TRANSFER CONTRACT
This
Agreement of Purchase of the Goodwill and Execution of Closure
Works of the Combined Cycle of the Brigadier ▇▇▇▇▇ Power Plant
-Central Termoeléctrica Brigadier ▇▇▇▇▇- (hereinafter,
the “Agreement”) is entered into in the City of Buenos
Aires, Argentine Republic, on June 14, 2019 by and between
INTEGRACIÓN ENERGÉTICA
ARGENTINA S.A., with offices at ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ of Buenos Aires –represented in this act by
[] in his capacity as [] as per []– (hereinafter,
“IEASA”) and CENTRAL
PUERTO S.A., with offices at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2701, City
of Buenos Aires –represented in this act by ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, in their capacity as attorneys-in-fact
as per the Broad Power-of-Attorney of Administration and
Disposition dated June 1, 2015, notarial record no.
465– (hereinafter, the “Transferee”; and together
with IEASA, the “Parties”; each of them individually,
the “Party”) under the following terms and
conditions:
BACKGROUND:
i.
IEASA made an
invitation for bids under Licitación Pública Nacional e
Internacional N. ° CTBL 01/2018 [National and
International Open Bid No. CTBL 01/2018] for the sale of Brigadier
▇▇▇▇▇ Power Plant -Central Térmica Brigadier ▇▇▇▇▇
or “CTBL”– in accordance with the regulations on
goodwill transference and execution of combined cycle closure works
(hereinafter, the “Bid”).
ii.
The Transferee made
a bid following the Terms and Conditions (hereinafter, “Terms
and Conditions”), which bid was considered as the most
convenient by IEASA and therefore, awarded.
iii.
The publications on
the transference of goodwill established in Section 2 of
Law no. 11867 (hereinafter, the “LTFC”) were made
between March 25 and 29, 2019 in the Official Gazette of the
Argentine Republic, in the newspaper El Litoral, and in the Official Gazette
of the province of Santa Fe between May 8 and 14,
2019.
iv.
Pursuant to Section
4 of the LTFC, on March 29, 2019, the following objections were
raised:
a.
Objection raised by
▇▇▇▇▇ CONSTRUCCIONES SRL;
b.
Objection raised by
ROGOLEX S.A.;
c.
Objection raised by
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
v.
All non-defined
terms in capital letters have the meaning assigned in the Terms and
Conditions.
1
THEREFORE, THE PARTIES AGREE ON THE FOLLOWING:
ARTICLE 1. EFFECTIVE DATE
1.1 The
Parties state that, without prejudice to this Agreement being
executed on this date (hereinafter, the “Goodwill Purchase
Agreement Date”), the legal, economic, financial, tax,
technical and/or any other effect that may arise as from the
execution of this Goodwill Purchase Agreement shall be considered
fulfilled as from 00:00 of April 1, 2019 in accordance with
the provisions and the scope established by the Terms and
Conditions and the Information Letter no. 11 as described
below.
1.1.1
The Parties agree that the credits regarding CTBL derived from the
transaction with MEM under the Turbogas Supply Agreement that
accrue after April 1, 2019 shall correspond to the Transferee, and
that the credits derived from the transactions with MEM regarding
CTBL that accrued before April 1, 2019 shall correspond to
IEASA.
1.1.2.
The expenditures that IEASA did in its ordinary course of business
on operations or facts in the period between April 1, 2019 and the
Goodwill Purchase Agreement Date, in accordance with the provisions
of the Terms and Conditions and its Information Letters, as well as
the payment of Debt Services under the Financial Trust shall be
reimbursed to IEASA by the Transferee.
As a
consequence of 1.1.1 and 1.1.2, the Party that received and/or
receives a payment that would correspond to the other Party shall
transfer such funds to the other Party within 5 (five) calendar
days, without any type of deductions.
1.1.3
Notwithstanding the foregoing, the Parties state and guarantee that
all statements, warranties and commitments that IEASA made in its
Terms and Conditions and its Information Letters and that the
Transferee made in its Bid and its Transference Commitment are true
and correct, both for April 1, 2019 and this date.
1.2 The
Parties herein put on record that, in compliance with Section 4 and
5 of LTFC and the objections raised in (iv) above, the intervening
Civil-law Notary, Civil-law notary ▇▇▇▇▇▇▇ ▇▇▇▇▇ (holder of
Register no. 2174 of the City of Buenos Aires, domiciled at ▇▇▇▇▇▇
▇▇▇, ▇ ▇, ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇) makes the following
withholdings of the Minimum Amount in Cash, which amounts are
hereby transferred by the Transferee to the special account in
pesos of Banco Nación Argentina opened to these effects by the
Civil-law Notary. The account data is the following: Account
no. 0000369335, CBU (Universal Banking Code)
0110599520000003693353, Banco de la ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ (“TFC Account”): (a) regarding the
objection raised by Rogolex S.A., he withholds an amount equivalent
in pesos of USD 1,180,100 and $700,000, which equals the
amount claimed by such company; (b) regarding the objection raised
by ▇▇▇▇▇ Construcciones S.A., he withholds $157,449,856.99, which
amount corresponds to the amount claimed in such objection; and (c)
regarding the objection raised by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, there is not
withholding as no amount was claimed. As the account to which the
withheld amounts are transferred is in Argentine Pesos, the Parties
agree that the amounts in US dollars mentioned above are converted
into Argentine Pesos at the seller exchange rate of Banco de la
Nación Argentina for the closing of the day previous to the
Goodwill Purchase Agreement Date.
ARTICLE 2. TRANSFERENCE OF GOODWIL
IEASA
hereby grants and transfers to the Transferee –who hereby
acquires– the Goodwill and all assets, rights and obligations
forming it.
2
The
Parties put on record the following circumstances:
i.
The Transferee
hereby pays the amount of USD 152,172,500 in concept of Minimum
Amount in Cash and assigns LVFVD (sale settlements with due date to
be defined), which include interest and VAT and that, net of
applicable withholdings and converted into US dollars at the
exchange rate established in the Terms and Conditions represent USD
10,100,000, equivalent to the total Variable Amount. The mentioned
amount that is paid in concept of Minimum Amount in Cash does not
include the price of the Real Property transferred to the
Transferee through deed executed simultaneously to this
document.
The
Minimum Amount in Cash is hereby paid through bank transference to
the account in US dollars of IEASA no. 3334570-601/6, CBU
(Universal Banking Code) 2590050911333457060164, BANCO ITAU, hereby
deducting the amount equivalent in pesos of USD 1,180,100 and the
amounts in pesos of $700,000 and $157,449,856.99 that the Civil-law
Notary ▇▇▇▇▇▇▇ ▇▇▇▇▇ withholds and transfers to the TFC Account as
per Clause 1.2.
Once
the mentioned amount is withheld and the deposit is made on the
corresponding TFC Account –which is notified by Civil-law
Notary ▇▇▇▇▇▇▇ ▇▇▇▇▇ to the creditors that raised objections and
without them proving the attachment– and the term established
in Section 5 of Law no. 11867 elapses, the total amounts not
attached in favor of the opposing creditor shall be transferred by
the Civil-law Notary to IEASA on the working day following the due
date established in the aforementioned Section 5 to the account in
dollars mentioned in the previous paragraph using the translation
of pesos to dollars at the seller exchange rate of Banco de la
Nación Argentina corresponding to the closing of the day
previous to the effective transference date.
IEASA
hereby grants the corresponding receipt and payment receipt for the
total Minimum Amount in Cash, including the amount of withholdings
made in compliance with LTFC.
The
Variable Amount is hereby paid through the assignment of Offered
LVFVD documented through the Offered LVFVD Transference Agreement;
therefore, IEASA hereby grants the corresponding settlement receipt
and total payment receipt.
Moreover, the
Transferee hereby pays to IEASA the amount of USD 15,275,905
corresponding to VAT through bank transference in the terms of
Articles 32.1 (c) and 16.9 of the Terms and Conditions, being
this document sufficient receipt and payment receipt.
The
Parties put on record that the Transferee shall not contribute or
cause the contribution of additional funds to the aforementioned
for the acquisition –on its own behalf or through third
parties– of Debt Securities, which shall be fully redeemed by
IEASA, without extinguishing them, at its own cost in accordance
with the Terms and Conditions as amended by Information
Letters.
ii.
The Transferee
states that today it receives from IEASA the possession of the Real
Property over which IEASA has ownership and right of use. Moreover,
the Transferee receives from IEASA the Personal Property in
accordance with the Terms and Conditions.
iii.
As from the Date of
the Transference Agreement, the Transferee acquired all the rights
and obligations emerging from the Assumed Agreements detailed in
Exhibit II.
iv.
The Transferee
takes on all Employment Contracts as per Section 225 of the
Argentine Contract of Employment Act.
3
v.
The Transferee
takes on the Financial Debt in full, without conditions and
exclusively assuming the capacity of Trustor under the Financial
Trust Agreement. IEASA states and ensures that the
“Completion of the ENARSA-Brigadier ▇▇▇▇▇ Project”
is done (as such terms are defined in the Trust
Agreement).
vi.
Simultaneously, the
Real Property’s deeds are hereby granted in favor of the
Transferee, which include the assignment of the right of use of the
land plot over which IEASA has the right to use.
vii.
The Transferee
hereby receives the Bid Bond, in full compliance.
viii.
According to
article 3.6 of the Terms and Conditions, all the documentation
incorporated to the Data Room is on a CD enclosed to this Goodwill
Purchase Agreement. All other original documentation associated to
the Goodwill shall be provided by IEASA in the term of five (5)
working days.
SECTION 3. GENERAL PROVISIONS
3.1.
IEASA is committed to collaborate with the Transferee in the
integration of the Goodwill to its own operations and systems,
within a context of maximum collaboration and contractual good
faith, ensuring that the transition is made in the shortest term
possible. In this context, IEASA shall provide the Transferee with
all the accounting or operational information related to the
Goodwill that the Transferee could reasonably need and request when
managing the operations of the Goodwill. If necessary, the Parties
shall agree on the hiring of all or any of the modules of the
service of administrative assistance of IEASA pursuant to section
33.2 of the Terms and Conditions, subject to the economic
conditions to agree on.
3.2. In
addition, the Parties agree to jointly conduct a gathering of
information and an inventory of the materials, equipment and
personal property within the term of thirty (30) days as from the
execution of this Agreement. The category of materials, equipment
and personal property shall include those indicated in the Data
Room and those in the lands and warehouses of IEASA.
3.3.
The Personal Property transferred includes the total personal
property and/or rights, tools, installations and other belongings
related to the exploitation of CTBL, which include the equipment,
machines, furniture, fixed fire extinguishing installations, tools,
supplies, spare parts (along with any additions or replacements
that took place, in accordance with the ordinary course of
business, until the date of this document), which are expressly
listed in Exhibit X of the Terms and Conditions, in the state that
they may be, with the normal wear and tear proper of their use in
the Goodwill, permanently located at CTBL.
3.4.
The provisions of the Terms and Conditions, including the
Information Letters, shall govern in case of any absence in this
Agreement.
3.5 Any
notice, whether judicial or otherwise, served by the Parties in
connection with this Agreement shall be sent to the following
domiciles, unless the Parties modify such domicile, in which case
the other Party must be duly notified within at least five (5)
previous days:
IEASA:
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ of Buenos
Aires.
Transferee:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ of Buenos
Aires.
3.6.
This Agreement shall only be amended or modified by a written
agreement between the Parties.
3.7.
Any noncompliance or delay in the compliance by any of the Parties
of any right, power or privilege under this Agreement shall not be
considered a waiver thereof, nor shall the partial compliance of
any right, power or privilege prevent any other exercise thereof or
any other right, power or privilege under this Agreement. No waiver
shall be considered effective if it is not stated in writing by the
waiving Party.
3.8. No
Party shall be entitled to assign or transfer any or part of their
rights, obligations or responsibilities under this Agreement
without the previous written consent by the other
Party.
3.9.
The Stamp Tax for this Agreement shall be borne by the
Transferee.
In
witness whereof, the Parties sign two (2) copies of this Agreement,
stating the same contents and to only one effect, at the place and
on the date indicated in the heading herein.
Exhibit I
(i) A
CD with all the documentation incorporated to the Data
Room.
(ii)
The transference deed of Real Property on July 2,
2018.
(iii)
All documentation related to Registered Personal Property (this
documentation shall be provided in the term of 5 (five) working
days as from the execution of this Agreement).
Exhibit II
|
Contracting Party
|
Agreement
|
Domicile
|
|
Siemens
S.A.
|
Maintenance
Agreement drawn up by an Irrevocable Bid for the provision of long
term services (Bid no. ▇▇▇▇▇▇▇▇▇): made by SIEMENS S.A. on March
11, 2013 and accepted by IEASA on March 14, 2013 by Note IEASA no.
P5289/2013
|
Lavalle
1477, 4th
floor, City of Buenos Aires
|
|
Siemens
Energy Inc.
|
Parts
Sale Agreement drawn up by a Long Term Irrevocable Bid for the Sale
of Program Parts and Other Accessories and Services Abroad (Bid no.
EGA110313): made by Siemens on March 11, 2013 and accepted by IEASA
on March 14, 2013 by Note IEASA no. P5288/2013
|
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
|
|
CAMMESA
|
Turbogas
Supply Agreement (electric energy supply and power available
agreement entered into by and between IEASA and CAMMESA on March
26, 2009 and their addendums)
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇ 942, City of Buenos Aires
|
|
CAMMESA
|
Turbosteam
Supply Agreement (electric energy supply and power available
agreement entered into by and between IEASA and CAMMESA on March
26, 2011)
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇ 942, City of Buenos Aires
|
|
Asociación
Civil Parque Industrial Sauce Viejo – Santa Fe
Province
|
Conciliation
Agreement between Santa Fe Province, Parque Industrial and IEASA on
July 3, 2018
|
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇.▇▇, ▇▇ 457, Sauce Viejo, Santa Fe Province
|
|
Sauvimax
S.A.
|
Lease
Agreement drawn up by an Irrevocable Bid Lease of Real Property
located in Parque Industrial Sauce Viejo, Santa Fe Province on
September 10, 2018
|
▇▇▇▇ ▇▇
▇▇▇▇▇ 3466, City of Santa Fe, Santa Fe Province
|
|
Nación
Seguros S.A.
|
Policy
no. 419128
|
San
▇▇▇▇▇▇ 913, City of Buenos Aires
|
|
AON
Seguros
|
Emma de
la Barra ▇▇▇, ▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ of Buenos
Aires
|
|
|
Mercolab
S.A.
|
PO no.
4500014719 – Bromathological analysis of Food
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇/▇, ▇▇▇▇▇ ▇▇
|
|
▇.
▇▇▇▇▇▇▇▇ y Cia. S.A.
|
PO no.
47000000260 – commercial credit for fuels
|
▇▇. ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
Transporte
▇▇▇▇▇▇▇ S.R.L.
|
PO no.
▇▇▇▇▇▇▇▇▇▇ – extension for a month of PO no. 4500014354 for
personnel transportation services
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇▇
▇.▇.▇.
|
PO no.
4700000123 commercial credit for 12 months for the repair of low
voltage motors
|
Bv.
Oroño 2935, Rosario
|
|
Electromec
Inc. S.A.
|
PO no.
4700000124 - commercial credit for 12 months for the repair of
medium voltage motors
|
Colectora
1651, Villa Gobernador ▇▇▇▇▇▇
|
|
▇▇▇▇▇
S.R.L
|
PO no.
4700000215 – commercial credit for the repair and changing of
spare parts of the grundfos pump
|
▇▇▇▇
▇▇▇▇ Paso 7410, Rosario
|
|
Scuaglia
Germán ▇▇▇▇▇▇
|
PO no.
450014842 – Water hyacinth removal services
|
Margaritas
4607, Sauce Viejo, Santa Fe
|
|
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
PO no.
4700000224 – coupling machining services
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 5675, Santa ▇▇
|
|
▇▇▇▇▇▇▇▇▇
Druetta ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
PO no.
4500015036 – general tasks services
|
Lote
– Parque Industrial 116, Sauce Viejo, Santa Fe
|
|
Catering
gourmet S.R.L
|
PO no.
4500014557- Food service for the personnel
|
▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
|
|
PO no.
4500017827 – provision and supply of food
service
|
6
|
Sanitek
SH
|
PO no.
45000013733 – plague control and eradication
service
|
▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
|
|
▇▇▇▇▇▇
S.R.L.
|
PO no.
4500015013 – equity security service
|
▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇▇▇
S.R.L.
|
PO no.
▇▇▇▇▇▇▇▇▇▇ – trimestral control of lifting equipment
service
|
Patallo
2206, El Palomar
|
|
▇▇▇▇▇▇
▇▇▇▇▇ Antonio
|
PO no.
4700000005 – draining of cavities
|
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
|
|
▇▇▇▇▇▇
S.A.
|
PO no.
4700000189 – commercial credit for fuel for the fire
system
|
▇▇.
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
|
|
▇▇▇▇▇
▇.▇.
|
PO no.
4700000235 – monitoring of weather parameters
|
▇▇▇▇▇
▇▇▇, ▇▇▇▇, ▇▇▇▇▇
|
|
▇▇▇
▇.▇.
|
PO no.
4500014757- technical support and maintenance service
|
27 de
Febrero 1195, Rosario, Santa ▇▇
|
|
▇▇▇▇▇▇
Argentina S.A.
|
PO no.
4500014790- Calibration of gas detectors service
|
Colectora
Panamericana Este 1717, San ▇▇▇▇▇▇
|
|
▇▇▇▇▇ y
Procesos S.A.
|
PO no.
4700000288 Non-oxidant biocide
|
▇.▇.
▇▇▇▇▇, 2322, Sunchales
|
|
Rutero
Express
|
PO no.
4700000216- Load transportation service
|
▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇
FIDEICOMISO S.A.; CAMMESA
|
Financial
Trust Agreement Enarsa – Brigadier ▇▇▇▇▇
|
▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇ Aires and Madero 1020, 1st floor, City of
Buenos Aires
|
7