Exhibit 4.10
AGREEMENT FOR THE MODIFICATION OF THE PARTICIPATION AGREEMENT
AGREEMENT FOR THE MODIFICATION (THE "AGREEMENT") OF THE PARTICIPATION AGREEMENT
DATED JUNE 14 2000 (THE "PARTICIPATION AGREEMENT") WHICH WAS ENTERED INTO BY AND
AMONG THE FEDERAL GOVERNMENT OF THE UNITED MEXICAN STATES (THE "FEDERAL
GOVERNMENT"), THROUGH THE DEPARTMENT OF COMMUNICATIONS AND TRANSPORTS ("SCT"),
NACIONAL FINANCIERA, S.N.C., DIRECCION FIDUCIARIA [TRUST DIVISION] IN ITS
CAPACITY AS TRUSTEE UNDER TRUST NUMBER 5111-3 ("NAFIN"), GRUPO AEROPORTUARIO DEL
CENTRO NORTE, S.A. DE C.V. (THE CONTROLLLING COMPANY), SERVICIOS AEROPORTUARIOS
DEL CENTRO NORTE, S.A. DE C.V. (THE SERVICES COMPANY), THE CONCESSION COMPANIES,
SERVICIOS DE TECNOLOGIA AEROPORTUARIA, S.A. DE C.V (FORMERLY KNOWN AS OPERADORA
MEXICANA DE AEROPUERTOS S.A. DE C.V. (THE STRATEGIC PARTNER), CONSTRUCTORAS ICA,
S.A. DE C.V. (CURRENTLY AEROINVEST, S.A. DE C.V. ("AEROINVEST")) AND AEROPORTS
DE PARIS ("ADP") WITH THE ATTESTATION OF BANCO NACIONAL DE COMERCIO EXTERIOR,
S.N.C. DIVISION FIDUCIARIA [TRUST DIVISION] (THE TRUSTEE), ENTERED INTO BY AND
AMONG THE FEDERAL GOVERNMENT THROUGH S.C.T., REPRESENTED BY AARON DYCHTER
POLTOLAREK, NAFIN REPRESENTED BY RICARDO RANGEL FERNANDEZ MACGREGOR, THE
CONTROLLING COMPANY REPRESENTED BY RUBEN LOPEZ BARRERA, THE SERVICES COMPANY
REPRESENTED BY RUBEN LOPEZ BARRERA, THE STRATEGIC PARTER REPRESENTED BY LUIS
ZARATE ROCHA, THE TRUSTEE REPRESENTED BY CARLOS FLORES SALINAS, AEROINVEST
REPRESENTED BY ALONSO QUINTANA KAWAGE, ADP REPRESENTED BY NICOLAS CLAUDE, AND
THE CONCESSION COMPANIES, REPRESENTED BY RUBEN LOPEZ BARRERA, AND EMPRESAS ICA,
S.A. DE C.V. (HEREINAFTER "EMICA") REPRESENTED BY JOSE LUIS GUERRERO ALVAREZ
PURSUANT TO THE FOLLOWING DEFINITIONS, BACKGROUND, REPRESENTATIONS AND CLAUSES:
DEFINITIONS
The terms with capital initial defined and used in the Agreement shall have the
meaning attributed to them hereunder, or in the absence thereof, in the
Participation Agreement.
BACKGROUND
1. That on June 14 2000 the Participation Agreement was executed with
the purpose of establishing the rights and obligations between the
Strategic Partner and the Federal Government, Nafin, the Trustee and
Grupo Aeroportuario, by virtue of the Bidding Process and the
selection of the Strategic Partner in the management of the Assigned
Airports under the General Guidelines for the Opening to Investment
of the Mexican Airport System and the relevant invitation to bid.
2. On June 14 2005, (i) according to that set forth in Section 3.4.2 of
the Participation Agreement, the Strategic Partner delivered to
Nafin the Purchase Notification, expressing in such document its
intent to exercise the option for the purchase of the Additional
Shares under the terms of Section 3.4 of the Participation Agreement
(the "Purchase Option") subject to the conditions set forth in such
Purchase Notice; and (ii) on grounds of that provided for in Section
10.6 of the Participation Agreement, the Strategic Partner requested
authorization to assign in favor of Aeroinvest all the rights and
obligations relating to the Purchase Option and the Additional
Shares.
3. The Strategic Partner and Aeroinvest have requested SCT the
modification of Section 3.4.4 of the Participation Agreement, so
that Aeroinvest may pay the price of the Additional Shares in the
form that Nafin instructs in writing, no later than on December 30
2005, consequently deleting the 60 (sixty) day-term originally
agreed. Further, SCT has expressed that it does not oppose to the
aforementioned modification.
4. According to official communication number 4.612 dated December 21st
2005, SCT authorized the assignment by the Strategic Partner in
favor or Aeroinvest of all the rights and obligations relating the
Purchase Option, according to that set forth in Section 10.6 of the
Participation Agreement, releasing the Strategic Partner of the
obligations relating to the acquisition of the Additional Shares,
including the payment of the price of the same, provided that the
other obligations on SETA derived from the Transaction Documents and
the Participation Agreement, including the cooperation obligation
referred to in Section 2.3 and the obligations referred to in
Section 3.4.5 of the Participation Agreement, remain in full force
and effect.
5. On December 21 2005, by means of the shareholders meeting of the
Controlling Company, it was authorized the assignment by the
Strategic Partner in favor of Aeroinvest of all the rights and
obligations relating the Purchase Option, according to that set
forth in section 10.6 of the Participation Agreement mentioned
before, releasing the Strategic Partner from the obligations
regarding the acquisition of the Additional Shares, including the
payment of the price for the same, provided however that the
remaining obligations on SETA derived from the Transaction Documents
and of the Participation Agreement including the cooperation
obligation referred to by Section 2.3 and the obligations referred
to by Section 3.4.5 of the Participation Agreement remain in full
force and effect.
6. On December 21 2005, Nafin, in attention to the instructions
received by means of official communications numbers 4.613 and 4.614
dated December 21 2005 of the SCT, notified the authorization of SCT
in terms of such official communications in regard to the assignment
by the Strategic Partner in favor of Aeroinvest of all the rights
and obligations relating the Purchase Option, releasing the
Strategic Partner of the obligations relating the acquisition of the
Additional Shares, including the payment of the price of the same,
provided the other obligations on SETA derived from the Transaction
Documents of the Participation Agreement, including the cooperation
obligation referred to by Section 2.3 and the obligations referred
to in Section 3.4.5 of the Participation
Agreement, remain in full force and effect. A copy of the agreement
for the assignment of rights and obligations as amended is attached
hereto as Exhibit "A".
7. Aeroinvest has notified SCT in writing the acquisition of 36% of the
Shares of the Controlling Company, according to that set forth in
article 23 of the Airports Law. Furthermore, by means of official
communication 10/1144 dated December 21st 2005, SCT has expressed
that it does not have any objection whatsoever in connection with
the aforementioned acquisition.
8. By means of resolution dated December 13 2005, the Restructuring
Committee of the Mexican Airport System, took note and gave its
favorable opinion to file before Comision Intersecretarial de
Desincorporacion [The Inter-department De-incorporation Commission]
the Note "Report on the Exercise of the Purchase Option of 36% of
the Shares representing the Capital Stock of Grupo Aeroportuario del
Centro Norte, S.A. de C.V. by Aeroinvest, S.A. de C.V., Mexican
partner of such group".
9. By means of resolution dated December 20 2005, the Inter-department
De-incorporation Commission created on April 7 1995 by executive
order published in the Official Gazette of the Federation, took note
of the report referred to by paragraph 8 above.
10. On December 20 2005, and according to that set forth in Section
10.2.2 of the Participation Agreement, a meeting of the Board of
Directors of the Controlling Company was held, which approved the
execution of this Agreement.
11. On this same date, Nafin in its capacity as seller and Aeroinvest as
purchaser, entered into a Purchase and Sale Agreement in regard to
the Additional Shares (the "Purchase and Sale Agreement") subject to
the condition precedent of executing this Agreement and the other
documents referred to in section 5 of the Purchase and Sale
Agreement.
REPRESENTATIONS
I. The Federal Government by means of SCT through its legal representative
represents that:
1. It recognizes to have executed the Participation Agreement on June
14 2000.
2. It has full knowledge of the Purchase Notice presented by the
Strategic Partner to Nafin and it recognized the need of modifying
the Participation Agreement, in order to delete the individual
participation limits of the Controlling Company in terms of that set
forth in Section 3.4.3 of the same.
3. By means of official authorization number 4.612 dated December 21
2005, issued by SCT, copy of which is attached hereto as Exhibit
"B", it was authorized in terms of Section 10.6 of the Participation
Agreement, the assignment by the Strategic Partner in favor of
Aeroinvest, of the rights and obligations derived from the Purchase
Option releasing the Strategic Partner
from the obligations relating to the Additional Shares, including
the payment of the price of the same, provided that the other
obligations on SETA that are derived from the Transaction Documents
and Participation Agreement, including the cooperation obligation
referred to in Section 2.3 and the obligations referred to in
Section 3.4.5 of the Participation Agreement, remain in full force
and effect.
4. Its representative, in its capacity as Deputy Minister for
Transportation, has sufficient capacity to enter into this Agreement
according to article 6 of Section IX of the Internal Regulations of
SCT.
II. Nafin represents through its representative that:
1. It is a national credit and development-banking institution,
organized under the Credit Institutions Law and its own Organic Law,
and has legal capacity and patrimony of its own and that in terms of
the latter is authorized to enter into this Agreement for the
purposes herein established.
2. On June 14 2005, (i) according to that set forth in Section 3.4.2 of
the Participation Agreement, the Strategic Partner delivered to
Nafin the Purchase Notice, expressing in such document its intent to
exercise the Purchase Option, releasing the Strategic Partner from
the obligations related to the acquisition of the Additional Shares
and (ii) and on grounds of the provisions of Section 10.6 of the
Participation Agreement, the Strategic Partner requested the
authorization to assign in favor of Aeroinvest all the rights and
obligations related to the Purchase Option and release the Strategic
Partner from the obligations regarding the acquisition of the
Additional Shares, including the payment of the price of the same,
provided that the other obligations on SETA derived from the
Transaction Documents and the Participation Agreement, including the
obligation of cooperation referred to by Section 2.3 and the
obligations referred to in Section 3.4.5 of the Participation
Agreement, remain in full force and effect.
3. By virtue of the provisions of representation II.2 above, it
acknowledges the convenience of modifying the Participation
Agreement, among other things, to eliminate the limitations to
individual participation of the Controlling Company in terms of that
provided in Section 3.4.3 of the same.
4. That its representative is duly authorized to enter into this
Purchase and Sale Agreement on its behalf (sic) as it appears in
public deed number 101,352 granted on July 10 2003, before attorney
Jose Angel Villalobos Magana, Notary Public number 9 of the Federal
District and registered with the Public Registry of Commerce of the
Federal District, under commercial folio number 1275 dated July 16
2003.
5. It has received the necessary instructions to enter into this
Agreement, in terms of the Trust Agreement number 5111-3 executed on
June 14 2000 ("The Nafin Trust Agreement").
III. The Controlling Company, through its representative represents that:
1. It is a commercial company duly organized and constituted under the
Mexican Laws, as it appears in public deed number 44,355 of may 28
1998, granted before attorney Emiliano Zubiria Maqueo, Notary Public
Number 25 of the Federal District, which first certified copy was
registered on June 25 1998 in the Public Registry of Commerce of the
Federal District, under folio number 238749.
2. It acknowledges to have entered on June 14 2000 into the
Participation Agreement.
3. It has full knowledge of the Purchase Notice presented by the
Strategic Partner to Nafin and it acknowledges the need to modify
the Participation Agreement, among other things, in order to
eliminate the individual participation limits of the Controlling
Company in terms of that provided for in Section 3.4.3 of the same.
4. By means of the Extraordinary and Ordinary Shareholders Meeting
Dated December 21st 2005, the shareholders of the Controlling
Company authorized in terms of Section 10.6 of the Participation
Agreement, the assignment by the Strategic Partner in favor of
Aeroinvest, of the rights and obligations derived from the exercise
of the Purchase Option referred to by Recital 2 (ii) of this
Agreement, releasing the Strategic Partner from the obligations
related to the acquisition of Additional Shares, including the
payment of the price of the same, provided that the other
obligations on SETA derived from the Transaction Documents and the
Participation Agreement, including the cooperation obligation
referred to by Section 2.3 and the obligations referred to in
Section 3.4.5 of the Participation Agreement, shall remain in full
force and effect.
5. With the execution, compliance and enforcement of this Agreement, it
does not fail to comply with: (i) any laws or regulations or (ii)
its by-laws or any contract, agreement or covenant to which it is a
party, or else, it shall not result in the early termination of its
binding obligations or in the imposition of restrictions or
limitations to the investments that Grupo Aeroportuario is bound to
or intents to make pursuant to the Development Master Program
referred to by article 38 of the Airports Law or the annual business
plan of the Controlling Company.
6. It has carried out or filed all the notifications and notices and
has obtained all the authorizations and exemptions, including those
pertaining to by-laws, that are necessary for the execution,
compliance and enforcement of this Agreement and the acts
established in the same.
7. That its legal representative has sufficient powers and authorities
to enter into this Agreement, as it appears in public deed number
10,485, granted on February 6 2003, before Attorney Jesus Salazar
Venegas, Notary number 63 of Monterrey, Nuevo Leon, which first
certified copy was registered on January 27 2004 in the Public
Registry of Commerce of Monterrey, Nuevo Leon under folio number
238749.
IV. Each and every one of the Concession Companies represent that they
were incorporated as it was declared in the Participation Agreement
and that their
legal representative has sufficient powers and authority to enter into
this Agreement.
V. The Services Company represents through its legal representative, that:
1. It is a commercial company duly organized and existing under the laws
of Mexico, as it appears in public deed number 44,356 granted on May 28
1998 before Attorney Emiliano Zubiria Maqueo, Notary Public Number 25
of the Federal District, which first certified copy was registered on
June 25 1998 with the Public Registry of Commerce of the Federal
District under commercial folio number 238750.
2. It acknowledges to have executed the Participation Agreement on June 14
2000.
3. It has full knowledge of the Purchase Notice presented by the Strategic
Partner to Nafin and recognizes the need to modify the Participation
Agreement, among other things, in order to delete the individual
participation limits of the Controlling Company in terms of that
established in Section 3.4.3 of the same.
4. With the execution, compliance and enforcement of this Agreement, it
does not violate or fail to comply with: (i) any law, regulation or
legal provision whatsoever or (ii) its by-laws or any contract,
agreement or covenant to which it is a party, or else it shall not
result in the early termination of its binding obligations or in the
imposition of restrictions or limitations to the investments that Grupo
Aeroportuario is bound to or wishes to make under the Development
Master program referred to by Article 38 of the Airports Law or the
annual business plan of the Controlling Company.
5. It has carried out or filed all the notifications and notices and has
obtained all the authorizations and exemptions, including those
pertaining to by-laws, which result to be necessary for the execution,
compliance and enforcement of this Agreement and the acts set forth
herein.
6. Its legal representative has sufficient powers and authority to enter
into this Agreement pursuant to public deed number 10,486 granted on
February 6 2003 before Attorney Jesus Salazar Venegas, Notary Public
number 63 of the Federal District.
VI. The Strategic Partner, through its legal representative, represents that:
1. It is a Mexican Company duly organized and existing under the Laws of
Mexico, by means of public deed number 79,502 date June 9, 2000,
granted before Attorney Armando Galvez Perez Aragon, Notary Public
number 103 of the Federal District, which first certified copy was
registered on October 13 2000 in the Public Registry of Commerce of the
Federal District under folio number 26,7940.
2. It acknowledges to have entered on June 14 2000 the Participation
Agreement.
3. On June 14 2005, (i) according to that set forth in Section 3.4.2 of
the Participation Agreement, the Strategic Partner delivered to Nafin
the Purchase Notice, expressing in such document its intent to exercise
the Purchase Option, subject to the conditions set forth in such
Purchase Notice; and (ii) on grounds of the provision of Section 10.6
of the Participation Agreement, the Strategic Partner requested the
authorization to assign in favor of Aeroinvest all the rights and
obligations related to the Purchase Option, releasing the Strategic
Partner from the obligations regarding the acquisition of the
Additional Shares, including the payment of the price of the same,
provided that the other obligations on SETA derived from the
Transaction Documents and the Participation Agreement, including the
obligation of cooperation referred to by Section 2.3 and the
obligations referred to in Section 3.4.5 of the Participation
Agreement, remain in full force and effect. Such Purchase Notice is
attached hereto as Exhibit "C".
4. It recognizes the need to modify the Participation Agreement, among
other things, in order to delete the individual participation limits of
the Controlling Company in terms of that established in Section 3.4.3
of the same.
5. With the execution, compliance and enforcement of this Agreement, it
does not violate or fail to comply with: (i) any law, regulation or
legal provision whatsoever or (ii) its by-laws or any contract,
agreement or covenant to which it is a party, or else it shall not
result in the early termination of its binding obligations or in the
imposition of restrictions or limitations to the investments that Grupo
Aeroportuario is bound to or wishes to make under the Development
Master Program referred to by Article 38 of the Airports Law or the
annual business plan of the Controlling Company.
6. It has carried out or filed all the notifications and notices and has
obtained all the authorizations and exemptions, including those
pertaining to by-laws, which result to be necessary for the execution,
compliance and enforcement of this Agreement and the acts set forth
herein.
7. Its legal representative has sufficient powers and authority to enter
into this Agreement pursuant to public deed number 991 dated December
20 2005, granted before Notary Public number 29 of Monterrey Nuevo
Leon.
VII. The Partners of the Strategic Partner, through their legal representatives
represent that:
1. Each one of them recognizes the need to modify the Participation
Agreement, among other things, in order to delete the limitations to
individual participation of the Controlling Company in terms of that
provided for in Section 3.4.3 of the same.
2. On September 14 2005, Vinci y Controladora de Operaciones de
Infraestructura, S.A. de C.V. ("COINSA") entered into a Purchase and
Sale
Agreement of the shares representing the capital stock of the Strategic
Partner, held by Vinci, to be subsequently acquired by Aeroinvest. On
the same date, such shares were acquired by Aeroinvest.
3. On November 1st 2005, Aeroinvest notified SCT the transfer of the
shares representing the capital stock of Aeroinvest owned by Compania
Empresarial Andrea-J, S.A. de C.V., ("CEA-J") in favor of COINSA and
one share in favor or Constructoras ICA, S.A. de C.V.
4. On 21.12.05, the SCT authorized the transfer of the shares representing
the capital stock of Aeroinvest held by CEA-J in favor of COINSA and
one share in favor of Constructoras ICA, S.A. de C.V.
5. With the execution, compliance and enforcement of this Agreement, it
does not violate or fail to comply with: (i) any law, regulation or
legal provision whatsoever or (ii) its by-laws or any contract,
agreement or covenant to which it is a party, or else it shall not
result in the early termination of its binding obligations or in the
imposition of restrictions or limitations to the investments that Grupo
Aeroportuario is bound to or wishes to make under the Development
Master Program referred to by Article 38 of the Airports Law or the
annual business plan of the Controlling Company.
6. It has carried out or filed all the notifications and notices and has
obtained all the authorizations and exemptions, including those
pertaining to by-laws, which result to be necessary for the execution,
compliance and enforcement of this Agreement and the acts set forth
herein.
7. Their legal representatives have sufficient powers and authority to
enter into this Agreement and that such powers have not been revoked or
restricted in any manner whatsoever as it appears in:
(a) public deed number 69, 898 dated July 25 2003, granted before Attorney
Jorge Alfredo Dominguez Martinez, Notary Public no. 140 of the Federal
District, registered with the Public Registry of Commerce of the
Federal District on September 20 2003 under commercial folio number
309414, containing the power of attorney of the legal representative of
Aeroinvest; and
(b) Public deed number 112,480 dated December 20 2005, granted before
attorney Cecilio Gonzalez Marquez, Notary Public no. 151 of the Federal
District, which contains the power of attorney of the legal
representative of ADP.
VIII. The Trustee represents, through its legal representative, that:
1. In terms of its Organic Law it is authorized to carry out the trust
operations according to its by-laws and the Law of Credit Institutions.
2. That it attends to the execution of this Agreement, in order to learn
the scope of its obligations as Trustee under the Participation
Agreement and to express its agreement to the same.
3. That its representative is duly authorized to subscribe this Agreement
in its name, as it appears in public deed number 32,541, granted on
January 14 1997, before Attorney Maximinio Garcia Cueto, Notary Public
no. 14 of the Federal District, same that is duly registered in the
Public Registry of Property of the Federal District.
IX. EMICA represents through its legal representative, that:
1. That it is a corporation duly organized and validly existing under the
Laws of Mexico by means of public deed number 97,751 of June 1st 1979,
granted before Attorney Jesus Castro Figueroa, Notary Public no. 38 of
the Federal District, registered with the Public Registry of Commerce
of the Federal District under commercial folio 8723, and that it has
sufficient powers and authority according to its by-laws to enter into
this Agreement.
2. That its legal representative, Mr. Jose Luis Guerrero Alvarez, has
sufficient powers and authority to enter into this Agreement, same that
have not been modified or revoked in any manner whatsoever.
3. It is its intent to enter into this Agreement, among other things, to
become a joint-and-several obligor of Aeroinvest, with respect to all
the obligations on Aeroinvest derived from the acquisition of the
Additional Shares, including the obligations set forth under the
Participation Agreement and the Transaction Documents.
4. It knows the terms and scope of the Participation Agreement and the
Transaction Documents.
5. That it acknowledges that, once that the Additional Shares have been
acquired, Aeroinvest shall also undertake the rights and obligations
that correspond to the Strategic Partner pursuant to the Transaction
Documents and the Participation Agreement, expressly including all the
obligations foreseen in Sections 2.3 and 3.4.5 of the Participation
Agreement.
6. That with the execution, compliance and enforcement of this Agreement,
it does not violate or infringes: (i) any law, regulation or legal
provision whatsoever or (ii) its by-laws or any contract, agreement or
covenant to which it is a party, or else it shall not result in the
early termination of its binding obligations.
7. It has carried out or filed all the notifications and notices and has
obtained all the authorizations and exemptions, including those
pertaining to by-laws, which result to be necessary for the execution,
compliance and enforcement of this Agreement and the acts set forth
herein.
Based on the aforementioned representations and warranties, the Parties to this
Agreement agree to modify the Participation Agreement according to the
following:
CLAUSES
FIRST. In terms of Sections 3.4.3 and 10.2.2 of the Participation Agreement, the
parties agree, through the execution of this Agreement, to delete Section 2.5 of
the Participation Agreement titled Participation Limits, as well as any
references to such section whether in the Participation Agreement, the
Transaction Documents or in any other documents.
SECOND. In terms of Sections 3.4.6 of the Participation Agreement and 6.2.6 of
the Shareholders' Agreement and having complied with that provided by Section
10.2.2. of the same Participation Agreement, the parties agree to modify Section
2.7 of the Participation Agreement itself in order to be worded in the following
manner:
"2.7 Contribution to the Trust. In order to guarantee (i) the negative
covenants foreseen in Section 2.4 above, and (ii) the obligations foreseen in
the Technical Assistance Agreement, the Strategic Partner, the Controlling
Company and the Trustee, agree to enter into the Trust Agreement, in which the
Trustee shall act as such, the Strategic Partner shall act as settlor and first
place beneficiary and the Controlling Company shall act as second place
beneficiary. By virtue of such Trust Agreement, the Strategic Partner shall
transfer to the Trustee the Shares Package so that they [the shares] are kept in
the Trust. In like manner, the obligation shall be established for the Strategic
Partner to transfer to the Trust the Optional Shares that it may eventually
acquire".
THIRD. By virtue of Clause First and Second above, as of the execution of this
Agreement, in regard to the acquisition of shares representing of the capital
stock of the Controlling Company carried out by Aeroinvest, the rights,
obligations, conditions and/or restrictions contemplated by or derived from
Section 2.5 of the Participation Agreement shall not be applicable to the
parties nor shall they have any validity whatsoever.
FOURTH. After having complied with the provisions of Section 10.2.2 of the
Participation Agreement, the parties agree to modify Section 3.4.4 of the
Participation Agreement to be worded in the following manner:
"3.4.4. In the event that the Strategic Partner has filed a Purchase
Notice to Nafin, the Strategic Partner or the authorized assignee of the
rights and obligations derived from such Purchase Notice (in which case
the Strategic Partner shall not have any obligation in such regard
whatsoever) shall pay the price in favor of Nafin in dollars, currency of
the United States of America, or in pesos at the exchange rate of the date
of the payment as published by Banco de Mexico in the Official Daily of
the Federation, in immediately available funds, in the form Nafin
instructs in writing".
FIFTH. The parties acknowledge and ratify, in whatever may refer to each one of
them in the documents or acts to which they are parties, that on the date of
execution of this Agreement, the following acts have taken place or have been
executed by them:
1. An extraordinary and ordinary shareholders' meeting of the
Controlling Company which resolved on (i) the amendment of the
by-laws of the Controlling Company to be worded in the form attached
as Exhibit D of this Agreement; (ii) a dividends policy to be
followed by the Controlling Company as of the closing date under the
Agreement for the Purchase and Sale of the Additional Shares (the
"Closing Date"); (iii) the modification to the composition of the
Board of Directors of the Controlling Company as of the Closing Date
under the Purchase and Sale Agreement; and (iv) the conversion of
the Series "A" shares of the capital stock of the Controlling
Company into Series "B" shares, among other things.
2. An Agreement for the Termination of the Shareholders' Agreement;
3. An Agreement to modify the Trust Agreement, in terms of Section
3.4.6 of the Participation Agreement; and
4. An Agreement for the Purchase and Sale of the Additional Shares.
SIXTH. The assignment of the rights and obligations derived from the Purchase
Option or the execution of this Agreement do not release the Strategic Partner
in any manner whatsoever from the compliance of its obligations under the
Transaction Documents and the Participation Agreement and, in an express manner,
those derived from Sections 2.3, 3.4.5 (as long as these refer to the obligation
of cooperating with Nafin in the public offer or offers or other kind of
placement among the public investor of its Shares, even when Nafin keeps the
ownership of 49% or less of the shares representing the capital stock of the
Controlling Company) and 10.3 of the Participation Agreement; provided that the
Strategic Partner does not undertake any obligation whatsoever related to the
Purchase Option or the payment of the Price of the Additional Shares.
Accordingly, Aeroinvest also undertakes the obligations corresponding to the
Strategic Partner according to the Transaction Documents and the Participation
Agreement and which, are its responsibility derived from the acquisition of the
Additional Shares, and in an express manner, those derived from the Sections 2.3
and 3.4.5 of the Participation Agreement (even if Nafin keeps the ownership of
49% or less of the shares representing the capital stock of the Controlling
Company).
Aeroinvest grants and undertakes, as if it were the Strategic Partner, in regard
to itself, the representations and warranties given and undertaken by the
Strategic Partner according to Sections 2.9, 5.2. 5.3. 5.4, 5.5, 5.6 and 5.9 of
the Participation Agreement. The representations and warranties mentioned before
are the determinant reason of Nafin's and SCT's will for the celebration and
compliance of this Agreement and the acts set forth herein.
In the event that a public offer of Shares or other instruments issued on the
Shares is made in Mexico or abroad, or other type of placing that requires the
registration in whole or in part of the Shares or of such instruments in the
National Registry of Securities of the National Banking and Securities
Commission or any other equivalent or substitute registry, the Strategic
Partner, Aeroinvest and Nafin shall carry out all the necessary actions to amend
the by-laws of the Controlling Company to be worded essentially in terms of
Exhibit "D" of this Agreement, and if appropriate, to adapt them
to any legal or administrative provisions that result to be applicable in order
to be able to carry out any of the aforementioned offers.
The parties agree that, at all times, even when Nafin ceases to be shareholder
of the Controlling Company, the Strategic Partner and Aeroinvest shall require
the written consent of the Federal Government, through SCT, to contract
liabilities or to enter into any type of agreement, by means of which
limitations are imposed to the Controlling Company, the Services Company or any
of the Concession Companies, to carry out any additional investments to those
foreseen in the Development Master Program (as such term is defined in the
Technical Assistance Agreement), business plans or other programs or plans that
result to be applicable or have been approved in regard to the Controlling
Company, the Services Company and/or the Concession Companies.
Furthermore, the parties agree that in the event that Aeroinvest intends to
transfer under any legal title whatsoever, the Additional Shares it acquires
under the Agreement for the Purchase and Sale of such Additional Shares, in
addition to the authorizations and consents that are requested and prior to such
transfer, the acquiring party of any of the Additional Shares shall subscribe
the agreements and documents that are necessary to undertake its terms and the
obligations on Aeroinvest provided in Sections 2.3 and 3.4.5 of the
Participation Agreement, including the amendments thereto.
SEVENTH. Except for the modifications to the Participation Agreement that are
set forth in this Agreement, the Participation Agreement is hereby ratified in
all its terms; therefore, all the provisions of the Participation Agreement that
are not modified by means of this Agreement shall continue having the same
validity and effects with which they were worded in the Participation Agreement.
The parties acknowledge that the modifications set forth in this Agreement do
not constitute a novation to the Participation Agreement.
EIGHTH. Nafin, the Strategic Partner and Aeroinvest upon the acquisition of the
Additional Shares, in their capacity as shareholders of the Controlling Company,
agree and shall carry out all the actions that are necessary to:
(i) Instruct the Board of Directors of the latter, to carry out through
an external consultant of recognized prestige of its choice, an
analysis for the determination of the best alternative, from the tax
and operational point of view, to attain an efficient distribution
of dividends of the Controlling Company, that complies with the
policy fixed by the Shareholders' Meeting referred to by Section
(ii) of numeral 1 of Clause fifth of this Agreement and Section 7 of
the Shareholders Agreement, in order that the same analysis is
approved, within 120 (one hundred and twenty) calendar days
following the date of the aforementioned shareholders meeting, by
the Board of Directors of the Controlling Company, and thereafter to
be submitted to the consideration of the Shareholders' Meeting of
the Controlling Company;
(ii) To create (i) a reserve fund (the "Reserve Fund") of the Controlling
Company through one single initial contribution in an amount equal
to or greater than US$1,000,000.00 (one million U.S. Dollars
00/100), in order to have funds to carry out the investments
contemplated in the Development Master Program referred to by
Article 38 of the Airports Law or in the annual business plan of the
Controlling Company and (ii) an Extraordinary Investment Committee
which shall be comprised of 3 (three) members, from which 2 (two) of
them shall be appointed by Nafin and 1 (one) by the Strategic
Partner. The Extraordinary Investment Committee shall be the only
organ authorized to determine the destination and application of the
resources of the reserve Fund. Such Committee may be called by any
of its members at least 3 (three) business days in advance. The
Committee may also adopt the resolutions outside a meeting, provided
they are ratified by all its members. In order for a meeting to be
duly convened, at least 2 (two) of its members may be present and,
subject to that provided for in the following paragraph, its
decisions shall be adopted by a simple majority, provided that the
Chairman shall have a tie-breaking vote.
In the event that the totality or part of the resources maintained in the
Reserve Fund had been disposed of, the favorable vote of the totality of the
members of the Extraordinary Investments Committee shall be required in order to
make new contributions to such Reserve Fund.
Notwithstanding the above, the resources maintained by the Controlling Company
in the Reserve Fund shall only be disposed of by the Extraordinary Investments
Committee once that each and every remedy set forth in the Development Master
Program and the annual business plan of the Controlling Company have been
exhausted or in the event that, there are funds according to such plans, these
are not applied to the corresponding extraordinary investments.
The Reserve Fund Shall only be kept by the Controlling Company, as long as Nafin
participates in the Controlling Company, whether directly or indirectly, at
least in 49% (forty nine percent) of the capital stock. Consequently, once that
Nafin participates in the Controlling Company with a percentage lower than 49%
(forty nine percent) of the capital stock of the same, such Reserve Fund shall
be absorbed by the Controlling Company and the Extraordinary Investments
Committee shall cease in its duties.
(iii) As long as the shares of the Controlling Company are not listed in any
stock exchange and provided that Nafin participates in the Controlling Company,
whether directly or indirectly, with at least 49% (forty nine percent) of the
capital stock, the favorable vote of at least 60% (sixty percent) of the capital
stock of the Controlling Company shall be required for the contracting or
undertaking, whether directly or indirectly, of any debt, liabilities or
commitments of the Controlling Company to or resulting in, or which purpose may
be to carry out any type of allocation, whether in cash or kind, to the
shareholders of the Controlling Company, including without limitation, any
decreases to the capital stock through the reimbursement, redemption of shares,
payment of liquidation quotas or payment of dividends.
NINTH. EMICA agrees to constitute itself as joint-and-several obligor as to each
and every obligations of Aeroinvest derived from the acquisition of Additional
Shares
by virtue of this Agreement, including without limitation, the obligations set
forth under the Participation Agreement and the Transaction Documents.
Further, EMICA hereby undertakes the obligation of carrying out each and every
action and adopting any agreement that result convenient or necessary for the
faithful compliance by Aeroinvest of each and every one of its obligations
derived from the loan agreement (the "Loan Agreement") dated December 14 2005,
in the amount of US$125,000,000.00 (one hundred and twenty five million U.S.
Dollars) entered, among others, by Aeroinvest as borrower and WestLB AG, New
York Branch as lender and administrative Agent, including the direct compliance
of the same, so that Aeroinvest keeps the ownership of the Additional Shares and
the corporate rights corresponding to the same. For such purposes, in the same
date of the Loan Agreement, EMICA becomes joint-and-several obligor with respect
to the obligations of Aeroinvest under the Loan Agreement, by means of the
guarantee subscribed between EMICA and WestLB AG New York Branch (Guarantee)
dated December 14 2005, same obligation that shall remain in full force during
the effectiveness of the Loan Agreement or any other loan substituting the Loan
Agreement.
The parties agree that (A) while Aeroinvest is the owner, whether directly or
indirectly of the Additional Shares, Aeroinvest shall exercise the voting right
of the same, provided that it may agree to vote the same in the same manner than
those held by the Strategic Shareholder; (B) in the event that the Additional
Shares are transferred to a trust, Aeroinvest as fiduciary or beneficiary of the
Additional Shares under the same or under any similar instrument, as long as the
relevant trustee has not received a notice of default in terms of the
corresponding trust agreement, Aeroinvest shall instruct the trustee of the
relevant trust on the form of exercising the voting right of the Additional
Shares, in the understanding that it may instruct the trust to vote such
Additional Shares in the same manner than the Shares held by the Strategic
Partner; and (C) in the event that the Additional Shares are kept in a trust
according to paragraph B above, and a notice of default has been received in
terms of the relevant trust agreement, the corresponding beneficiary shall
instruct the trustee to vote the Additional Shares, in the understanding that
such shares should always be voted in the same manner as the Shares held by the
Strategic Partner, provided however that the compliance of the obligations
guaranteed under the Credit Agreement is not affected or the capacity of
Aeroinvest to comply with its obligations under the Loan Agreement is not
limited in any manner whatsoever.
TENTH. This Agreement shall be ruled and enforced according to the federal laws
of the United Mexican States and the parties, expressly and irrevocably, submit
themselves to the jurisdiction of the competent courts of Mexico City, Federal
District, United Mexican States, expressly waiving to any other jurisdiction
that may correspond to them by reason of their present or future domiciles or by
any other concepts.
According to the above, and being the parties aware of the validity and legal
scope of this Agreement, they sign it on the 21st day of the month of December
2005.
[the rest of the page is intentionally left in blank]
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Nacional Financiera, Sociedad Nacional de Credito
Trust Division
(illegible signature)
--------------------------------
By: Ricardo Rangel Fernandez McGregor
Position: Legal Representative
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
The Federal Government, through the Department of Communications
And Transports
(illegible signature)
--------------------------------
By: Aaron Dychter Poltolarek
Position: Transports Deputy Secretary
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Banco Nacional de Comercio Exterior, S.N.C.
(illegible signature)
--------------------------------
By: Carlos Flores Salinas
Position: Legal Representative
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Aeroinvest, S.A. de C.V.
(illegible signature)
-----------------------------
By: Alonso Quintana Kawage
Position: Legal Representative
Empresas ICA, S.A. de C.V.
(illegible Signature)
-----------------------------
By: Jose Luis Guerrero Alvarez
Position: Legal Representative
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Aeroports de Paris
(illegible signature)
----------------------------
By: Nicolas Claude
Position: Legal Representative
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Servicios de Tecnologia Aeroportuaria, S.A. de C.V.
(illegible signature)
----------------------------
By: Luis Zarate Rocha
Position: Legal Representative
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Aeropuerto de Ciudad Juarez, S.A.
De C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Culiacan, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Acapulco, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Mazatlan, S.A.
De C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Reynosa, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Chihuahua, S.A.
de C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Chihuahua, S:A. de C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Durango, S.A.
De C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Monterrey, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Tampico, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Torreon, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Zacatecas, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de San Luis Potosi, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
Aeropuerto de Zihuatanejo, S.A. de
C.V.
(illegible signature)
- -------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Servicios Aeroportuarios del Centro Norte, S.A. de C.V.
(illegible signature)
--------------------------
By: Ruben Lopez Barrera
Position: Legal Representative
[Signature Sheet]
Agreement for the Modification of the Participation Agreement Dated December
21st 2005
Grupo Aeroportuario del Centro Norte, S.A. de C.V.
(illegible signature)
--------------------------
By: Ruben Lopez Barrera
Position: Legal Representative