Vous êtes sur la page 1sur 7

Case 2:17-cv-01105-JMA-ARL Document 22-7 Filed 05/29/18 Page 1 of 7 PageID #: 476

EXHIBIT 7
Case 2:17-cv-01105-JMA-ARL Document 22-7 Filed 05/29/18 Page 2 of 7 PageID #: 477

PROFIT DISTRIBUTION AND LIQUIDATION AGREEMENT OF THE


ELECTRIC TRAIN CONSORTIUM

This document records the Profit Distribution and Liquidation Agreement of the Electric Train Consortium
concluded by:

Constructora Norberto Odebrecht S.A. Sucursal del Perú (hereinafter CNO), identified with RUC
(Registro Único de Contribuyente [Taxpayer Registration Number]) No. 20509656607, with registered
office at Av. Víctor Andrés Belaúnde N° 280, Of. 280, Of, 502, San Isidro - Lima, duly represented by its
Legal Representatives, Mr. Raymundo Nonato Trindade Serra, a Brazilian national, identified with the
Alien Registration Card No. 000071156 and Antonio Carlos Nostre Junior, a Brazilian national, identified
with Alien Registration Card No. 000482377 both according to the powers of attorney registered in Entry
A00021 of the Electronic Heading 11686833, of the Registry of Legal Persons of Lima of the SUNARP
(Superintendencia Nacional de los Registros Públicos [National Public Records Oversight Agency]); and,

G y M S.A. (hereinafter GYM), identified with RUC No. 20100154057 and registered at Av. Paseo de la
República No. 4657, Surquillo - Lima, duly represented by its Legal Representatives, Mr. Juan Manuel
Lambarri Hierro, a Peruvian national, bearer of DNI (Documento Nacional de Identidad [National Identity
Card]) No. 08249293 and Mr. Hernando Graña Acuña, a Peruvian national, bearer of DNI No. 07806723
both according to powers of attorney registered in the electronic heading No. 11006796 of the Registry of
Legal Persons of Lima of the SUNARP.

The parties may be referred to individually as a Party or a Consortium Member and jointly as Parties or
Consortium Members, respectively.

CLAUSE ONE.- BACKGROUND INFORMATION

1.1 By means of a public deed dated December 16, 2009, the Parties signed the Consortium
Incorporation Contract under which the Consorcio Tren Eléctrico Lima was incorporated,
hereinafter the “Consortium Contract,” for the works “Drafting of the Technical File and
Execution of the Civil and Electromechanical Works of the Mass Transit Electric System of Lima
and Callao Line 1, Section 1, Villa El Salvador - Av. Grau.”

By means of a public deed dated June 28, 2011, the Parties extended the object of the Consortium
Contract to include the works “Drafting of the Technical File and Execution of the Civil and
Electromechanical Works of the Mass Transit Electric System of Lima and Callao Line 1, Section
2, Av. Grau - San Juan de Lurigancho” and modified its company name to Consorcio Tren
Eléctrico.

Both works (Sections 1 and 2), together, will hereinafter be referred to as the “Project.”

1.3 [sic] On September 24, 2014, the Consortium delivered the Civil and Electromechanical Works of Line
1 of the Lima and Callao Metro (Section 1).

1.4 On April 30, 2014, Consorcio Tren Eléctrico delivered the Civil and Electromechanical Works of
Line 1 of the Lima and Callao Metro (Section 2), thus fulfilling the Object of the Consortium.

1.3 [sic] Having fulfilled the Object of the Consortium, the Parties have agreed to the liquidation thereof,
making the distribution of the profits as of the liquidation date and making the allocation of
respective responsibilities, as established in the following clauses.

[initials] [initials] [initials]


Case 2:17-cv-01105-JMA-ARL Document 22-7 Filed 05/29/18 Page 3 of 7 PageID #: 478

CLAUSE TWO.- OBJECT

2.1 The object of this agreement is to terminate the Consortium Contract through the liquidation of the
Consortium Contract by mutual agreement between the Parties because of the fulfillment of the
object of the aforementioned Contract.

2.2 The liquidation indicated in point 2.1 above shall take effect from the signing of this agreement.

CLAUSE THREE.- DISTRIBUTION OF PROFITS

The Consortium Members, having analyzed the profit and loss account obtained by the Consortium based
on the Financial Statements approved by the Administrative Technical Committee (CTA, Comité Técnico
Administrativo), which in turn approved the Profit or Loss Sharing, by means of the minutes dated May 04,
2015, agree as follows:

i. Approving the distribution of the final profit of the Electric Train Consortium, amounting to S/.
39,018,326.56 (Thirty-Nine Million Eighteen Thousand Three Hundred and Twenty-Six and
56/100 nuevos soles).

ii. Additionally, the Parties recognize that CNO has assumed additional risks to those it would be
responsible for due to its participation in the Consortium, in the execution of the Construction
Works entrusted to the Consortium.

iii. In this sense, considering that the role of CNO has been instrumental in obtaining the profit of the
Consortium, assuming even additional risks, it is appropriate that it receives a higher percentage
than its share of the profits of the Consortium as of April 30, 2015, profit that amounts to S/.
35,104,013.53 (Thirty-Five Million One Hundred and Four Thousand and Thirteen and 53/100
Nuevos Soles).

iv. Distributing the profit as follows:

Consortium Member Profits to be distributed (S/.)


Constructora Norberto Odebrecht S.A. 35,104,013.53
Sucursal del Perú
G y M S.A. 3,914,313.03
TOTAL 39,018,326.56

The Parties expressly state that they waive any right to any claim, by any means, they may have against
another Party and/or the Consortium for any matter related to the Consortium or to the execution of the
Project.

CLAUSE FOUR.- EXPENSES AFTER THE LIQUIDATION OF THE CONSORTIUM

4.1 For the purpose of meeting the obligations, expenses and needs derived from and/or linked to the
Contracts signed by the Consortium with the Autonomous Authority of the Electric Train (AATE,
Autoridad Autónoma del Tren Eléctrico) to execute the Project, which might arise subsequent to
the liquidation of the Consortium, the Parties agree that CNO shall assume them up to a maximum
amount of S/. 12,508,000.00 (Twelve Million Five Hundred and Eight Thousand and 00/100
Nuevos Soles). Equally, any right derived and/or linked to the aforementioned Contracts shall be
assumed by CNO.

[initials] [initials] [initials]


Case 2:17-cv-01105-JMA-ARL Document 22-7 Filed 05/29/18 Page 4 of 7 PageID #: 479

Pursuant to the provisions in the preceding paragraph, CNO will be responsible for each and every
one of the obligations —up to the maximum amount indicated — and rights that might arise from
the liquidation of the Consortium.

4.2 In the event the amount of the expenses to be incurred exceed the amount indicated in
subparagraph 4.1, CNO will communicate this situation to each Party, which must assume said
excess directly and based on their participation in the Consortium.

CLAUSE FIVE.- DECLARATION BY THE PARTIES

The Parties declare that there have not been any grounds for nullity or declaration of nullity that could
affect its validity in whole or in part in the conclusion of this agreement.

CLAUSE FIVE [sic].- DISPUTE RESOLUTION

Any dispute, discrepancy, lawsuit, litigation, claim or difference arising from the execution, validity,
existence, applicability, nullity, declaration of nullity, resolution, termination or interpretation of this
Agreement or any other matter related to or arising from the Consortium Contract, or contained in it, shall
be definitively resolved by means of Arbitration in Law, in accordance with the rules of the Arbitration
Center of the Chamber of Commerce of Lima (hereinafter “the Center”), which shall administer it. In
addition, the procedural rules in Legislative Decree No. 1071, New General Arbitration Law, and other
substitute and/or supplemental and/or amending regulations that might be applicable shall apply.

IN WITNESS WHEREOF, it is signed in two (02) counterparts by the Parties involved in the city of Lima,
on May 4, 2015.

CONSTRUCTORA NORBERTO G Y M S.A.


ODEBRECHT S.A.
SUCURSAL DEL PERU

[signature] [signature]
______________________________________ ______________________________________
Raymundo Nonato Trindade Serra Juan Manuel Lambarri Hierro

[signature] [signature]
______________________________________ ______________________________________
Antonio Carlos Nostre Junior Hernando Graña Acuña

[initials]
Case 2:17-cv-01105-JMA-ARL Document 22-7 Filed 05/29/18 Page 5 of 7 PageID #: 480
Case 2:17-cv-01105-JMA-ARL Document 22-7 Filed 05/29/18 Page 6 of 7 PageID #: 481
Case 2:17-cv-01105-JMA-ARL Document 22-7 Filed 05/29/18 Page 7 of 7 PageID #: 482