Exhibit 4.23
ELECTRIC POWER PURCHASE AND SALE AGREEMENT
CELEBRATED BETWEEN CPFL COMERCIALIZAÇÃO BRASIL S/A AND
BRASKEM S/A
By this deed, the Parties
CPFL COMERCIALIZAÇÃO BRASIL
S/A , a purveyor of
electric power, duly authorized by ANEEL, with headquarters at Rod.
Campinas Mogi-Mirim, km. 2,5 n°1755, in the city of Campinas,
State of São Paulo, enrolled before the CNPJ/MF under no.
04.973.790/0001-42, and bearing state enrolment no. 352.179.176-31,
authorized to sell electric power pursuant Law 9.648 dated May 27,
1998, represented herein pursuant its Social Bylaws, and
hereinafter referred to as CPFL , and
BRASKEM S/A , with headquarters at Rua Eteno, n° 1561,
in the city of Camaçarí, state of Bahia, enrolled before
CNPJ/MF under no. 42.150.391/0001-70, and bearing State Enrolment
no. 01.027.389, represented herein pursuant its Social Bylaws, and
hereinafter referred to as PURCHASER ;
WHEREAS
a) The laws that are applicable to the Brazilian
electric sector, particularly Law no. 9.074, dated July 7, 1995,
Law no. 9.648, dated May 27, 1998, Law no. 10.848, dated March 15,
2004, Decree no. 2.655, dated July 2, 1998, Decree no. 5.163, dated
July 30, 2004, and ANEEL’s resolutions;
b) The SELLER is the owner of the entitlements
arising from the purchase of electric power, as derived from the
acquisition of a large enough volume of electric power to
accomplish the provisions of Decree no. 5.163/04 as well as other
applicable laws and regulations;
c) The PURCHASER’s consumer units are
construed pursuant the law as being FREE CONSUMERS, which entitles
them the execution of the purchase option of electric power to
satisfy a portion of their needs;
d) The SELLER is a member of the Energy
Wholesalers Market (MAE – Mercado Atacadista de Energia), or
of its successor;
e) the PARTIES intend to use this instrument as
an agreement of financial nature celebrated amongst themselves, and
as an agreement expressing physical type obligations before the
appropriate regulatory authorities;
f) whereas the SELLER and the PURCHASER pledge
to maintain a contractual relationship that complies with the
appropriate legislation, to the rules imposed by the National
Electric Power Agency (Agência Nacional de Energia
Elétrica), ANEEL¸ to MARKET CONVENTIONS, to MARKET RULES
AND PROCEDURES and/or to any other provisions that may replace them
in regards to the electric power sector;
the parties have resolved to celebrate this
Purchase and Sale Electric Power Agreement, hereinafter referred to
as “ AGREEMENT ”, which shall be ruled by the
following clauses and conditions:
TITLE I
DEFINITIONS AND PREMISES APPLICABLE TO THE
AGREEMENT
CLAUSE 1 – Except when shown otherwise, technical terms and
expressions shall be used in this AGREEMENT the meaning whereof is
defined to whit:
ANEEL : Agência Nacional de Energia Elétrica
(National Electric Power Agency), a regulating agency responsible
for the control of electric power supply, empowered by Law no.
9.427 dated December 26, 1996, and regulated by Decree no. 2.335,
dated December 06, 1997;
COMPETENT AUTHORITY
: any government agency empowered
to interfere in this AGREEMENT or in the activities executed by the
PARTIES;
GRAVITY CENTER
: a virtual point defined in
MAE’s RULES AND PROCEDURES where the total electric power
generated is equipollent to the overall consumption of a given
sub-market;
LOCAL CONCESSIONAIRE
: means Companhia
Hidroelétrica do São Francisco – CHESF, a public
electric services concessionaire which supplies electric power to
the PURCHASER in the role of a captive consumer, and which shall be
the measuring agent accountable for the keeping of the measuring
records pertaining to the ELECTRIC POWER consumed as defined in
this AGREEMENT;
FREE CONSUMER
: the type of consumer which may
choose to fully or partially purchase electric power from any
concessionaire, allowed agent or authorized agent belonging to the
INTERCONNECTED SYSTEM, pursuant articles 15 and 16 of Law 9.074,
dated July 07, 1995, and pursuant ANNEL’s specific
regulations; CONNECTION TO THE TRANSMISSION SYSTEM AGREEMENT:
agreement celebrated between the users and the power transmission
concessionaires, which establishes the terms and conditions to
connect the users to the Basic Power grid;
TRANSMISSION SYSTEM USE
AGREEMENT : an agreement
that establishes the terms and conditions for the use of the Basic
Power grid by a user; MARKET CONVENTION: a document released by
ANEEL’s Resolution no. 102, dated March 1, 2002, as derived
from Provisional Measure no. 29, dated 2002, which was converted
into Law no. 10.433, dated April 24, 2002, which sets up the
structure and the manner of functioning of the Wholesale Electric
Power Market – MAE;
CAP MEASURING DATE
: means the last business day
considered in MAE’s RULES AND PROCEDURES to accomplish the
necessary entries pertaining to the MEASURING RECORDS;
BUSINESS DAYS: mean the working days at the
venue of each CONSUMER UNIT belonging to the PURCHASER;
SECTORIAL ENCUMBRANCES
: are all the specific taxes,
contributions, encumbrances and costs pertaining to the electric
sector;
ELECTRIC POWER: is the amount of electric power
that is being supplied over a given period of time, expressed in
Watts/hour (Wh) or by its multiples;
CONSUMED ENERGY
: is the amount of active electric
power, expressed in MWh, measured and recorded by the LOCAL
CONCESSIONAIRE at the PURCHASER’s Connection Points to the
CONSUMER’s UNITS, adjusted by a Loss Factor (if any),
pursuant Clause 7;
CONTRACTED ELECTRIC
POWER : is the amount of
electric power contracted by the PURCHASER to be supplied during
PEAK HOURS during the SUPPLY PERIOD, and placed at the disposal of
the latter, delivered at the POINT OF DELIVERY, pursuant Clause
5.
PEAK HOURS
: means the daily interval made up
of three consecutive hours defined by the Local Transmitter,
encompassed within the period extending from 17:00 hrs. to 22:00
hrs. during business days.
IGP-M : Índice Geral de Preços de Mercado
(General Market Price Index) as computed by Fundação
Getúlio Vargas;
MAE : means the Wholesale Electric Power Market
(Mercado Atacadista de Energia Elétrica), a legal common law
entity, authorized by ANEEL to render viable the purchase and sale
of electric power operations at the interconnected electric
systems, pursuant Law no. 10.433, dated April 24, 2002, and
pursuant ANEEL’s Resolution no. 103, dated March 1, 2002, or
whatever regulations may replace them;
CONTRACTUAL MONTH
: means all and any months
contained in the civil calendar that are encompassed by the SUPPLY
PERIOD;
SERVICE OF NOTICE REGARDING
CONTROVERSIES : is a
formal document intended to inform the PARTIES regarding any
controversies arising from the provisions of this AGREEMENT and/or
pertaining to it;
ONS : means the National Electric Power System
Operator (Operador Nacional do Sistema Elétrico), created by
Law no. 9.648/98;
COMMERCIALIZATION
PERIOD : means the least
time interval needed to post the electric power transactions that
are to be settled within MAE, as defined by MAE’s RULES AND
PROCEDURES;
SUPPLY PERIOD
: means the period during which the
SELLER shall make available and it shall sell the CONTRACTED
ELECTRIC POWER to the PURCHASER,
and which is counted as of 00:00 hours of
January 1st, 2005, and ending at 24:00 hours on December 31,
2005;
POINT OF DELIVERY
: in the case of this agreement, it
means the GRAVITY CENTER at the NORTHEASTERN sub-market;
EFFECTIVE PRICE or EP
: corresponds to one hundred and
thirty percent (130%) of the average MAE PRICE in effect at the
NORTHEASTERN MARKET (MAE PRICE + 30%), or, in case said index gets
to be replaced as envisaged by Decree no. 5.613/04, to the average
Settlement Price for the Differences existing at the NORTHEASTERN
MARKET, the computation whereof shall be obtained by weighting
MAE’s price for the electric power sold during each month of
supply and over the SUPPLY PERIOD that may be in effect, to which
thirty (30%) percent have been added; MAE’s PRICE: or the
Price used to settle the Difference (PLD) is the price (currently
determined on a weekly basis), set in R$/MWh for each load level,
as established within the MAE context or that of its successor for
the NORTHEASTERN marked determined to exist.
PREMIUM : means the fixed amount to be paid month by
month by the PURCHASER to the SELLER, irrespectively of the
effective consumption of the CONTRACTED ELECTRIC POWER taking place
during the SUPPLY PERIOD; GRID PROCEDURES: correspond to the
document prepared by ONS, with the participation of the agents and
approved by ANEEL, through which the technical procedures and
requirements are established for the planning, the implementation,
the use and the operation of the transmission system; the penalties
for the non accomplishment of the commitments undertaken by the
several agents operating within the transmission system, as well as
ONS’ and all the users responsibilities;
MEASURING RECORDS: means the Gross consumption
measuring data determined to exist by the LOCAL CONCESSIONAIRE at
each CONSUMER UNIT belonging to the PURCHASER, as measured within
one (1) hour intervals at their respective MEASUREMENT POINTS, and
which are the object of this AGREEMENT (free parcel); MAE’s
RULES AND PROCEDURES : mean the set of commercial and operational
rules defining the formulae, the requirements and the timeframes
needed to develop MAE’s attributions, as defined and
homologated by ANEEL, and the mandatory accomplishment by
MAE’s participating agents;
INTERCONNECTED SYSTEM
: means the generation, transmission
and distribution installations, connected to the Basic Transmission
Gridwork, including their respective installations;
TRIBUTES : mean all the tributes, taxes and contributions
levied over the object of this AGREEMENT, excluding any other
existing encumbrances or those that may be levied over net profits
or revenues of any of the PARTIES. Such exclusion encompasses,
albeit it is not limited to, income taxes levied over a legal
entity, the social contribution over net profits (whether adjusted
or not) and all the taxes and contributions levied over financial
movements;
CONSUMER UNITS
: are the PURCHASER’s
industrial units listed infra, to which the CONTRACTED ELECTRIC
POWER shall be allocated to at the discretion of the
PURCHASER:
a) UNIB – Basic Raw Materials Unit
(Unidade de Insumos Básicos), located at Rua Eteno, n°
1561, in the Municipality of Camaçari, in the State of Bahia,
connected to the 230kV voltage grid supplied by the basic grid, and
enrolled before the CNPJ/MF under no.
42.150.391/0001-70;
b) UCS and MVC-PVC/BA – Sodium and
Chloride Unit and MVC/PVC Bahia, located at Rua Oxigénio,
n° 765 within the Basic Complex area in the Municipality of
Camaçari, in the state of Bahia, connected to the 230kV
voltage grid supplied by the basic grid, and enrolled before the
CNPJ/MF under no. 42.150.391/0018-19;
c) UCS/AL – Unidade de Cloro Soda Alagoas,
located at Avenida Assis Chateaubriand, n° 5.260, Pontal da
Barra, in the Municipality of Camaçari, in the state of Bahia,
connected to the 230kV voltage grid supplied by the basic grid, and
enrolled before the CNPJ/MF under no.
42.150.391/0022-03;
Sole Paragraph – All the afore defined
terms, when used in their singular form within the context of this
AGREEMENT and in its annexes shall both mean their plural form and
vice-versa.
TITLE II
OBJECT AND TERM OF EFFECTIVENESS
CLAUSE 2 - The purpose of this AGREEMENT is to establish
the terms and conditions pertaining to the commercialization of the
CONTRACTED ELECRIC POWER, to be made available by the SELLER to the
PURCHASER at the POINT OF DELIVERY to the CONSUMER UNITS throughout
the SUPPLY PERIOD.
First Paragraph – The purchase and sale of
electric power dealt with in this AGREEMENT is predicated on
specific legislation; on ANEEL’s Resolutions and on
MAE’S MARKET RULES AND PROCEDURES, on ONS’ POWERGRID
PROCEDURES and on others that may come to replace all of the
former, in virtue of which the PURCHASER has its electric power
supply assured by the INTERCONNECTED SYSTEM and supplied by its
local concessionaire.
Second Paragraph – The delivery of the
ELECTRIC POWER to the CONSUMER at the POINT OF DELIVERY through the
INTERCONNECTED SYSTEM shall depend on the signing by the PURCHASER
of the CONNECTION TO THE TRANSMISSION SYSTEM AGREEMENT, and of the
TRANSMISSION SYSTEM USE AGREEMENT.
Third Party – The PARTIES acknowledge that
physical supply shall be fully subordinated to ONS’ and
ANEEL’s technical determinations, including in case rationing
of electric power is ordered by the Granting Powers regarding
supply to the INTERCONNECTED SYSTEM.
CLAUSE 3 - This AGREEMENT shall go into effect as of its
signing and it shall remain in effect until the effective
accomplishment of all contractual obligations, including the
payment by the PURCHASER of the invoice pertaining to the last
month of delivery of the CONTRACTED ELECTRIC POWER, pursuant the
terms and deadlines established in Clause 5 of this
AGREEMENT.
CLAUSE 4 – The PURCHASER may, at its exclusive criteria,
terminate this AGREEMENT in advance of its effectiveness without
such termination resulting in any encumbrances, provided that it
formally informs the SELLER of its intentions until November 12,
2004.
Sole Paragraph – In case the PURCHASER
fails to manifest itself until the aforementioned date, this
AGREEMENT shall be executable pursuant to law until December 31,
2005, entailing the PARTIES to fully accomplish all its
terms.
TITLE III
AMOUNT OF CONTRACTED ELECTRIC POWER, OPERATIONAL
AND COMMERCIAL CONDITIONS PERTAINING TO
REPRESENTATION
CLAUSE 5 – As of the start of the SUPPLY PERIOD, on a
monthly basis, and at the POINT OF DELIVERY, the SELLER pledges to
make available the amounts of the CONTRACTED ELECTRIC POWER to the
CONSUMER UNITS belonging to the PURCHASER, which shall be capped by
a limit of 120 MWh (Megawatt/hour) per hour at PEAK TIMES. The
PURCHASER shall monthly inform the SELLER the amount of CONTRACTED
ELECTRIC POWER supplied to each of the CONSUMER UNITS, as defined
by the following schedule:
a) Until the 15th. day of each CONTRACTUAL
MONTH, the PURSHASER shall inform an estimate of its needs for the
ELECTRIC POWER to be used during that CONTRACTUAL MONTH by each
CONSUMER UNIT, as the case may be;
b) On the 5th. business day (inclusively) prior
to the closing of the CONTRACTUAL MONTH, the PURCHASER shall inform
the SELLER its new estimate of the ELECTRIC POWER to be used during
the coming CONTRACTUAL MONTH for each CONSUMER UNIT, as the case
may be; the amount informed may be varied to more or to less by up
to twenty (20%) percent of the amount being informed herein, said
amount being capped at 120 MWh (Megawatt/hour) per hour;
c) in compliance to the variation envisaged in
sub-item “b” of this Clause, and on the first business
day (including) prior to the closing of the CONTRACTUAL MONTH, the
PURCHASER shall confirm to the SELLER the amount of the CONTRACTED
ELECTRIC POWER to be billed by the SELLER to each CONSUMER
UNIT.
CLAUSE 6 – For the exclusive purpose to render the
delivery of the CONTRACTED POWER operational, the SELLER shall be
liable for the loading point at the CONSUMER UNITS during the PEAK
HOURS of the SUPPLY PERIOD.
First Paragraph – The PURCHASER pledges to
deliver to the SELLER all the documentation needed to model the
loading point on behalf of the SELLER, pursuant MARKET RULES AND
PROCEDURES.
Second Paragraph – The SELLER pledges to
adopt all the necessary procedures that may be required by said
MARKET RULES AND PROCEDURES to be complied with before MAE and
before ANEEL, and/or by third parties so that said modelling at the
loading point is accomplished on its behalf as defined in the
header.
Third Paragraph – Pursuant the MEASUREMENT
RECORDS kept by the LOCAL CONCESSIONAIRE, the PURCHASER shall
inform the SELLER as to the measurements taken at each of the
CONSUMER UNITS, said information to be provided until the sixth
business day after the closing of the CONTRACTUAL MONTH.
Fourth Paragraph – The PURCHASER
represents and it warrants that, except for the amount of the
CONTRACTED ELECTRIC POWER that has been defined in the 5th Clause,
the SELLER shall not be held accountable for the remaining electric
power consumed by the PURCHASER at its CONSUMER UNITS.
CLAUSE 7 – For all the purposes of this AGREEMENT, the
amounts taken into account to determine the CONTRACTED ELECTRIC
POWER used up by the PURCHASER shall be those supplied by the
MEASUREMENT RECORDS obtained by the LOCAL CONCESSIONAIRE (if any),
as determined to exist on the MEASUREMENT CAP DATE for each of the
consumer unit(s) as adjusted according to their loss factor,
determined in the following manner:
ECj :
amount of ELECTRIC POWER consumed during the COMMERCIALIZATION
PERIOD “j”.
RMkj :
MEASUREMENT RECORDS for the kth. CONSUMER UNIT during the
COMMERCIALIZATION PERIOD “j”;
FP :
loss factor during the COMMERCIALIZATION PERIOD “j”,
equivalent to 2.9%
K :
each of the CONSUMER UNITS.
First Paragraph – The PURCHASER shall be
responsible for checking the precision and the meaningfulness of
the MEASUREMENT RECORDS, as well as the adjustments made
by
the LOCAL CONCESSIONAIRE. Under no circumstances
may the PURCHASER claim that the LOCAL CONCESSIONAIRE has failed,
or that the data used to elaborate the MEASUREMENT RECORDS is
imprecise in an attempt to get exempted from accomplishing the
obligations of this AGREEMENT.
Second Paragraph – Pursuant the provisions
of the Third Paragraph of Clause 6, the SELLER shall deliver the
PURCHASER a statement showing the MAE price, weighted during the
COMMERCIALIZATION PERIOD and until the eight business d
