon as both Parties have indicated a delegate, and with a
final deadline of 5 (five) Working Days counting from the reception of the
Disagreement Notice, the Parties shall have 30 (thirty) days to reach an
agreement regarding the disagreement. In case a deal is not drawn within this
deadline by the delegates of the Parties, the disagreement shall be subject to
arbitration in the terms and conditions below, being that any of the Parties may
start the process.
Second Paragraph- The court of arbitration shall be composed of 3 (three)
referees, each of the Parties shall choose shall elect a referee, the third
referee (who shall act as the President of the court of arbitration), being
elected in agreement the two previously chosen referees. In case the two
referees do not come to an agreement, the third referee shall be indicated by
the President of the Chamber FGV Conciliation and Arbitration (Camara FGV de
Conciliacao e Arbitragem).
Third Paragraph - The court shall be located in the city of Sao Paulo and shall
be administrated by the Chamber FGV Conciliation and Arbitration (Camara FGV de
Conciliacao e Arbitragem), and its rules shall be obeyed in the process, keeping
the established in the Federal law n. 9,307/96. The regulation by the Chamber
FGV Conciliation and Arbitration (Camara FGV de Conciliacao e Arbitragem), valid
at the date of notice foreseen in First Paragraph above, and the established in
Federal Law n. 9,307/96, as altered until the same date, integrate the present
Contract. All the arbitration procedures shall be performed in the Portuguese
language.
Fourth Paragraph- The decisions shall be adopted by the majority of the referees
of the arbitration court and cannot be based on the principle of equity, being
obligated to keep the foreseen in the legal and/or normative dispositions of
Republica Federativa do Brasil or the applicable contract establishments.
Fifth Paragraph- The access to the Judiciary shall only be allowed in the cases
clearly foreseen in Federal Law n. 9,307/96. In cases when the access to the
Judiciary be allowed, the Parties elect the Court of Justice of the County of
Sao Paulo, with the exclusion of any other, no matter the
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more qualified it may be, to know of actions that guarantee the complete
fulfillment of the arbitration procedure and to execute the final arbitration
sentence, whenever necessary.
Sixth Paragraph- The Party that for any reason frustrates or impedes the
initiation of the court of arbitration, be it not adopting the necessary
arrangements within the due period, or be it forcing the other party to adopt
the measures foreseen in Article 7 of Federal Law n. 9,307/96, or yet not
fulfilling all the terms of the arbitration sentence, shall pay the fine not
susceptible of compensation equivalent to R$ 5,000 (five thousand Reais), to be
updated according to the annual variation of the IGPM, per day of delay in the
initiation of the arbitration court or in the fulfillment of the established in
the arbitration sentence, with no jeopardy to the determinations and penalties
within such sentence.
CHAPTER XIII
General Dispositions
22nd Clause- None of the forsake or transfer, total or partially the present
Contract or any of the obligation herein foreseen, without the previous written
consent of the other Party, which cannot be denied without a justified reason.
First Paragraph- In case a Party wishes to effectuate the cession of this
Contract or any other obligation herein foreseen to a Related Party or Others,
the other Party, commits itself to appear as an agreeing intervening agent in
the respective instrument of cession, as long as the Assignor certifies to the
Yielded Party that the Assignor shall declare what regards 11th Clause, or if
the case demands, 12th clause, that it shall grant the guarantees and that it
shall obligate itself to fulfill the other obligations of this Contract, in
special those contained in 13th Clause.
Second paragraph- In Case the Assignor does not assist to the conditions
established in First paragraph above, the Yielded Party may at its unique shall,
not to agree with the cession, being such refusal considered, for all legal
purposes and effects, as impeditive to the cession.
23rd Clause- The present Contract obligates the Parties, successors and yielded
parties to any title.
24th Clause- None of the Parties may reveal, motivate or allow the disclosure of
any information related to this Contract, without previous authorization, in
writing by the other Party, unless if with the purpose of implementing the
operation foreseen in this Contract.
25th Clause- The tolerance by the Parties of any disobedience to the obligations
assumed in this Contract, shall not be considered novation, forsaking or
discontinuance of any right, constituting a mere liberty, not impeding the
tolerant Party from demanding from the other Party the faithful fulfillment of
this Contract, at any time.
26th Clause- Any notice or other communication from one Party to another
regarding this Contract, shall be done in writing and may be delivered
personally or sent by mail, fax or electronic mail, in any case with evidence of
its reception, being them obligated to address in the manner described below,
being that each Part may modify these data by means of a written notification to
the other Part, that must be attached to the present Contract:
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(a) if to Seller, at the address present in the introduction of this Contract:
A/C: Diretor de Comercializacao de atacado
Tel.: 000- 00000000
Fax: 000-00000000
(b) if to Purchaser, at the address present in the introduction of this
Contract:
A/C: Diretor Comercial
Tel.: 000-00000000
Fax: 000-00000000
27th Clause- The commercialization of the Contracted Electrical Energy regarding
the Present Contract is subordinated to the valid Applicable legislation, as
well as to the Market Rules and to the Network Procedures, which shall prevail
in omitted cases or in perchance disagreements. Any future modification in the
Applicable Legislation or in the Market Rules and/or Network procedures, which
may come to affect the adjustments established in this Contract, shall be
considered immediately and automatically applicable.
28th Clause- In case of any of the dispositions foreseen in this Contract come
to be declared illegal, invalid or unfeasible, the remaining dispositions shall
not be affected, remaining in full course, producing its legal and judicial
effects. At the occurrence of the hypothesis here foreseen, the parties obligate
themselves, from this date, to seek a solution that, in a legal valid and
feasible manner, may substitute and assist to the objectives of the disposition
considered illegal, invalid or unfeasible.
29th Clause- This Contract is celebrated in the Portuguese language and shall be
ruled and interpreted by the laws of Republica Federativa do Brasil. Any version
of this Contract in another language shall not have any effect between the
Parties and/or before others and may not be used by those and these in any
procedure, instance or court, as evidence or for purposes of interpretation of
the dispositions in this Contract.
Signature Sheet of the Contrast of Purchase and sale of electrical Energy
celebrated on December 23, 2002, between ENERTRADE and ESCEISA
And having between themselves agreed upon this Contract as just and contracted,
the parties hereto have hereunto signed the present document in 3 (three)
copies, of equal content and for one sole effect, in the presence of the
witnesses signed below.
Sao Paulo, December 23, 0000
-00
XXXXXXXXX XXXXXXXXXXXXXXXX XX ENERGIA S.A
By: /s/ Xxxx Xxxxxxx Xxxxxxx
Position: Authorized Representative
ENERTRADE COMERCIALIZADORA DE ENERGIA S.A
By: /s/ Antonio Xxxx Xxxxxxx
Position: Authorized Representative
ESCELSA- Espirito Santo Centrais Eletricas S.A
By: /s/ Xxxxxxx Xxxxxxxx Xxxxxxxx
Position: Authorized Representative
ESCELSA- Espirito Santo Centrais Eletricas S.A
By: /s/ Xxxxxx Xxxxxxx Xxxxx
Position:
Witnesses:
Name:
ID (RG):
Social security (CPF):
Name:
ID (RG):
Social security (CPF):
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