Exhibit 10.1
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DISTRIBUIDORA S.A. GUARANTEE
THIS COMMERCIAL SALE PROMISE AGREEMENT AND OTHER
COVENANTS IS ENTERED INTO BY AND BETWEEN, ON ONE SIDE, PETROBRAS
DISTRIBUIDORA S.A., A MIXED ECONOMY COMPANY, REGISTERED WITH THE
CORPORATE TAXPAYERS' ROLL (CNPJ/MF) UNDER No. *****, WITH
OFFICES IN THE CITY OF RIO DE JANEIRO, STATE OF RIO DE JANEIRO,
AT RUA GENERAL CANABARRO, No 500, 14o ANDAR, REPRESENTED HEREIN
BY ITS AVIATION PRODUCTS MANAGER, MR. EDIMILSON ANTONIO DATO
SANT'ANNA, BEARER OF THE IDENTIFICATION CARD No. *****, ISSUED
BY CREA-RJ, AND REGISTERED WITH THE INDIVIDUAL TAXPAYERS' ROLL
(CPF/MF) UNDER No. *****, AND BY ITS INTERNATIONAL AVIATION
MARKET MANAGER, MR. ROGERIO FUCHS DE JESUS, BEARER OF THE
IDENTIFICATION CARD No. *****, ISSUED BY IFP-RJ, AND REGISTERED
WITH THE INDIVIDUAL TAXPAYERS' ROLL (CPF/MF) UNDER No. *****,
HEREINAFTER REFERRED TO AS "BR DISTRIBUIDORA", AND, ON THE OTHER
SIDE, GOL TRANSPORTES AEREOS LTDA., WITH OFFICES AT RUA HELENA,
No 335, 3o ANDAR, CONJUNTO 32, VILA OLIMPIA, SAO PAULO, STATE OF
SAO PAULO, REGISTERED WITH THE CORPORATE TAXPAYERS' ROLL
(CNPJ/MF) UNDER No. *****, REPRESENTED HEREIN BY ITS EXECUTIVE
OFFICER, MR. CONSTANTINO DE OLIVEIRA JUNIOR, BEARER OF THE
IDENTIFICATION CARD No. ***** SEP-DF, AND REGISTERED WITH THE
INDIVIDUAL TAXPAYERS' ROLL (CPF/MF) UNDER No. *****, HEREINAFTER
REFERRED TO AS "PROMISEE-BUYER", AND SHALL BE GOVERNED BY THE
FOLLOWING CLAUSES AND CONDITIONS:
CLAUSE ONE
1.1 BR DISTRIBUIDORA promises to sell to PROMISEE-BUYER and PROMISEE-BUYER,
in turn, promises to buy from BR DISTRIBUIDORA, on an exclusive basis,
PROVIDED THAT THE VALUES CHARGED THEREBY *****, ***** months, from
***** through *****, quantities of QAV-1 representing the full
consumption of PROMISEE-BUYER in all airports where BR DISTRIBUIDORA
maintains aircraft fueling facilities.
1.1.1 The product described in the preceding item is intended for
PROMISEE-BUYER's own use, for the performance of its activities,
in the locations provided for in Attachment I, or to where they
shall be transferred to, in substitution for the addresses
referred to in Attachment I;
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1.1.2 The parties have hereby established that PROMISEE-BUYER's QAV-1
consumption shall be of ***** cubic meters per month (*****
m3/month) until October 2001, and ***** cubic meters per month
(***** m3/month) as of November 2001, totalizing ***** cubic
meters (***** m3) of QAV-1, until the termination of the
agreement.
1.1.2.1 This agreement may be terminated if PROMISEE-BUYER
reaches the total of the consumption set forth in
clause 1.1.2 before the term provided for in clause
1.1.
1.1.3 BR DISTRIBUIDORA shall ***** for use to PROMISEE-BUYER the
volume of up to ***** cubic meters (***** m3) of QAV-1, up to
the amount of ***** reais (R$ *****), which shall be delivered
upon request thereof at the airport(s).
1.1.4 The product ***** shall be paid by ***** to ***** a single
installment, upon the termination or rescission hereof, at the
sale price restated by the IPCA variation.
1.2 The quantities of products acquired by PROMISEE-BUYER shall be
established on an annual basis. Should the total consumption
established in clause 1.1.2 fail to be reached until the effective date
hereof, this agreement shall be automatically extended for no more than
forty-eight (48) months, in the event that this agreement is not
denounced by either party, in writing, in at least thirty (30) days
before the termination thereof.
1.2.1 However, in case the quantity actually acquired by
PROMISEE-BUYER does not reach the total quantity established in
item 1.1.2 until the end of the maximum contractual term
established above, the product ***** shall be invoiced in one
sole installment, increased by fine of equal value to the
difference between the quantity actually acquired and the total
quantity established above, without prejudice to the other
penalties provided for herein.
CLAUSE TWO
2.1 BR DISTRIBUIDORA shall sell the product hereunder to PROMISEE-BUYER at
the price charged by BR DISTRIBUIDORA in effect on the day and place of
delivery.
2.1.1 In QAV-1 price composition, the price of the producing
establishment shall comply with Inter-ministerial Directive no.
8 of 01/28/99, issued by the State Ministry of Mines and Energy
and the Treasury Department and Directives no. 177 of 12/02/98
and 179 of 12/03/98, of Agencia Nacional do Petroleo - ANP, or
other legal instrument which might substitute them;
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2.1.2 The producer price shall be increased by the following:
2.1.2.1 The freight portion according to resolution of the
abovementioned Directives;
2.1.2.2 The portion called "Fixed Differential", which value in
R$/L (Reais per Liter) is specified in Attachment I,
which after being initialed by the parties shall become
an integral part hereof, with annual restatement by the
IPCA index published by IBGE, if the accumulated
variation of such index, as of the beginning of the
agreement, is equal or higher than *****% (*****
percent);
2.1.2.3 The Variable Lease portion charged by INFRAERO - the
state-owned company in charge of administrating
Brazilian airports - representing *****% of the
Refinery price;
2.1.2.4 PIS-COFINS aliquot;
2.1.2.5 The ICMS aliquot due in accordance with the aliquots of
each State of the Union, and any taxes, fees and
emoluments legally provided for.
2.1.2.6 The financial charges portion based on CDI index
published by the Central Bank, related to the payment
term granted to PROMISEE-BUYER.
2.1.3 The product sold by BR DISTRIBUIDORA shall be measured upon
delivery and invoiced for payment in the following conditions:
- Supplies made from the ***** until the *****, shall be paid
on the ***** of the same month;
- Supplies made from the ***** until the *****, shall be paid
on the ***** of the same month;
- Supplies made from the ***** until the *****, shall be paid
on the ***** of the subsequent month.
2.1.4 It is understood that the above term is established in reason of
the present market conditions. The parties undertake to
reexamine, in mutual agreement, the payment term, in case of
change in the present market conditions.
2.1.5 The payment referred to in item 2.2 shall be made at BR
DISTRIBUIDORA's offices located at Rua General Canabarro, 500 /
6o andar, or in other place expressly indicated for such purpose
by it;
2.1.6 The payment term referred to in item 2.2 is subject to
determination of the credit limit of PROMISEE-BUYER, upon
presentation of guaranties.
2.2 The parties hereby agree that any price conditions or payment terms
offered by BR DISTRIBUIDORA to PROMISEE-BUYER different from those
established herein, shall be understood as mere liberality, and they
may, therefore, at the sole discretion of BR DISTRIBUIDORA, be
suspended or
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discontinued, not constituting a right whatsoever in respect to
PROMISEE-BUYER.
2.3 In case of delay to pay the invoices, PROMISEE-BUYER shall pay BR
DISTRIBUIDORA the indexed debt, plus pro-rata interest in arrears day,
of ***** percent (*****) per month and a ***** percent (*****) fine
upon the updated value of the debt, and charges for the arrears shall
incur as of the due date of the respective titles.
2.4 In case of delay in the payment of invoices as described in clause
2.1.3, BR DISTRIBUIDORA may require from PROMISEE-BUYER the payment of
the product price described in clause 2.1.1, at the time of delivery
thereof, on demand.
CLAUSE THREE
3.1 BR DISTRIBUIDORA shall be specifically incumbent upon:
3.1.1 Supply the QAV-1 required to meet the full monthly consumption
contracted by PROMISEE-BUYER, in the locations defined in
Attachment I, in times that are compatible with the operation of
the flights thereof, included in the HOTRAN (timetable)
published by the Civil Aviation Department;
3.1.2 Maintain the service quality and service agility according to
the standards established for similar operations;
3.1.3 Maintain the quality of the products supplied within the
technical specifications free from water or other contaminants,
and make the reports of the periodical tests required for
evidencing of such quality available;
3.1.4 Comply and cause to be complied with by itself, its employees
and representatives, all legal and regulatory resolutions
related with its activity as Distributor of Oil Derivatives,
specially Resolutions, Directives and other acts issued by the
regulatory body of the Federal Government;
3.1.5 BR DISTRIBUIDORA shall not be liable for an eventual lack of
aviation kerosene in the places and times mentioned in sub-item
3.1.1, whenever such lack is derived from Governmental Acts and
any other events of force majeure or acts of God, as provided
for in article 1058 of the Brazilian Civil Code.
3.2 BR DISTRIBUIDORA shall be bound to reimburse, directly or through an
insurance company, any additional cost incurred to by PROMISEE-BUYER
confirmedly resulting from any operation failures by BR DISTRIBUIDORA.
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CLAUSE FOUR
4.1. PROMISEE-BUYER shall be specifically liable for the following
obligations, besides others which are implicitly or explicitly
contained in the several clauses and conditions hereof:
4.1.1 Acquire from BR DISTRIBUIDORA, from the effective date until
the termination hereof, the totality of the global consumption
of aviation kerosene in the localities specified in Attachment
I;
4.1.2 Make the payments of the values correspondent to the supplies
made by BR DISTRIBUIDORA, as set forth in clause two hereof.
4.1.3 PROMISEE-BUYER shall not assign, subrogate, negotiate or, in
any other form, transfer this agreement or any rights or
obligations arisen thereof, under penalty of application of
the sanctions provided for in the agreement.
4.1.4 The payment of any amounts incurred by BR DISTRIBUIDORA or any
losses which might be suffered by it directly or indirectly
derived from the default provided for in sub-item 4.1.6;
4.1.5 Comply and cause to comply with all Laws and Regulations,
Directives and rules in effect, related to the performance of
its activities;
4.1.6 Maintain and preserve in perfect conditions, operation,
cleaning and presentation all materials, elements, and items
comprising BR DISTRIBUIDORA brand, for as long as the supply
shall continue, including preserving the environment.
4.2 In case PROMISEE-BUYER shall amend its articles of incorporation
implying into change of name, assignment, transfer or lien of company
quotas, alteration of the administration or management or any other
modality implying in modifications or transfer of partners' liability,
BR DISTRIBUIDORA shall be notified within the term of 72 (seventy-two)
hours through the Titles and Deeds Notary's Office.
4.3 Considering that BR DISTRIBUIDORA's products are provided of
appropriate quality, ensuring PROMISEE-BUYER the confidence in the
quality standards of the products which are supplied to it,
PROMISEE-BUYER shall be bound to verify the quality control of the
products received and to fully comply with this agreement, notably with
respect to the safety, health and environment preservation standards.
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DISTRIBUIDORA S.A. GUARANTEE
CLAUSE FIVE
5.1 This agreement may be lawfully terminated, at the discretion of the
innocent party, regardless of judicial or extrajudicial notification or
summons, being applied to the party in breach the penalty provided for
in item 5.2 and in clause six, upon occurrence of any of the following
assumptions:
5.1.1 Default in compliance with any clause or condition hereof;
5.1.2 Judicial or extrajudicial liquidation of either party;
5.1.3 In case bankruptcy or judicial composition of PROMISEE-BUYER
has been required, filed or homologated;
5.1.4 In case PROMISEE-BUYER has not timely made any payment of
invoice with respect a purchase of product from BR
DISTRIBUIDORA;
5.1.5 Non-compliance by PROMISEE-BUYER of the commitment to purchase
from BR DISTRIBUIDORA the QAV-1 consumption mentioned in item
1.1 above, in accordance with this instrument.
5.2 The termination of this agreement caused by PROMISEE-BUYER shall
accelerate the maturity of the debt as a whole with respect to BR
DISTRIBUIDORA, which shall be immediately liquidated, at once, whether
related to the product supply, to the ***** referred to in clause
1.3, or other agreements existing during the effectiveness hereof, in
addition to damages arising therefrom.
CLAUSE SIX
6.1 Neither party may be held responsible for non-compliance of the
contractual obligations, if it is caused by an event of force majeure
or act of God, as provided for in article 1058 of the Brazilian Civil
Code.
6.2 The application of this agreement shall be suspended should an event of
force majeure or act of God occurs, impairing the compliance thereof by
either party, and the execution thereof shall continue as soon as the
cause provoking the suspension shall cease.
6.3 Should the suspension mentioned in item 6.2 above occurs, the
effectiveness of this agreement shall be automatically extended for as
long as may be required to compensate the time during which the
execution of the agreement was suspended.
6.4 After termination of the suspension period mentioned in item 6.2 above,
and in case of default of any of the obligations assumed herein by the
parties, this agreement shall be automatically terminated, being
applied to the party in breach the penalties provided for herein.
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CLAUSE SEVEN
7.1 PROMISEE-BUYER shall be bound to reimburse BR DISTRIBUIDORA eventual
fines which might be applied to BR DISTRIBUIDORA due to non-compliance
by PROMISEE-BUYER of orders and instructions of Agencia Nacional do
Petroleo - ANP and/or other competent bodies to regulate the marketing
and distribution of derivatives of oil, hydrated alcohol and products
of other source of power.
CLAUSE EIGHT
8.1 The obligations hereunder shall be extensive to assignees and/or
successors of the parties hereto and to all persons who might operate
and/or subrogate in PROMISEE-BUYER's activity, at whatever title, and
either party hereto may only be released upon the agreement, in
writing, of the other party.
CLAUSE NINE
9.1 The supply of the products indicated in item 1.1 is subject to the
normal supply market conditions and to the alterations which might be
imposed by ANP and/or other competent bodies to regulate the supply of
derivatives of oil, hydrated alcohol and other sources of energy,
including with respect to prices, delivery and payment terms.
CLAUSE TEN
10.1 Any tolerance by BR DISTRIBUIDORA as to eventual contractual breach by
PROMISEE-BUYER shall not imply in novation or waiver to the rights, to
which it is entitled by law or hereby.
CLAUSE ELEVEN
11.1 The following persons execute this instrument, in the capacity of
guarantor(s) and main payer(s), jointly liable with PROMISEE-BUYER for
the full compliance of all clauses and conditions hereof, including for
the payment of all and any debt of PROMISEE-BUYER with respect to BR
DISTRIBUIDORA incurred during the effectiveness of this agreement and
extensions thereof:
- Ricardo Constantino, RG no. *****, CPF no. *****
- Joaquim Constantino Neto, RG no. *****, CPF no.
*****;
- Constantino de Oliveira Junior, RG no. *****, CPF no.
***** and
- Henrique Constantino, RG no. *****, CPF no. *****
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DISTRIBUIDORA S.A. GUARANTEE
11.1.1 The guarantor(s) expressly waive(s) as main payer(s), to the
benefit of the order of appointment to PROMISEE-BUYER's
assets, as provided for in article 1.492, I of the Civil Code,
as well as provided for in article 1.500 of the same code;
11.1.2 The obligation assumed herein shall be maintained in the
assumptions of sub-clause I, II and III of article 1.503 of
the Civil Code, as well as in cases of novation, merger or
incorporation of the guaranteed party;
11.1.3 The registered guarantor(s) is (are) also obliged annually and
also, at any time, during the effectiveness hereof, whenever
requested by BR DISTRIBUIDORA, including communicating any
alteration occurred in its (their) equity;
11.1.4 BR DISTRIBUIDORA may require from PROMISEE-BUYER the
substitution of guarantors, whenever, upon certificates and
other qualified documents, is evidenced the non-existence or
insufficiency of real estate in the name of the present
guarantors, or also, whenever, also upon certificates and
other qualified documents, including evaluation reports, is
evidenced the jeopardizing of the guarantors' equity;
11.1.5 PROMISEE-BUYER hereby shall be bound to present new guarantors
in the maximum term of 15 (fifteen) days, should any other
fact modifying or preventing the guarantee presented herein
occurs. The acceptance shall always depend on the previous
agreement of BR DISTRIBUIDORA, depending on the
economic-financial conditions of the person appointed.
11.1.6 The guarantees presented herein shall also comprise the
agreements previously entered into by PROMISEE-BUYER with BR
DISTRIBUIDORA, as well as the correspondent debts.
CLAUSE TWELVE
12.1 All taxation (taxes, fees, tax or para-fiscal contributions and any
emoluments) directly or indirectly derived from this agreement or the
execution thereof, shall be of the exclusive responsibility of the
party obliged to the payment thereof, in the form defined by tax
legislation, and such party shall not be liable to any reimbursement by
the other party, at whatever title.
CLAUSE THIRTEEN
13.1 PROMISEE-BUYER shall be liable for the compliance of the laws and
regulations related to environment protection, including for the
procurement and valid maintenance of all licenses, and it shall also
adopt the applicable measures and procedures in order to repel any
aggression, danger or risk to the environment which might be caused by
the activities developed by it, even if contracted or delegated to
third parties.
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DISTRIBUIDORA S.A. GUARANTEE
13.1.1 For purposes of this agreement, the expression `environment'
or those related to environmental responsibility comprise
other themes regulated by the rules related to it, such as
public health, urban ordainment, historical/cultural patrimony
and environmental administration.
13.1.2 The fact of BR DISTRIBUIDORA assisting PROMISEE-BUYER, in any
way, in the procurement and maintenance of the documents
required for the development of the activities thereof does
not excludes or diminishes PROMISEE-BUYER's responsibility.
13.2 PROMISEE-BUYER and its representatives are exclusively liable for the
sanctions imposed by environmental rules and by all and any damages
caused to the environment deriving from the exercise of its activities,
or casualties of any nature, especially in reason of defects,
inefficient storage, utilization, conservation, handling or final
disposition of assets, packaging, products and equipment owned by it or
which are under its possession in reason of loan, lease or other
business form, even though transferred to third party alien to this
agreement.
13.2.1 The environmental liability of PROMISEE-BUYER comprises all
sanctions and requirements contained in Law no. 9.605/98 and
other laws or normative acts dealing with or which might deal
with an environmental matter.
13.2.2 The responsibility of PROMISEE-BUYER for environmental damages
caused or arisen during the effectiveness of the agreement and
eventual extensions, shall remain notwithstanding the effects
thereof are known or shall occur after termination of the
agreement.
13.2.3 PROMISEE-BUYER shall be bound to hold BR DISTRIBUIDORA
harmless against all and any lien, risks, losses or expenses
derived from eventual environmental damages or
performance/sanctions derived from non-compliance of laws and
rules regulating the environment, whether before public law
bodies or entities, private individuals or private entities,
indemnifying directly or indirectly all damages, losses and/or
expenses caused and eventually imputed, directly or indirectly
to BR DISTRIBUIDORA.
13.2.4 In case of violation by PROMISEE-BUYER of rules related to the
environment or in case PROMISEE-BUYER does not adopt the
measures required to avoid damages and losses in such respect,
BR DISTRIBUIDORA may, at its discretion, promptly suspend the
supply of the product described in clause 1.1 until
PROMISEE-BUYER shall adopt the measures required to cure such
violation.
13.2.5 In case damages to the environment shall occur, PROMISEE-BUYER
is obliged to inform the competent authorities immediately,
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DISTRIBUIDORA S.A. GUARANTEE
as well as to take all actions in order to repair and minimize
the environmental damages and impacts. PROMISEE-BUYER shall
also be bound to inform BR DISTRIBUIDORA, immediately and
efficiently, about said damages, as well as notifications,
summons and tax assessment notices received by it, and such
fact shall not imply in assumption of any responsibility by BR
DISTRIBUIDORA.
13.2.5.1 If PROMISEE-BUYER does not comply with the
obligation provided for in item 13.2.5 above, it
shall be liable for the losses derived from such
behavior.
CLAUSE FOURTEEN
14.1 PROMISEE-BUYER and BR DISTRIBUIDORA represent, for all legal purposes
and effects that the conditions included in this instrument result from
negotiation among the parties.
CLAUSE FIFTEEN
15.1 The parties attribute to such agreement, for tax effects only, the
value of one hundred reais (R$ 100.00).
CLAUSE SIXTEEN
16.1 PROMISEE-BUYER undertakes not to use, in all activities related with
the execution hereof, infantile labor, in the terms of sub-clause
XXXIII of art. 7 of the Federal Constitution in effect, as well as to
make efforts to cause said measure to be adopted in the agreements
entered into with its input suppliers and/or service providers.
CLAUSE SEVENTEEN
17.1 The parties agree that the conditions included herein may not be
provided or disclosed to third parties, as well as warrant that only
the employees who really need to know them shall have access to such
conditions.
17.1.1 The parties undertake to keep the information referred to in
item 17.1 above confidential, until 3 (three) years as of the
date of extinction of this transaction.
17.1.2 Information requested by any governmental body or agency,
regulatory body or those requested by law may be disclosed. In
either case, however, such determination shall be immediately
communicated to the other company, so that it might oppose to
the request. Non-communication shall imply in non-compliance
of the agreement.
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CLAUSE EIGHTEEN
18.1 The parties hereby elect the court of the city of Rio de Janeiro, to
the exclusion of any other to settle any dispute arising out of this
agreement, the party in breach having to bear the judicial and
extrajudicial expenses and costs, in addition to the attorneys' fees
calculated on the basis of 20% of the sentenced value.
IN WITNESS WHEREOF, this instrument was executed in 3 (three) counterparts of
the same tenor, in the presence of 2 (two) witnesses, in order to produce its
due and legal effects.
Rio de Janeiro, February 1st, 2001.
/s/ Edmilson Antonio Dato Sant'Anna /s/ Constantino de Oliveira Junior
- ------------------------------------ ----------------------------------
PETROBRAS DISTRIBUIDORA S.A. GOL TRANSPORTES AEREOS LTDA.
EDMILSON ANTONIO DATO SANT'ANNA CONSTANTINO DE OLIVEIRA JUNIOR
Aviation Products Manager
/s/ Rogerio Fuchs de Jesus
- ------------------------------------
ROGERIO FUCHS DE JESUS
International Aviation Market Manager
GUARANTORS
/s/ Ricardo Constantino /s/ Joaquim Constantino Neto
- ------------------------------------ -------------------------------
RICARDO CONSTANTINO JOAQUIM CONSTANTINO NETO
/s/ Constantino de Oliveira Junior /s/ Henrique Constantino
- ------------------------------------ -------------------------------
CONSTANTINO DE OLIVEIRA JUNIOR HENRIQUE CONSTANTINO
WITNESSES
/s/ Maria de Nazare G. Sousa /s/ Antonio Carlos Vilira de Campos
- ------------------------------ -------------------------------------
NAME: Maria de Nazare G. Sousa NAME: Antonio Carlos Vilira de Campos
CPF: 280.073.441-87 CPF: 659.590.948-00
[LOGO]PETROBRAS 1
DISTRIBUIDORA S.A.
AMENDMENT # 1 TO THE COMMERCIAL SALE PROMISE AGREEMENT AND OTHER COVENANTS
ENTERED INTO ON FEBRUARY 1, 2001 BY AND BETWEEN PETROBRAS DISTRIBUIDORA
S.A. AND GOL TRANSPORTES AEREOS LTDA.
A) PETROBRAS DISTRIBUIDORA S.A., A MIXED ECONOMY COMPANY, REGISTERED WITH
THE CORPORATE TAXPAYERS' ROLL (CNPJ/MF) UNDER No. *****, WITH OFFICES IN
THE CITY OF RIO DE JANEIRO, STATE OF RIO DE JANEIRO, AT RUA GENERAL
CANABARRO, N(degree) 500, 14(degree) ANDAR, HEREIN REPRESENTED BY ITS
AVIATION PRODUCTS - - MANAGER, MR. EDIMILSON ANTONIO DATO SANT'ANNA,
BEARER OF THE IDENTIFICATION CARD No. ***** ISSUED BY IFP-RJ, AND
REGISTERED WITH THE INDIVIDUAL TAXPAYERS' ROLL (CPF/MF) UNDER No. *****
AND BY ITS AVIATION SERVICES COMMERCIAL MANAGER, MR. ROGERIO FUCHS DE
JESUS, BEARER OF THE IDENTIFICATION CARD No. *****, ISSUED BY IFP-RJ, AND
REGISTERED WITH THE INDIVIDUAL TAXPAYERS' ROLL (CPF/MF) UNDER No. *****
HEREINAFTER REFERRED TO AS "BR DISTRIBUIDORA";
B) GOL TRANSPORTES AEREOS LTDA., WITH OFFICES AT RUA HELENA, N(degree)
335, 3(degree) ANDAR, CONJUNTO 32, VILA OLIMPIA, SAO PAULO, STATE OF SAO
PAULO, REGISTERED WITH THE CORPORATE TAXPAYERS' ROLL (CNPJ/MF) UNDER No.
*****, REPRESENTED HEREIN BY ITS EXECUTIVE OFFICER, MR. CONSTANTINO DE
OLIVEIRA JUNIOR, BEARER OF THE IDENTIFICATION CARD No. ***** SEP-DF, AND
REGISTERED WITH THE INDIVIDUAL TAXPAYERS' ROLL (CPF/MF) UNDER No. *****
HEREINAFTER SIMPLY REFERRED TO AS "PROMISEE-BUYER;
The Parties have agreed to amend the Commercial Sale Promise Agreement and Other
Covenants entered into on February 1, 2001, as follows:
CLAUSE ONE
1.1 This Amendment is intended for changing the provisions of the Commercial
Sale Promise Agreement and Other Covenants entered into on February 1, 2001, it
being understood that all the other clauses and conditions shall remain
unchanged.
CLAUSE TWO
2.1 Item 1.1, Clause One, of the agreement amended hereby shall become effective
as of the execution hereof with the following wording:
[LOGO]PETROBRAS 2
DISTRIBUIDORA S.A.
1.1 BR DISTRIBUIDORA promises to sell to PROMISEE-BUYER, which, in turn,
promises to buy from BR DISTRIBUIDORA, on an exclusive basis, PROVIDED
THAT THE VALUES CHARGED THEREBY ARE THE *****, the
quantities of QAV-1 representing a hundred percent (100%) of
PROMISEE-BUYER's consumption in all airports where BR DISTRIBUIDORA
maintains aircraft supply facilities, from ***** through *****.
2.2 Item 1.1.1, Clause One, of the agreement amended hereby shall become
effective as of the execution hereof with the following wording:
1.1.1 The product described in the preceding item is intended for
PROMISEE-BUYER's own use, to perform its activities;
2.3 Items 1.1.2, 1.1.2.1, 1.2, and 1.2.1 shall be revoked as of the execution
hereof.
2.4 Item 1.1.4, Clause One, of the agreement amended hereby shall become
effective as of the execution hereof with the following wording:
1.1.4 BR DISTRIBUIDORA ***** to PROMISEE-BUYER ***** m(3), which shall be
paid in a single installment, on 4/1/2004, at the sale price
restated by the IPCA variation.
2.5 Item 1.1.5 shall be added to Clause One, and is hereby effective with the
following wording:
1.1.5 BR DISTRIBUIDORA shall ***** to PROMISEE-BUYER an additional volume
of ***** cubic meters (***** m(3)) of QAV-1, to be delivered upon
request at the airports(s), and paid in a single installment upon
the termination or rescission hereof, at the sale price restated by
the IPCA variation.
CLAUSE THREE
3.1 Item 2.1.2.6, Clause Two, of the agreement amended hereby shall become
effective as of the execution hereof with the following wording:
2.1.2.6 The financial charges portion based on the CDI index published by
the Central Bank, related to ***** days.
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CLAUSE FOUR
4.1 Item 3.1.1, Clause Three, of the agreement amended hereby shall become
effective as of the execution hereof with the following wording:
3.1.1 Supply the QAV-1 required to meet a hundred percent (100%) of
PROMISEE-BUYER's consumption in all airports where BR DISTRIBUIDORA
maintains aircraft fueling facilities from ***** to *****, in
times that are compatible with the operation of its flights, as
included in the Timetable (HOTRAN) published by the Civil Aviation
Department;
CLAUSE FIVE
5.1 Item 4.1.1, Clause Four, of the agreement amended hereby shall become
effective as of the execution hereof with the following wording:
4.1.1 Acquire from BR DISTRIBUIDORA, from the effective date until the
termination hereof a hundred percent (100%) of the consumption of
aviation kerosene in all airports where BR DISTRIBUIDORA maintains
aircraft fueling facilities;
CLAUSE SIX
6.1 Items 11.2, 11.2.1, 11.2.2, 11.2.3, 11.2.4, and 11.3 shall be added to
Clause Eleven, and is hereby effective with the following wording:
11.2 PROMISEE-BUYER shall also offer as a guarantee to the full compliance with
all clauses and conditions hereof, including for the payment of any and all
monies due by PROMISSEE-BUYER to BR DISTRIBUIDORA during the effectiveness
hereof, and any extensions thereof, in a first and special mortgage, the
property owned by AUREA ADMINISTRACAO E PARTICIPACOES S.A., described below, the
among of which is estimated by the undersigned parties at ***** (R$ *****), ONE
PARCEL OF LAND located in the City of Sao Vicente, at a site called ILHA DAS
CAXETAS, a part of a larger object of M 33549, with 133.28 m frontward to Rua
Fernando Ferrari, 180.00 m on the right side, plus the improvement of the curve,
where it confronts the parcel of land of Raimundo de Lucca Filho and wife;
108.15 m backwards, plus the improvement of curve, where it confronts with Lago
Pompeba, ending an area of 27.133.45 square meters [description of the property
according to the property registration of S. Vicente, book 2 - General Register,
enrollment 92011, name of the property Ilha das Caxetas, in the city of Sao
Vicente - SP]. In addition to the property described above, PROMISSEE-BUYER
shall give to BR DISTRIBUIDORA
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DISTRIBUIDORA S.A.
in a first and special mortgage, the constructions and improvements now existing
and/or to be made in the future regarding the same property. The properties now
mortgaged are free and clear of any and all personal and real tax burdens, debts
or responsibilities, such as legal and conventional mortgage, charges (taxes,
fees, etc.) servitude, jurisdiction, rent, etc.
11.2.1 The property mortgaged hereby was inherited by AUREA ADMINISTRACAO E
PARTICIPACOES S.A. from the estate of Raimundo de Lucca Filho, according to deed
transcribed in the 2nd Notary's Office of Santos/SP, deed book 758, page 202, on
12/14/2001, registered in the Property Registration of Sao Vicente, State of Sao
Paulo, book 2 - General Register, enrollment 92011, record 02, on 4/9/2002.
11.2.2 PROMISSEE-BUYER FURTHER offers in full compliance with all clauses and
conditions hereof, including for the payment of any and all monies due by
PROMISSEE-BUYER to BR DISTRIBUIDORA during the effectiveness hereof, and any
extensions thereof, in SECOND MORTGAGE, the property owned by BREDA TRANSPORTES
E TURISMO LTDA., described below, the amount of which the undersigned estimate
at ***** (R$*****), a land designated as Areas A, B, and C, located at Avenida
Dom Jaime de Barros Camara, in Bairro Planalto, which begins at point 1, located
in the right corner of Avenida Dom Jaime de Barros Camara, such point being
308.69 m away from the left corner of Travessa Oneda, from this point it follows
on a straight line at 308.69 m towards 75(degree)05'17"NW, confronting the left
with Avenida Dom Jaime de Barros Camara, to which it confronts, until point 2,
at this point it deflects to the right and follows in a curve to the right, in
an equal radius of 9.00 m, to the distance of 14.14 m of concordance curve
between the right corner of Avenida Dom Jaime de Barros Camara and the left
corner of Travessa da Oneda, to which it all confronts until point 4; at this
point it deflects to the right and follows on a straight line to the distance of
317.69 m and towards 74(degree)38'59"SE, confronting to the left with the
property of Kumi Sato, Riuti Harada, Nelson Corazza, Andre Oneda and Francisco
Vicentainer Filho, until point 5; at this point it deflects to the right and
follows on a straight line at a distance of 142.50 m, and towards
16(degree)07'58"SW, confronting the left with the property of Fiat Automoveis
S/A until point 01, where the measures and confrontations started, enclosing an
area of 43.855.93 m(2).
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DISTRIBUIDORA S.A.
11.2.3 The property DESCRIBED IN ITEM 11.2.2 hereby mortgaged was inherited by
BREDA TRANSPORTES E TURISMO LTDA., according to deed transcribed at the 5th
Notary's Office of Santo Andre/SP, in the registry of Sao Bernardo do Campo,
State of Sao Paulo, book 142, page 324, on 4/9/2001, registered in the Real
State Registry of the city of Sao Bernardo, State of Sao Paulo, under number 5,
enrollment 33106.
11.2.4 During the effectiveness hereof, PROMISSEE-BUYER shall be bound to, in
relation to the properties mortgaged:
a) maintain the conservation, cleaning, and sanitation thereof;
b) timely pay all taxes levied on said properties;
c) comply with all requirements of the competent authorities;
d) contract and maintain in full force, if applicable, insurance
covering fire, lightning, explosions and consequences thereof, of
all properties and improvements, at the maximum amount permitted by
the insurance company, such policy being issue or subrogated in the
name of BR DISTRIBUIDORA, during the effectiveness hereof, BR
DISTRIBUIDORA being authorized, in case PROMISSEE-BUYER fails to
contract such insurance from a company in good standing, at its
discretion, and charge from PROMISSEE-BUYER the respective premium,
including those regarding renewal.
11.2.5 PROMISSEE-BUYER, upon notice from BR DISTRIBUIDORA that it shall pay the
insurance premium set forth above and the corresponding expenses, shall have ten
(10) days to make such payment.
11.2.6 Upon notice from BR DISTRIBUIDORA is hereby bound to reinforce or
substitute the mortgage hereby granted within no more than fifteen (15) days, in
case of depreciation or full or partial disposal of the properties mortgaged or
any action affecting the properties mortgaged, the acceptance of which shall at
all times require the previous consent of BR DISTRIBUIDORA, depending on the
among of the properties presented.
11.3 In guarantee of the full compliance with this Amendment, the guarantee
offered in the agreement hereby amended shall be maintained, the guarantors of
which are Ricardo Constantino (RG ***** CPF *****), Joaquim Constantino Neto (RG
*****, CPF *****, Constantino de Oliveira Junior (RG *****, CPF *****) and
Henrique Constantino (RG ***** and CPF *****), which expressly consent to the
amendments made.
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DISTRIBUIDORA S.A.
CLAUSE SEVEN
7.1 The amendments herein shall become effective as of the execution hereof.
7.2 The parties hereto ratify all the other clauses and conditions of the
Commercial Sale Promise Agreement and Other Covenants, executed on February 1,
2001.
IN WITNESS WHEREOF, this instrument was executed in 3 (three) counterparts of
the same tenor, in the presence of 2 (two) witnesses, in order to produce its
due and legal effects.
Rio de Janeiro, May 1st, 2002.
/s/ Edimilson Antonio Dato Sant'Anna /s/ Rogerio Fuchs de Jesus
Edimilson Antonio Dato Sant'Anna Rogerio Fuchs de Jesus
Aviation Products Manager Aviation Services Commercial Manager
Petrobras Distribuidora S.A. Petrobras Distribuidora S.A.
/s/ Constantino Junior
Constantino Junior
President
Gol Transportes Aereos Ltda.
GUARANTORS
/s/ Ricardo Constantino
Ricardo Constantino
/s/ Joaquim Constantino Neto
Joaquim Constantino Neto
/s/ Constantino Junior
Constantino Junior
/s/ Henrique Constantino
Henrique Constantino
WITNESSES:
/s/ Gabriela B.A. Milhomem
Gabriela B.A. Milhomem
CPF *
/s/ Carlos Eduardo A. Puschiano
Carlos Eduardo A. Puschiano
CPF: [illegible]
[notarized]
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DISTRIBUIDORA S.A.
Attachments:
I - Differentials;
II - Deed of the property mortgaged as first mortgage;
III - Real estate registry of the property mortgaged as first mortgage;
IV - Certificate to the non-existence of burdens and disposals in the real
estate registry in relation to the property mortgaged as first mortgage;
V - Assessment report of the property mortgaged as first mortgage;
VI - Copy of the last building and land tax (IPTU);
VII - Registration of the first mortgage on behalf of Petrobras Distribuidora
..S.A. of the property mortgaged as second mortgage;
VIII - Copy of the insurance of the property mortgaged as first mortgage on
behalf of Petrobras Distribuidora S.A.