|Item 1.Identity of Directors, Senior Management and Advisors|
|Item 2.Offer Statistics and Expected Timetable|
|Item 3.Key Information|
|Item 4.Information on The Company|
|Item 4A. Unresolved Staff Comments|
|Item 5. Operating and Financial Review and Prospects|
|Item 6.Directors, Senior Management and Employees|
|Item 7.Major Shareholders and Related Party Transactions|
|Item 8.Financial Information|
|Item 9.The Offer and Listing|
|Item 10.Additional Information|
|Item 11. Quantitative and Qualitative Disclosures About Market Risk|
|Item 12. Description of Securities Other Than Equity Securities|
|Item 13. Defaults, Dividend Arrearages and Delinquencies|
|Item 14. Material Modifications To The Rights of Security Holders and Use of Proceeds|
|Item 15. Controls and Procedures|
|Item 16A. Audit Committee Financial Expert|
|Item 16B. Code of Ethics|
|Item 16C. Principal Accountant Fees and Services|
|Item 16D. Exemptions From The Listing Standards for Audit Committees|
|Item 16E. Purchases of Equity Securities By The Issuer and Affiliated Purchasers|
|Item 16F. Change in Registrant's Certifying Accountant|
|Item 16G. Corporate Governance|
|Item 16 H. Mine Safety Disclosures Not Applicable.|
|Item 17.Financial Statements|
|Item 18.Financial Statements|
|Balance Sheet||Income Statement||Cash Flow|
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2011
Commission File number: 001-33422
Empresa Distribuidora y Comercializadora Norte S.A.
(Exact name of registrant as specified in its charter)
|Distribution and Marketing Company of the North S.A.||Argentine Republic|
|(Translation of registrant’s name into English)||(Jurisdiction of incorporation or organization)|
Avenida Del Libertador 6363
Ciudad de Buenos Aires, C1428ARG
Buenos Aires, Argentina
(Address of principal executive offices)
Ivana Del Rossi
Tel.: +54 11 4346 5127 / Fax: +54 11 4346 5325
Investor Relations Officer
Securities registered or to be registered pursuant to Section 12(b) of the Act:
|Title of each class:||Name of each exchange on which registered|
|Class B Common Shares||New York Stock Exchange, Inc.*|
|American Depositary Shares, or ADSs, evidenced by American |
Depositary Receipts, each representing 20 Class B Common Shares
|New York Stock Exchange, Inc.|
|*||Not for trading, but only in connection with the registration of American Depositary Shares, pursuant to the requirements of the Securities and Exchange Commission.|
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: N/A
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report: 462,292,111 Class A Common Shares, 442,210,385 Class B Common Shares and 1,952,604 Class C Common Shares
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes o No þ
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Sections 13 or 15(d) of the Securities Exchange Act of 1934. Yes o No þ
Note: Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those Sections.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):
|Large accelerated filer o||Accelerated filer þ||Non-accelerated filer o|
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
|U.S. GAAP o||International Financial Reporting Standards as issued by the International Accounting Standards Board o||Other þ|
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow: Item 17 o Item 18 þ
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined by Rule 12b-2 of the Exchange Act). Yes o No þ
|Item 1.||Identity of Directors, Senior Management and Advisors||1|
|Item 2.||Offer Statistics and Expected Timetable||1|
|Item 3.||Key Information||1|
|Item 4.||Information on the Company||25|
|Item 4A.||Unresolved Staff Comments||72|
|Item 5.||Operating and Financial Review and Prospects||72|
|Item 6.||Directors, Senior Management and Employees||118|
|Item 7.||Major Shareholders and Related Party Transactions||130|
|Item 8.||Financial Information||134|
|Item 9.||The Offer and Listing||138|
|Item 10.||Additional Information||141|
|Item 11.||Quantitative and Qualitative Disclosures about Market Risk||169|
|Item 12.||Description of Securities Other than Equity Securities||170|
|Item 13.||Defaults, Dividend Arrearages and Delinquencies||172|
|Item 14.||Material Modifications to the Rights of Security Holders and Use of Proceeds||172|
|Item 15.||Controls and Procedures||172|
|Item 16A.||Audit Committee Financial Expert||173|
|Item 16B.||Code of Ethics||173|
|Item 16C.||Principal Accountant Fees and Services||174|
|Item 16D.||Exemptions from the Listing Standards for Audit Committees||174|
|Item 16E.||Purchases of Equity Securities by the Issuer and Affiliated Purchasers||174|
|Item 16F.||Change in Registrant’s Certifying Accountant||174|
|Item 16G.||Corporate Governance||174|
|Item 16H.||Mine Safety Disclosures||178|
|Item 17.||Financial Statements||179|
|Item 18.||Financial Statements||179|
|Index to Financial Statements||F-1|
|Item 1.||Identity of Directors, Senior Management and Advisors|
|Item 2.||Offer Statistics and Expected Timetable|
|Item 3.||Key Information|
In this annual report, except as otherwise specified, references to “we”, “us”, “our” and “the Company” are references to (i) Empresa Distribuidora y Comercializadora Norte S.A., or “Edenor”, on a standalone basis prior to March 1, 2011, (ii) Edenor, Empresa Distribuidora Eléctrica Regional S.A. (“Emdersa”) and Aeseba S.A. (“Aeseba”) when references are made to information as of any date within the period between March 1, 2011 and December 31, 2011 and (iii) Edenor and Aeseba as of each date after December 31, 2011. References to Edenor, Emdersa and/or Aeseba on a standalone basis are made by naming each company as the case may be. Our financial statements as of December 31, 2011, include the financial data of Emdersa, Aeseba and Empresa Distribuidora Eléctrica Regional Holding S.A. (“Emdersa Holding”). For more information, see “Item 4—Information on the Company—History and Development of the Company.”
This annual report includes forward-looking statements, principally under the captions “Item 3. Key Information—Risk factors,” “Item 4. Information on the Company” and “Item 5. Operating and Financial Review and Prospects.” We have based these forward-looking statements largely on our current beliefs, expectations and projections about future events and financial trends affecting our business. Forward-looking statements may also be identified by words such as “believes,” “expects,” “anticipates,” “projects,” “intends,” “should,” “seeks,” “estimates,” “future” or similar expressions. Many important factors, in addition to those discussed elsewhere in this annual report, could cause our actual results to differ materially from those expressed or implied in our forward-looking statements, including, among other things:
|·||the outcome and timing of the integral tariff revision process (Revisión Tarifaria Integral or “RTI”) and, more generally, uncertainties relating to future government approvals to increase or adjust our tariffs;|
|·||general political, economic, social, demographic and business conditions in the Republic of Argentina, or “Argentina” and particularly in the geographic market we serve;|
|·||the impact of regulatory reform and changes in the regulatory environment in which we operate;|
|·||potential disruption or interruption of our service;|
|·||restrictions on the ability to exchange Pesos into foreign currencies or to transfer funds abroad;|
|·||the revocation or amendment of our concession by the granting authority;|
|·||our ability to implement our capital expenditure plan, including our ability to arrange financing when required and on reasonable terms;|
|·||fluctuations in exchange rates, including a devaluation of the Peso;|
|·||the impact of high rates of inflation on our costs;|
|·||the successful integration of Aeseba;|
|·||our ability to access to financing under reasonable terms;|
|·||the successful sale of Edelar and Edesa; and|
|·||additional matters identified in “Risk factors”.|
Forward-looking statements speak only as of the date they were made, and we undertake no obligation to update publicly or to revise any forward-looking statements after we file this annual report because of new information, future events or other factors. In light of these limitations, undue reliance should not be placed on forward-looking statements contained in this annual report.
SELECTED FINANCIAL DATA
The following table presents selected financial and operating data. This information should be read in conjunction with our audited consolidated financial statements and related notes and “Item 5. Operating and Financial Review and Prospects” included elsewhere in this annual report.
The financial data as of December 31, 2011 and 2010 and for each of the three years in the period ended December 31, 2011 are derived from our audited consolidated financial statements, which were audited by Price Waterhouse & Co. S.R.L. (“PWC”), member firm of PricewaterhouseCoopers network, whose report dated April 26, 2012 is included elsewhere herein. See Item 18 – “Financial Statements.” We have prepared our annual financial statements for the fiscal year ended December 31, 2011 included herein, assuming that we will continue as a going concern. Our independent auditors, PWC, issued a report dated April 26, 2012 on our financial statements as of and for the years ended December 31, 2011 and 2010, which contains an explanatory paragraph expressing substantial doubt as to our ability to continue as a going concern. As discussed in Notes 2 and 8.C to the financial statements, the delays in obtaining tariff increases, recognition of cost adjustments requested by the Company in accordance with the terms of the Adjustment Agreement and the continuous increase in operating expenses have affected significantly the economic and financial position of the Company and have raised substantial doubt with respect to our ability to continue as a going concern. Management's plans in response to these matters are also described in Note 2. However, our financial statements as of and for the year ended December 31, 2011 and 2010 do not include any adjustments or reclassifications that might result from the outcome of this uncertainty. See Item 3: “Key Information-Risk Factors - Risks Relating to Our Business - Failure or delay to negotiate further improvements to our tariff structure, including increases in our distribution margin, and/or to have our tariff adjusted to reflect increases in our distribution costs in a timely manner, could have a material adverse effect on our capacity to perform our financial and commercial obligations. As a result, there is substantial doubt with respect to the ability of the Company to continue as a going concern.” See Item 18: “Financial Statements.”
Our audited consolidated financial statements have been prepared in accordance with generally accepted accounting principles in Argentina, which we refer to as Argentine GAAP and the regulations of the Comisión Nacional de Valores (National Securities Commission or CNV), which differ in certain significant respects from United States Generally Accepted Accounting Principles (U.S.GAAP). Note 32 to our audited consolidated financial statements included elsewhere in this annual report provides a description of the significant differences between Argentine GAAP and U.S. GAAP, as they relate to us, and a reconciliation to United States GAAP of net (loss) income for the years then ended December 31, 2011, 2010 and 2009 and shareholders’ equity as of December 31, 2011 and 2010. In addition, note 29 to our audited consolidated financial statements included elsewhere in this annual report provides a reconciliation between Argentine GAAP and IFRS of shareholders’s equity as of January 1, 2011(transition date) and December 31, 2011 and of net (loss) for the year ended December 31, 2011.
Our financial statements as of December 31, 2011, include the financial data of Emdersa, Aeseba and Emdersa Holding. The incorporation of Aeseba, including its subsidiary, Empresa Distribuidora de Energía Norte S.A., an electricity distribution company with the concession area in the northern part of the Province of Buenos Aires (“Eden”), was made on the basis of the general method of line item consolidation, which is established in Technical Resolution No. 21 issued by the Argentine Federation of Professional Councils in Economic Sciences (the “FACPCE”). Furthermore, as of December 31, 2011, in accordance with the decision of the Board of Directors to divest and sell the subsidiaries of Emdersa and Emdersa Holding, including Empresa Distribuidora de San Luis S.A. (“Edesal”), Empresa Distribuidora de La Rioja S.A. (“Edelar”), Empresa Distribuidora de Salta S.A. (“Edesa”) and Emdersa Generación Salta S.A. (“Egssa”), we have classified these assets in the consolidated financial statements as of December 31, 2011 as “Other assets available for sale”. The corresponding charges to results have been included line by line in our consolidated statements of operations for the year ended December 31, 2011.
In this annual report, except as otherwise specified, references to “$”, “U.S. $” and “Dollars” are to U.S. Dollars, and references to “Ps. ” and “Pesos” are to Argentine Pesos. Solely for the convenience of the reader, Peso amounts as of and for the year ended December 31, 2011 have been translated into U.S. Dollars at the buying rate for U.S. Dollars quoted by Banco de la Nación Argentina (Banco Nación) on December 31, 2011 of Ps. 4.304 to U.S. $1.00. The U.S. Dollar equivalent information should not be construed to imply that the Peso amounts represent, or could have been or could be converted into, U.S. Dollars at such rates or any other rate. See “Item 3. Key Information—Exchange Rates.”
Under Argentine GAAP, we generally are not required to record the effects of inflation in our financial statements. However, because Argentina experienced a high rate of inflation in 2002, with the wholesale price index increasing by approximately 118%, we were required by Decree No. 1269/2002 and CNV Resolution No. 415/2002 to restate our financial statements in constant Pesos in accordance with Argentine GAAP. On March 25, 2003, Decree No. 664/2003 rescinded the requirement that financial statements be prepared in constant currency, effective for financial periods on or after March 1, 2003. As a result, we are not required to restate and have not restated our financial statements for inflation after February 28, 2003. See note 2 to our audited consolidated financial statements included in this annual report. In connection with the adoption of IFRS and in accordance with General Resolution No 562/09 of the CNV, we have elected to recognize a deferred tax liability related to the effect of inflation on the value of other fixed assets. This adjustment has been recorded with impact in our accumulated deficit. At the 2012 shareholders’ meeting, we expect that our shareholders will resolve to reclassify this adjustment within equity, as required by the resolution of the CNV.
Certain figures included in this annual report have been subject to rounding adjustments. Accordingly, figures shown as totals may not sum due to rounding.
|Statement of operations data||(in millions, except for per share and per ADS data)|
|Net sales||U.S. $||828.3||Ps.||3,565.0||Ps.||2,173.6||Ps.||2,077.9||Ps.||2,000.2||Ps.||1,981.9|
|Electric power purchases||(370.3||)||(1,593.9||)||(1,069.7||)||(1,003.4||)||(934.7||)||(889.9||)|
|Transmission and distribution expenses||(276.2||)||(1,188.7||)||(636.3||)||(548.6||)||(497.9||)||(417.6||)|
|Gain (loss) in permanent investments||—||—||—||—||—||—|
|Negative Goodwill amortization (1)||2.9||12.3||—||—||—||—|
|Result from valuation of other assets available for sale at NRV (8)||(17.4||)||(75.0||)||—||—||—||—|
|Other (expenses) income , net||(5.9||)||(25.3||)||(9.8||)||23.3||(29.8||)||1.0|
|Financial income (expenses) and holding gains (losses):|
|Generated by assets:|
|Taxes and sundry expenses(2)||(7.0||)||(30.1||)||(16.0||)||(13.4||)||—||—|
|Generated by liabilities:|
|Taxes and sundry expenses(2)||(5.7||)||(24.7||)||(21.1||)||(19.2||)||—||—|
|Loss for debt restructuring||(0.6||)||(2.7||)||—||—||—||—|
|Adjustment to present value of the retroactive tariff increase arising from the application of the new electricity rate schedule and other receivables(3)||0.3||1.2||11.6||3.4||13.5||(29.6||)|
|Adjustment to present value of notes(4)||—||—||(4.2||)||(5.2||)||(8.5||)||(21.5||)|
|Gain (Loss) from the purchase of notes(5)||1.5||6.5||(7.1||)||81.5||93.5||(10.2||)|
|Adjustment to present value of purchased notes(4)||—||—||—||—||—||(8.6||)|
|Results holdings in related companies||0.2||0.9||—||—||—||—|
|(Loss) Income before taxes and minority interest||(91.7||)||(394.7||)||(75.2||)||170.0||184.3||247.4|
|Net (loss) income||U.S. $||(101.2)||Ps.||(435.4)||Ps.||(49.1)||Ps.||90.6||Ps.||123.1||Ps.||122.5|
|Net (loss) income per ordinary share – basic and diluted||(0.113||)||(0.485||)||(0.055||)||0.101||0.137||0.135|
|Dividends declared per ordinary share(6)||—||—||—||—||—||—|
|Net (loss) income per ADS(7) — basic and diluted||(2.256||)||(9.707||)||(1.095||)||2.020||2.745||2.702|
|Number of shares outstanding||897,042,600||897,042,600||897,042,600||897,042,600||897,042,600||906,455,100|
|Net sales/service revenues||U.S. $||662.9||Ps.||2,853.2||Ps.||2,253.7||Ps.||2,163.3||Ps.||2,059.0||Ps.||1,937.0|
|Electric power purchases||(311.7||)||(1,341.6||)||(1,069.7||)||(1,003.4||)||(934.7||)||(889.9||)|
|Transmission and distribution expenses||(259.7||)||(1,117.8||)||(731.8||)||(624.0||)||(577.0||)||(477.5||)|
|Operating expenses, net||(31.7||)||(136.5||)||(372.4||)||(294.7||)||(296.6||)||(207.5||)|
|Net operating income (loss)||59.8||257.3||79.7||241.3||250.7||362.1|
|Financial (expense), net and holding gains||(54.9||)||(236.4||)||(134.7||)||(75.0||)||82.0||(46.5||)|
|Net income (loss) before income taxes||4.9||20.9||(54.9||)||166.3||332.7||315.7|
|Less: Net gain from continued operations attributable to non-controlling interest||1.4||5.8||—||—||—||—|
|Net (loss) income for the year||(33.8||)||(145.5||)||(35.7||)||73.1||264.5||215.8|
|Loss from discontinued operations before income tax and non-controlling interest||(37.3||)||(160.4||)||—||—||—||—|
|Income tax from discontinued operations||5.3||23.0||—||—||—||—|
|Loss on discontinued operations attributable to Edenor shareholders’||(33.5||)||(144.3||)||—||—||—||—|
|Less: Net gain on discontinued operations attributable to non-controlling interest||1.6||6.9||—||—||—||—|
|Net (loss) income under US GAAP attributable to EDENOR shareholders’||(67.3||)||(289.8||)||—||—||—||—|
|Net gain under US GAAP attributable to non-controlling interest||2.9||12.7||—||—||—||—|
|Net (loss) income per ordinary share – basic and diluted||(0.036||)||(0.156||)||(0.040||)||0.081||0.295||0.238|
|(Loss) Earning per share from discontinuing operations – Basic and diluted||(0.036||)||(0.153||)||—||—||—||—|
|Net (loss) income per ADS(7) — basic and diluted||(724.9||)||(3.120||)||(0.796||)||1.630||5.897||4.761|
|(*)||Consolidated financial data.|
|(1)||Represents the amortization of the negative goodwill recognized as a result of the excess of the fair value of the assets acquired and liabilities assumed at the moment of the acquisition of Aeseba and Emdersa over the purchase price.|
|(2)||For the years ended December 31, 2008 and 2007, taxes on financial transactions were included in administrative expenses. For the years ended December 31, 2009, 2010 and 2011, taxes on financial transactions were included as a separate line item, as taxes and sundry expenses under financial income (expenses) and holding gains (losses) generated by assets and liabilities.|
|(3)||Reflects the adjustment to present value, as of December 31, 2011, of the retroactive portion of the tariff increase that was invoiced in 55 consecutive monthly installments, beginning in February 2007. As of December 31, 2011, no amounts were due under this transaction. Also reflects, as of December 31, 2010, the adjustment to present value of the retroactive portion of the tariff increase that was invoiced in 55 consecutive monthly installments, beginning in February 2007, and the adjustment to present value of Ps. 38.4 million due under the payment plan agreement with the Province of Buenos Aires that was invoiced in 18 installments, starting in January 2007. As of December 31, 2010, no amounts were due under the payment plan agreement with the Province of Buenos Aires. As of December 31, 2009 and 2008, Ps. 2.3 million was due under the payment plan agreement with the Province of Buenos Aires and Ps. 21.4 million, Ps. 69.2 million and Ps. 118.8 million of the retroactive tariff increase had been invoiced in 2010, 2009 and 2008, respectively. In accordance with Argentine GAAP, we account for these long term receivables at their net present value, which we calculate at a discount rate that reasonably reflects the market evaluation of the time value of money and specific risks, net of issuance expenses, for the retroactive tariff increase, recording the resulting non-cash charge as an adjustment to present value of this receivable. See “Item 5. Operating and Financial Review and Prospects—Factors Affecting Our Results of Operations—)Tariffs.”|
|(4)||We record our financial debt in our balance sheet at fair value reflecting our management’s best estimate of the amounts expected to be paid at each year end, calculated at a discount rate that reasonably reflects the market evaluation of the time value of money and specific risks, net of issuance expenses, for the years ended December 31, 2011, 2010, 2009, 2008 and 2007.|
|(5)||In 2007, we repurchased U.S. $43.7 million principal amount of our outstanding Fixed Rate Par Notes due 2016 and redeemed and repurchased U.S. $240 million principal amount of our outstanding Discount Notes due 2014. In the years ended December 31, 2008, 2009 and 2010, we repurchased U.S. $32.5 million, U.S. $32.2 million and U.S. $15.3 million principal amount of our outstanding Fixed Rate Par Notes due 2016, respectively, and U.S. $17.5 million, U.S. $53.8 million and U.S. $123.9 million principal amount of our outstanding Senior Notes due 2017, respectively. In addition, in the year ended December 31, 2011, we repurchased U.S. $12.7 million and U.S. $41.5 million principal amount of our outstanding Senior Notes due 2019 and Senior Notes due 2022, respectively. See “Item 5. Operating and Financial Review and Prospects—Liquidity and Capital Resources—Debt.”|
|(6)||Edenor have not declared or paid any dividends since August 14, 2001.|
|(7)||Each ADS represents 20 Class B common shares.|
|(8)||As of December 31, 2011, corresponds to investments in EMDERSA and EMDERSA HOLDING that have been valued at their estimated realizable value, which is lower than their equity value.|
|Balance sheet data|
|Cash and banks||U.S. $||5.4||Ps.||23.4||Ps.||8.6||Ps.||8.7||Ps.||6.1||Ps.||3.5|
|Other assets available for sale||50.3||216.5||—||—||—||—|
|Total current assets||U.S. $||267.7||Ps.||1,152.0||Ps.||1,153.8||Ps.||693.6||Ps.||587.1||Ps.||496.3|
|Investments in other companies||0.1||0.4||0.4||0.4||0.4||0.4|
|Property, plant and equipment||1,100.9||4,738.3||3,689.5||3,482.4||3,256.3||3,092.7|
|Total non-current assets||U.S. $||1,067.0||Ps.||4,592.4||Ps.||3,773.5||Ps.||3,677.2||Ps.||3,547.6||Ps.||3,351.3|
|Total assets||U.S. $||1,334.7||Ps.||5,744.4||Ps.||4,927.3||Ps.||4,370.7||Ps.||4,134.6||Ps.||3,847.6|
|Trade accounts payable||153.0||658.3||378.5||347.8||339.3||316.2|
|Salaries and social security taxes||66.7||287.1||180.4||118.4||94.8||59.9|
|Total current liabilities||U.S. $||308.7||Ps.||1,328.6||Ps.||786.5||Ps.||760.3||Ps.||635.6||Ps.||539.6|
|Trade accounts payable||12.6||54.3||51.0||46.9||40.2||35.5|
|Salaries and social security taxes||16.2||69.5||50.6||43.7||40.1||24.7|
|Total non-current liabilities||707.4||3,044.5||2,390.9||1,428.3||1,407.5||1,333.5|
|Total liabilities||U.S. $||1,016.0||Ps.||4,373.0||Ps.||3,177.4||Ps.||2,188.5||Ps.||2,043.1||Ps.||1,873.0|
|Total liabilities and shareholders’ equity||U.S. $||1,334.7||Ps.||5,744.4||Ps.||4,927.3||Ps.||4,370.7||Ps.||4,134.6||Ps.||3,847.6|
|Current assets||U.S. $||217.4||Ps.||935.5||Ps.||1,155.4||Ps.||703.3||Ps.||666.7||Ps.||536.7|
|Property, plant and equipment, net||1,114.9||4,798.4||3,754.6||3,552.4||3,331.2||3,175.7|
|Other non-current assets||52.0||223.7||274.6||260.4||258.4||346.6|
|Assets of disposal groups classified as held for sale||264.6||1,138.8||—||—||—||—|
|Total assets||U.S. $||1,648.8||Ps.||7,096.4||Ps.||5,184.6||Ps.||4,516.1||Ps.||4,256.3||Ps.||4,059.0|
|Current liabilities||U.S. $||308.7||Ps.||1,328.6||Ps.||818.1||Ps.||790.9||Ps.||707.5||Ps.||573.7|
|Liabilities of disposal groups classified as held for sale||214.3||922.2||—||—||—||—|
|Total liabilities and shareholders’ equity||U.S. $||1,648.8||Ps.||7,096.4||Ps.||5,184.6||Ps.||4,516.1||Ps.||4,256.3||Ps.||4,059.0|
|(*)||Consolidated financial data.|
|(1)||Includes the amounts collected through the Program for the Rational Use of Electricity Power (PUREE), which as of December 31, 2011, 2010, 2009 and 2008 amounted to Ps. 928.7 million, Ps. 529.1 million, Ps. 233.3 million and Ps. 33.5 million, respectively. For the year ended December 31, 2011, Ps. 61.6 million correspond to PUREE funds collected by Aeseba, included under current liabilities, and Ps. 867.1 million correspond to PUREE funds collected by Edenor, included under non-current liabilities. Edenor is permitted to retain funds from the PUREE that it would otherwise be required to transfer to CAMMESA according to Resolution SS.EE. 1037/07.|
|Cash flow data|
|Net (loss) income||U.S.$||(101.2||)||Ps.||(435.4||)||Ps.||(49.1||)||Ps.||90.6||Ps.||123.1||Ps.||122.5|
|Adjustment to reconcile net (loss) income to net cash flows provided by (used in) operating activities:|
|Depreciation of property, plant and equipment||58.6||252.2||178.4||175.4||170.3||174.4|
|Retirement of property, plant and equipment||5.1||22.0||1.1||2.8||1.9||1.1|
|Gain from the sale of real property||—||—||(5.3||)||—||—||—|
|Gain from investments in affiliated parties||(0.2||)||(0.9||)||0||—||—||(0.1||)|
|Negative Goodwill amortization||(2.9||)||(12.3||)||—||—||—||—|
|(Gain) Loss from investments||(10.4||)||(44.8||)||(55.7||)||26.4||(4.3||)||(8.5||)|
|Adjustment to present value of notes||—||—||4.2||5.2||8.5||21.5|
|Loss (Gain) from the purchase and redemption of notes||(1.5||)||(6.5||)||7.1||(81.5||)||(93.5||)||10.2|
|Loss for debt restructuring||0.6||2.7||—||—||—||—|
|Adjustment to present value of the repurchased and redeemed notes||—||—||—||—||—||8.6|
|Results from valuation of other assets available for sale at NRV||17.4||75.0||—||—||—||—|
|Exchange differences, interest and penalties on loans||71.3||306.8||49.5||178.6||232.7||69.5|
|Increase in trade receivables due to the unbilled portion of the retroactive tariff increase||—||—||—||—||—||(171.3||)|
|Recovery of the accrual for tax contingencies||—||—||—||(35.6||)||—||—|
|Allowance for doubtful accounts||8.8||37.9||16.3||13.5||17.1||—|
|Reversal of the allowance for doubtful accounts||—||—||—||(27.0||)||(24.0||)||—|
|Allowance for other doubtful accounts||0.3||1.5||4.9||3.3||1.7||—|
|Results holdings in related companies||4.2||18.2||—||—||—||—|
|Adjustment to net present value of the retroactive tariff increase arising from the application of the new electricity rate schedule and of the Payment Plan Agreement with the Province of Buenos Aires||(0.3||)||(1.2||)||(11.6||)||(3.4||)||(13.5||)||29.6|
|Changes in operating assets and liabilities:|
|(Increase) decrease in trade receivables (net of the unbilled portion of the retroactive tariff increase)||(36.5||)||(157.2||)||0.2||48.1||(49.5||)||(36.9||)|
|Net (increase) decrease in other receivables||(60.2||)||(258.9||)||(0.3||)||5.3||(33.4||)||(8.4||)|
|(Increase) decrease in supplies||(3.5||)||(15.2||)||(2.2||)||(3.9||)||7.4||(18.4||)|
|Increase in other available for sale assets||(67.7||)||(291.6||)||—||—||—||—|
|Increase in trade accounts payable||65.8||283.2||34.9||15.2||27.8||52.7|
|Increase in salaries and social security taxes||29.2||125.6||69.0||27.2||50.3||12.9|
|Increase (decrease) in taxes||14.8||63.5||(45.8||)||(56.9||)||26.4||22.5|
|Increase in other liabilities||39.0||167.8||74.5||39.3||78.1||17.7|
|Increase in funds obtained from the Program for the Rational Use of Electric Power (PUREE)(1||92.8||399.6||295.8||199.8||—||—|
|Net increase (decrease) in accrued litigation||2.8||11.8||(8.2||)||10.6||15.1||16.2|
|Financial interest paid, net of interest capitalized||(24.7||)||(106.2||)||(64.9||)||(76.8||)||(62.7||)||(25.5||)|
|Financial and commercial interest collected||12.0||51.5||60.2||32.2||6.9||11.6|
|Net cash flow provided by operating activities||118.9||511.8||526.9||668.0||547.5||427.2|
|Additions of property, plant and equipment||(151.8||)||(653.4||)||(388.8||)||(404.2||)||(325.4||)||(336.9||)|
|Acquisition of permanent investments||(131.9||)||(567.6||)||—||—||—||—|
|Cash increase due to the acquisition of permanent investmentsi||27.7||119.0||—||—||—||—|
|Collection of other investments sold||29.4||126.7||—||—||—|
|Collection of PPE sold||—||—||7.4||—||—||—|
|Net cash flow used in investing activities||(226.6||)||(975.2||)||(381.3||)||(404.2||)||(325.4||)||(336.9||)|
|Decrease (increase) in current and non-current investments||—||—||—||13.6||(67.9||)||—|
|Net (decrease) increase in loans||(18.8||)||(81.1||)||302.9||(175.5||)||(122.9||)||(203.6||)|
|Increase in minority interest||9.0||38.6||—||—||—||—|
|Treasury shares purchased||—||—||—||—||(6.1||)||—|
|Payment of dividends (2)||(8.8||)||(38.0||)||—||—||—||—|
|Net cash flows (used in) provided by financing activities||(18.7||)||(80.4||)||302.9||(161.8||)||(197.0||)||(21.8||)|
|Cash and cash equivalents at beginning of year||U.S.$||157.3||Ps.||676.8||Ps.||228.4||Ps.||126.4||Ps.||101.2||Ps.||32.7|
|Cash and cash equivalents at end of the year||30.9||133.0||676.8||228.4||126.4||101.2|
|Net (decrease) increase in cash and cash equivalents||(126.4||)||(543.9||)||448.5||102.0||25.2||68.5|
|(1)||For the year ended December 31, 2008, funds obtained from the PUREE were included under “Increase in other liabilities”.|
|(2)||Corresponds to dividend payments declared by Aeseba before it was acquired by Edenor.|
|Year ended December 31,|
|Edenor||Aeseba (1)||Emdersa (1)|
|Energy sales (in GWh):|
|Customers (in thousands)(4)||2,699||340||550||2,662||2,605||2,537||2,490|
|Energy losses (%)||12.6||%||10.4||%||11.2||%||12.5||%||11.9||%||10.8||%||11.6||%|
|MWh sold per employee||7,188.1||3,771.2||9,421.5||7,123.9||6,936.1||7,392.8||7,230.6|
|Customers per employee||965||460||1,345||971||978||997||998|
|(1)||Financial data and other operating information for the year ended December 31, 2011 may not be representative of the results recorded in our Consolidated financial statements for the year ended December 31, 2011, which includes financial information of Emdersa and Aeseba for the period commencing March 1, 2011 and ended December 31, 2011.|
|(2)||Wheeling system charges represent our tariffs for large users, which consist of a fixed charge for recognized technical losses and a charge for our distribution margins but exclude charges for electric power purchases, which are undertaken directly between generators and large users.|
|(3)||Represents energy consumed internally by us and our facilities.|
|(4)||We define a customer as one meter. We may supply more than one consumer through a single meter. In particular, because we measure our energy sales to each shantytown collectively using a single meter, each shantytown is counted as a single customer.|
From April 1, 1991 until the end of 2001, the Convertibility Law established a fixed exchange rate under which the Central Bank was obliged to sell U.S. Dollars at a fixed rate of one Peso per U.S. Dollar (the “Convertibility Regime”). On January 6, 2002, the Argentine Congress enacted the Public Emergency Law, formally putting an end to the regime of the Convertibility Regime and abandoning over ten years of U.S. Dollar-Peso parity. The Public Emergency Law grants the executive branch of the Argentine government the power to set the exchange rate between the Peso and foreign currencies and to issue regulations related to the foreign exchange market. The Public Emergency law has been extended until December 31, 2013. For a brief period following the end of the Convertibility Regime, the Public Emergency Law established a temporary dual exchange rate system. Since February 2002, the Peso has been allowed to float freely against other currencies.
The following table sets forth the annual high, low, average and period-end exchange rates for U.S. Dollars for the periods indicated, expressed in Pesos per U.S. Dollar at the purchasing exchange rate and not adjusted for inflation. When preparing our financial statements, we utilize the selling exchange rates for U.S. Dollars quoted by Banco Nación to translate our U.S. Dollar denominated assets and liabilities into Pesos. The Federal Reserve Bank of New York does not report a noon buying rate for Pesos.
|(Pesos per U.S. Dollar)|
|Year ended December 31,|
Source: Banco Nación
|(1)||Represents the average of the exchange rates on the last day of each month during the period.|
|(2)||Average of the lowest and highest daily rates in the month.|
|(3)||Represents the corresponding exchange rates from April 1 through April 24, 2012.|
|(4)||Represents the average of the lowest and highest daily rates from April 1 through April 24, 2012.|
Risks Related to Argentina
We are a limited liability corporation (sociedad anónima) incorporated under the laws of the Republic of Argentina and all of our revenues are earned in Argentina and all of our operations, facilities, and customers are located in Argentina. Accordingly, our financial condition and results of operations depend to a significant extent on macroeconomic, regulatory, and political and financial conditions prevailing in Argentina, including growth, inflation rates, currency exchange rates, interest rates and other local, regional and international events and conditions that may affect Argentina in any manner. For example, slower economic growth or economic recession could lead to a decreased demand for electricity in our concession area or a decline in the purchasing power of our customers, which, in turn, could lead to a decrease in collection rates from our customers or increased energy losses due to illegal use of our service. Actions of the Argentine government concerning the economy, including decisions with respect to inflation, interest rates, price controls, foreign exchange controls and taxes, have had and could continue to have a material adverse effect on private sector entities, including us. For example, during the Argentine economic crisis of 2001, the Argentine government froze electricity distribution margins and caused the pesification of our tariffs, which had a materially adverse effect on our business and financial condition and led us to suspend payments on our financial debt at the time. We cannot assure you that the Argentine government will not adopt other policies that could adversely affect the Argentine economy or our business, financial condition or results of operations. In addition, we cannot assure you that future economic, regulatory, social and political developments in Argentina, will not impair our businesses, financial condition, or results of operations or cause the market value of our ADSs and Class B common shares to decline.
The global financial crisis and unfavorable credit and market conditions that commenced in 2007 may negatively affect our liquidity, customers, business, and results of operations
The ongoing effects of the global credit crisis and related turmoil in the global financial system may have a negative impact on our business, financial condition and results of operations, an impact that is likely to be more severe on an emerging market economy, such as Argentina. The effect of this economic crisis on our customers and on us cannot be predicted. Weak economic conditions could lead to reduced demand for energy, which could have a negative effect on our revenues. Economic factors such as unemployment, inflation levels and the availability of credit could also have a material adverse effect on demand for energy and therefore on our financial condition and operating results. In addition, our ability to access the credit or capital markets may be restricted at a time when we would need financing, which could have an impact on our flexibility to react to changing economic and business conditions. For these reasons, any of the foregoing factors or a combination of these factors could have an adverse effect on our results of operations and financial condition and cause the market value of our ADSs and Class B common shares to decline.
Argentina’s economic recovery since the 2001 economic crisis may not be sustainable in light of current economic conditions, and any significant decline could adversely affect our financial condition
During 2001 and 2002, Argentina went through a period of severe political, economic and social crisis. Although the economy has recovered significantly since the 2001 crisis, uncertainty remains as to the sustainability of economic growth and stability. After the significant slowdown in the Argentine economy in 2009, which started in the last quarter of 2008 and continued into much of 2009 (impacted by the largest global crisis in decades and negative domestic factors), the Argentine economy experienced a growth of about 0.9% and during 2009 and 2010, respectively, according to preliminary official public estimates. Similarly, during 2011, the Argentine economy registered a growth of 8.9%. However, uncertainty remains about the sustainability of this growth. Sustainable economic growth is dependent on a variety of factors, including international demand for Argentine exports, the stability and competitiveness of the Peso against foreign currencies, confidence among consumers and foreign and domestic investors and a stable rate of inflation.
The Argentine economy remains fragile, as reflected by the following economic conditions:
|·||the availability of long-term credit is scarce;|
|·||investment as a percentage of GDP remains too low to sustain the growth rate of recent years;|
|·||fiscal surplus shows a steady decline, with risk of becoming a fiscal deficit in the near term;|
|·||public debt remains high, as payments have increased (in line with post-default payment terms), while international financing remains limited;|
|·||inflation has accelerated recently and threatens to continue at levels that risk economic stability;|
|·||the regulatory environment continues to be uncertain;|
|·||controls to exchange Pesos into foreign currencies or to transfer funds abroad continue to increase;|
|·||the recovery has depended to some extent on high commodity prices, which despite having a favorable long-term trend, are volatile in the short-term and beyond the control of the Argentine government; and|
|·||the trade balance surplus (and the fiscal surplus, to a lesser extent) is largely dependent on the production of grains and soybeans, such that risk to economic stability is magnified by the possibility of a new major drought affecting these crops (as was the case in 2008 and 2009).|
As in the recent past, Argentina’s economy may be adversely affected if political and social pressures inhibit the implementation by the Argentine government of policies designed to maintain price stability, generate growth and enhance consumer and investor confidence. This, in turn, could lead to decreased demand for our services as well as a decrease in collection rates from customers and increased energy losses due to illegal use of our services, which could materially adversely affect our financial condition and results of operations, or cause the market value of our ADSs and Class B common shares to decline. Furthermore, the Argentine government could respond to a lack of economic growth or stability by adopting measures that affect private sector enterprises, as it has done in the past, including the tariff restrictions imposed on public utility companies such as several of our subsidiaries.
We cannot assure you that a decline in economic growth or increased economic instability, developments over which we have no control, would not have an adverse effect on our business, financial condition or results of operations or would not have a negative impact on the market value of our ADSs and Class B common shares.
The impact of inflation in Argentina on our costs could have a material adverse effect on our results of operations
Inflation has, in the past, materially undermined the Argentine economy and the Argentine government’s ability to create conditions that permit growth. According to data published by the Instituto Nacional de Estadística y Censos (National Statistics and Census Institute or INDEC), the rate of inflation reached 9.5% in 2011, 10.9% in 2010 and 7.7% in 2009. Inflation rates reported by several Argentine provinces on average refer to annual rates of inflation significantly in excess of those published by INDEC. Average inflation in the 11 provinces that publish independent inflation data was 14.2%, 23.8% and 20% for 2009, 2010 and 2011, respectively. The Argentine government has implemented programs to control inflation and monitor prices for essential goods and services, including price support arrangements agreed between the Argentine government and private sector companies in several industries and markets.
A return to a high inflation environment would undermine Argentina’s foreign competitiveness by diluting the effects of the Peso devaluation, negatively impact the level of economic activity and employment and undermine confidence in Argentina’s banking system, which could further limit the availability of domestic and international credit to businesses. In turn, a portion of the Argentine debt is adjusted by the Coeficiente de Estabilización de Referencia (Stabilization Coefficient or CER), a currency index, that is strongly related to inflation. Therefore, any significant increase in inflation would cause an increase in the Argentine external debt and consequently in Argentina’s financial obligations, which could exacerbate the stress on the Argentine economy. A high inflation environment could also temporarily undermine our results of operations if we are temporarily unable, or if we are not able at all, to adjust our tariffs accordingly and could adversely affect our ability to finance the working capital needs of our businesses on favorable terms, and adversely affect our results of operations and cause the market value of our ADSs and Class B common shares to decline.
The credibility of several Argentine economic indexes has been called into question, which may lead to a lack of confidence in the Argentine economy and may in turn limit our ability to access the credit and capital markets
In January 2007, INDEC modified its methodology used to calculate the consumer price index (CPI), which is calculated as the monthly average of a weighted basket of consumer goods and services that reflects the pattern of consumption of Argentine households. Further, at the time that INDEC adopted this change in methodology, the Argentine government also replaced certain key personnel at INDEC. The alleged governmental interference prompted complaints from the technical staff at INDEC, which, in turn, has led to the initiation of several judicial investigations involving members of the Argentine government aimed at determining whether there was a breach of classified statistical information relating to the collection of data used in the calculation of the CPI. These events have affected the credibility of the CPI index published by INDEC, as well as other indexes published by INDEC the calculation of which are based on the CPI, including poverty rates, the unemployment rate and the calculation of the GDP, among others. As a result, the inflation rate of Argentina and the other rates calculated by INDEC could be higher than as indicated in official reports. The International Monetary Fund is currently providing technical assistance to the Argentine government to improve the calculation and collection of inflation data. If these investigations result in a finding that the methodologies used to calculate the CPI or other INDEC indexes derived from the CPI were manipulated by the Argentine government, or if it is determined that it is necessary to correct the CPI and the other INDEC indexes derived from the CPI as a result of the methodology used by INDEC, there could be a significant decrease in confidence in the Argentine economy. Given the limited credit available to emerging market nations as a result of the global economic crisis, our ability to access credit in the capital markets could be limited by the uncertainty relating to the inaccuracy of the economic indexes and rates in question which could adversely affect our results of operations and financial conditions and cause the market value of our ADSs and Class B common shares to decline.
Argentina’s ability to obtain financing from international markets is limited, which may impair its ability to implement reforms and foster economic growth, and consequently, may affect our business, results of operations and prospects for growth
In 2005, Argentina restructured part of its sovereign debt that had been in default since the end of 2001. The Argentine government announced that as a result of this restructuring, it had approximately U.S. $129.2 billion in total gross public debt as of December 31, 2005. Certain bondholders that did not participate in that restructuring, mainly from the United States, Italy and Germany, have filed legal actions against Argentina to collect on the defaulted bonds. Many of these proceedings are still pending as of this date and holdout creditors may initiate new suits in the future.
On January 3, 2006, Argentina repaid in full its debt of approximately U.S. $9.8 billion with the International Monetary Fund.
In September 2008, Argentina announced its intention to cancel its external public debt to Paris Club creditor nations using reserves of the Central Bank in an amount equal to approximately U.S. $6.5 billion. However, as of the date of this annual report, the Argentine government has not yet cancelled such debt. Indeed, negotiations in this respect remain stagnant. If no agreement with the Paris Club creditor nations is reached, financing from multilateral financial institutions may be limited or not available, which could adversely affect economic growth in Argentina and Argentina’s public finances.
Certain groups of holders that did not participate in the 2005 restructuring have filed claims against Argentina and it is possible that new claims will be filed in the future. In addition, foreign shareholders of several Argentine companies have filed claims before the ICSID (International Centre for Settlement of Investment Disputes) alleging that certain government measures adopted during the country’s 2001 crisis were inconsistent with the fair and equitable treatment standards set forth in various bilateral investment treaties to which Argentina is a party. Since May 2005, the ICSID tribunals have issued several awards against Argentina. Only the cases “CMS v. Argentina”, “Azurix v. Argentina” and “Vivendi v. Argentina” are currently final and unappealable, which decisions required that the Argentine government pay U.S. $133.2 million, U.S. $165.2 million and U.S. $105 million, respectively. As of the date of this annual report, Argentina has not yet paid the amounts referred to above.
On April 30, 2010, Argentina launched a new debt exchange to holders of the securities issued in the 2005 debt exchange and to holders of the securities that were eligible to participate in the 2005 debt exchange (other than brady bonds) to exchange such debt for new securities and, in certain cases, a cash payment. As a result of the 2005 and 2010 exchange offers, Argentina restructured over 91% of the defaulted debt eligible for the 2005 and 2010 exchange offers. The creditors who did not participate in the 2005 or 2010 exchange offers may continue with legal action against Argentina for the recovery of debt, which could adversely affect Argentina’s access to the international capital markets.
Argentina’s past default and its failure to restructure completely its remaining sovereign debt and fully negotiate with the holdout creditors may limit Argentina’s ability to reenter the international capital markets. Litigation initiated by holdout creditors as well as ICSID claims have resulted and may continue to result in judgments and awards against the Argentine government which, if not paid, could prevent Argentina from obtaining credit from multilateral organizations. Judgment creditors have sought and may continue to seek to attach or enjoin assets of Argentina. In addition, various creditors have organized themselves into associations to engage in lobbying and public relations concerning Argentina’s default on its public indebtedness. Such groups have over the years unsuccessfully urged passage of federal and New York state legislation directed at Argentina’s defaulted debt and aimed at limiting Argentina’s access to the U.S. capital markets. Although neither the United States Congress nor the New York state legislature has adopted such legislation, we can make no assurance that legislation or other political actions designed to limit Argentina’s access to capital markets will not take effect.
In April 2010, a Court of New York granted an attachment over reserves of the Argentine Central Bank in the United States requested by creditors of Argentina on the theory that the Central Bank was its alter ego. In July 2011, an appeals court reversed that ruling, stating that the assets of the Central Bank were protected by law. Plaintiffs have petitioned the United States Supreme Court to review the appeals court decision and, as of the date of this annual report, the United States Supreme Court has not ruled if it will hear the case.
As a result of Argentina’s default and the events that have followed it, the Argentine government may not have the financial resources necessary to implement reforms and foster economic growth, which, in turn, could have a material adverse effect on the country’s economy and, consequently, our businesses and results of operations. Furthermore, Argentina’s inability to obtain credit in international markets could have a direct impact on our own ability to access international credit markets to finance our operations and growth, which could adversely affect our results of operations and financial condition and cause the market value of our ADSs and Class B common shares to decline.
Significant fluctuations in the value of the Peso could adversely affect the Argentine economy, which could, in turn adversely affect our results of operations
The devaluation of the Peso in 2002 (a 238% decline against the U.S. Dollar) had a far-reaching negative impact on the financial condition of many businesses and individuals. The devaluation of the Peso had a negative impact on the ability of Argentine businesses to honor their foreign currency-denominated debt, led to very high inflation initially, significantly reduced real wages, had a negative impact on businesses whose success is dependent on domestic market demand, including public utilities and the financial industry, and adversely affected the Argentine government’s ability to honor its foreign debt obligations. If the Peso devalues significantly, the negative effects on the Argentine economy could have adverse consequences to our businesses, our results of operations and the market value of our ADSs.
On the other hand, a substantial increase in the value of the Peso against the U.S. Dollar also presents risks for the Argentine economy, including a reduction in exports. Any such increase could have a negative effect on economic growth and employment, reduce the Argentine public sector’s revenues from collection in real terms and have a material adverse effect on our business our result of operations and the market value of our ADSs as a result of the weakening of the Argentine economy in general.
Measures taken by the Argentine government to address social unrest may adversely affect the Argentine economy and our business and results of operations
During the economic crisis in 2001 and 2002, Argentina experienced social and political turmoil, including civil unrest, riots, looting, nationwide protests, strikes and street demonstrations. Despite the economic recovery and relative stability since 2002, social and political tensions and high levels of poverty and unemployment continue. Future government policies to preempt, or respond to, social unrest may include expropriation, nationalization, forced renegotiation or modification of existing contracts, suspension of the enforcement of creditors’ rights and shareholders’ rights, new taxation policies, including royalty and tax increases and retroactive tax claims, and changes in laws, regulations and policies affecting foreign trade and investment. These policies or significant protests resulting therefrom could destabilize the country and adversely and materially affect the Argentine economy.
In March 2008, the Argentine Ministry of Economy and Production announced the adoption of new taxes on exports of a number of agricultural products. The taxes were to be calculated at incremental rates as the price for the exported products increased, and represented a significant increase in taxes on exports by the agricultural sector in Argentina. The adoption of these taxes met significant opposition from various political and economic groups with ties to the Argentine agricultural sector, including strikes by agricultural producers around the country, roadblocks to prevent the circulation of agricultural goods within Argentina and massive demonstrations in the City of Buenos Aires and other major Argentine cities. Although the Argentine congress did not pass these measures, we cannot assure you that the Argentine government will not reintroduce new export taxes or adopt other similar measures. In addition, further social unrest caused by such measures that could adversely affect the Argentine economy, increased damages to our networks as a result of protesters or illicit activity, which could have a material adverse effect on our financial condition, results of operations and the market value of our ADSs.
Exchange controls and restrictions on capital inflows and outflows may continue to limit the availability of international credit and could threaten the financial system and lead to renewed political and social tensions, adversely affecting the Argentine economy, and, as a result, our business
In 2001 and 2002, Argentina experienced a massive withdrawal of deposits from the Argentine financial system in a short period of time, which precipitated a liquidity crisis within the Argentine financial system and prompted the Argentine government to impose exchange controls and restrictions on the ability of depositors to withdraw their deposits and send funds abroad in an attempt to prevent capital flight and further depreciation of the Argentine Peso. Although some of these restrictions have been suspended, terminated or substantially relaxed, in June 2005 the Argentine government adopted various rules and regulations that established new restrictive controls on capital inflows into the country, including a requirement that for certain funds remitted into Argentina an amount equal to 30% of the funds must be deposited into an account with a local financial institution as a U.S. Dollar deposit for a one-year period without any accrual of interest, benefit or other use as collateral for any transaction. Since October 2011, the Argentine government has strengthened certain restrictions on the sale of foreign currency to non residents in connection with the repatriation of direct investments, and on the creation of foreign assets belonging to residents. See “Exchange Rates” and “Item 10. Exchange Controls.” The Argentine government could impose new exchange controls or restrictions on the movement of capital and take other measures that could limit our ability to access the international capital markets and impair our ability to make interest or principal payments abroad or payments. Argentina may re-impose exchange controls, transfer restrictions or other measures in the future in response to capital flight or a significant depreciation of the Peso.
In the event of a future shock, such as the failure of one or more banks or a crisis in depositor confidence, the Argentine government could impose further exchange controls or transfer restrictions and take other measures that could lead to renewed political and social tensions and undermine the Argentine government’s public finances, which could adversely affect Argentina’s economy and prospects for economic growth, which, in turn, could adversely affect our business and results of operations and the market value of our ADSs. In addition, the Argentine government or the Central Bank may reenact certain restrictions on the transfers of funds abroad, impairing our ability to make dividend payments to holders of the ADSs, which may adversely affect the market value of our ADSs. As of the date of this annual report, however, the transfer of funds abroad to pay dividends is permitted to the extent such dividend payments are made in connection with audited financial statements approved by a shareholders’ meeting.
The nationalization of Argentina’s private pension funds caused an adverse effect in the Argentine capital markets and increased the Argentine government’s interest in certain stock exchange listed companies, such that the Argentine government became a significant shareholder of such companies
In recent years a significant portion of the local demand for securities of Argentine companies came from the Argentine private pension funds. In response to the global economic crisis, in December 2008, by means of Argentine Law No. 26,425, the Argentine Congress unified the Argentine pension and retirement system into a system publicly administered by the Administración Nacional de la Seguridad Social (National Social Security Agency or ANSES), eliminating the pension and retirement system previously administered by private managers. In accordance with the new law, private pension managers transferred all of the assets administered by them under the pension and retirement system to the ANSES. With the nationalization of Argentina’s private pension funds, the local capital markets decreased in size and became substantially concentrated. In addition, the Argentine government became a significant shareholder in many of the country’s public companies. In April 2011, the Argentine government lifted certain restrictions pursuant to which ANSES was prevented from exercising more than 5% of its voting rights in any stock exchange listed company (regardless of the equity interest held by ANSES in such companies). ANSES has publicly stated that it intends to exercise its voting rights in excess of such 5% limit in order to appoint directors in different stock exchange listed companies in which it holds an interest exceeding 5%. ANSES’ interests may differ from those of other investors, and consequently, if ANSES acquires a more prevailing role in any Argentine listed companies in which it owns shares, ANSES’ actions might have an adverse effect on such companies and, to a certain extent, on domestic capital markets. As of the date of this annual report ANSES owns shares representing 20.96% of the capital stock of our subsidiary Emdersa and 25.3% of the capital stock of Edenor.
The Argentine government has stated its intention to exert a stronger influence on the operation of stock exchange listed companies. We cannot assure you that these or other similar actions taken by the Argentine government will not have an adverse effect on the Argentine economy and consequently on our financial condition and results of operations.
The Argentine economy could be adversely affected by economic developments in other global markets
Argentine financial and securities markets are influenced, to varying degrees, by economic and financial conditions in other markets. Although economic conditions can vary from country to country, investors’ perception of the events occurring in one country may substantially affect capital flows to other countries and the value of securities in other countries, including Argentina. The Argentine economy was adversely impacted by the political and economic events that occurred in several emerging economies in the 1990s, including those in Mexico in 1994, the collapse of several Asian economies between 1997 and 1998, the economic crisis in Russia in 1998 and the Brazilian devaluation of its currency in January 1999. In addition, Argentina may be affected by events in the economies of its major regional trading partners, including, for example, currency devaluations caused by the global economic crisis that continue to affect it.
Also, the Argentine economy might be affected by occurring events in developed countries that are its commercial partners or which may have an impact on the global economy. In addition, the global financial crisis that commenced in the last quarter of 2008 has affected and may continue to negatively affect the economies of several countries around the world including Argentina and certain of its trading partners. Developed economies like the United States have sustained some of the most severe effects while some emerging economies like that of China and Brazil have suffered comparatively milder effects. More recently, several European countries, such as Ireland, Greece, Portugal, Spain, the United Kingdom and Italy, have revealed significant macroeconomic imbalances. In addition, on August 5, 2011, Standard & Poor’s Financial Services LLC downgraded the debt instruments issued by the United States and on January 13, 2012, Standard & Poor’s Rating Services downgraded the instruments of nine European countries including France and Italy. Financial markets have reacted adversely curtailing the ability of certain of these countries to refinance their outstanding debt. The impact of this crisis on Argentina could include a reduction in exports and foreign direct investment, a decline in national tax revenues and an inability to access international capital markets, which could adversely affect our business, results of operations and the market value of our ADSs. The realization of any or all of these risk factors, as well as events that may arise in the main regional partners, including members of Mercosur, could have a material adverse effect on the Argentine economy and, indirectly, on our business, financial condition and results of operations and the market value of our ADSs.
The actions taken by the Argentine government to reduce imports may affect our ability to purchase significant capital goods
The Argentine government has recently adopted some initiatives designed to limit the import of goods in order to prevent further deterioration of the Argentine balance of trade. The restriction of imports may limit our ability to purchase capital goods that are necessary for our operations, which may, in turn, adversely affect our business, financial condition and results of operations.
Risks Relating to the Electricity Distribution Sector
The Argentine government has intervened in the electricity sector in the past, and is likely to continue intervening
To address the Argentine economic crisis in 2001 and 2002, the Argentine government adopted the Public Emergency Law and other regulations, which made a number of material changes to the regulatory framework applicable to the electricity sector. These changes severely affected electricity distribution companies and included the freezing of distribution margins, the revocation of adjustment and inflation indexation mechanisms for tariffs and a limitation on charging our customers the increases of certain regulatory charges. In addition, a new price-setting mechanism was introduced in the wholesale electricity market, which had a significant impact on electricity generators and has led to significant price mismatches between participants in our market. The Argentine government continues to intervene in this sector, including granting temporary margin increases, proposing a new social tariff regime for residents of poverty-stricken areas, creating specific charges to raise funds that are transferred to government-managed trust funds that finance investments in distribution infrastructure and mandating investments for the construction of new generation plants and the expansion of existing transmission and distribution networks.
Furthermore, on November 15, 2011, the Secretary of Energy issued Note No.8752/11 (“Note 8752”), which provided that any approval by the provincial governments of increases to the electricity tariffs applicable to end-users as of November 1, 2011 will trigger a proportionate decrease in the federal subsidy available to that end-user in connection with the purchase of electricity. Since the issuance of Note 8752, certain provincial governments have initiated legal proceedings to challenge the jurisdiction of the Secretary of Energy to issue Note 8752, particularly because of the potential chilling effect that this regulation may have on the ability of the provincial governments to increase electricity tariffs. These proceedings have not been resolved as of the date of this annual report.
We cannot assure you that these or other measures that may be adopted by the Argentine government will not have a material adverse effect on our business and results of operations or on the market value of our ADSs, or that the Argentine government will not adopt emergency legislation similar to the Public Emergency Law, or other similar resolutions, in the future that may further increase our regulatory obligations, including increased taxes, unfavorable alterations to our tariff structures and other regulatory obligations, compliance with which would increase our costs and have a direct negative impact on our results of operations and cause the market value of our ADSs and Class B common shares to decline.
Electricity distributors were severely affected by the emergency measures adopted during the economic crisis, many of which remain in effect
Distribution tariffs include a regulated margin that is intended to cover the costs of distribution and provide an adequate return over the distributor’s asset base. Under the Convertibility Regime, distribution tariffs were calculated in U.S. Dollars and distribution margins were adjusted periodically to reflect variations in U.S. inflation indexes. Pursuant to the Public Emergency Law, in January 2002 the Argentine government froze all distribution margins, revoked all margin adjustment provisions in distribution concessions and converted distribution tariffs into Pesos at a rate of Ps. 1.00 per U.S. $ 1.00. These measures, coupled with the effect of high inflation and the devaluation of the Peso, led to a decline in distribution revenues in real terms and an increase of distribution costs in real terms, which could no longer be recovered through adjustments to the distribution margin. This situation, in turn, led many public utility companies, including us and other important distribution companies, to suspend payments on their financial debt (which continued to be denominated in U.S. Dollars despite the pesification of revenues), effectively preventing these companies from obtaining further financing in the domestic or international credit markets and making additional investments. Although the Argentine government has recently granted temporary relief to some distribution companies, including an increase in distribution margins and a temporary cost adjustment mechanism, distribution companies are currently involved in discussions with regulators on additional, permanent measures needed to adapt the current tariff scheme to the post-crisis situation of this sector. We cannot assure you that these measures will be adopted or implemented or that, if adopted, they will be sufficient to address the structural problems created for us by the economic crisis and its aftermath. If we become unable to cover the costs of distribution or receive an adequate return on our asset on our base, our results of operations may be adversely affected.
Electricity demand may be affected by tariff increases, which could lead distribution companies, such as us, to record lower revenues
During the 2001 and 2002 economic crisis, electricity demand in Argentina decreased due to the decline in the overall level of economic activity and the deterioration in the ability of many consumers to pay their electricity bills. In the years following the 2001 and 2002 economic crisis electricity demand experienced significant growth, increasing at an estimated average of approximately 5.0% per annum from 2003 through 2011. This increase in demand reflects the relative low cost, in real terms, of electricity to consumers due to the freeze of distribution margins and the elimination of the inflation adjustment provisions in distribution concessions coupled with the devaluation of the Peso and inflation. The executive branch of the Argentine government granted temporary increases in distribution margins, and we are currently negotiating further increases and adjustments to our tariff schemes with the Argentine government. Although the recent increases in distribution margins, which increased the cost of electricity to residential customers, have not had a significant negative effect on demand, we cannot make any assurances that these increases or any future increases in the relative cost of electricity will not have a material adverse effect on electricity demand or a decline in collections from customers. Further, in November 2011, the Argentine government announced a cut in subsidies for electricity granted to certain customers that are presumably in a position to face its real cost. These measures are currently in an early stage of implementation and we cannot ascertain as of the date of this report what the effect on our revenues could be. See “Item 5. Operating and Financial Review and Prospects—Factors Affecting our Results of Operations—Recognition of Cost of Electric Power Purchases.” However, we cannot assure you that these measures or any future measures (including increases on tariffs for residential users) will not lead distribution companies, such as us, to record lower revenues and results of operations than currently anticipated, which may, in turn, have a material adverse effect on the market value of our ADSs.
If we experience continued energy shortages in the face of growing demand for electricity, our ability to deliver electricity to our customers could be adversely affected, which could result in customer claims, material penalties and decreased results of operations
In recent years, the condition of the Argentine electricity market has provided little incentive to generators to further invest in increasing their generation capacity, which would require material long-term financial commitments. As a result, Argentine electricity generators are currently operating at near full capacity and may not be able to guarantee the supply of electricity to distribution companies, such as us, which, in turn, could limit the ability of these companies, including us, to provide electricity to customers, and could lead to a decline in growth of such companies. Under Argentine law, distribution companies, such as us, are responsible to their customers for any disruption in the supply of electricity. To date, the Argentine authorities have not been called upon to decide under which conditions energy shortages may constitute force majeure. In the past, however, the Argentine authorities have taken a restrictive view of force majeure and have recognized the existence of force majeure only in limited circumstances, such as internal malfunctions at the customer’s facilities, extraordinary meteorological events (such as major storms) and third-party work in public thoroughfares. As a result, we could face customer claims and fines and penalties for service disruptions caused by energy shortages unless the relevant Argentine authorities determine that energy shortages constitute force majeure, which claims, fines and penalties could have a materially adverse effect on our financial condition and results of operations, and cause the market value of our ADSs and Class B common shares to decline.
Risks Relating to Our Business
Failure or delay to negotiate further improvements to our tariff structure, including increases in our distribution margin, and/or to have our tariff adjusted to reflect increases in our distribution costs in a timely manner, could have a material adverse effect on our capacity to perform our financial and commercial obligations. As a result, there is substantial doubt with respect to the ability of the Company to continue as a going concern.
We are currently engaged in RTI with the ENRE, as required by the agreement entered into with the Argentine government in February 2006 relating to the adjustment and renegotiation of the terms of our concession (the “Adjustment Agreement”) but the timeline for completing this process and the favorability to us of the final resolution are both uncertain.
The Adjustment Agreement currently contemplates a cost adjustment mechanism for the transition period during which the RTI is being conducted. This mechanism, known as the Cost Monitoring Mechanism (CMM), requires the ENRE to review our actual distribution costs every six months (in May and November of each year) and adjust our distribution margins to reflect variations of 5% or more in our distribution cost base. We may also request that the ENRE apply the CMM at any time that the variation in our distribution cost base is at least 10% or more. Any adjustments, however, are subject to the ENRE’s assessment of variations in our costs, and we cannot guarantee that the ENRE will approve adjustments that are sufficient to cover our actual incremental costs. In the past, even when the ENRE has approved adjustments to our tariffs, there has been a lag between when we actually experience increases in our distribution costs and when we receive increased revenues following the corresponding adjustments to our distribution margins pursuant to the CMM. Despite the adjustment we were granted under the CMM in October 2007 and July 2008, we cannot assure you that we will receive similar adjustments in the future. As of the date of this annual report we have requested eight increases under the CMM beginning in May 2008, which increases are still being reviewed by the ENRE. Under the terms of the Adjustment Agreement, these eight increases should have been approved in May 2008, November 2008, May 2009, November 2009, May 2010, November 2010, May 2011 and November 2011.
During the year ended December 31, 2011, we recorded a significant decrease in net income and operating income, and our working capital and liquidity levels were negatively affected, primarily as a result of the delay in obtaining a tariff increase and in having our tariff adjusted to reflect increases in our distribution costs, coupled with a constant increase in operating costs to maintain adequate service levels.
If we are not able to recover all of the incremental costs contemplated by the increase requests pursuant to the CMM and all such future cost increases or there is a significant lag time between when we incur the incremental costs and when we receive increased revenues, and/or if we are not successful in achieving a satisfactory re-negotiation of our tariff structure, we may be unable to comply with our financial and commercial obligations, we may suffer liquidity shortfalls and we may need to restructure our debt to ease our financial condition, any of which individually or in the aggregate, would have a material adverse effect on our business and results of operations and may cause the value of our ADSs to decline. As a result, there is substantial doubt with respect to the ability of the Company to continue as a going concern and our auditors’ report included elsewhere in this annual report contains an explanatory paragraph expressing substantial doubt as to our ability to continue as a going concern.
We have prepared our annual financial statements for the fiscal year ended December 31, 2011 included herein, assuming that we will continue as a going concern. Our independent auditors, PWC, issued a report dated April 26, 2012 on our financial statements as of and for the years ended December 31, 2011 and 2010, which contains an explanatory paragraph expressing substantial doubt as to our ability to continue as a going concern. As discussed in Notes 2 and 8.c to the financial statements, the delays in obtaining tariff increases, recognition of cost adjustments requested by the Company in accordance with the terms of the Adjustment Agreement and the continuous increase in operating expenses have affected significantly the economic and financial position of the Company and have raised substantial doubt with respect to our ability to continue as a going concern. Management's plans in response to these matters are also described in Note 2. However, our financial statements as of and for the year ended December 31, 2011 and 2010 do not include any adjustments or reclassifications that might result from the outcome of this uncertainty. See Item 18: “Financial Statements.”
The goal of the RTI is to achieve a comprehensive revision of our tariff structure, including further increases in our distribution margins and periodic adjustments based on changes in our cost base, to provide us with an adequate return on our asset base. Although we believe the RTI will result in a new tariff structure, we cannot assure you that the RTI will conclude in a timely manner or at all, or that the new tariff structure will effectively cover all of our costs or provide us with an adequate return on our asset base. Moreover, the RTI could result in the adoption of an entirely new regulatory framework for our business, with additional terms and restrictions on our operations and the imposition of mandatory investments. We also cannot predict whether a new regulatory framework will be implemented and what terms or restrictions could be imposed on our operations.
Our distribution tariffs may be subject to challenge by Argentine consumer and other groups
In November 2006, two Argentine consumer associations, Asociación Civil por la Igualdad y la Justicia (ACIJ) and Consumidores Libres Cooperativa Limitada de Provisión de Servicios de Acción Comunitaria, brought an action against us and the Argentine government before a federal administrative court seeking to block the ratification of the Adjustment Agreement on the grounds that the approval mechanism was unconstitutional. In March 2007, the federal administrative court dismissed these claims and ruled in our favor on the grounds that the adoption of Executive Decree No. 1957/06, which ratified the Adjustment Agreement, rendered this action moot. The ACIJ appealed this decision in April 2007, and the appeal was decided in our favor. However, in April 2008, the ACIJ filed another complaint challenging the procedures utilized by the Argentine Congress in approving the Adjustment Agreement, to which we timely replied. In addition, in 2008, the defensor del pueblo (Public Ombudsman) filed a claim opposing the resolutions establishing the tariff schedule, effective as of October 1, 2008, and naming us as defendant. On January 27, 2009, the ENRE notified us of a preliminary injunction, as a result of the Ombudsman’s claim, pursuant to which we were ordered to refrain from cutting the energy supply to customers challenging the October 2008 tariff increase until a decision is reached with respect to the claim. This injunction has been appealed by us and the Argentine government, the resolution of which is still pending as of the date of this annual report. In addition, in December 2009, another Argentine consumer association, Unión de Usuarios y Consumidores, brought an action against us and the Argentine government seeking to annul certain retroactive tariff increases. In November 2010, the relevant court upheld the claim. We appealed the court’s order and requested that it be stayed pending a decision on the appeal. In December 2010, the court stayed its order pending a decision on the appeal. On June 1, 2011, the Administrative Court of Appeals (Cámara Nacional de Apelaciones en lo Contencioso Administrativo Federal – Sala V) overturned the judgment of the lower administrative court. The Argentine consumer association may file an extraordinary appeal (“Recurso Extraordinario Federal”) to have the case tried by the Argentine Supreme Court. As of the date of this annual report, to our knowledge, the Argentine consumer association has not filed such extraordinary appeal. We cannot make assurances regarding how these complaints will be resolved (nor, in the action brought by Unión de Usuarios y Consumidores in December 2009, whether the plaintiff may decide to file an extraordinary appeal as described above) nor can we make assurances that other actions or requests for injunctive relief will not be brought by these or other groups seeking to reverse the adjustments we have obtained or to block any further adjustments to our distribution tariffs. If these legal challenges are successful and prevent us from implementing tariff adjustments granted by the Argentine government, we could face a decline in collections from our customers, and a decline in our results of operations, which may have a material adverse effect on our financial condition and the market value of our ADSs.
We have been, and may continue to be, subject to fines and penalties that could have a material adverse effect on our financial condition and results of operations
We operate in a highly regulated environment and have been and in the future may continue to be subject to significant fines and penalties by regulatory authorities, including for reasons outside our control, such as service disruptions attributable to problems at generation facilities or in the transmission network that result in a lack of electricity supply. After 2001, the amount of fines and penalties imposed on our company has increased significantly, which we believe is mainly due to the economic and political environment in Argentina following the 2001 and 2002 economic crisis. Although the Argentine government has agreed to forgive a significant portion of our accrued fines and penalties pursuant to the Adjustment Agreement and to allow us to repay the remaining balance over time, this forgiveness and repayment plan is subject to a number of conditions, including compliance with quality of service standards, reporting obligations and required capital investments. As of December 31, 2011, our consolidated accrued fines and penalties totaled Ps. 542.2 million (taking into account our adjustment to fines and penalties following the ratification of the Adjustment Agreement). If we fail to comply with any of these conditions, the Argentine government may seek to obtain payment of these fines and penalties by our company. In addition, we cannot assure you that we will not incur material fines in the future, which could have a material adverse effect on our financial condition, our results of operations and the market value of our ADSs.
If we are unable to control our energy losses, our results of operations could be adversely affected
Our concession does not allow us to pass through to our customers the cost of additional energy purchased to cover any energy losses that exceed the loss factor contemplated by our concession, which is, on average, 10%. As a result, if we experience energy losses in excess of those contemplated by our concession, we may record lower operating profits than we anticipate. Prior to the 2001 and 2002 economic crisis, we had been able to reduce the high level of energy losses experienced at the time of the privatization to the levels contemplated (and reimbursed) under our concession. However, during the 2001 and 2002 economic crisis and during the years ended December 31, 2009 and 2010, our level of energy losses, particularly our non-technical losses, started to grow again, in part as a result of the increase in poverty levels and, with it, the number of delinquent accounts and fraud. Although we have been able to reduce energy losses in recent periods, these losses continue to exceed the 10% average loss factor in the concession, and based on the current economic turmoil, we do not expect these losses to decrease in the near term. Our energy losses amounted to 12.6% in 2011, 12.5% in 2010, 11.9% in 2009 and 10.8% in 2008. We cannot assure you that our energy losses will not increase again in future periods, which may lead us to have lower margins and could adversely affect our financial condition, our results of operations and the market value of our ADSs.
The Argentine government could foreclose on the pledge of our Class A common shares under certain circumstances, which could have a material adverse effect on our business and financial condition
Pursuant to our concession and the provisions of the Adjustment Agreement, the Argentine government has the right to foreclose on the pledge of our Class A common shares and sell these shares to a third party buyer if:
|·||the fines and penalties we incur in any given year exceed 20% of our gross energy sales, net of taxes (which corresponds to our energy sales);|
|·||we repeatedly and materially breach the terms of our concession and do not remedy these breaches upon the request of the ENRE;|
|·||our controlling shareholder, EASA, creates any lien or encumbrance over our Class A common shares (other than the existing pledge in favor of the Argentine government);|
|·||we or EASA obstruct the sale of Class A common shares at the end of any management period under our concession;|
|·||EASA fails to obtain the ENRE’s approval in connection with the disposition of our Class A common shares;|
|·||our shareholders amend our articles of incorporation or voting rights in a way that modifies the voting rights of the Class A common shares without the ENRE’s approval; or|
|·||We, or any existing shareholders or former shareholders of EASA who has brought a claim against the Argentine government in the ICSID does not desist from its ICSID claims following completion of the RTI and the approval of a new tariff regime.|
In 2011, the fines and penalties imposed on us by the ENRE amounted to Ps. 81.1 million, which represented 3.6% of our energy sales. See “Item 4. Information on the Company —Our Concession—Fines and Penalties.”
If the Argentine government were to foreclose on the pledge of our Class A common shares, pending the sale of those shares, the Argentine government would also have the right to exercise the voting rights associated with such shares. In addition, the foreclosure by the Argentine government on the pledge of our Class A common shares may be deemed to constitute a change of control under the terms of our Senior Notes issued in October 2007, October 2010 and April 2011, which would require us to offer to repurchase all such debt at its face value. We cannot assure you that we will have sufficient funds or access to financing to effect such repurchases. If the Argentine government forecloses on the pledge of our Class A common shares, our results of operations and financial condition could be significantly affected and the market value of our ADSs could be affected too.
Default by the Argentine government could lead to termination of our concession, and have a material adverse effect on our business and financial condition
If the Argentine government breaches its obligations in such a way that we cannot comply with our obligation under our concession or in such a way that our service is materially affected, we can request the termination of our concession, after giving the Argentine government 90 days’ prior notice. Upon termination of our concession, all our assets used to provide electricity distribution service would be transferred to a new state-owned company to be created by the Argentine government, whose shares would be sold in an international public bidding procedure. The amount obtained in such bidding would be paid to us, net of the payment of any debt owed by us to the Argentine government, plus compensation established as a percentage of the bidding price, ranging from 10% to 30% depending on the management period in which the sale occurs. Any such default could have a material adverse effect on our business and financial condition.
We employ a largely unionized labor force and could be subject to an organized labor action, including work stoppages that could have a material effect on our business
As of December 31, 2011, approximately 82% of our employees were union members. Although our relations with unions are currently stable and we have had an agreement in place with the two unions representing our employees since 1995, we cannot assure you that we will not experience work disruptions or stoppages in the future, which could have a material adverse effect on our business and revenues, especially in light of the social tensions generated in Argentina by the economic crisis. We cannot assure you that we will be able to negotiate salary agreements on the same terms as those currently in effect, or that we will not be subject to strikes or work stoppages before or during the negotiation process. If we are unable to negotiate salary agreements or if we are subject to strikes or work stoppages, our results of operations, financial condition and the market value of our ADSs could be materially adversely affected.
As of December 31, 2011, approximately 84% of Eden employees were union members.
We might incur material labor liabilities in connection with our outsourcing that could have an adverse effect on our business and results of operation
We outsource a number of activities related to our business to third party contractors in order to maintain a flexible cost base. As of December 31, 2011, we had approximately 2,796 third-party employees under contract. Although we have very strict policies regarding compliance with labor and social security obligations by our contractors, we are not in a position to ensure that contractors’ employees will not initiate legal actions to seek indemnification from us based upon a number of judicial rulings issued by labor courts in Argentina recognizing joint and several liability between the contractor and the entity to which it is supplying services under certain circumstances. We cannot make any assurances that such proceedings will not be brought against us or that the outcome of such proceedings would be favorable to us. If we were to incur material labor liabilities in connection with our outsourcing, such liability could have an adverse effect on our financial condition, our results of operations and the market value of our ADSs.
We currently are not able to effectively hedge our currency risk in full and, as a result, a devaluation of the Peso may have a material adverse effect on our results of operations and financial condition
Our revenues are collected in Pesos pursuant to tariffs that are not indexed to the U.S. Dollar, while a significant portion of our existing financial indebtedness is denominated in U.S. Dollars, which exposes us to the risk of loss from devaluation of the Peso. We currently seek to hedge this risk in part by converting a portion of our excess cash denominated in Pesos into U.S. Dollars and investing those funds outside Argentina, as permitted by applicable Argentine Central Bank regulations and entering in currency forward contracts, but we continue to have substantial exposure to the U.S. Dollar. We cannot assure you that the Argentine government will continue to allow us to access the market to acquire U.S. Dollars in the manner we have done so to date. Although we may also seek to enter into further hedging transactions to cover all or a part of our remaining exposure, we have not been able to hedge all of our exposure to the U.S. Dollar on terms we consider viable for our company. If we continue to be unable to effectively hedge all or a significant portion of our currency risk exposure, a devaluation of the Peso may significantly increase our debt service burden, which, in turn, may have a material adverse effect on our financial condition and results of operations.
In the event of an accident or event not covered by our insurance, we could face significant losses that could materially adversely affect our business and results of operations
As of December 31, 2011, our physical assets were insured for up to U.S. $734.4 million. However, we do not carry insurance coverage for losses caused by our network or business interruption, including loss of our concession. See “Item 4. Information on the Company—Our Business—Insurance.” Although we believe our insurance coverage is commensurate with standards for the distribution industry, no assurance can be given of the existence or sufficiency of risk coverage for any particular risk or loss. If an accident or other event occurs that is not covered by our current insurance policies, we may experience material losses or have to disburse significant amounts from our own funds, which may have a material adverse effect on our net profits and our overall financial condition and on the market value of our ADSs.
A substantial number of our assets are not subject to attachment or foreclosure and the enforcement of judgments obtained against us by our shareholders may be substantially limited
A substantial number of our assets are essential to the public service we provide. Under Argentine law, as interpreted by the Argentine courts, assets which are essential to the provision of a public service are not subject to attachment or foreclosure, whether as a guarantee for an ongoing legal action or to allow for the enforcement of a legal judgment. Accordingly, the enforcement of judgments obtained against us by our shareholders may be substantially limited to the extent our shareholders seek to attach those assets to obtain payment on their judgment.
If our controlling shareholder fails to meet its debt service obligations, its creditors may take measures that could have a material adverse effect on our results of operations
In July 2006, EASA completed a comprehensive restructuring of all of its outstanding financial indebtedness, which had been in default since 2002. In connection with this restructuring, EASA issued approximately U.S. $85.3 million in U.S. Dollar-denominated notes in exchange for the cancellation of approximately 99.94% of its outstanding financial debt. Since EASA’s ability to meet its debt service obligations under these notes depends largely on our ability to pay dividends or make distributions or payments to EASA, our failure to do so could result in EASA becoming subject to actions by its creditors, including the attachment of EASA’s assets and petitions for involuntary bankruptcy proceedings. If EASA’s creditors were to attach our Class A common shares held by EASA, the Argentine government would have the right under our concession to foreclose on the pledge of our Class A common shares held by the Argentine government, which would trigger a repurchase obligation under the terms of our restructured debt and our Senior Notes issued in October 2007, October 2010 and April 2011, and have a material adverse effect on our results of operations and financial condition.
Our exclusive right to distribute electric energy in our service area may be adversely affected by technological or other changes in the energy distribution industry, which would have a material adverse effect on our business
Although our concession grants us the exclusive right to distribute electric energy within our service area, this exclusivity may be revoked in whole or in part if technological developments would make it possible for the energy distribution industry to evolve from its present condition as a natural monopoly into a competitive business. In no case does the complete or partial revocation of our exclusive distribution rights entitle us to claim or to obtain reimbursement or indemnity. Although, to our knowledge, there are no current projects to introduce new technologies in the medium- or long-term which might reasonably modify the composition of the electricity distribution business, we cannot assure you that future developments will not enable competition in our industry that would adversely affect the exclusivity right granted by our concession. Any total or partial loss of our exclusive right to distribute electricity within our service area would likely lead to increased competition and result in lower revenues, which could have a material adverse effect on our financial condition, our results of operations and the market value of our ADSs.
Our acquisition of Emdersa and Aeseba and the subsequent divestiture of the subsidiaries of Emdersa are subject to perfunctory approval by the Argentine Antitrust Commission and, in some cases, by the ENRE and Edenor may fail to realize the anticipated benefits of the acquisitions and divestitures, and the integration of these companies with our distribution operations may present significant challenges.
In March 2011, we acquired Emdersa and Aeseba and several related companies, which are now our subsidiaries. Since then, we have decided to divest the subsidiaries of Emdersa. These acquisitions and divestitures are subject to perfunctory approval by the Argentine Antitrust Commission and, in some cases, by the ENRE. Although we have submitted all required documentation to the Argentine Antitrust Commission and to the ENRE, we cannot assure you that the Argentine Antitrust Commission or ENRE, as applicable, will authorize such acquisitions and, therefore, the acquisitions may be revoked or the divestitures may never be perfected if the relevant approvals are not granted.
In addition, we may face significant challenges in integrating Aeseba’s operations and streamlining procedures in a timely and efficient manner while retaining key personnel from the acquired company. The integration of the assets of Aeseba will be costly, complex and time-consuming, and will require substantial management attention. These costs could be greater than we currently anticipate, which could reduce our profitability. The integration of this business could also disrupt the operation of our current business and Aeseba’s existing business, or result in additional administrative procedures or regulatory oversight. It could also adversely affect our and Aeseba’s ability to maintain relationships with customers, suppliers, employees and others with whom we may have business dealings. If we were to incur significant integration cost overruns or if the proposed integration would materially disrupt our existing business, this could have an adverse effect on our financial condition, our results of operations and the market value of our ADSs.
Because our financial statements are prepared under Argentine GAAP, which differs from US GAAP and IFRS with respect to corporate disclosure and accounting rules, information about us may not be as detailed or comprehensive as that of companies reporting under US GAAP or IFRS, including that of companies in the United States
Our financial statements are prepared in Pesos and in accordance with Argentine GAAP. Our financial statements under Argentine GAAP may not provide you with the information you would have received if our financial statements were prepared under U.S. GAAP or under IFRS. Publicly available information about public companies in Argentina is generally less detailed and not as frequently updated as the information that is regularly published by or about listed companies in the United States or European markets. Furthermore, there is a less extensive regulation of the Argentine securities markets and of the activities of the investors in these markets as compared to the securities markets in the United States, European markets and certain other international financial markets. Argentine GAAP differs in certain significant respects from U.S. GAAP, SEC rules and regulations, and IFRS.
The Company is obligated to adopt IFRS as from the fiscal year beginning on January 1, 2012. See “Item 5. Operating and Financial Review and Prospects—Critical Accounting Policies—Adoption of IFRS.” On April 27, 2010, the Company’s Board of Directors approved a specific implementation plan pursuant to the CNV’s General Resolution No. 562/09. The first annual and quarterly financial statements prepared by the Company pursuant to IFRS will be those corresponding to the year ended December 31, 2012 and the quarterly period ended March 31, 2012, respectively. As of the date of this annual report, the Company has reached certain preliminary conclusions regarding the principal impacts of the implementation of IFRS by the Company. The effects of the adoption of IFRS and the reconciliations between the Argentine GAAP and IFRS are included in note 22 to the audited consolidated financial statements.
Risks relating to ADSs and our Class B common shares
Restrictions on the movement of capital out of Argentina may impair the ability of holders of ADRs to receive dividends and distributions on, and the proceeds of any sale of, the Class B common shares underlying the ADSs
The Argentine government may impose restrictions on the conversion of Argentine currency into foreign currencies and on the remittance to foreign investors of proceeds from their investments in Argentina. Argentine law currently permits the Argentine government to impose these kinds of restrictions temporarily in circumstances where a serious imbalance develops in Argentina’s balance of payments or where there are reasons to foresee such an imbalance. Beginning in December 2001, the Argentine government implemented an unexpected number of monetary and foreign exchange control measures that included restrictions on the free disposition of funds deposited with banks and on the transfer of funds abroad, including dividends, without prior approval by the Central Bank, some of which are still in effect. Among the restrictions that are still in effect are those relating to the payment prior to maturity of the principal amount of loans, bonds or other securities owed to non-Argentine residents, the requirement for Central Bank approval prior to acquiring foreign currency for certain types of investments and the requirement that 30% of certain types of capital inflows into Argentina be deposited in a non-interest-bearing account in an Argentine bank for a period of one year. Although the transfer of funds abroad in order to pay dividends no longer requires Central Bank approval to the extent such dividend payments are made in connection with audited financial statements approved by a shareholders’ meeting, restrictions on the movement of capital to and from Argentina such as those that previously existed could, if reinstated, impair or prevent the conversion of dividends, distributions, or the proceeds from any sale of shares, as the case may be, from Pesos into U.S. Dollars and the remittance of such U.S. Dollars abroad. We cannot assure you that the Argentine government will not take similar measures in the future. In such a case, the depositary for the ADSs may hold the Pesos it cannot otherwise convert for the account of the ADS holders who have not been paid. Nonetheless, the adoption by the Argentine government of restrictions on the movement of capital out of Argentina may affect the ability of our foreign shareholders and holders of ADSs to obtain the full value of their shares and ADSs and may adversely affect the market value of our ADSs.
Our ability to pay dividends is limited
In accordance with Argentine corporations law, we may only pay dividends in Pesos out of our retained earnings, if any, as set forth in our audited consolidated financial statements prepared in accordance with Argentine GAAP. Our ability to pay dividends, however, is further restricted in accordance with the terms of the Adjustment Agreement, pursuant to which we have agreed not to pay dividends without the ENRE’s prior approval until we complete the RTI. We cannot predict with any certainty when this process will be completed.
Our shareholders’ ability to receive cash dividends may be limited
Our shareholders’ ability to receive cash dividends may be limited by the ability of the depositary to convert cash dividends paid in Pesos into U.S. Dollars. Under the terms of our deposit agreement with the depositary for the ADSs, the depositary will convert any cash dividend or other cash distribution we pay on the common shares underlying the ADSs into U.S. Dollars, if it can do so on a reasonable basis and can transfer the U.S. Dollars to the United States. If this conversion is not possible or if any government approval is needed and cannot be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. If the exchange rate fluctuates significantly during a time when the depositary cannot convert the foreign currency, shareholders may lose some or all of the value of the dividend distribution.
Under Argentine law, shareholder rights may be fewer or less well defined than in other jurisdictions
Our corporate affairs are governed by our by-laws and by Argentine corporate law, which differ from the legal principles that would apply if we were incorporated in a jurisdiction in the United States, such as the States of Delaware or New York, or in other jurisdictions outside Argentina. In addition, the rights of holders of the ADSs or the rights of holders of our common shares under Argentine corporations law to protect their interests relative to actions by our board of directors may be fewer and less well-defined than under the laws of those other jurisdictions. Although insider trading and price manipulation are illegal under Argentine law, the Argentine securities markets are not as highly regulated or supervised as the U.S. securities markets or markets in some other jurisdictions. In addition, rules and policies against self-dealing and regarding the preservation of shareholder interests may be less well-defined and enforced in Argentina that in the United States, putting holders of our common shares and ADSs at a potential disadvantage.
Holders of ADSs may be unable to exercise voting rights with respect to the Class B common shares underlying the ADSs at our shareholders’ meetings
Shares underlying the ADSs are held by the depositary in the name of the holder of the ADS. As such, we will not treat holders of ADSs as shareholders and, therefore, holders of ADSs will not have shareholder rights. The depositary will be the holder of the common shares underlying the ADSs and holders may exercise voting rights with respect to the Class B common shares represented by the ADSs only in accordance with the deposit agreement relating to the ADSs. There are no provisions under Argentine law or under our by-laws that limit the exercise by ADS holders of their voting rights through the depositary with respect to the underlying Class B common shares. However, there are practical limitations on the ability of ADS holders to exercise their voting rights due to the additional procedural steps involved in communicating with these holders. For example, holders of our common shares will receive notice of shareholders’ meetings through publication of a notice in an official gazette in Argentina, an Argentine newspaper of general circulation and the daily bulletin of the Buenos Aires Stock Exchange, and will be able to exercise their voting rights by either attending the meeting in person or voting by proxy. ADS holders, by comparison, do not receive notice directly from us. Instead, in accordance with the deposit agreement, we provide the notice to the depositary. If we ask it to do so, the depositary will mail to holders of ADSs the notice of the meeting and a statement as to the manner in which instructions may be given by holders. To exercise their voting rights, ADS holders must then instruct the depositary as to voting the Class B common shares represented by their ADSs. Due to these procedural steps involving the depositary, the process for exercising voting rights may take longer for ADS holders than for holders of Class B common shares and Class B common shares represented by ADSs may not be voted as the holders of ADSs desire. Class B common shares represented by ADSs for which the depositary fails to receive timely voting instructions may, if requested by us, be voted at the corresponding meeting either in favor of the proposal of the board of directors or, in the absence of such a proposal, in accordance with the majority.
Our shareholders may be subject to liability for certain votes of their securities
Because we are a limited liability corporation, our shareholders are not liable for our obligations. Shareholders are generally liable only for the payment of the shares they subscribe. However, shareholders who have a conflict of interest with us and who do not abstain from voting at the respective shareholders’ meeting may be liable for damages to us, but only if the transaction would not have been approved without such shareholders’ votes. Furthermore, shareholders who willfully or negligently vote in favor of a resolution that is subsequently declared void by a court as contrary to the law or our by-laws may be held jointly and severally liable for damages to us or to other third parties, including other shareholders.
|Item 4.||Information on the Company|
History and Development of the Company
Empresa Distribuidora y Comercializadora Norte S.A., or Edenor, is a public service company incorporated as a sociedad anónima (limited liability corporation) under the laws of Argentina. Our principal executive offices are located at Avenida del Libertador 6363, Ciudad de Buenos Aires, C1428ARG, Argentina, and our general telephone number at this location is +54 11 4346 5000.
We were incorporated on July 21, 1992, under the name Empresa Distribuidora Norte Sociedad Anónima, as part of the privatization of the Argentine state-owned electricity utility, Servicios Eléctricos del Gran Buenos Aires S.A. (SEGBA). In anticipation of its privatization, SEGBA was divided into three electricity distribution companies, including our company, and four electricity generation companies, and on May 14, 1992, the Argentine Ministry of Economy and Public Works and Utilities (currently the Ministry of Economy and Public Finance) approved the public sale of all of our company’s Class A common shares, representing 51% of the capital stock of our company.
A group of international investors, which included EDF International S.A. (a wholly owned subsidiary of Électricité de France S.A.), presented a bid for our Class A common shares through Electricidad Argentina S.A. (EASA), an Argentine company. EASA was awarded the bid and, in August 1992, EASA and the Argentine government entered into a stock purchase agreement relating to the purchase of our Class A common shares. In addition, on August 5, 1992, the Argentine government granted us a concession to distribute electricity on an exclusive basis within our concession area for a period of 95 years. On September 1, 1992, EASA acquired our Class A common shares and became our controlling shareholder.
In June 1996, our shareholders approved the change of our name to Empresa Distribuidora y Comercializadora Norte S.A. (EDENOR S.A.) to more accurately reflect the description of our core business. The amendment to our by–laws related to our name change was approved by the ENRE and registered with the Public Registry of Commerce in 1997.
In 2001, EDF International S.A. (EDFI) acquired, in a series of transactions, all of the shares of EASA held by EASA’s other shareholders, ENDESA Internacional, YPF S.A., which was the surviving company of Astra, and SAUR. As a result, EASA became a wholly–owned subsidiary of EDFI. In addition, EDFI purchased all of our Class B common shares held by these shareholders, increasing its direct and indirect interest in us to 90%.
On January 6, 2002, the Argentine congress enacted the Public Emergency Law, which authorized the Argentine government to implement certain measures to overcome the country’s economic crisis. Under the Public Emergency Law, the Argentine government altered the terms of our concession and the concessions of other public utility services by renegotiating tariffs, freezing distribution margins and revoking price adjustment mechanisms, among other measures.
In September 2005, Dolphin Energía and IEASA acquired an indirect controlling stake in our company from EDFI. Dolphin Energía and IEASA were at the time of such acquisition controlled by the principals of Grupo Dolphin, an Argentine advisory and consulting firm that carries out private equity activities. On September 28, 2007, Pampa Energía acquired all the outstanding capital stock of Dolphin Energía and IEASA from the then current shareholders of these companies, in exchange for common stock of Pampa Energía. Pampa Energía, which is managed by Grupo Dolphin’s former principals, owns a 50% interest in the company that co-controls the principal electricity transmission company in Argentina, Compañía de Transporte de Energía Eléctrica en Alta Tensión S.A. (Transener). In addition, Pampa Energía has controlling stakes in five generation plants located in the Salta, Mendoza, Neuquén and Buenos Aires provinces (Hidroeléctrica Nihuiles, Hidroeléctrica Diamante, Central Térmica Güemes, Central Térmica Loma de la Lata and Central Piedra Buena). See “Item 7. Major Shareholders and Related Party Transactions.”
In April 2007, we completed the initial public offering of our Class B common shares, in the form of shares and American depositary shares, or ADSs. We and certain of our shareholders sold 18,050,097 ADSs, representing 361,001,940 Class B common shares, in an offering in the United States and elsewhere outside Argentina, and our Employee Stock Participation Program sold 81,208,416 Class B common shares in a concurrent offering in Argentina. Our ADSs are listed in The New York Stock Exchange under the symbol “EDN,” and our Class B common shares are listed on the Buenos Aires Stock Exchange under the same symbol. We received approximately U.S. $61.4 million in proceeds from the initial public offering, before expenses, which we used to repurchase a part of our then outstanding debt. Following the initial public offering, EASA continues to hold 51% of our common shares, and approximately 49% are held by the public. See “Item 7. Major Shareholders and Related Party Transactions.”
On November 20, 2008, the Argentine congress passed a law unifying the Argentine pension and retirement system into a system publicly administered by the ANSES and eliminating the retirement savings system previously administered by private pension funds under the supervision of a governmental agency. In accordance with the new law, private pension funds transferred all of the assets administered by them under the retirement savings system to the ANSES. As of the date of this annual report, ANSES held 229,125,205 of our Class B common shares, representing 25.3% of our capital stock.
Acquisition of Emdersa and Aeseba
On January 19, 2011, our indirect controlling shareholder, Pampa Energía, agreed to acquire, directly or through one or more designees, from certain subsidiaries of AEI, the following assets:
|(i)||77.19% of the outstanding capital stock of Emdersa, a company engaged in the distribution of electricity in the Argentine provinces of San Luis, La Rioja and Salta through its subsidiaries Edesal, Edesa, and in the generation of electricity through its subsidiary Egssa; and|
|(ii)||99.99% of the outstanding capital stock of Aeseba, an electric utility company, which owns 90% of the outstanding capital stock of Eden.|
In addition, Pampa Energía agreed to acquire from AEI 0.01% of the outstanding capital stock of Edesal, 0.02% of the outstanding capital stock of Egssa and 0.01% of the outstanding capital stock of Edelar, which were each held directly by AEI and its subsidiaries (other than Emdersa).
Pursuant to the terms of the sale of the shares described above, on February 25, 2011, Pampa Energía made us an offer, which we accepted on March 4, 2011, to purchase the shares described above, and on March 4, 2011, we purchased the shares (other than shares representing approximately 0.01% of the outstanding capital stock of Aeseba, which Pampa Energía purchased) for a total purchase price of U.S. $140.0 million. The transaction also involved the assignment to certain affiliates of Pampa Energía of certain rights that AEI had over Aeseba, Eden and Emdersa and its subsidiaries.
In addition, if within three years from March 4, 2011 (the purchase date), we sell all or part of such shares, Pampa Energía will have the right to receive from us a payment equal to 50% of the value we receive from the sale of any such shares in excess of the price paid to AEI for any such shares.
As of the date of this annual report, we have taken action to divest some of the assets described above. In order to effect the purported divestiture, on August 23, 2011, Emdersa’s Board of Directors decided to convene an extraordinary general shareholders’ meeting, which was held on December 16, 2011, to consider (subject to approval by the relevant administrative authorities) the spin-off of certain assets and liabilities of Emdersa and the incorporation of three new companies, whose main assets will be the shares owned by Emdersa in Edesal, Edesa and Eggsa, respectively. Emdersa’s shareholders’ meeting held on December 16, 2011 recessed until January 13, 2012, when the shareholders approved the special spin-off financial statements for the period ended September 30, 2011, the spin-off of the assets and the incorporation of the companies referred to above, the share exchange relationship, the amount of shares of the three holding companies to be incorporated, which shall be delivered to Emdersa’s shareholders in exchange for the tendering of their shares in Emdersa, and the spin-off prospectus. Further, Emdersa’s shareholders approved the by-laws of the abovementioned new holding companies and the corresponding capital reduction of Emdersa from Ps.236,066,302 to Ps.60,975,926.
On September 16, 2011, our Board of Directors accepted an offer from Rovella Carranza S.A. (“Rovella”) to purchase from us shares representing 78.44% of the shares and votes of a company with an investment purpose, which shall own 99.99% of the shares and votes in Edesal. The offer additionally included an offer to purchase 0.01% of the shares of Edesal owned by us. In order to implement this transaction, we committed to cause Emdersa to partially spin-off certain assets related to Emdersa’s equity interests in Edesal, and pursuant to which three new holding companies will be incorporated, one of which (“Edesal Holding”) will be the holder of 99.99% of the share capital and votes of Edesal. On October 25, 2011, we transferred to Rovella shares representing 24.8% of the capital stock and votes of Emdersa and shares representing 0.01% of the capital stock and votes of Edesal. Rovella, in turn, transferred such shares of Emdersa and Edesal to a collateral trust created by the parties and Deutsche Bank S.A., as trustee. Once the spin-off process is finalized, Edesal Holding will issue 78.44% of its shares to the trustee of the collateral trust, who, in turn, will transfer those shares to Rovella, along with the 0.01% shares of Edesal, and will simultaneously transfer the shares of Emdersa back to us. If within two years from the acceptance of the offer, Emdersa’s spin off has not been completed and Edesal Holding has not been incorporated, the trustee of the collateral trust will transfer to Rovella, as an alternative consideration, 24.80% of the capital stock and voting rights of Emdersa, and we will maintain a 53.77% ownership of Emdersa’s capital stock and voting rights. The agreement between the parties also contemplates matters related to the corporate governance and conduct of the business of Edesal pending completion of the transaction.
Furthermore, on September 16, 2011, our Board of Directors accepted an offer from Andes Energía Argentina S.A. to acquire from us an option to: (a) if the spin-off of Emdersa is completed within two years, acquire 78.44% of the share capital that we hold indirectly in Edelar, and (b) if the spin-off of Emdersa is not completed within two years, acquire 20.27% of the capital stock and voting rights that we will hold indirectly in Emdersa. In order to implement this transaction, we will contribute 53.77% of the share capital and votes of Emdersa to a new company to be incorporated (“Emdersa Holding”), through which the transfer of shares of Emdersa in favor of Andes Energía Argentina S.A. will take place. On the call option exercise date and upon completion of the transaction described in this paragraph, the capital stock subject to this transaction will be transferred to a collateral trust to be created in order to secure compliance of the parties’ obligations, while maintaining our control in Emdersa. On December 15, 2011, our Board of Directors approved an amendment to the terms and conditions of the offer letter from Andes Energía Argentina S.A., modifying certain matters relating to payments owed by Andes Energía Argentina S.A. Further, on December 29, 2011 the call option exercise date and payment due date were extended until June 30, 2012. The agreement between the parties also contemplates matters related to the corporate governance and conduct of the business of Edelar pending completion of the transaction.
On October 11, 2011, our Board of Directors accepted a further offer letter from Pampa Energía to acquire, by means of a stock purchase subject to a condition precedent, shares representing 78.44% of the capital stock and votes of an investment company to be incorporated as a result of the spin-off of Emdersa (“Egssa Holding”), which company will be the owner of (a) 99.99% of the capital stock and votes of Egssa, and (b) 0.01% of the capital stock of Egssa owned by us. Such stock purchase is subject to the condition precedent that the spin-off resolved by the Board of Directors of Emdersa on August 23, 2011 be consummated within 24 months as of the date of acceptance of the offer made by Pampa Energía. Within 5 days as of the consummation of such spin-off, we will transfer the shares to Pampa Energía in legal form and free from liens, and Pampa Energía will, in turn, pledge such shares for our benefit as security for the full payment of the outstanding purchase price. Beginning on the date of initial payment of the purchase price and until its full payment by Pampa Energía, the members of the board of directors of EGSSA shall be appointed both by us and Pampa Energía. In case the above condition precedent is not satisfied, the amount corresponding to the initial price payment shall be reimbursed to Pampa Energía within 5 days therefrom, plus an annual 6% interest that will be calculated as of the date of such initial payment until the date of effective payment thereof.
Edesa Sale Agreement
On April 19, 2012, Edenor accepted an Offer Letter from Salta Inversiones Eléctricas S.A. (“SIESA”), pursuant to which the latter submitted to Edenor and Emdersa HOLDING a proposal to acquire, by means of a stock purchase, shares representing 78.44% of the capital stock and votes of an investment company to be incorporated as a result of the spin-off of EMDERSA under the name of “EDESA HOLDING”, which company will be the owner of (i) 90% of the capital stock and votes of EDESA, which in turn owns 99.99% of Empresa de Sistemas Eléctricos Dispersos S.A. (“Esed”) and (ii) 0.01% of the capital stock of Esed. Such stock purchase is subject to certain condition precedent, including but not limited to, the consummation of the spin-off resolved by the Board of Directors of EMDERSA on August 23, 2011. In order to implement this transaction, Emdersa HOLDING will transfer to SIESA shares of EMDERSA and as of May 5, 2012, EMDERSA and SIESA will transfer their shares in Emdersa HOLDING to a collateral trust to be created in order to secure compliance of the parties’ obligations under the Offer Letter. The shares to be transferred to the collateral trust will be returned to Emdersa HOLDING once the spin-off is completed and the EDESA Holding shares transferred to SIESA. Additionally, as of May 5, 2012, SIESA offers to (i) cause EDESA to cancel certain loan agreements granted by Edenor for an amount of Ps. 131,319,500 plus accrued interest, (ii) release EMDERSA of the guarantee granted to EDESA for an amount of Ps. 55,250,000 in respect of a loan agreement granted by certain banks to EDESA and other subsidiaries of EMDERSA; and (iii) cause EDESA to cancel, when due, certain notes issued on November 2010 for an outstanding amount of Ps. 3,8 million. The price to be paid for the EDESA HOLDING shares is U.S.$ 18 million to be paid as follows: (i) U.S.$ 15 million as of May 5, 2012; (ii) the remaining U.S.$ 3 million in five equal and consecutive annual installments at an interest rate of LIBOR plus 2% with the first one due on May 5, 2013.
Emdersa and its Subsidiaries
Emdersa, through Edesal, Edelar and Edesa, supplies electricity to a service area with a population of approximately 2.0 million that encompasses approximately 124,000 square miles in the Provinces of San Luis, La Rioja and Salta, respectively. As of December 31, 2011, Emdersa had approximately 550,193 customers and sold approximately 3,155 GWh of electricity in 2011. Edesa also owns 99.99% of Empresa de Sistemas Eléctricos Dispersos (“Esed”), an electricity generation and distribution company that supplies energy to customers in remote areas of the Province of Salta through the utilization of photovoltaic solar panels. In addition, Emdersa’s subsidiary EGSSA obtained in 2008 the approval from the Argentine Secretary of Energy to act as agent of the Wholesale Electricity Market. Egssa is located in the northeastern part of the Province of Salta, and commenced its operations in the second half of 2010. Emdersa is a public company, whose shares are traded on the Buenos Aires Stock Exchange under the symbol “Emdehr”. Emdersa owns 99.9% of the capital stock of each of Edesal, Edelar and Egssa, and 90.0% of the capital stock of Edesa. The remaining 10.0% of Edesa was retained by the government of the Province of Salta for use in an Employee Stock Participation Program, though the provincial government owns all of such share as of the date of this annual report. Our acquisition of Emdersa is still pending antitrust approval.
Edesal, Edelar and Edesa hold an exclusive long-term renewable concession granted by the relevant regulators of the Provinces of San Luis, La Rioja and Salta, respectively. Edesal’s concession agreement is divided into several administrative periods, the first of which lasted 15 years and expired in 2008, followed by eight successive ten-year periods, the next of which will expire in 2018. At the end of each such period a competitive bid process for the sale of a minimum of 51% of the share capital of Edesal will take place. We can participate in the bidding and will only be required to sell and transfer control of our interest in Edesal if there is a higher bid, in which case we will receive the amount bid by such bidder. Following such auction, a new ten-year concession will be granted to Edesal at the end of which the auction process would be held again. Edelar’s concession is divided similarly with an initial period of 15 years (which expired in 2010) followed by eight successive ten-year periods with a competitive bidding process at the end of each period which follows the same process described for Edesal. As of the date of this annual report, the competitive bidding process with respect to Edelar has not yet taken place. Edesa’s concession has an initial period of 20 years (which will expire in 2016) followed by two successive 15-year periods with a competitive bidding process at the end of each period which follows the same process described for Edesal and Edelar.
Tariffs for Argentine electricity distribution companies are periodically reviewed by the regulators within the service area in which the concession is located. Edesal, Edelar and Edesa generally have RTIs every five years. Edesal’s and Edesa’s tariffs are currently under an RTI process, and Edelar’s tariffs were last reviewed in an RTI in 2008. Under their current tariff schemes, the tariffs are designed to provide for a pass-through to customers of the main variable cost items (mainly power purchase costs and transmission charges), recovery of reasonable operating and administrative costs, incentives to reduce costs and make required capital investments and a regulated rate of return on their regulated asset base. Tariffs are also adjusted every 6 or 12 months for inflation of fixed costs and to pass-through adjustments to variable costs. Edesal, Edelar and Edesa have been granted adjustments to their tariffs periodically to reflect increases in costs.
The tables below summarize energy sales information regarding Edesal, Edelar and Edesa, solely on the basis of public information filed by Emdersa in Argentina.
Edesal’s Energy Sales
|Year ended December 31,|
|(in MWh, except percentages)|
|Industrial (Grandes Usuarios del MEM)||401,470||30.0||%||358,772||28.4||%||325,218||27.9||%|
EDELAR’s Energy Sales
|Year ended December 31,|
|(in MWh, except percentages)|
|Industrial (Grandes Usuarios del MEM)||196,841||18.8||%||219,994||20.4||%||192,215||20.3||%|
|EDESA’s Energy Sales||Year ended December 31,|
|(in MWh, except percentages)|
|Industrial (Grandes Usuarios del MEM)||100,430||6.8||%||95,720||6.8||%||99,010||7.5||%|
The tables below summarize certain key financial information regarding Emdersa and its subsidiaries, solely on the basis of Emdersa’s public securities filings in Argentina.
|Consolidated Income Statement:||Year ended December 31,|
|Net sales||U.S. $||202.5||Ps.||871.4||Ps.||740.1||Ps.||648.8|
|Cost of sales||(119.7||)||(515.4||)||(441.0||)||(387.2||)|
|Administrative, selling and other expenses||(53.1||)||(228.3||)||(177.2||)||(140.1||)|
|Other operating income (or costs)||5.8||25.1||20.4||17.4|
|Financial and holding results||(20.8||)||(89.6||)||(67.4||)||(79.0||)|
|Other income or costs||(0.3||)||(1.3||)||3.7||3.5|
|Gain from investments in related companies||0.2||0.9||—||—|
|Income before income taxes and minority interest||14.6||62.8||78.8||63.1|
|Income tax expenses||(4.5||)||(19.3||)||(27.6||)||(24.1||)|
|Income for the year||U.S. $||9.8||Ps.||42.2||Ps.||49.6||Ps.||38.5|
(1) As of December 31, 2011 and December 31, 2010, Emdersa elected to recognize as a temporary difference (deferred tax liability) the difference between the accounting and tax values resulting from the adjustment for inflation included in non-monetary assets.
|Year ended December 31,|
|Current assets||U.S. $||56.4||Ps.||242.8||Ps.||203.3||Ps.||187.6|
|Total shareholders’ equity||172.6||742.7||700.9||723.3|
|Total liabilities and shareholders’ equity||U.S. $||341.0||Ps.||1,467.5||Ps.||1,304.8||Ps.||1,159.4|
(1) As of December 31, 2011 and December 31, 2010, Emdersa elected to recognize as a temporary difference (deferred tax liability) the difference between the accounting and tax values resulting from the adjustment for inflation included in non-monetary assets.
Aeseba and its Subsidiaries
Aeseba is a holding company that owns 90% of the outstanding capital stock of Eden, an electricity distribution company that supplies electricity to a service area with a population of approximately 1.0 million that encompasses approximately 42,000 square miles in the northern part of the Province of Buenos Aires. As of December 31, 2011, Eden had approximately 340,121 customers and sold approximately 2,784 GWh of electricity in 2011. The remaining ownership interest in Eden is owned by its employees. Our acquisition of Eden is still pending antitrust approval.
Eden holds an exclusive long-term renewable concession from the relevant regulator or the Province of Buenos Aires. Eden’s concession agreement is divided into nine administrative periods, the first of which lasts 15 years and expires on June, 2, 2012, followed by eight ten-year periods thereafter. At the end of the current term, a competitive bid process for the sale of a minimum of 51% of the share capital of Eden will take place. We can participate in the bidding and will only be required to sell and transfer control of our interest in Eden if there is a higher bid, in which case we will receive the amount bid by such bidder. Following such auction, a new ten-year concession will be granted to Eden at the end of which the auction process would be held again.
Tariffs for Argentine electricity distribution companies are reviewed periodically by the regulators within the service area in which the concession is located (in the case of Eden this is the Buenos Aires Province). Eden periodically has RTIs, and as of the date of this annual report, Eden’s tariffs are currently under an RTI process. Under its current tariff scheme, the tariffs are designed to provide for a pass-through to customers of the main variable cost items (mainly power purchase costs and transmission charges), recovery of reasonable operating and administrative costs, incentives to reduce costs and make required capital investments and a regulated rate of return on its regulated asset base. Tariffs are also adjusted for inflation of fixed costs and to pass-through adjustments to variable costs. Eden has been granted adjustments to its tariff periodically to reflect increases in costs. See “Item 3. Key Information—Risk factors—Risks Relating to the Electricity Distribution Sector— The Argentine government has intervened in the electricity sector in the past, and is likely to continue intervening.”
The table below summarizes energy sales information regarding Eden.
|EDEN’s Energy Sales||Year ended December 31,|
|(in MWh, except percentages)|
|Industrial (Grandes usuarios del MEM)||291,400||10.5||%||299,936||11.3||%||281,714||11.3||%|
The tables below summarize certain key financial information regarding Eden, solely on the basis of Eden’s statutory financial statements.
|Income Statement:||Year ended December 31,|
|(in millions )|
|Cost of sales||(91.2||)||(392.7||)||(329.1||)||(302.8||)|
|Administrative and selling expenses||(20.6||)||(88.5||)||(80.0||)||(67.7||)|
|Other operating income||5.7||24.4||20.0||15.3|
|Other income or costs, net||0.5||2.3||(6.4||)||34.9|
|Income before income taxes||25.9||111.7||51.1||60.9|
|Income tax expenses||(9.2||)||(39.5||)||(17.8||)||(19.5||)|
|Income for the year||U.S. $||16.8||Ps.||72.2||Ps.||33.3||Ps.||41.4|
|Year ended December 31,|
|Current assets||U.S $||41.6||Ps.||179.2||Ps.||170.8||Ps.||172.1|
|Total liabilities *||96.6||415.9||426.1||407.3|
|Total shareholders’ equity||132.0||568.3||527.7||533.8|
|Total liabilities and shareholders’ equity||U.S. $||228.7||984.1||Ps.||953.8||Ps.||941.0|
* On March 4, 2011, as a result of the change of control in Eden triggered by our acquisition of Aeseba, Eden prepaid the loan it had with Standard Bank Argentina S.A. and HSBC Argentina S.A. Such repayment was made with Eden’s funds and with the proceeds from a loan that we granted to Eden in an aggregate amount equal to Ps. 80.0 million. See “Item 5. Operating and Financial Review and Prospects—Liquidity and Capital Resources—Debt.”
We believe we are the largest electricity distribution company in Argentina and one of the largest in Latin America in terms of number of customers and electricity sold (both in GWh and in Pesos) in 2011. We hold a concession to distribute electricity on an exclusive basis to the northwestern part of the greater Buenos Aires metropolitan area and in the northern part of the City of Buenos Aires. As of December 31, 2011, Edenor and Eden served 2,698,548 customers and 340,121 customers, respectively. The following table shows the percentage of the electricity produced and sold by generating companies that was purchased by us in the periods indicated:
|Edenor Demand as a|
% of Wholesale
Source: Compañía Administradora del Mercado Mayorista Eléctrico, S.A. (CAMMESA)
|(1)||Demand in the Mercado Eléctrico Mayorista Sistema Patagónico (Patagonia wholesale electricity market, or MEMSP).|
|(2)||Calculated as electricity purchased by us and our wheeling system customers.|
|(3)||Includes Edenor and Aeseba information.|
We believe our main strengths are the following:
|·||We believe we are the largest electricity distributor in Argentina in terms of number of customers and electricity sold (both in GWh and in Pesos) in 2011. We serve the largest number of electricity customers in Argentina, which at December 31, 2011 amounted to 3,038,669 customers. Our electricity purchases, used to meet customer demand in our service area, accounted for approximately 22.5% of total electricity demand in the country in 2011. As a result of being the largest electricity distributor in Argentina in terms of volume and customers, we have strong bargaining power with respect to many of our operating expenses, including salaries, and benefit from economies of scale. We also actively participate in industry decision making bodies and are working closely with the Argentine government to address Argentina’s current energy challenges.|
|·||We distribute electricity to an attractive and diversified client base in a highly developed area of Argentina. We operate on an exclusive basis in the northwestern part of the greater Buenos Aires metropolitan area and in the northern part of the City of Buenos Aires, which are two of Argentina’s largest industrial and commercial centers and in the northern part of the province of Buenos Aires. We have a highly concentrated, urban client base characterized by high purchasing power and low delinquency in payments of electricity bills. Our geographically concentrated and urban client base also allows us to operate more efficiently with relatively lower distribution costs. Finally, we have a balanced distribution of clients (residential, commercial, industrial) and operate in other provinces of Argentine through its subsidiaries.|
|·||We have substantial experience in the operation of electricity distribution systems with strong operating performance and efficiency for the characteristics of our concession area. We have substantial experience in the operation of electricity distribution systems and have received multiple ISO certifications on our commercial, technical and administrative processes, including on the quality of our services and safety and environmental standards. We were declared by the ENRE as a self-operating business in 1997, which means that we are not required to have a strategic operator conduct our business and are allowed to act as an operator in other electricity businesses. We believe that our energy losses are low compared to other electricity distribution companies in Latin America. In addition, we have maintained what we believe are optimal levels of operating efficiency, with 859 customers per employee and 6,473.0 MWh sold per employee in 2011.|
|·||We have a well-balanced debt profile. As of December 31, 2011, our financial debt amounted to U.S. $290.2 million, including U.S. $272.1 million principal amount of Dollar-denominated notes and Ps. 35.0 million Peso-denominated notes. We have continued to strengthen our capital structure during 2011 by repurchasing and cancelling U.S. $12.7 million principal amount of our Senior Notes due 2019 and U.S. $41.5 million principal amount of our Senior Notes due 2022, which repurchased notes were held by the Company as of December 31, 2011.|
Our goal is to continue to serve the strong demand in our concession area, while maximizing profitability and shareholder value. We are seeking to realize this goal through the following key business strategies:
|·||Complete our tariff renegotiation process. On November 12, 2009, we submitted our tariff proposal to ENRE’s Board of Directors in response to the ENRE’s request as part of the RTI process. Our integral tariff proposal includes, among other factors, a recalculation of the compensation we receive for our distribution services based on a revision of our asset base and rate of return. Furthermore, our proposal presented the ENRE with three options for the revised tariff scheme based on three different scenarios and each of which implementation of the tariff increase in three equal semiannual installments. During 2010, Edenor, upon ENRE’s request, submitted additional information in relation to the tariff scheme presented in 2009. During 2011, the parties have not made any progress in respect of this issue. See “Risks Relating to Our Business—Failure or delay to negotiate further improvements to our tariff structure, including increases in our distribution margin, and/or to have our tariff adjusted to reflect increases in our distribution costs in a timely manner, could have a material adverse effect on our capacity to perform our financial and commercial obligations. As a result, there is substantial doubt with respect to the ability of the Company to continue as a going concern”.|
|·||Continue to serve our concession area with a high quality of service. We aim to continue serving our clients in accordance with the terms of our concession, distributing electricity within our area and meeting or exceeding the required quality standards. We intend to continue to dedicate a significant portion of our capital expenditures to the maintenance, enhancement and expansion of our network in order to achieve this goal.|
|·||Undertake a reclassification of our smaller customers by economic activity rather than level of demand to optimize our tariff base. We intend to reclassify our client base based on type of economic activity and purchasing power rather than only on levels of electricity demand. We believe this will allow us to shift clients who currently fall within our lowest tariff categories, to other, more appropriate categories, including professionals and small businesses which, due to their low demand, are currently classified as residential customers, and to charge them accordingly.|
|·||Focus on increasing our operating efficiency and optimizing our level of energy losses. We are committing significant resources to improving the quality of our technical services and the safety of our public infrastructure, which allows us to reduce the amount of fines imposed by Argentine regulatory authorities in the ordinary course of our operations. We intend to build new entry points for our network in Tigre (previously called Escobar), Province of Buenos Aires, and Malaver, City of Buenos Aires, which will significantly improve the quality and reliability of our network. Currently, our objective is to maintain energy losses at an optimum level, taking into account the marginal cost of reducing such losses and the level at which, pursuant to the terms of our concession, we are reimbursed for the cost of such losses.|
By a concession dated August 5, 1992, the Argentine government granted Edenor the exclusive right to distribute electricity within our concession area for a period of 95 years. Our concession will expire on August 31, 2087 and can be extended for one additional 10-year period if we request the extension at least 15 months before expiration. The Argentine government may choose, however, to grant us the extension on a non-exclusive basis. The concession period was initially divided into an initial management period of 15 years expiring on August 31, 2007, followed by eight 10-year periods. However, the terms of the concession for the extension of the initial management period, at our option, with the ENRE’s approval, for an additional 5-year period from the entry into force of the new tariff structure to be adopted under the RTI process. We presented a request for such extension in May 2007 and on July 5, 2007, the ENRE, pursuant to ENRE resolution No. 467/2007, agreed to extend the initial management period for an additional five years from the date that the new tariff structure is adopted under the RTI. The remaining 10-year periods will run from the expiration of the extension of the initial management period.
On January 6, 2002, the Argentine congress enacted the Public Emergency Law, which empowered the Argentine government to implement, among other things, monetary, financial and foreign exchange measures to overcome the economic crisis. These measures, combined with the devaluation of the Peso and high rates of inflation, had a severe effect on public utility companies in Argentina, including us. Under the Public Emergency Law, the Argentine government converted public utility tariffs from their original U.S. Dollar values to Pesos at an exchange rate of Ps. 1.00 per U.S. $1.00, froze all regulated distribution margins relating to the provision of public utility services (including electricity distribution services), revoked all price adjustment provisions and inflation indexation mechanisms in public utility concessions (including our concession) and empowered the Executive Branch to conduct a renegotiation of public utility contracts (including our concession) and the tariffs set therein (including our tariffs).
In September 2005 we and the Argentine government entered into the Adjustment Agreement, which was ratified by the Argentine executive branch in January 2007. Because a new Argentine Minister of Economy took office thereafter, we formally re-executed the Adjustment Agreement with the Argentine government on February 13, 2007 under the same terms and conditions originally agreed.
Pursuant to the Adjustment Agreement, the Argentine government granted us an increase of 28% in our distribution margin, which is effective retroactively as from November 1, 2005. The Adjustment Agreement is intended to apply transitionally until we complete the RTI with the ENRE in accordance with the terms of the Adjustment Agreement. See “Item 5. Operating and Financial Review and Prospects—Factors Affecting Our Results of Operations—Tariffs.” In addition, because the Adjustment Agreement is effective retroactively as of November 1, 2005, the ENRE applied the CMM retroactively in each of May and November 2006, the dates in each year on which the ENRE is required to apply the CMM. In the May 2006 CMM, the ENRE determined that our distribution cost base increased by 8.032% (compared to the distribution cost base recognized in the Adjustment Agreement), and, accordingly, approved an equivalent increase in our distribution margin effective May 1, 2006. This increase, when compounded with the 28% VAD increase granted under the Adjustment Agreement, results in an overall 38.3% increase in our distribution margins charged to our non-residential customers. Also on February 13, 2007, the ENRE authorized us to bill our clients (excluding residential clients) the retroactive portion of the 38.3% increase (corresponding to the period from November 2005 to January 2007), which amounted to Ps. 218.6 million and which we have continued to invoice in 55 monthly installments since February 2007. As of December 31, 2011, we had invoiced the total amount.
In October 2007, the Argentine Secretary of Energy issued Resolution No 1037/2007, which granted us an increase of 9.63% in our distribution margins to reflect an increase in our distribution cost base for the period from May 1, 2006 to April 30, 2007, compared to the recognized distribution cost base as adjusted by the May 2006 CMM. However, this increase was not incorporated into our tariff structure, and, instead, we were allowed to retain the funds that we are required to collect and transfer to the fund established by the PUREE, a program established by the Argentine government in 2003 in an attempt to curb increases in energy demand, to cover such CMM increase and future CMM increases.
In July 2008, we obtained an increase of approximately 17.9% in our distribution margin, which we incorporated into our tariff structure. This increase represented the 9.63% CMM increase corresponding to the period from May 2006 to April 2007 and the 7.56% CMM increase corresponding to the period from May 2007 to October 2007. These CMM adjustments were included in our tariff structure as of July 1, 2008 and resulted in an average increase of 10% for customers in the small commercial, medium commercial, industrial and wheeling system categories and in an average increase of 21% for residential customers with bimonthly consumption levels over 650 kWh. In addition, the ENRE authorized us to be reimbursed for the retroactive portion of the 7.56% CMM increase amounting to 45.5 million for the period between November 2007 and June 2008, from the PUREE funds.
Furthermore, we requested an additional increase in our distribution margins under the CMM to account for fluctuations in the distribution cost base for the period from November 2007 to April 2008, in comparison to the distribution cost base recognized by the CMM in November 2007. In 2008, the ENRE adopted Note No 81,399, which authorized a 5.791% increase under the CMM. As of the date of this annual report, the ENRE has not approved a new tariff scheme including this tariff increase.
As of April 25, 2012, we had submitted to the ENRE eight requests for CMM adjustments as described in the table below, since May 2008:
|Assessment Period||Application Date||CMM Adjustment Requested|
|November 2007 – April 2008||May 2008||5.791%|
|May 2008 – October 2008||November 2008||5.684%|
|November 2008 – April 2009||May 2009||5.068%|
|May 2009 – October 2009||November 2009||5.041%|
|November 2009 – April 2010||May 2010||7.103%|
|May 2010 – October 2010||November 2010||7.240%|
|November 2010 – April 2011||May 2011||6.104%|
|May 2011 – October 2011||November 2011||7.721 %|
As of the date of this annual report, the ENRE has not yet responded to these requests (other than the request submitted in May 2008, as explained above), for which reason we are unable to reasonably estimate the amount receivable by us pursuant to the submitted requests in our consolidated financial statements until approval is granted by ENRE.
Although we believe that these increases comply with the terms of the CMM, we cannot assure that the ENRE will grant us these increases in full, or at all, or if granted, that we will be able to bill our customers or otherwise recover these increases from other sources of payment (such as PUREE).
These increases, and any further increases granted under the CMM, will remain in force until the approval of a new tariff structure under the RTI.
As of December 31, 2011 and 2010 the amounts collected by Edenor through the PUREE, amounted to Ps. 867.1million and Ps. 529.1 million, respectively, and have been disclosed under other non-current liabilities. Edenor is permitted to retain funds from the PUREE that it would otherwise be required to transfer to CAMMESA (Res. SE N° 1037/2007) in order to reimburse Edenor for the amounts it is owed for CMM increases not yet reflected in Edenor distribution margin.
Following are the key provisions of the Adjustment Agreement, which are described elsewhere in this annual report:
|·||a cost adjustment mechanism (CMM), pursuant to which our distribution costs are reviewed semiannually (or, under certain circumstances, more often) and adjusted if deemed appropriate by the ENRE to cover increases in our distribution costs;|
|·||an obligation to make capital expenditures of approximately Ps. 204 million for specified projects in 2006, which we complied with although we were not required to given that the Adjustment Agreement was not ratified in 2006;|
|·||our obligation to meet specified more stringent service quality standards than as originally contemplated in our concession;|
|·||a restriction on our ability to pay dividends without prior ENRE approval during the period in which we are conducting the RTI;|
|·||forgiveness of approximately one-third of our accrued and unpaid fines, subject to meeting certain conditions relating to capital expenditures obligations and service quality standards, and a 7-year payment plan for the balance, commencing 180 days after the date on which the RTI comes into effect;|
|·||our obligation to apply a social tariff regime for low-income customers, which regime will be defined in the context of the RTI; and|
|·||our obligation to extend our network to provide service to certain rural areas.|
Currently, the RTI has not yet been completed and although we are currently in discussions with the Argentine government regarding the RTI, we cannot predict when or how the RTI will be implemented.
EDEN is a company created by the Government of the Province of Buenos Aires who privatized 100% of its capital stock under the Decree No. 106/97 of the Provincial Executive. The Banco de la Provincia de Buenos Aires ("BAPRO") was established as the Trust of 10% of the social capital until the Programa de Participación Accionaria del Personal (the "PPAP") is implemented. The privatization was carried out through the adjudication of the exclusive right to provide distribution services of electricity for a period of ninety-five years from the date of taking possession (the "Eden Concession"). The concession period is divided into management periods, the first of fifteen years and the remaining ten years each. The grantor may extend the concession for a maximum period of ten years. The capital stock of Eseba Distribución was transferred on June 2, 1997 to three private companies in which it was divided: Empresa Distribuidora de Energía Norte S.A. (EDEN S.A.), Empresa Distribuidora de Energía Sur S.A. (EDES S.A.) y Empresa Distribuidora de Energía Atlántica S.A. (EDEA S.A.).
Pursuant to the Public Emergency Law enacted to address the crisis, the Argentine government, among other measures, converted public utility tariffs from their original U.S. Dollar values to Pesos at a rate of Ps. 1.00 per U.S. $1.00.
On September 2, 2004, the Ministerio de Infraestructura, Vivienda y Servicios Públicos de la Provincia (Ministry of Infrastructure, Housing and Utilities of the Province, or MIVySP) issued the Res. No. 489/04, which required to the power distribution dealers of provincial jurisdiction, the presentation of an economic model to represent the operating and maintenance costs associated with the provision of electric service, as well as the valuation of the assets available to the service.
Subsequently, by Res. No. 59/05 and 632/05, the MIVySP approved the valuation of assets associated with the distribution and selling of electricity, which has been used as a basis for determining the revenue in the period 2004-2007. This mechanism allowed Eden to reach a balance objective through partial adjustment of rates based on increases in operating costs incurred. It was also decided that 2007 would be the year in which they conduct the Revisión Tarifaria Integral (Integral Tariff Revision, or RTI).
On October 25, 2005, Eden and the MIVySP signed the Protocolo de Entendimiento (Protocol of Understanding) by which established guidelines for the end of the Public Emergency Law, In particular, it defined a plan to recover the revenue of the concession and the need to conduct an RTI, planned for October 2007. The Protocolo de Entendimiento was approved by Decree N ° 2862/05 and ratified by the budget law of 2006.
The Protocolo de Entendimiento contemplated a delay between the subscription and execution of the Eden RTI and it was necessary to establish an adjustment mechanism that would reflect costs changes that Eden could not control, to ensure the continuity and stability of the technical relations of Eden Concession.
As of the date of this Annual Report, EDEN RTI has not yet been completed and although we are currently in discussions regarding the Eden RTI, we cannot predict when or how the EDEN RTI will be implemented.
According to the application of the mechanism for updating the expected revenue in the Protocol of Understanding, it granted rate increases to Eden since 2005 as detailed below:
|a.||By Resolution No. 508/2005 dated September 12, 2005 issued by the Ministry of Infrastructure, Housing and Utilities of the Province, or MIVySP, they authorized an adjustment to Eden’s average rate of sale of8.48%.|
|b.||By Resolution No. 17/2007 dated January 17, 2007, they authorized an adjustment in EDEN’s average rate of sales of 3.10%.|
|c.||On August 8, 2008, the Governor of the Province of Buenos Aires issued Decree No. 1578/08 whereby, in response to the request to update the costs of electric distribution service presented by Eden, he authorized an adjustment in the average selling rate of 21.56% of Eden, distributable among end users thereof, applicable to consumption after the publication of those regulations mentioned in the Official Gazette of the Province of Buenos Aires, which occurred August 25, 2008.|
|d.||On March 22, 2010, the MIVySP issued Resolution No. 141/2010 whereby, in response to the request to update the costs of electric distribution service presented by Eden, they authorized an adjustment in the average rate of sale of 24% of Eden applicable in the form of three staggered stages from April to May, June to October and November.|
|e.||On June 1, 2011, the MIVySP issued Resolution No. 415/2011 whereby, in response to the request for updated service cost of electrical distribution presented by Eden, they authorized an adjustment in the average rate of sale of 9% of Eden, distributable among end users as of June 1, 2011.|
On November 9, 2011, Eden presented a new filing with the MIVySP requesting a rate adjustment based on increases in operating costs as well as the change in the valuation of assets made available by the provision of service in June 2011.
Secretary of Energy – Note 8752
The ability of each Edenor and Eden to increase their tariffs may also be affected by Note 8752 of the Secretary of Energy, which is currently subject to legal proceedings in various provinces of Argentina. See “Item 3. Key Information—Risk factors—Risks Relating to the Electricity Distribution Sector—The Argentine government has intervened in the electricity sector in the past, and is likely to continue intervening.”
Our concession gives us the exclusive right to distribute electricity within our concession area during the term of our concession. Under our concession, neither the national nor the provincial or local governments may grant further concessions to operate electricity distribution services within our concession area. In that respect, we are obligated to satisfy all of the demand for electricity originated in our concession area, maintaining at all times a service quality standard that has been established in our concession. This geographic exclusivity may be terminated in whole or in part by the executive branch if technological changes make it possible for the energy distribution industry to evolve from its present condition as a natural monopoly into a competitive business. However, the National or the Provincial government may only exercise its right to alter or suppress our geographical exclusivity at the end of each management period under our concession, by prior written notice at least six months before the expiration of the then current management period.
Edenor’s concession area is divided into the following operating territories:
|Morón||Morón, Ituzaingó, Hurlingham, Merlo, Marcos Paz, Las Heras and La Matanza|
|Norte||Ciudad de Buenos Aires, San Martín and Tres de Febrero|
|Olivos||Vicente López, San Isidro, San Fernando, Tigre and Escobar|
|Pilar||Moreno, Gral, Rodríguez, Pilar, Malvinas Argentinas, J.C. Paz and San Miguel|
Eden’s concession area is divided into the following operating territories:
|Arrecifes||Arrecifes, Capitán Sarmiento, Pérez Millán, Ramallo|
|Campana||Campana, Baradero, Capilla del Señor, Los Cardales|
|Carlos Casares||Carlos Casares, Daireaux, Henderson, Pellegrini, Salliqueló, Tres Lomas|
|Chivilcoy||Chivilcoy, 25 de Mayo, Alberti, Bragado|
|Junín||Junín, Alberdi, Arribeños, Ascensión, General Arenales, L.N. Alem, Vedia|
|Lincoln||Lincoln, Blaquier, General Pinto, General Villegas|
|Mercedes||Mercedes, Lobos, Roque Pérez, San Andrés de Giles, Suipacha|
|San Nicolás||San Nicolás, Conesa|
The table below sets forth certain information relating to operating territories of Edenor as of and for the year ended December 31, 2011:
|% of Sales|
According to INDEC, the Pilar operating territory experienced the highest population growth rate of the Buenos Aires metropolitan region between 1991 and 2001, growing by 56.6% from approximately 149,070 people in 1991 to approximately 233,508 people in 2001. Today, some of the most affluent neighborhoods and upscale commercial centers and businesses are located in the Pilar operating territory.
The table below sets forth certain information relating to operating territories of Eden as of and for the year ended December 31, 2011:
|Operating Territory||Lines (km) (1)||Customers (in thousands)||% of Sales|
(1) This figure does not include 3,162 km belonging to Transmission Lines between Operating Territories. Therefore, total length of lines is 17,992 km.
We are obligated to supply electricity upon request by the owner or occupant of any premises in our concession area. We are entitled to charge for the electricity supplied at rates that are established by tariffs set with the prior approval of the ENRE under applicable regulations. Pursuant to our concession, we must also meet specified service quality standards relating to:
|·||the time required to connect new users;|
|·||interruptions or reductions in service; and|
|·||the supply of electricity for public lighting and to certain municipalities.|
Our concession requires us to make the necessary investments to