Exhibit 4(a)(4)
AMENDMENT NUMBER 3 TO THE CONTRACT OF FUNDING
THROUGH OPENING OF CREDIT NO. 02.2.072.3.1, BY AND
BETWEEN BANCO NACIONAL DE DESENVOLVIMENTO
ECONOMICO E SOCIAL - BNDES AND EMPRESA ENERGETICA
MATO GROSSO DO SUL-ENERSUL, WITH INTERVENING THIRD
PARTIES IN THE FORM BELOW:
BANCO NACIONAL DE DESENVOLVIMENTO ECONOMICO E SOCIAL - BNDES, hereinafter simply
referred to as BNDES, a public federal company, with headquarters in Brasilia,
Distrito Federal, and with services provided in that city at Avenida Republica
do Chile, 100, registered with the General Taxpayer Register under CNPJ No.
33.657.248/0001-89, hereby represented by the undersigned below;
and
EMPRESA ENERGETICA MATO GROSSO DO SUL-ENERSUL, hereinafter simply referred to as
BENEFICIARY, a corporation with headquarters in Campo Grande, State of Mato
Grosso do Sul, at Avenida Gury Marques, registered with the General Taxpayer
Register under CNPJ No. 15.413.826/0001-50, hereby represented by the
undersigned below; and as INTERVENING PARTIES:
I- AGENCIA NACIONAL DE ENERGIA ELETRICA- ANEEL, a special regimen
autarchy, located at SGAN, QUADRA 603, modulo J, Anexo, Brasilia,
Distrito Federal, registered with the General Taxpayer Register
under CNPJ No. 02.270.669/0001-29, hereinafter simply referred to
as ANEEL, hereby represented by the undersigned below; and
II- BANCO DO BRASIL S.A., a financial institution with headquarters in
Campo Grande, State of Mato Grosso do Sul, at Avenida Afonso Pena,
2202, registered with the General Taxpayer Register under CNPJ No.
00.000.000/4817-85, hereinafter denominated BANK, hereby
represented by the undersigned below;
have, as just and agreed to amend the CONTRACT OF FUNDING THROUGH OPENING OF
CREDIT No. 02.2.072.3., hereinafter simply referred to as CONTRACT, executed
between BNDES and BENEFICIARY on February 18, 2002, registered in microfilm and
CD-ROM with the number 5411596, on February 22nd, 2002, at the 4th Notary's
office of Title, Deeds and Documents of the city of Rio de Janeiro, State of Rio
de Janeiro, and registered with the number 190.533, in book number 8, number
197, on February 21, 2002, at the 4th Notary and Title and Document Registration
Service office in the city of Campo Grande, State of Mato Grosso do Sul, amended
by addition number 1, executed on August 8, 2002, hereinafter called AMENDMENT 1
and by Amendment number 2, executed on October 16, 2002, hereinafter called
AMENDMENT 2, which this instrument is now part of, for all legal purposes and
effects, by means of the following Clauses:
FIRST
REVISION OF THE PERCENTAGE GRANTED IN RESERVATION OF MEAN OF PAYMENTS
In light of the publishing of Resolutions number 36, of January 29, 2001 and
number 89, of February 25, 2003, which establish the procedures for the
feasibility of the payment by the concessionaires to companies that had expenses
in the purchase of free energy resulting from the reduction of generation of
Electrical Energy at the plants participating of the Mechanism of reallocation
of Energy - MRE, and based on Third Clause of Amendment 2, the PARTIES herein
alter, with effect from this date, to 5.0% (five percent) the percentage granted
and transferred to BNDES, by BENEFICIARY, of its monthly income resulting from
collection of the tariffs of supply of public services of electrical energy, as
in Seventh Clause of the CONTRACT.
SECOND
CONDITIONAL REDUCTION OF THE NEW PERCENTAGE
The new percentage established in First Clause of this instrument shall be
exceptionally reduced to 3.63% (three point sixty-three percent) UNTIL THE DATE
OF SEPTEMBER 30, 2007, keeping to the remaining contract conditions, including
those regarding the advance payments and advance due dates for payment, being it
conditioned to the permanent fulfillment by BENEFICIARY of all the duties
provided for in the CONTRACT, being the new percentage automatically
reestablished as in First Clause of the Instrument in case of financial or
non-financial disobedience by BENEFICIARY.
THIRD
DECLARATION, GUARANTEES AND RIGHTS
BENEFICIARY declares and guarantees that the execution of this Amendment number
3 and the fulfillment of its obligations does not constitute a violation or
non-fulfillment of any contract agreement or any other instruments which
BENEFICIARY is part of or bound to.
FOURTH
RATIFICATION
The contracting Parties and INTERVENING AGENTS ratify, herein, all the Clauses
and conditions of the CONTRACT, of AMENDMENT 1 and AMENDMENT 2, in what does not
collide with those established in this AMENDMENT, keeping to the guarantees
convened in the stated CONTRACT, with the alteration introduced by this
instrument, regardless of the innovation of the present instrument.
FIFTH
REGISTRATION
BENEFICIARY commits itself to proceed to the registration of this AMENDMENT,
aside from the registration in microfilm and CD-ROM with the number 5411596, on
February 22nd, 2002, at the 4th Notary's office of Title, Deeds and Documents of
the city of Rio de Janeiro, State of Rio de Janeiro, and registered with the
number 190.533, in book number 8, number 197, on February 21, 2002, at the 4th
Notary and Title and Document Registration Service office in the city of Campo
Grande, State of Mato Grosso do Sul, mentioned in the introduction of this
instrument, within 15 (fifteen) days from the date of this amendment.
The sheets of the present instrument all have the signature of Elizabeth
Pinheiro Correa, lawyer of BNDES, with the authorization of the legal
representatives who sign it.
And having among themselves agreed upon this Contract as just and contracted,
the parties hereto have hereunto signed the present document in 5 (five) copies,
of equal content and for one sole effect, in the presence of the witnesses
signed below.
Rio de Janeiro,
BY BNDES:
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BANCO NACIONAL DE DESENVOLVIMENTO ECONOMICO E SOCIAL
BY BENEFICIARY:
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EMPRESA ENERGETICA DE MATO GROSSO DO SUL -ENERSUL
BY INTERVENING AGENTS:
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AGENCIA NACIONAL DE ENERGIA ELETRICA- ANEEL
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BANCO DO BRASIL S.A.
WITNESSES:
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Name:
Social security (CPF):
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Name:
Social security (CPF):