Exhibit 4.12
AMENDED AND RESTATED CONSORTIUM AGREEMENT
THIS AMENDED AND RESTATED CONSORTIUM AGREEMENT DATED AS OF JULY 6,
2004 IS ENTERED INTO BETWEEN (1) AEROPORTS DE PARIS, A FRENCH STATE OWNED ENTITY
WITH LEGAL CAPACITY AND ITS OWN ASSETS ("ADP"), (2) AEROINVEST, S.A. DE C.V.
("AEROINVEST") A CORPORATION ORGANIZED UNDER THE LAWS OF THE UNITED MEXICAN
STATES ("MEXICO"), AND (3) VASA S.A., A CORPORATION ORGANIZED UNDER THE LAWS OF
FRANCE. ("VASA");, ADP, AEROINVEST AND VASA ARE HEREINAFTER REFERRED TO
INDIVIDUALLY AS A "PARTY" AND COLLECTIVELY AS THE "PARTIES" TO THIS AGREEMENT
TOGETHER WITH CONSTRUCTORAS ICA, S.A. DE C.V. ("CICASA") AND CONTROLADORA DE
OPERACIONES DE INFRAESTRUCTURA, S.A. DE C.V. ("COINSA"), AS JOINT AND SEVERAL
OBLIGORS OF AEROINVEST AND VINCI S.A.("VINCI"), AS OBLIGOR OF VASA.
WITNESSETH:
WHEREAS, on December 17, 1999 the Secretaria de Comunicaciones y
Transportes (the Mexican Ministry of Communications and Transport, hereinafter
"SCT") published an invitation to tender (hereinafter the "Tender"), which, for
the purposes of this Agreement, includes the Participation Agreement, the Stock
Purchase Agreement, the Operation Agreement, the Option Agreement, the Trust
Agreement, the Shareholders Agreement, the Technical Assistance and Technology
Transfer Agreement, the Concession Titles, the Administrative Services Rendering
Agreement, the Holding Company, the Service Company and the Subsidiaries'
By-Laws (each as defined), and any other Tender documents and specifications
delivered by SCT to the Parties (hereinafter collectively referred to as the
"Transaction Documents") for the acquisition of a portion of the capital stock
of Grupo Aeroportuario del Centro Norte, S.A. de C. V. ("GCN"), the holding
company of the Mexican Center North group of airports (all of the above
hereinafter referred as the "Project").
WHEREAS, ADP as an international airport operator, developer and
owner, and CICASA as a long term participant in the development, construction
and operation of Mexican infrastructure with knowledge of the Mexican market
conditions and experienced in infrastructure privatization projects, were
authorized by SCT, on March 27, 2000, to participate in the Tender as the
operating partner (the "Operating Partner") and the Mexican Partner (the
"Mexican Partner") respectively, and are together hereinafter referred to as the
"Key Partners", of a group of participants;
WHEREAS, Societe Generale d'Entreprises ("SGE") as a leading
construction and transport concession company, was authorized by SCT to
participate in the Tender as an investment partner (the "Investment Partner")
and collectively with the Key Partners (the "Partners to the Strategic
Partner");
WHEREAS, on June 14, 2000, the Parties executed the Transaction
Documents with the Mexican Government pursuant to which the Mexican Government
through a Mexican trust ("Nafin Trust") is holding and controlling 85% of GCN's
capital stock and the refining portion of GCN's capital stock is controlled by
Servicios de Tecnologia Aeroportuaria, S.A. de C.V. ("SETA" or the "Strategic
Partner", formerly known as Operadora Mexicana de Aeropuertos, S.A. de C.V.)
through a Mexican trust (the "Guaranty Trust").
WHEREAS, the Parties executed a consortium agreement dated May 16,
2000, which was subsequently amended on June 7, 2000, June 14, 2000, January 3,
2001, December 19, 2002, September 26, 2003 and April 22, 2004 ( the consortium
agreement with its amendments being collectively hereinafter referred to as the
"2000 Consortium Agreement")
WHEREAS, in accordance with the Transaction Documents, the Strategic
Partner's capital stock shall be distributed as follows (i) the Mexican Partner
and Operating Partner shall together hold a minimum 51%, of the Strategic
Partner capital stock; (ii) the Mexican Partner shall hold a minimum 25.5% of
the Strategic Partner capital stock; and (iii) the Operating Partner shall hold
a minimum 10% of the Strategic Partner capital stock by the end of the fourth
year following the execution of the Operation Agreement. The Strategic Partner
has certain possibilities to purchase additional shares in GCN (i) through the
exercise of the option to purchase 3% of GCN's capital stock (the "Option
Shares"), or (ii) in the event GCN fails to offer in four years from the
execution of the Participation Agreement through an international public
offering a minimum of 36% of the capital stock of GCN, the Strategic Partner is
entitled, pursuant to section 3.4 of the Participation Agreement, to purchase
36% of GCN's capital stock (the "Additional Shares"). Any participation of the
Mexican Partner or the Operating Partner above the minimum required would be
considered as an Investor Partner participation with respect to the Transfer
Restrictions established for the participation held through the Trust Agreement
and acquired by the Partners in the Strategic Partner in the Transaction
Documents.
WHEREAS, upon the transfer of the shares owned by Vinci (formerly SOB)
in SETA to VASA, VASA became a party to the 2000 Consortium Agreement on
December 21, 2001;
WHEREAS, Vinci remained liable for the obligations of VASA under the
2000 Consortium Agreement;
WHEREAS, upon the transfer of the shares owned by CICASA in SETA to
COINSA and subsequently to Aeroinvest, Aeroinvest became a party to the 2000
Consortium Agreement on September 26, 2003, with CICASA and COINSA remaining
jointly and severally liable for the obligations of Aeroinvest under the 2000
Consortium Agreement;
WHEREAS, by a letter dated August 1, 2003, SCT authorized the transfer
of the shares of SETA to Aeroinvest based on the terms of the letter requesting
such authorization addressed by COINSA to SCT and under which COINSA informed
SCT that it will hold a 40 percent interest n Aeroinvest and will remain jointly
and severally liable under the Participation Agreement;
WHEREAS, the Parties now wish to amend and restate the 2000 Consortium
Agreement and such 2000 Consortium Agreement shall be amended and superseded in
its entirety by this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereto agree as follows:
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DEFINITIONS
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings ascribed to them in the Transaction Documents. In
addition, the following terms shall have the respective meanings assigned to
them:
"Administrative Structure of GCN" shall mean the organizational
structure of the Officers of GCN, to be proposed by the Parties to SCT pursuant
to Clause 4.2. hereof and shown in Exhibit "A" attached hereto.
"Airports" shall mean the airports subject to Concession Titles,
granted in favor of each of the airport operating Subsidiaries.
"BB Shares" means the acciones de la serie "BB" as defined in Articulo
Segundo, clause tres of the Estatutos Sociales de Grupo Aeroportuario del Centro
Norte, S.A. de CV.
"Business Day" shall mean any day except a Saturday, Sunday or any
other day on which commercial banks in the City of New York, New York, United
States, or Mexico City, D.F., Mexico, or Paris, France, are authorized by law to
close. All references to "days" in this Consortium Agreement shall mean Business
Days unless otherwise stated.
"Confidential Information" shall mean all information (whether or not
specifically labeled or identified as "confidential"), in any form or ID diem
related to each of the Parties, that is known or will be known by the other
Parties in connection with the business of the Parties or otherwise.
Confidential Information shall include, without limitation, all of the
following: prototypes, files, analyses, techniques, systems, formulae, research,
records, documentation, models, data, data bases, ideas, inventions, designs,
developments, devices, methods, processes (whether or not patentable or reduced
to practice), specifications, commercial information such as customer lists,
pricing, costs etc., related to each of the Confidential Information shall not
include any information that each of the Parties can demonstrate to the other
Parties has or becomes publicly known through no wrongful act or breach of
another person's obligation of confidentiality.
"Consortium" shall mean the consortium formed by the Parties in
connection with the Project.
"Consortium Interest" means Debt Interest or Equity Interest or a
combination thereof.
"Deadlock" shall mean the event of an unresolved matter or
impossibility to reach a decision at the Board of SETA with respect to a Major
Decision, under the provisions and percentage of affirmative vote required under
Clause 3.2.4 hereof.
"Debt Interest" means the debt instruments issued pursuant to the Long
Term Commercial Loan Contracts, dated as of December 26, 2000 (the "Long Term
Loan Contracts"), and currently held by the Parties hereto and any additional
debt instruments, except the New Shareholder Debt Interest, issued pursuant to
the terms hereof to the Parties.
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"Equity Interest" means any equity interest issued and outstanding in
SETA from time to time, including any equity interest issued after the date
hereof.
"Executive Committee" shall mean the committee of GCN referred to in
Clause 4.3 hereof, and shall consist of the General Director, the Chief
Financial & Administration Manager and the Chief Operations & Commercial
Development Manager.
"Extended Transfer Restrictions" shall have the meaning set forth in
Clause 7.1.5.
"Fair Market Value" means the fair market value of the Equity Interest
or Debt Interest based on what a willing buyer would pay a willing seller for
such interest as determined by an audit firm chosen pursuant to the following
procedure: The Prepayment Parties shall nominate three (3) internationally
recognized accounting and audit firms that have offices in Mexico. Each nominee
will be provided with a full description of the services to be provided. Within
seven (7) calendar days of receiving the nominations, the Non-Prepayment Party
will inform the Prepayment Parties of its preference; provided, however, if
there is more than one Non-Prepayment Party, then the Non-Prepayment Party
holding the greater percentage of Equity Interest shall have the right to choose
the nominee that will make the Fair Market Value determination. Whichever
nominee is so chosen will be immediately hired by the Prepayment Parties and the
Non-Prepayment Parties to determine the Fair Market Value of the Consortium
Interest. If the Prepayment Parties have not received an answer within seven (7)
days of delivery of the notice to the Non-Prepayment Parties, then the
Prepayment Parties shall have the right to appoint an accounting and audit firm
of their choice from the list of nominated accounting and audit firms. The cost
of the services of the appointed accounting and audit Firm will be paid by all
the Prepayment and Non-Prepayment Parties pro rata based on their Consortium
Interest in SETA on the day of such appointment of the accounting and audit
firm.
"GCN" shall have the meaning set forth in the Recitals.
"Holding Company" shall mean Grupo Aeroportuario del Centro Norte,
S.A. de C.V. also defined as the "Corporation" under the Transaction Documents.
"IPO" shall mean the initial public offering of a portion of GCN's
capital stock contributed by the Mexican Government to the Nafin Trust, pursuant
to the provisions of the Participation Agreement, the Shareholders Agreement and
the Option Agreement.
"Interest" or "Shares" shall mean as the case may be, a capital
interest participation in the outstanding and fully paid issued capital stock of
the Strategic Partner, as well as any loans which the shareholders of the
Strategic Partners may have granted or may grant to the latter, whether in
Mexican Pesos, legal tender of the United Mexican States, or any other legal
tender different therefrom.
"Internal Costs" shall mean those costs and expenses properly incurred
by the Parties for the Project up to Initial Capitalization Date, in accordance
with this Agreement, which are not External Costs .
"Major Decision" shall have the meaning set forth in Clause 3.2.4
hereof.
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"Major Project Contract" shall mean each of this Agreement, the
By-laws and Shareholders' Agreement of SETA, the Project Management Agreement,
the Operation Agreement, the Transaction Documents, any other agreement to which
SETA is a party, and any agreement to which the Holding Company or any of its
Subsidiaries is a party provided that it falls within the criteria outlined in
Clause 3.2.4 (k) and (l).
"Management Fee" shall mean the fees that the Strategic Partner, will
receive in consideration of the services rendered pursuant to the terms and
conditions of the Technical Assistance and Technology Transfer Agreement and the
Administrative Services Rendering Agreement.
"Master Development Program" shall have the meaning set forth in the
Shareholder Agreement.
"Nominees" shall mean the persons appointed by Shareholders of SETA to
represent them during Shareholder Meetings of SETA pursuant to Clause 3.1.2
hereof.
"Obligation" shall mean any obligation or liability, burden lien,
encumbrance, or responsibility contained or established in the Transaction
Documents applicable to the Strategic Partner, including but not limited to the
following:
AGREEMENTS OBLIGATION
---------- ----------
a) Participation Agreement Section Pay purchase price for 15% of GCN's
2.1; and Stock Purchase Agreement capital stock; 25% upon the execution of
Section 2.4 the Stock Purchase Agreement and 75% on
September 14, 2000, plus accrued
interest at the agreed interest rate.
b) Participation Agreement Section Provide Technical Assistance.
2.6; and Technical Assistance and
Technology Transfer Agreement Section
2.2
c) Participation Agreement Section Quality Guaranty of the standards of the
2.6; and Technical Assistance and Technical Assistance and the people
Technology Transfer Agreement Section involved,
3.2
Participation Agreement Section 2.6; Indemnity for the use of Intellectual
and Technical Assistance and Property
Technology Transfer Agreement Section
9.2 and 10.1
e) Participation Agreement Section Indemnity for damages to third parties
2,6; and Technical Assistance and and the Airports.
Technology Transfer Agreement Section
9.3 and 10.1
"Officers" shall mean the seven executive managers of GCN appointed in
accordance with Clause 4.2 hereof.
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"Operation Agreement" shall mean the operation agreement between SETA
and ADP executed on and that is attached hereto as Exhibit E.
"Permitted Investments" shall mean marketable securities with an
investment grade rating in the respective currency in which the securities are
denominated (as determined by Standard & Poors Corp. or Moody's investors
Services Inc.) which the Holding Company or any of its subsidiaries shall
purchase for cash management purposes.
"Project Management Agreement" shall mean the agreement between the
Parties as set out in Clause 8 hereof.
"Related Party" shall mean (i) in all cases, any person controlling,
controlled by, or under common control with, a Party, and (ii) the spouse,
sibling, parent, child or other blood or in-law family members within the fourth
degree, in a direct or collateral line, of a Party. A Party will be deemed to
control another Party (other than a natural Person) if the first Party
possesses, directly or indirectly, the power to direct or cause the direction or
management and policies of the other Party, whether through the ownership of
voting securities, by contract or otherwise.
"Representatives" shall mean the following representatives of the
Parties:
a) ADP, Dominique Pannier or his replacement as ADP may solely decide
from time to time,
b) AEROINVEST: Luis Zarate Rocha, or his replacement as AEROINVEST may
solely decide from time to time,
c) VASA: Renaud de Matharel or his replacement as VASA may solely
decide from time to time.
"Secured Credit Agreement" means, collectively, the Senior Secured
Credit Agreement, dated as of June 28, 2002, among SETA, WestLB AG (formerly
known as Westdeutsche Landesbank Girozentrale) ("WestLB"), New York Branch, ADP,
VASA and COINSA, and the Amended and Restated Senior Secured Credit Agreement
dated as of December 19, 2002 among SETA, WestLB, ADP, VASA and COINSA, as
amended from time to time.
"SETA" means Servicios de Tecnologia Aeroportuaria, S.A. de C.V.
(formerly known as Operadora Mexicana de Aeropuertos, S.A. de C.V.), a sociedad
anonima organized under the laws of the United Mexican States.
"Subsidiaries" shall mean the companies owned or controlled by GCN.
"Transaction Documents" shall have the meanings set forth in the
recitals of this Agreement.
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"Transfer Restrictions" shall mean any exit restriction or impediment
provided in the Transaction Documents that may oblige any of the Parties to
maintain a minimum capital participation in the Strategic Partner for a
determined period of time.
I. PURPOSE
1.1 This Agreement establishes the agreement among the Parties, with respect
to:
(a) the corporate and/or contractual governance rules of, and access to
third parties by either SETA or GCN; and
(b) other commitments among the Parties with respect to their
participation in the Project.
1.2 The intention of the Parties is to hold Interests in SETA, in each category
of shares of SETA, and the Parties shall have the same rights and
obligations as shareholders of SETA, but in proportion to their Interest.
The Parties agree to seek on a best efforts basis to achieve and keep this
structure.
II. (OMITTED)
III. MANAGEMENT OF THE STRATEGIC PARTNER
3.0 MANAGEMENT
The business and affairs of SETA shall be supervised and managed by or
under the direction of the shareholders of SETA pursuant to Clause 3.1
hereof and of a Board of Directors (the "Board of SETA") which shall make
decisions as set forth in Clause 3.2 hereof
3.1 SHAREHOLDERS' MEETINGS
3.1.1 FREQUENCY AND NOTICES
(a) Shareholders of SETA shall hold a meeting (a "SETA Shareholders
Meeting") at least once annually and prior to each and every
shareholder meeting of GCN.
(b) The Board of SETA or the statutory examiners shall otherwise have the
right to call at any time a SETA Shareholders Meeting (either at the
request of a shareholder or one or more Directors) by sending a
written notice to the shareholders, signed by the Secretary of the
Board of SETA.
(c) Each shareholder shall receive such written notice at least 15
Business Days prior to the date of the meeting, except in the
circumstances described in Clause 3.1.3 and Clause 3.1.5 (d).
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3.1.2 NOMINEES
The SETA Shareholders Meeting shall include the Nominees who shall be
executive managers of each of the shareholders of SETA. Each shareholder
shall have the right to appoint one Nominee
Directors of the Board of SETA shall not he appointed as Nominees.
3.1.3 QUORUM & VOTING RULES
A quorum for the SETA Shareholders' Meeting shall exist where 76.5% of the
issued Shares of SETA are present either physically or by proxy. However, a
quorum of 100% of the issued Shares of SETA shall be required for
shareholders meetings where decision regarding Clauses 11.5 (e), (f), (g),
(j) and (m) are to be taken. In case of attendance of a Nominee due to
unforeseeable reasons beyond his reasonable control) of a meeting shall be
rescheduled for the following week (but at least 4 Business Days laterat
the earliest, unless otherwise agreed by all the Nominees.
The ordinary and extraordinary shareholders meetings installed in second or
subsequent call will be legally covered when shareholders representing at
least 62.75% of the capital stock are present and vote in the meeting, and
the resolutions will be considered legally adopted when favorable vote of
76.5% of the capital stock actually represented in the meeting is obtained,
provided, however, that those shares represented at the meeting but
abstaining to vote will not be counted as represented at the meeting for
this purpose. A second or subsequent call will be issued in any particular
meeting, in the understanding that there shall be at least ten natural days
between the date of the meeting in which the quorum was not achieved and
the date of the subsequent meeting.
Each shareholder shall have the same number of votes as the number of
Shares held by it in the capital stock of SETA.
3.1.4 ORDINARY MEETINGS
The following decisions shall be made in the Ordinary SETA Shareholders
Meeting which shall be convened both annually and before every shareholder
meeting of GCN.
The following decisions shall require the affirmative vote of at least a
76.5 % Interest of the shareholders in the Strategic Partner:
(a) approval of the financial statements of SETA and review of the
analysis prepared by the statutory examiners;
(b) nomination of the appointees of the shareholders of SETA to attend
shareholders' meetings of GCN;
(c) approval of any proposal to be submitted or approved by the appointees
of the shareholders of SETA during shareholders' meetings of GCN;
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(d) approval of the financial statements of GCN before such statements are
presented by the Operating Committee of GCN to the Board of GCN and to
the shareholders' meeting of GCN for approval;
(e) approval of the dividend policy of GCN before it is proposed by the
Operating-Committee of GCN to the shareholders' meeting of GCN for
approval.; and
(f) appointment of the Directors of the Board of SETA and the statutory,
examiners of SETA and determination of their compensation.
3.1.5 EXTRAORDINARY MEETINGS
The following decisions shall be taken in an Extraordinary SETA
Shareholders Meeting:
(a) approval of the sale of Shares by VASA resulting in its Interest
becoming less than 25.5% during the Fifteen Year Waiting Period (as
defined in the Clause 2.4.1 of the Participation Agreement);
(b) to the extent the Technical Assistance and Technology Transfer
Agreement remains in full force and effect, including in circumstances
where the term of such Agreement would have been automatically renewed
pursuant to Section 5.2 of said Agreement, approval of the sale of
Shares by any Party which would reduce the Interest of such Party in
the Strategic Partner below 25.5%;
(c) pledge of any Shares held in the Strategic Partner;
(d) resolution of a Deadlock. In such circumstances, the prior written
notice referred to in Clause 3.1.1 (c) shall be reduced to one week;
(e) amend or terminate this Agreement (including the Project Management
Agreement), SETA's by-laws or SETA's shareholders agreement (including
amending SETA's duration, dissolution or liquidation of SETA,
decreasing SETA's capital stock, changing SETA's nationality or legal
nature) provided that in the case of any agreement to which the
Holding Company or any of its subsidiaries is a party, falling within
the criteria outlined in clause 3.2.4 (k) and (l) the decision shall
be limited to recommending the amendment or termination of such
agreement;
(f) amend or terminate the Corporate By-laws of the Holding Company, or
the Participation Agreement, or the Shareholders Agreement, or the
Technical Assistance and Technology Transfer Agreement or the Option
Agreement pursuant to Article 44 of the By-laws of the Holding
Company, to Article 10.2.1 of the Participation Agreement, Articles
11.2 and 9.1 of the Shareholders Agreement, Articles 5.1 and 15.2 of
the Technical Assistance and Technology Transfer Agreement and
Articles 7.2 and 8 of the Option Agreement;
(g) merge, split, dissolve or liquidate OCN pursuant to Article 44 of the
By-laws of the Holding Company;
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(h) register SETA on any stock exchange;
(i) increase SETA's share capital, or create new categories of shares or
securities or convert the shares;
(j) as regard the rights of the shareholders of SETA to reduce the
variable capital thereof, any such capital reduction as described in
article nine (9) of the by-laws of SETA may be only exercised with the
prior unanimous approval of the shareholders.
(k) sale of any shares or of the option to buy a further 3% of shares (or
of any part thereof) held by the Strategic Partner in GCN; exercise of
such option;
(l) conversion of BB shares to B shares (as defined in Article VI of the
By-laws of the Holding Company);
(m) decisions in connection with Clauses 7.1.2 or 7.1.3 hereof;
(n) make any other decision, which they deem appropriate.
Decisions regarding Clauses 3.1.5 (e), (f), (g) and (m) shall be made by
unanimous consent. All other decisions regarding Clauses 3.1.4 and 3.1.5
shall require a super majority approval of 76.5% of voting shares.
3.1.6 MINUTES
Minutes of SETA Shareholders Meetings shall be recorded by the Secretary of
the Board of SETA, as defined below. Minutes will be circulated to the
shareholders for approval within 10 Business Days following the meeting.
3.2 BOARD OF THE STRATEGIC PARTNER
3.2.1 FREQUENCY AND NOTICES
(a) The Chairman of the Board shall call a meeting whenever a Director so
requests in writing and, in any event, not less than every 6 weeks or
as required by stock exchange registration rules as the case may be.
In any event, a meeting shall be called immediately before a board
meeting of GCN.
(b) Each Director shall receive a written notice of a meeting the
Secretary of the Board at least fifteen days prior to the date
scheduled for meeting of the Board , except in the event of a dispute
among the Officers e Executive Committee which requires an urgent
resolution, in which case Clause 4.3.3(e)(i) shall apply.
(c) If any such meeting is postponed or cancelled for any reason, the
Secretary of the Board shall deliver a notice to each Director as soon
as possible, but in any event at least three Business Days prior to
the date scheduled for the postponed or cancelled meeting.
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(d) If a new date is to be set for a meeting following such postponement
or cancellation, each Director shall be notified in writing by the
Secretary of the Board at least five Business Days prior to the new
date.
3.2.2 MEMBERS
The Board shall be comprised of a maximum of 7 (seven) members (each one a
"Director" and collectively the "Directors"). Each shareholder in the
Strategic Partner shall have the right to appoint one Director and its
alternate for each 12.75 % Interest it owns in SETA.
The chairmanship of the Board shall rotate among the Parties every two
years, it being understood that the current Chairman is a Director
designated by ADP, that the next Chairman to be elected in October 2004
shall be a Director designated by Aeroinvest, and that the succeeding
Chairman to be elected in October 2006 shall be a Director designated by
VASA. This order shall be kept for the following years. The Chairman shall
not have a tie-breaking vote,
The Directors shall collectively designate a secretary of the Board (the
"Secretary of the Board") who shall not be a member of the Board.
3.2.3 QUORUM & VOTING RULES
A quorum for a first call meeting shall exist where 6 (six) of the
Directors or their corresponding alternates are present, but in any event
the presence of all the Directors or their alternates representing the
Parties shall be required.
The quorum for a second or subsequent Board meeting shall exist where 4
(four) of the Directors or their corresponding alternates are present,
subject to Clause 3.2.4 hereof.
The Directors of each Party present at a Board meeting shall have 1 (one)
vote.
The Parties realize that they have a substantial interest in the effective
management and operation of SETA. Therefore, the decisions of the Board
shall whenever possible he made on a unanimous basis after full discussion,
and the Parties shall instruct their respective Directors on the Board to
make a good faith effort to resolve any differences and to act unanimously.
However, should unanimity not be achieved, the following rules shall apply:
(a) the Major Decisions as defined in Clause 3.2.4 shall require a "Super
Majority" vote at the Board of SETA, that is, the affirmative vote of
at least 6 (six) Directors,
(b) the decisions referred to in Clause 3.2.5 shall require a "Simple
Majority" vote, at the Board of SETA, that is, the affirmative vote of
at least 4 (four) Directors, and
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(c) on any resolution proposed to the Board of SETA in relation with ADP
Ingenerie, Article 156 of the Mexican general law on commercial
companies shall apply where the Directors appointed by ADP have a
conflict of interest with SETA and in such case, notwithstanding
Clause 3.2.4.(t), the decision shall then require the unanimous vote
of all Directors except Directors appointed by ADP.
The Board shall implement without a vote all decisions approved by the
Shareholders in a SETA Shareholders Meeting.
3.2.4 DECISIONS OF THE BOARD REQUIRING SUPER MAJORITY -- MAJOR DECISIONS
The following acts, expenditures, decisions and obligations to be made or
incurred by the Strategic Partner (each a "Major Decision") shall require a
Super Majority vote:
(a) organization charts and administrative structure of GCN, of the
Service Company, and of each of the airports being proposed by the
Operating Committee of GCN to the board of GCN for approval as
stipulated in Articles 18 (x) and 28 (4) of the By-laws of the Holding
Company;
(b) appointment or dismissal of :
i. the first two levels of the managers of the Holding Company, of
the Service Company, and of the Airport Concessionaire Companies
which the year preceding the exercise of the appointment or the
dismissal have had traffic above 0.3 million passengers per annum
("PAX"), subject to the provisions of Clause 4.2.1 hereof and
Article 29 (2) of the By-laws of the Holding Company.
ii. the 13 Administrators of the Airport Concessionaire Comp s
pursuant to Article 28 (6) of the By-laws of the Holding Company;
(c) salary and benefit packages of personnel listed in (b) above, subject
to the remuneration guidelines imposed by SCT and, following the first
IPO Nominations and Compensations Committee for the officers of the of
the Holding Company's subsidiaries, including the General Director and
the area directors pursuant to Article 29 (3) of the By-laws of the
Holding Company;
(d) general wages and benefits policy of GCN and awarding of bonuses
pursuant to Article 28 (9) of the By-laws of the Holding Company;
(e) appointment or dismissal of the SETA representatives on each of the
Auditing Committee, the Acquisitions & Agreements Committee and the
Nominations & Compensations Committee which correspond to 20% of the
total members on such Committees pursuant to Articles 19 (ii), 29, 31
and 34 of the By-laws of the Holding Company;
(f) voting positions to be taken by the SETA representatives on the
Committees in (e) above;
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(g) the presentation to the board of GCN of the Master Development Program
of GCN proposed by the Operating Committee of GCN and any variation of
these Master Development Programs pursuant to Article 28 (3) of the
By-laws of the Holding Company;
(h) the presentation to the board of GCN of the annual budget and
operation plan (the "Annual Budget") which shall be prepared on
October 31 of each year by the Operating Committee of GCN pursuant to
Article 28 (1) of the By-laws of the Holding Company, and which shall
include pro-forma financial statements, production plans, capital
expenditures with relevant support and materials;
(i) the presentation to the board of GCN of the Business Plan which shall
be prepared by the Operating Committee of GCN pursuant to the By-laws
of the Holding Company;
(j) propose to the Extraordinary Shareholders' Meeting amendments to, or
termination of, a Major Project Contract subject to the powers of
shareholders meetings set out in clause 3.1.5.(e);
(k) entering into any agreement (whether oral or written) between GCN and
a shareholder of SETA, any Related Party thereof, including (a)
contracts for services under the Technical Assistance Agreement and,
(b) contracts for works under the Project Management Agreement;
(l) award of contracts by GCN for works or services to any third party
with a unit value above:
i. US$100,000 for an airport with traffic below 0.3 million PAX in
the year preceding the award,
ii. US$200,000 for an airport with traffic comprised between 0.3
million and 0.5 million PAX in the year preceding the award,
iii. US$500,000 for an airport with traffic comprised between 0.5
million and 1 million PAX in the year preceding the award,
iv. US$1 million for an airport with traffic comprised between 1
million and 3 million PAX in the year preceding the award,
v. US$3 million for an airport with traffic above 3 million PAX in
the year preceding the award,
vi. the lower of the aggregate of the amounts set forth in (i)
through (iv), as applicable, and US$3 million for any group of
airports, or the Holding Company;
(m) asset disposals by GCN with a unit value above the caps set in (l)
above, but excluding Permitted Investments;
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(n) finance and lease agreements (including hedging agreements) to which
GCN is a party with a unit value above the caps set in (l) above
notwithstanding the powers granted to the board of GCN pursuant to
Article 17 (11) of the By-laws of the Holding Company;
(o) capital investments of GCN with a unit value above the caps set in (l)
above, but excluding Permitted Investments;
(p) granting of GCN guaranties in favor of third parties or between GCN
companies with a unit value above the caps set in (l) above;
(q) entering into a lawsuit with a third party exposing GCN to an
estimated risk above US$ 200,000 notwithstanding the powers which are
specifically granted to the board of GCN pursuant to Articles 17 (1)
and 17 (3) of the By-laws of the Holding Company;
(r) defining the tax and accounting policies of SETA and GCN
notwithstanding the powers of the board of GCN pursuant to Article 17
(12) of the By-laws of the Holding Company;
(s) granting of powers of attorney to third parties to represent GCN
notwithstanding the powers of the board of GCN pursuant to Article 17
(1) of the By-laws of the Holding Company;
(t) entering into, amending or, terminating any transaction (including the
opening of bank accounts), agreement or contract (whether oral or
written) to which SETA is a party, whatever the amount;
(u) incurring any expenses or liabilities of any nature whatever the
amount on behalf of SETA;
(v) approval of payment of Audit Mission costs;
(w) exercise veto rights on the board of GCN in accordance with the
Transaction Documents; and
(x) amendment or termination of the Operation Agreement except where such
termination arises by reason of the Operator's default under the
Operation Agreement, in which case a simple majority approval will
suffice.
The approval of the Board of SETA will not be required for transactions of
a lower amount than indicated above under paragraph (l) through (p).
3.2.5 DECISIONS OF THE BOARD REQUIRING SIMPLE MAJORITY
All other acts, expenditures, decisions and obligations to be made or
incurred by GCN which:
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(a) are not listed in Clause 3.2.4, and
(b) are not expressly included in the powers grunted to the Executive
Committee pursuant to Clause 4.3.6 herein,
shall require the Simple Majority vote of the Board of SETA.
3.2.6 ATTENDANCE AND REPORTING OF THE EXECUTIVE COMMITTEE OF GCN
The three Officers member of the Executive Committee of GCN shall attend
each SETA Board meeting to jointly report to the Board on the activity of
GCN since the last Board of SETA meeting or on any other matter which they
deem important to report to the Board (each Officer acting individually in
this latter respect). The structure and contents of the activity reports
shall be decided by Simple Majority vote of the Board.
When certain sensitive or confidential matters are being discussed by the
Board, and upon the decision of the Super Majority of the Board of SETA,
any member of the Executive Committee of GCN may be prevented from
attending a Board of SETA meeting.
3.2.7 MINUTES
The Secretary of the Board shall record minutes of any Board meeting and
shall deliver such minutes to the Parties within (5) five Business Days
following the date of the meeting. The minutes of a Board meeting shall be
approved as the first item on the agenda of the following Board meeting.
The minutes of Board meetings shall be signed by the Chairman of the Board
and the Secretary of the Board, as well as the Statutory Examiners that
attended the meeting.
3.2.8 RESOLUTION OF DEADLOCKS
If, at any time, a Deadlock arises, then the following rules shall apply:
(a) within three (3) Business Days of the occurrence of such Deadlock, the
Parties that have appointed Board Members shall refer the matter
subject of the Deadlock to their respective Representatives; who shall
meet and use their best endeavors to resolve the Deadlock within five
(5) Business Days following such referral, and if the Deadlock is
resolved by the Representatives, such Representatives shall instruct
their respective Directors in the Strategic Partner to vote at the
Board, as agreed by the Representatives, and
(b) if the Representatives are unable to resolve the Deadlock, then an
Extraordinary SETA Shareholder Meeting shall be convened pursuant to
Clause 3.1.1. and 3.1.5
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3.2.9 SPECIFIC PROVISIONS IN CONNECTION WITH THE SECURED CREDIT AGREEMENT
If
(i) the Lender (as such term is defined in the Secured Credit Agreement)
either:
or (a) accelerates the Loan (as such term is defined in the Secured Credit
Agreement.
or (b) declares an Event of Default (as such term is defined in the Secured
Credit Agreement) pursuant to Section 8.01 of the Secured Credit Agreement.
or (c) there shall be commenced or instituted, voluntarily or
involuntarily, a case in a court or similar competent forum against a Party
to this agreement seeking the liquidation or reorganization of such Party,
and, if involuntary, either (i) a determination is made that such Party is
insolvent or has defaulted in the payment of its obligations generally
(such as the issuance by a judge of competent jurisdiction (x) in Mexico of
a resolution opening the concurso mercantile procedure or (y) in France of
a redressement or liquidation judiciaries) or (ii) the petition commencing
such involuntary case or proceeding remains undismissed and unstayed after
such period for dismissal or stay has expired under applicable French or
Mexican law, or if it requests or accepts the imposition of a conciliador,
sindico, auditor, receiver, or administrator or if such representative is
designated or takes possession of such Party, as the case may be, or all or
a substantial portion of its liabilities and assets; or all or a
substantial portion of its property, assets or revenues shall be subject to
bankruptcy proceedings, dissolution or liquidation; or if a Party shall
cease to operate or shall enter into an agreement for the benefit of its
creditors or threaten in writing to suspend its operations or a substantial
portion thereof,
or (d) if a Party shall, at any time, by virtue of a single event or series
of events suffer the loss of at least 70% of (x) its paid in capital or (y)
its assets,
and
(ii) Parties holding in the aggregate more than 50% of the Consortium
Interest (the "Prepayment Parties") have decided and agreed that SETA shall
pay or otherwise discharge, in full or part, any amounts outstanding under
the Secured Credit Agreement, including, but not limited to, any then
outstanding principal, interest and other amounts outstanding under to the
Secured Credit Agreement (the "Outstanding Amount"),
then the consent of any other Party (the "Non-Prepayment Parties") or of
the representatives of such Non-Prepayment Parties on the Board of
Directors of SETA, notwithstanding any other provision of this Agreement,
shall not be necessary for SETA to make such prepayment. Notwithstanding
any other provision of this Agreement, SETA shall sell any available liquid
asset (but, for the sake of clarity, such liquid assets shall exclude the
BB Shares owned by SETA) to pay all or any portion of the then Outstanding
Amount (the amount remaining then to be prepaid being the "Prepayment
Amount").
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After the Prepayment Parties have agreed that SETA shall prepay the
Prepayment Amount in accordance with the immediately above paragraph, the
Prepayment Parties may, in addition, determine (a "Determination") that
SETA will raise additional funds by issuing Consortium Interest (such
Determination to include whether such Consortium Interest should be in the
form of Debt Interest, Equity Interest, or a combination thereof, and the
price and other terms by which SETA will issue any such Consortium
Interest) or an alternative borrowing (and the price and other terms by
which SETA will issue any such alternate indebtedness) to pay all of the
then due Prepayment Amount; provided, however, that (except as specifically
provided for in the last paragraph of this Clause 3.2.9) any Debt Interests
issued hereunder shall be allocated among the Parties pari passu with their
holdings of Consortium Interest, and on similar terms as the Debt Interest
outstanding at such time (and should there be no Debt Interest outstanding
at such time, such new Debt Interest will be under similar terms as those
contained in the Long Term Loan Contracts).
Upon the Determination to issue Consortium Interest, each of the Parties,
including the Non-Prepayment Parties, agrees to subscribe for that amount
of Consortium Interest equal to the product of
(i) such Party's percentage of the Consortium Interest outstanding
immediately prior to the issuance of any additional Consortium
Interest and
(ii) the then Prepayment Amount
(hereunder defined as the "Pro Rata Contribution Amount"),
provided, however, that a Party shall have the right not to subscribe for
its Pro Rata Contribution Amount (in which case it will be a
"Non-Subscribing Party"). In the event a Party does not subscribe for its
Pro Rata Contribution Amount, then each of the other Parties that have
contributed their Pro Rata Contribution Amount (the "Subscribing Parties")
shall have the right, but not the obligation, to subscribe for an amount of
Consortium Interest equal to the product of (i) the Non-Subscribing Party's
Pro Rata Contribution Amount and (ii) the quotient of (A) such Subscribing
Party's Consortium Interest and (B) the sum of all other Subscribing
Parties' Consortium Interest.
Upon any subscription by the Subscribing Parties of a Non-Subscribing
Party's Pro Rata Contribution Amount, each of the Parties agrees that, if
it is a Non-Subscribing Party, it shall sell to each of the Subscribing
Parties, if necessary, the minimum amount required of its Consortium
Interest (either, as applicable, in Debt Interest, Equity Interest or a
combination thereof) so that, after such transfer, the percentage of the
aggregate amount of Debt Interest it holds shall be equal to the percentage
of the aggregate amount of Equity Interest it holds, The price that each
Subscribing Party shall pay For the Non-Subscribing Party's Consortium
Interest shall be equal to the Fair Market Value, as applicable of the
Equity Interest or Debt Interest.
If any applicable law or regulation (including any provision of the
Documents or the governing instrument of a Party) prohibits the Parties
applying the immediately preceding
17
two paragraphs, then the following provisions shall apply, but only with
respect to that portion of the Non-Subscribing Party's Consortium Interest
that applicable law or regulation (including any provision of the
Transaction Documents or of the governing instrument of a Party) which
prohibits the Non-Subscribing Party from transferring to the Subscribing
Party or Parties and only to the extent that this provision (or part
hereof) does not violate any applicable law or regulation:
(i) the Prepayment Parties may agree at any time, in lieu of the new
Debt Interest or Equity Interest to be issued in accordance with the
previous paragraphs of this Clause 3.2.9, that SETA will issue, and
the Subscribing Parties will subscribe to, a note or notes (the "New
Shareholder Debt Interest"), which shall be in the form of a demand
note that is senior to the Debt Interest of the Parties (for purposes
hereof, "senior" shall mean that the New Shareholder Debt Interest and
the interest thereof shall be repaid and paid in full before any
interest and principal of the Debt Interest may be paid by SETA) and
carries the same interest rate as the Debt Interest but is subordinate
to the debt issued pursuant to the Secured Credit Agreement
("subordinate" shall mean that all provisions of the Subordination
Agreement shall be applicable to the New Shareholder Debt Interest as
if it were Debt Interest thereunder);
(ii) the Parties agree that, prior to payment in full of the New
Shareholder Debt Interest, SETA shall make no expenditures except,
notwithstanding any other provision of this Agreement, either to (A)
make payments as required under the Secured Credit Agreement and (B)
make payments to the Parties of Sponsor Shareholder Reimbursable
Expenses (as such term is defined in the Senior Credit Agreement);
(iii) to the extent applicable (and with the prior consent of any
governmental authorities as may be required under the Transaction
Documents or the governing instrument of a Party), any Non-Subscribing
Party shall (A) pledge to the Subscribing Parties to secure SETA's
obligation under the New Shareholder Debt Interest that amount of
Equity Interest it would have transferred pursuant to the immediately
preceding paragraph and (B) with the prior consent of the governmental
authorities as may be required under the Transaction Documents assign
to the Subscribing Parties the right to vote such Equity Interest and
receive all dividends and any other distribution hereon; arid (iv) to
:he extent applicable., any Non-Subscribing Party shall assign to the
Subscribing Parties the right to receive payments of interest with
respect to that amount of Debt Interest it would have transferred
pursuant to the immediately preceding paragraph.
Notwithstanding any other provisions under this Agreement, at any time with
six months of the occurrence of the latest of the following, as may be
applicable under the provisions of this Clause 3.2.9,
(i) the funding of Equity Interest by the Subscribing Parties,
(ii) the funding of Debt Interest by the Subscribing Patties,
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(iii) the funding of the New Shareholder Debt Interest by the Subscribing
Parties,
(iv) the sale at Fair Market Value of Debt Interest by any Non-Subscribing
Party to the Subscribing Parties pursuant to the above provisions, or
(v) the sale at Fair Market Value of Equity Interest by any Non-Subscribing
Party to the Subscribing Parties pursuant to the above provisions,
each of the Non-Subscribing Parties shall, pursuant to the option agreement
in the form of Appendix 1 hereto (the "Option Agreement"), have the right
to repurchase, at a price calculated pursuant to Article 2 of the Option
Agreement, in a single transaction from the Subscribing Parties
(i) all (but not less than all) of the Equity Interest and/or the Debt
Interest purchased by the Subscribing Parties from that
Non-Subscribing Party and
(ii) its pro rata share (such pro rata share to be based on the
Interest held by such Non-Subscribing Party prior to the application
of any provisions of this Clause 3.2.9) of the New Shareholder Debt
Interest from the Subscribing Parties
so that in both cases the Non-Subscribing Party will, after giving effect
to such purchase, have the financial participation in SETA to which it
would have been entitled had it been a Subscribing Party hereunder.
3.2.10 TRANSFER IN CASE OF REORGANIZATION OR LIQUIDATION OF A PARTY
Each of the Parties hereto agrees and covenants that if
(a) there shall be commenced or instituted, voluntarily or involuntarily, a
case in a court or similar competent Forum against a Party to this
agreement seeking the liquidation or reorganization of such Party, and if
involuntary, either (i) a determination is made that such Party is
insolvent or has defaulted in the payment of its obligations generally
(such as the issuance by a judge of competent jurisdiction (x) in Mexico of
a resolution opening the concurso mercantil procedure or (y) in France of a
redressement or liquidation judiciaries) or (ii) the petition commencing
such involuntary case or proceeding remains undismissed and unstayed after
such period for dismissal or stay has expired under applicable French or
Mexican law, or
(b) if it requests or accepts the imposition of a conciliador, sindico,
auditor, receiver or administrator or if such representative is designated
and takes possession of such Party, as the case may be, or
(c) all or a substantial portion of its liabilities and assets, or all or a
substantial portion of its property, assets or revenues shall be subject to
bankruptcy proceedings, dissolution or liquidation; or
19
(d) if a Party shall cease to operate or shall enter into an agreement for
the benefit of its creditors or threaten in writing to suspend its
operations or a substantial portion thereof; or
(e) if a Party shall, at any time, by virtue of a single event or series of
events suffer the loss of at least 70% of (x) its paid in capital or (y)
its assets,
then the other Parties hereto shall have the right, but not the obligation,
to purchase from such Party (the "Defaulting Party") and each Party if it
is the Defaulting Party hereby agrees to sell all or part of its Consortium
Interest to such non-defaulting Parties for a price equal to the Fair
Market Value of such Consortium Interest. If any applicable law or
regulation (including any provision of the Transaction Documents or the
governing instrument of a Party) prohibits the Parties from applying this
Clause 3.2.10, then the Parties hereto agree that the non-defaulting
Parties shall have the right to assign to any third party this right to
purchase and to enforce the obligation to sell contained herein.
3.2.11 PREPAYMENT OF THE LOAN
The Parties hereto may decide at any time that SETA shall prepay the
Outstanding Amount of the Loan (as defined in the Senior Secured Credit
Agreement). Except as otherwise provided for in Clause 3.2,9, such a
decision shall require the unanimous consent of the Parties.
3.2.12 JOINT LIABILITY
(a) AEROINVEST, CICASA and COINSA undertake that they are and shall remain
fully and jointly responsible for the due performance of any and all
obligations contained in this Consortium Agreement, the Transaction
Documents and the Secured Credit Agreement, as amended from time to
time.
(b) Vinci and VASA undertake that they are and shall remain fully and
jointly responsible for the due performance of any and all obligations
contained in this Consortium Agreement, the Transaction Documents and
the Secured Credit Agreement, as amended from time to time.
3.2.13 OPERATING AGREEMENT LETTERS
It is understood and agreed that the Operating Agreement Letters (as
defined in the Secured Credit Agreement) and any other documents related to
them shall be considered as part of the Transaction Documents, such as
defined in the Participation Agreement or in the Consortium Agreement.
3.3 STATUTORY EXAMINERS OF SETA
The surveillance of SETA shall be entrusted to a permanent examiner and an
alternate examiner or external auditor, to be appointed by the Board of
SETA pursuant to Clause 3.2.4 (b). Such appointment hall reside in a
partner of a firm or office of certified public accountants which shall act
as the external auditors of SETA, and shall prepare the
20
information for the annual reports, certifying the general balance sheet
and the profits and losses statements for each fiscal year.
IV. MANAGEMENT OF GCN - DESIGNATIONS OF DIRECTORS, COMMITTEE MEMBERS AND
OFFICERS IN GCN
In accordance with the Transaction Documents, certain members designated by
SETA shall participate in the management and operation of GCN at the GCN
board of directors, Operating Committee, Executive Committee, Contracts and
Acquisitions Committee, Audit Committee, Nomination and Compensation
Committee and the Officers, as well as the Managers of GCN's subsidiaries.
In accordance with their rights to designate members of GCN management
conferred in the Transaction Documents, the Parties agree to the rules set
forth below with respect to each Party's right to make different level
designations in GCN. If the number of members of the management to be
designated by the Parties changes, each Party shall use its best efforts to
reach an agreement satisfactory to the other Parties, trying to maintain as
much as possible equal participation in each area of the management levels
of GCN or GCN's subsidiaries.
4.1 APPOINTMENT OF MEMBERS OF GCN'S BOARD OF DIRECTORS
4.1.1 Pursuant to Article 6.3(a) of the By-laws of the Holding Company and
Section 2.8 of the Participation Agreement, the Strategic Partner is
entitled to appoint three members of GCN's board of directors and their
respective alternates. Consequently the Parties hereby agree that such
appointment shall be made as follows:
(a) ADP shall designate (1) one member and the corresponding alternate,
(b) AEROINVEST shall designate (1) one member and the corresponding
alternate, and
(c) VASA shall designate (1) one member and the corresponding alternate.
The Parties hereby agree that the three directors of the board of GCN
appointed by SETA shall not be Officers of GCN. The Parties further agree
that these three directors shall be Directors of the Board of SETA.
4.1.2 To nominate a Director of the board of GCN, a shareholder of SETA shall
own at least 25.5% of the stock of SETA.
If only two shareholders of SETA own each at least 25.5 % of the stock of
SETA, then these two shareholders will jointly nominate the third Director
of the board of GCN, and his corresponding alternate.
If only one shareholder of SETA owns at least 25.5 % of the stock of SETA,
then it will nominate all three Directors on the Board of GCN, and their
corresponding alternates.
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4.1.3 The three Directors of GCN appointed by SETA shall vote (including use of
veto) at the board of GCN in strict compliance with the decisions made by
the Board of SETA to the extent the item on the agenda of the GCN board
meeting falls within the powers of the Board of SETA. For all other items
(including use of veto), the 3 directors shall consult each other and
decide on a common position before expressing their views on the board of
GCN and before proceeding to any vote (including use of veto). In the event
they are unable to reach a common position, they will attempt to delay the
decision on the board of GCN in order to obtain instructions from the
shareholders of SETA.
4.2 APPOINTMENT OF GCN'S OFFICERS AND MEMBERS OF THE OPERATING COMMITTEE
4.2.1 Pursuant to Article 19 of the By-laws of the Holding Company and Section
2.8.2 of the Participation Agreement, the directors appointed by the
Strategic Partner on the Board of GCN shall be entitled to appoint certain
of the Officers. Therefore, the Parties hereby agree that such appointments
shall be made as follows:
(a) the General Director of GCN shall be appointed by AEROINVEST with the
prior approval of ADP and VASA which may not be unreasonably withheld,
(b) the Chief Financial & Administration Manager of GCN shall be appointed
by VASA, with the prior approval of ADP and AEROINVEST which may not
be unreasonably withheld, and
(c) the Chief Operations & Commercial Development Manager of GCN shall be
appointed by ADP, with the prior approval of AEROINVEST and VASA,
which may not be unreasonably withheld.
4.2.2 The following three managers shall be appointed by the board of GCN;
initially by SCT and, following the full IPO, by simple majority vote (i.e.
51%) of the board of GCN:
(a) the Chief Safety and Quality Control Manager,
(b) the Chief Human Resources Manager, and
(c) the General Counsel.
The Directors appointed by the Parties at the Board of GCN shall vote as
regards such appointments in accordance with a decision taken by the Board
of SETA in accordance with Clause 3.2.3(a).
4.2.3 the Chief Maintenance and Infrastructure Development Manager of GCN shall
be appointed by the Board of SETA in accordance with Clause 3.2.3 (a). He
shall not be a member of the Operating Committee of GCN.
4.2.4 The Parties hereby agree that:
(a) those Officers appointed according to Clause 4.2.1 hereof shall be the
members of the Operating Committee of GCN nominated by SETA pursuant
to Article 19 of
22
the By-laws of the Holding Company and Section 2.8.2 of the
Participation Agreement;
(b) the managers of GCN appointed according to Clauses 4.2.1, 4.2.2 and
4.2.3 hereof shall be the Officers. If the proposed Administrative
Structure of GCN is not accepted by SCT, each Party shall use its best
efforts to reach an agreement satisfactory to the other Parties,
trying to maintain as much as possible the principle of specialization
in designating GCN's Officers;
(c) GCN's Officers appointed by the Strategic Partner may not be:
i. directors on the Board of SETA,
ii. directors on the board of GCN,
iii. managers of the Strategic Partner;
(d) at the written request of any two Parties, any Officer shall be
dismissed. Any such Officer so dismissed shall be replaced in
accordance with this Clause 4.2;
(e) if a person is an employee of either AEROINVEST, ADP or VASA, such
person shall terminate his relationship with his employer as a
condition precedent to becoming an employee of GCN, whatever the
position he shall assume in GCN may be;
(f) on a day-to-day basis, and subject to the rules applicable to the
Operating Committee in the Transaction Documents, the Chief Operations
& Commercial Development Manager, the Chief Financial & Administration
Manager and the Chief Maintenance and Infrastructure Development
Manager shall report to the General Director. Subject to Article 29.3
of the By-laws of the Holding Company and Article 3.1.1 of the
Shareholders Agreement, their remuneration package shall be initially
set by the Board of SETA in agreement with the General Director who
shall perform their annual reviews.
4.3 THE EXECUTIVE COMMITTEE OF GCN
4.3.1 FREQUENCY AND NOTICES
The Executive Committee will meet at any location and as often as
necessary. The members of the Executive Committee shall use their best
efforts to work as a team and, therefore, shall meet informally when
necessary. However, the Committee shall meet upon request, whether written
or oral, of one of the members and the other two members shall use their
best efforts to accommodate their agenda in order to allow the Committee
meeting to be held as soon as possible, but in any event not later than
within 5 (five) Business Days following the date of the request.
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4.3.2 MEMBERS
(a) The Executive Committee shall consist of the three Officers appointed
by the shareholders of SETA in accordance with Clause 4.2.1.
(b) The chairman of the Executive Committee shall he the General Director
of GCN. The chairman of the Executive Committee shall not have a
casting vote.
4.3.3 QUORUM AND VOTING RULES
(a) The Executive Committee will hold meetings only if all three members
are able to attend physically. Presence by proxy shall not be
permitted.
(b) If the quorum fails to be reached or the meeting is postponed, the
chairman of the Executive Committee shall schedule another meeting of
the Executive Committee to be held within the next five Business Days
or as otherwise agreed by the three Officers.
(c) The Parties realize that they have a substantial interest in the
effective and efficient management and operation of GCN. Therefore,
the decisions of the Executive Committee shall, whenever possible, be
made on a unanimous basis after full discussion, and the Parties shall
instruct their respective Officers to make a good-faith effort to
resolve any differences and to act unanimously.
(d) However, should a disagreement arise on a matter discussed during a
meeting of the Executive Committee, a vote among the three members
shall take place. The decision to resolve such matter shall be a
decision approved by at least two of the three Officer members of the
Executive Committee. In addition, the General Director will have the
right to veto a decision proposed by the two other Officers of the
Committee.
(e) If a decision to resolve a matter of disagreement cannot be made such
that it is supported by at least two of the three Officers of the
Committee (notwithstanding any veto of the General Director), then
such matter of disagreement will be referred to the Board of SETA who
shall proceed as follows :
i. the disagreement shall be discussed and, if necessary, put to
vote during the next scheduled Board meeting of SETA, unless the
dispute requires an urgent resolution (which it will be deemed to
do if at least one of the Officers of the Executive Committee
sends a written notice to the Chairman of the Board of SETA to
this effect), in which case the Chairman of the Board shall send
within the next two Business Days a written notice to the
Directors and the Board shall meet not later than 10 Business
Days following the date of the notice,
ii. the decision to resolve the disagreement shall be taken by Simple
Majority vote of the Board pursuant to Clause 3.2.5 unless the
matter subject of the disagreement calls for a Major Decision,
and
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iii. the decision to resolve the disagreement shall be taken by Super
Majority vote of the Board pursuant to Clause 3.2.4 if the matter
subject of the disagreement calls for a Major Decision.
4.3.4 OMITTED
4.3.5 REPORTING
The Executive Committee shall report to the Board of SETA in accordance
with Clause 3.2.6 hereof.
4.3.6 POWERS OF THE EXECUTIVE COMMITTEE
The Executive Committee shall participate in the management and operation
of GCN subject to the powers of the Board of SETA, the Board of GCN or the
Board of any of the Subsidiaries, as the case may be. The Executive
Committee shall have the following powers:
(a) together with the Operating Committee, recommend the appointment or
the dismissal of employees of GCN other than those that are to be
appointed by the shareholders of SETA pursuant to Clause 3.2.4(b). The
Officers of the Executive Committee shall agree on a common view with
respect to any appointment prior to expressing such view as members of
the Operating Committee and making any proposal to the Nominations and
Compensations Committee;
(b) together with the Operating Committee, determine the level of the
remuneration of the employees referred in (a) above pursuant to
Section 2.4.1 of the Administrative Services Rendering Agreement, but
subject to the general wages and benefits policy approved by the Board
of SETA pursuant to Clause 3.2.4 (d) hereof;
(c) recommend the policy related to the bank accounts of GCN or the
payments on behalf of GCN, it being understood that signing powers
should be delegated on the principle of double signature, where the
signature of the Chief Financial Officer & Administrative Manager (or
of an employee of the treasury department of GCN to whom his powers
have been delegated) will always be required. Further, any debit in
excess of:
i. US$2,000 for an airport with traffic below 0.5 million PAX in the
year preceding the year in which the debit is made and for any
expense of the Holding Company or the Service Company,
ii. US$5,000 for an airport with traffic comprised between 0.5
million and 1 million PAX in the year preceding the year in which
the debit is made,
iii. US$10,000 for an airport with traffic comprised between 1 million
and 3 million PAX in the year preceding the year in which the
debit is made,
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iv. US$20,000 for an airport with traffic above 3 million PAX in the
preceding the year in which the debit is made,
shall require the sign-off of a member of the Executive Committee;
(d) together with the Operating Committee, lead the formulation of the
Master Development Program, the Business Plan and the Annual Budget to
be submitted to the Board of GCN as per the Transaction Documents, it
being understood that the Executive Committee shall seek the prior
approval of the Board of SETA in accordance with Clauses 3.2.4 (g) and
(h) hereof before their submission to the Board of GCN;
(e) together with the Operating Committee, submit for approval to the
Board of GCN the dividend policy, it being understood that the
Executive Committee shall seek the prior approval of the shareholders
of SETA in accordance with Clause 3.1.4(e) before such policy is
submitted to the Board of GCN;
(f) exercise the powers of the General Director referred to in Articles
17, 18 and 19 of the By-laws of the Service Company. The General
Director shall at all times act in accordance with this Agreement;
(g) subject to the powers of the board of GCN outlined in Article 18 of
the By-laws of the Holding Company and the powers of the Operating
Committee outlined in Article 28 of the same, propose, recommend or
execute all actions, agreements, contracts and transactions, the
implementation of which does not require the prior approval of the
Board of SETA pursuant to Clause 3.2 above.
In the event the three Officers are unable to agree on a course of action,
the provisions under Clause 4.3.3 (d) and (e) hereof shall apply.
The Executive Committee of GCN shall have the right to act freely and swiftly in
the event of an emergency relating to safety, security, protection of the
environment of the Airports, their personnel and clients.
4.4 APPOINTMENT OF MEMBERS OF GCN'S OTHER COMMITTEES
Pursuant to Articles 29, 31 and 34 of the By-laws of the Holding Company,
the Strategic Partner is entitled to appoint 20% of the respective members
of (i) the Nominations and Compensations Committee, (ii) the Audit
Committee, and (iii) the Acquisitions and Agreements Committee.
Consequently, the Parties hereby agree that such appointments shall be made
as follows:
4.4.1 NOMINATIONS AND COMPENSATION COMMITTEE.
The Strategic Partner's members of the Nominations and Compensations
Committee shall be appointed unanimously by the Parties.
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4.4.2 AUDIT COMMITTEE
The Strategic Partner's members of the Audit Committee shall be appointed
unanimously by the Parties.
4.5 ACQUISITIONS & AGREEMENTS COMMITTEE
The Strategic Partner's members of the Acquisitions and Contracts Committee
shall be appointed unanimously by the Parties.
V. STRUCTURE AND CAPITALIZATION OF THE STRATEGIC PARTNER
5.1 CORPORATE STRUCTURE
5.1.1 BY-LAWS AND SHAREHOLDERS' AGREEMENT OF THE STRATEGIC PARTNER
The Parties shall use their best efforts to always keep the most
appropriate legal structure in order to have, in proportion to their
respective Interest in the Strategic Partner (as this may vary from time to
time) but always subject to equal Transfer Restrictions and Extended
Transfer Restrictions between the Parties, the same rights and Obligations
(but subject to Clause 10.2.3 as the case may be) with respect to the
Mexican Government, the NAFIN Trust , GCN and GCN's subsidiaries,
notwithstanding any difference established by SCT between Key Partners and
the Investment Partners as provided for in the Transaction Documents and/or
any differences in their Interest. Best efforts shall include the possible
setting up of trust agreements or intermediary corporate entities to hold
the shares of the Strategic Partner. In any event, all rights and
Obligations applicable to the Key Partners and the investment Partner in
accordance with the Transaction Documents shall be jointly and severally
assumed by all Parties. Each Party shall do everything that is reasonably
requested by the other Parties to comply with all Tender conditions and
requirements.
5.1.2 STRATEGIC PARTNER BANK ACCOUNT
Upon its formation, the Strategic Partner opened a bank account (the
"Strategic Partner Bank Account") in a bank agreed by the Parties. Each
Party shall designate a person authorized to sign and give instructions on
the Strategic Partner Bank Account. The Parties establish that:
(a) any withdrawal from the Strategic Partner Bank Account shall require
the signatures of at least two Parties, and
(b) any withdrawal in excess of US$100,000 (one hundred thousand U.S.
dollars) shall require the signature of all three Parties.
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5.2 OMITTED
5.3 CAPITALIZATION OF THE STRATEGIC PARTNER
5.3.1 INTERESTS IN THE STRATEGIC PARTNER
Upon full payment by the Parties for the Interests, such Parties received from
the Strategic Partner:
(i) a certificate, comprising the number of Shares subscribed and paid
for, which satisfies the requirements set forth in Article 125 of the
Mexican General Corporation Law, and
(ii) a copy of the Stock Registry Book of the Strategic Partner certified
by the Secretary of the Board of SETA, specifying that the relevant
Shares have been paid for, released to and are owned by the applicable
Party.
5.3.2 NO LIENS
The documents representing the Parties' Interests, shall be duly and
validly issued common shares or beneficiary rights of the Strategic
Partner, with full voting rights, and shall be issued free and clear of
liens. In accordance with Clause 7.4 hereof, a Party shall not pledge the
Shares or create any liens to acquire such Shares without the consent of
the other Parties.
VI. OMITTED
VII. TRANSFER, SALE OF SHARES AND PREEMPTION RIGHTS
7.1 TRANSFER, SALE OF SHARES AND PREEMPTION RIGHTS
7.1.1 NOTIFICATION
Any Party wishing to sell or transfer all or part of its Shares in the
Strategic Partner (the "Seller") must notify the Board of SETA, by letter
addressed to its Chairman (the "Sale Notice"), of the following:
(a) the identity of the proposed purchaser and of its immediate
shareholders,
(b) the number of Shares which the Party proposes to transfer (the
"Offered Shares"),
(c) the conditions of the sale,
(d) the proposed price per Share of the sale, unless the proposed sale or
transfer falls within the provisions of Clause 7.1.2 hereof.
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7.1.2 TRANSFER OR SALE OF SETA SHARES TO RELATED PARTIES
Any Party may sell or transfer, totally or partially, at any time its
Interest to such Party's Related Party, provided that: a) such sale or
transfer complies with provisions of the Participation Agreement and b) the
capital stock of such Party's Related Party may not be sold to a third
party without the prior written agreement of the other Parties, unless such
Party's Related Party owns not less and not more than 25.5% of the capital
stock of SETA.
If the Party's Related Party owns not less and not more than 25.5% of the
capital stock of SETA, then the amount of the capital stock issued by such
Party's Related Party which may be sold shall not exceed 34.9%. In order
for more than 34.9% of the issued capital stock of such Party's Related
Party to be sold to a third party, the prior and unanimous written
agreement of the Parties shall be required. The purchaser of the shares
issued by such Party's Related Party shall not be entitled to vote any of
such Related Party's Shares in SETA, nor shall the purchaser of the shares
issued by such Party's Related Party have the right to appoint any members
to the Board of SETA, except with the unanimous approval of the other
Parties which approval shall not be unreasonably withheld.
Furthermore, the following conditions precedent shall apply to such sale or
transfer:
(a) the Seller has notified the Board of SETA pursuant to Clause 7.1.1
hereof; and
(b) such Party's Related Party executes and delivers to SETA and all the
Parties hereto an instrument agreeing to be bound by the terms of this
Agreement, the Transaction Documents and the documents governing SETA.
The Parties agree that in the event that any of them should transfer or
sell partially or totally to a Related Party the shares representing the
common stock of the Strategic Partner, such transfer, sale or assignment
shall encompass not only the corporate rights attached to the shares but
also the same respective percentage, based on the number of shares
transferred or sold, of the outstanding loans granted by the shareholders
to the Strategic Partner on the date of the share transfer. To such effect,
the Parties agree that the transferring party, the purchaser and the
Strategic Partner shall upon transfer execute an assignment agreement
providing for such assignment of the credit rights. Parties within this
amendment agree that the foregoing rule shall also apply in the same sense
in the case that the outstanding loans' credit rights should be assigned or
sold partially or totally to a Related Party.
7.1.3 TRANSFER OR SALE OF SETA SHARES TO A NOM-RELATED PARTY
No Party shall transfer or sell, totally or partially, its Interest to a
third party being a non-Related Party without the prior written and
unanimous consent of the other SETA Shareholders unless:
(a) the Seller has proceeded in strict accordance with the provisions of
Clauses 7.1.1 and 7.1.4 hereof,
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(b) the provisions of Clause 7.1.5 below do not apply, and
(c) the non-Related Party which shall acquire the Offered Shares or to
which the Offered Shares shall be transferred has signed an instrument
whereby it agrees to be bound by the terms of this Agreement, the
Transaction Documents and the documents governing SETA.
The Parties agree that in the event that any of them should transfer or
sell partially or totally to a Non-Related Party the shares representing
the common stock of the Strategic Partner, such transfer, sale or
assignment shall encompass not only the corporate rights attached to the
shares but also the same respective percentage, based on the number of
shares transferred or sold, of the outstanding loans granted by the
shareholders to the Strategic Partner on the date of the share transfer. To
such effect, the Parties agree that the transferring party, the purchaser
and the Strategic Partner shall upon transfer execute an assignment
agreement providing for such assignment of the credit rights. Parties
within this amendment agree that the foregoing rule shall also apply in the
same sense in the case that the outstanding loans' credit rights should be
assigned or sold partially or totally to a Non-Related Party.
7.1.4 PREEMPTION RIGHTS
The following provisions shall apply to any sale of Offered Shares other
than a sale in conformity with Clause 7.1.2:
(a) Not later than five Business Days following the receipt of the Sale
Notice, the Board of Directors shall send a copy thereof to all the
other Shareholders of SETA.
(b) Any one or more of the other SEATA Shareholders shall thereupon be
entitled to purchase the Offered Shares on the same terms and
conditions as specified in the Sale Notice, provided that, if more
than one SETA Shareholder proposes to exercise this right and such
SETA Shareholders together wish to purchase a number of Shares in
excess of the number of the Offered Shares, the Offered Shares shall
be allotted among such SETA Shareholders pro rata to their existing
respective shareholdings;
(c) Not later than eight Business Days following receipt of the copy of
the Sale Notice, the SETA Shareholders willing to exercise their
preemption right shall notify such willingness in writing to the
Chairman of the Board of SETA;
(d) At the end of the period referred to in paragraph (c) above, the Board
of SETA shall forthwith inform the Seller in writing of the following:
i. the identity of the SETA Shareholders willing to exercise their
preemption right,
ii. the number of Offered Shares which each SETA Shareholder wishes
to purchase,
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iii. the period for completion of the sale, which shall not exceed 40
Business Days after the date of the receipt of the Sale Notice
subject to any governmental notification or approval.
(e) If the other SETA Shareholders do not propose to exercise their
preemption right in respect of all of the Offered Shares, the Seller
shall be entitled to sell all, but not some, of the balance of the
Offered Shares (the "Balance of Shares") to the proposed purchaser
specified in the Sale Notice provided that:
i. such sale is completed within a maximum period of 30 Business
Days starting from the date at which the Seller was informed that
all the Offered Shares would not be purchased by the other
Parties, and
ii. the third party purchaser shall execute and deliver to the
Strategic Partner and all Parties an instrument agreeing to be
bound by the terms of this Agreement, the Transaction Documents
and the documents governing SETA.
(f) If:
i. the other SETA Shareholders do not propose to exercise their
preemption rights or propose to exercise them in respect of only
part of the Offered Shares, and
ii. thereafter, the Seller fails to complete the sale of all or the
Balance of Shares to the third party purchaser at the conditions
specified in the Sale Notice,
then the Sale Offer shall be canceled provided that the Seller may
submit a new Sale Offer in full compliance with the procedure stated
in this Agreement.
(g) Any SETA Shareholder who proposes to exercise its preemption right or,
if no SETA Shareholder proposes to exercise such right, the proposed
purchaser will be required to abide by the terms of Clause 7.1.2,
which provides for the obligation to assign to the purchaser credit
rights of the Seller against [to] the Strategic Partner along with the
transfer of shares.
7.1.5 EXTENDED TRANSFER RESTRICTIONS
In addition to the provisions of Section 2.4 of the Participation Agreement
which restrict the sale of Shares of SETA, the Parties hereby agree to
comply with the following additional restrictions (the "Extended Transfer
Restrictions"):
(a) VASA may not decrease its Interest in the Strategic Partner below
25.5% without the prior written consent of the other Shareholders of
SETA , as stated in Clause 3.1.5 (a);
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(b) to the extent the Technical Assistance and Technology Transfer
Agreement remains in full force and effect, including in circumstances
where the term of such Agreement would have been automatically renewed
pursuant to Section 5.2 of said Agreement, a Party may not decrease
its Interest in the Strategic Partner below 25.5% without the prior
written consent of the other Shareholders of SETA, as outlined in
Clause 3.1.5 (b), and
(c) subject to the provisions of this Clause VII, the capital stock of
SETA shall not be held by more than two subsidiaries of any Party.
7.1.6 CONSEQUENCES OF THE TRANSFER OR SALE OF SHARES
For the avoidance of doubt, the transfer or sale of Shares in the Strategic
Partner shall have, inter alia, the following consequences:
(a) the right of the Seller to receive its share of the Management Fee
shall decrease in the same proportion as its Interest in the Strategic
Partner, and
(b) the right of the Seller to receive its share of any proceeds from the
Option Agreement shall decrease in the same proportion as its Interest
in the Strategic Partner.
7.2 NEGATIVE PLEDGE
The Parties hereby agree that they shall not pledge or create any other
form of encumbrance on their Shares in the Strategic Partner without the
prior written and unanimous consent of the other Parties.
VIII. PROJECT MANAGEMENT AGREEMENT
8.1 PROJECT MANAGEMENT AGREEMENT
The Parties hereby agree to enter into a project management agreement (the
"Project Management Agreement") the terms and conditions of which are
outlined below.
8.2 EXCLUSIVE COLLABORATION
The Parties agree to:
(a) grant each other exclusivity, and
(b) to combine their engineering and project management capabilities,
in order to bid for all maintenance, engineering, design, construction,
aeronautical, commercial or marketing contracts which will be tendered by
GCN in accordance with the Transaction Documents and to secure for them the
highest probability of winning.
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As and when each contract will be tendered by GCN, and subject to the
provisions below, the Parties will form a consortium to bid for such
contract which complies with the bylaws of each Party.
8.3 PARTICIPATION
8.3.1 RIGHT TO PARTICIPATE AND LEVEL OF PARTICIPATION
Each Party shall have the right, but not the obligation, to participate in
the consortium formed to bid for each contract.
The Parties hereby agree that:
(a) AEROINVEST will have a right to participate in each contract with a
share equal to 40%,
(b) ADP will have a right to participate in each contract with a share
equal to 30%, and
(c) VASA will have a right to participate in each contract with a share
equal to 30%,
it being understood that each Party will have the right to reduce the level
of its participation at its sole discretion.
If a Party decides not to participate for its full participation (as stated
above) in a consortium to bid for a contract, then the difference between
its actual participation and the level stated above shall be shared equally
among the two other Parties (who shall have the right but not the
obligation to take such additional participation in their sole discretion).
8.3.2 OPTIONAL WITHDRAWAL
If one or more Parties decide not to participate in the tender phase of a
contract, it (they) shall notify in writing the other Parties not later
than 30 Business Days prior to the bid date. In such case, the withdrawing
Party(ies) will undertake not to participate in any manner whatsoever in a
competing consortium or compete on its own against the remaining Party(ies)
for the award of the contract being tendered.
In such case, the share of the withdrawing Party shall be shared equally
between the two other Parties, subject to the provisions of Clause 8.3.1
hereof.
8.3.3 SERVICES AT COST
The Parties agree that:
(a) to prepare a bid for a contract tendered by GCN, and
(b) to execute such contract after award,
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they shall perform and bill their work, services and transfer of know-how
at cost to the consortium, which they have agreed to form for the purpose
of the bid and execution of the contract, subject to any transfer pricing
tax implication as agreed by the Parties.
"At cost" shall mean that the amounts billed shall exclude any profit
margin and shall have been approved by the Parties with unanimous consent
prior to being incurred.
8.3.4 PROFIT SHARING
Any profit margin earned by the Parties under the execution of a contract
will be shared by the Parties according to their participation in the
consortium formed to bid for such contract. The profit margin shall be
obtained after deducting costs in accordance with Clause 8.3.3 above.
8.3.5 DECISION MAKING
For each bid preparation, all decisions on key matters (with the exception
of the decision of each Party to participate and the level of its
participation within the caps outlined in Clause 8.3.1 hereof) shall be
taken on the basis of unanimity of the participating Parties; decisions on
key matters shall include, inter alia:
(a) the key terms and conditions of the offer,
(b) the appointment of the project manners,
(c) the budgets,
(d) subcontracting, and
(e) the legal and contractual structure of the transaction.
IX. RENDERING OF SERVICES AND TECHNICAL ASSISTANC
9.1 OMITTED
9.2 SERVICES AND TECHNICAL ASSISTANCE
The Parties shall provide a full description of the services to be provided
by each Party once the complete range of services required by the Technical
Assistance and Technology Transfer Agreement and the Administrative
Services Rendering Agreement, to be executed by the Strategic Partner is
known. The Parties shall use their best efforts to share the provision of
technical assistance services in respect of the description of the services
provided in Exhibit B hereof, and to minimize the cost of such services.
Descriptions of the services to be provided by each Party in connection
with the Technical Assistance and Technology Transfer Agreement, the
Administrative Services Rendering Agreement and the Industrial Property
Right utilized in the rendering of such services are contained in Exhibit
B.
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9.3 PRICES & SHARING OF THE MANAGEMENT FEE
Each Party shall bill its services to the Strategic Partner at previously
and unanimously agreed costs. Staff costs and other External Costs shall be
repaid to the Parties if properly incurred in accordance with this
Agreement.
The remaining part of the Management Fee will be shared between the Parties
according to their Interest in the Strategic Partner, and subject to Clause
7.1.6 after the deduction of a margin of 10% of the value of the services
provided by ADP, for the relevant period of apportionment of the Management
Fee. The Parties agree that subject to legal review, they shall provide
their services and receive the Management Fee through a technical services
contract with the Strategic Partner.
X. LIABILITY & DEFAULT
10.1 LIABILITY TO THIRD PARTIES
The liability of the Parties towards any third party shall not be joint and
several, except in the following cases:
(a) in the agreements signed by the Lead Firm with external consultants or
advisors pursuant to approvals granted in accordance with Clause
2.1.3(j) and which are binding for all Parties,
(b) with respect to the Obligations under the Tender and Transaction
Documents, including the liabilities applicable to the Key Partners
and the Investment Partner under the Technical Assistance Agreement,
and in such case Clause 10.2 shall apply,
(c) as and when the Parties agree unanimously and in writing to accept
joint and several liability,
(d) as provided under Clause 3.2.12 CICASA, and COINSA shall be jointly
and severally liable in connection with the due performance by
AEROINVEST of any and all of its obligations under this Consortium
Agreement, the Transaction Documents and the Secured Credit Agreement,
as amended from time to time,
(e) as provided under Clause 3.2.12,, Vinci shall be jointly and severally
liable in connection with the due performance by VASA of any and all
of its obligations under this Consortium Agreement, the Transaction
Documents and the Secured Credit Agreement, as amended from time to
time.
Under all other circumstances, the obligations of the Parties towards third
parties shall be several.
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10.2 DEFAULT
10.2.1 OMITTED
10.2.2 DEFAULTS UNDER THIS AGREEMENT
In the event of a default of one of the Parties, or any of its
subsidiaries, affiliates, employees or legal representatives under this
Agreement, other than under Clause 10.2.3,, such Party shall be liable to
the other Parties for any damages suffered by them.
10.2.3 DEFAULT UNDER THE TRANSACTION DOCUMENTS
Subject to the provisions of Section 10.3 below, in the event of a default
(a "Transaction Documents Default") under the Transaction Documents of one
of the Parties or any of its subsidiaries, affiliates, employees or legal
representatives (but excluding employees or legal representatives of the
Parties who are permanently on the payroll of SETA or GCN in respect of the
Obligations) (each a "Transaction Document Defaulting Party"), such
Transaction Document Defaulting Party shall solely bear the consequences of
the Transaction Documents Default, including any costs, expense and damages
incurred by the other Parties arising from such Transaction Documents
Default.
10.2.4 CURE PERIOD
A default by a Party (the "defaulting Party") shall be deemed to have
occurred under Clauses 10.2.2 and 10.2.3 hereof if, within fifteen (15)
Business Days of the defaulting Party's receipt of a written notice from
any of the other Parties (the "non-defaulting Party"), the defaulting Party
has not cured a breach under this Agreement or any of the Transaction
Documents, as the case may be.
If there is any disagreement with respect to the occurrence of default, the
dispute resolution procedures of Clause 13.4 below shall apply.
10.2.5 CONSEQUENTIAL DAMAGES.
No Party shall be liable to another for consequential damages under this
Agreement except for such consequential damages that arise from such
Party's willful misconduct and/or gross negligence.
10.3 LIABILITY UNDER SECTION 10.2.3 IN CERTAIN CIRCUMSTANCES
The provisions of Section 10.2.3 shall be subject to the following
provisions:
(a) If one of the Parties has sub-contracted its rights and obligations
under one of the Transaction Documents to another Party (the "Assuming
Party") and the Transaction Documents Default shall be attributable to
the Assuming Party, the Assuming Party shall be the Transaction
Documents Defaulting Party under Section 10.2.3 in place of the Party
whose rights and obligations it has assumed.
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(b) In the event that a particular Transaction Documents Default is
attributable to more than one Transaction Documents Defaulting Party,
but provided that less than all the Parties are Transaction Documents
Defaulting Parties, those Parties which are the Transaction Documents
Defaulting Parties shall bear the Transaction Document Default
consequences under Section 10.2.3 in proportion to their respective
degree of responsibility for such Transactions Documents Default.
(c) If a Transaction Documents Default is not attributable to any
particular Party or Parties, all the Parties shall bear the
Transaction Document Default consequences under Section 10.2.3 in
proportion to their Interest in SETA at the time of such Transaction
Documents Default.
XI. EXCLUSIVITY
11.1 EXCLUSIVE RIGHTS
The Parties hereby guarantee fully exclusive rights among themselves within
the scope of the Project under this Agreement and undertake not to
establish any arrangements with any third parties aiming at the same or
similar object, neither directly nor through any Related Parties, acting
for themselves or jointly, and not to develop any activity to the benefit
of any other existing or potential competitors both in relation to this
Project or in any similar or related projects, as well as in relation to
SCT itself, which might jeopardize the activity and the objectives of the
Parties in connection with the acquisition or the taking of control of
airports in Mexico.
11.2 EXCLUSIVITY REGARDING THE MEXICO CITY AIRPORT(S) PROJECT
The Parties agree that this Consortium has been formed not only to
participate in the bidding for the GCN, but also to participate in the
bidding for the Mexico City Airport(s) project ("MCA"), subject to the
following principles:
1) The exclusivity provisions contained in Clause 11.1 of this Agreement
shall apply mutatis mutandis to the bid for the MCA by the Parties.
2) This exclusivity obligation of the Parties shall not prevent any Party
hereto from withdrawing from the Consortium for purposes of the MCA
bid, in which case the withdrawing Party hereby agrees and covenants
not to establish any arrangements with any third parties aiming at the
same or similar object, neither directly nor through any Related
Parties, acting for themselves or jointly, and not to develop any
activity to the benefit of any other existing or potential
competitors, as well as in relation to SCT itself, which might
jeopardize the activity and the objectives of the Parties.
3) The inclusion of third parties as additional members to the Consortium
for the purpose of the MCA bid will require the unanimous consent of
the Parties.
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4) The exclusivity provisions contained herein shall be in force for a
period of six years starting from May 16, 2000.
5) ADP shall be allowed to be substituted, with regards to the
exclusivity provisions for MCA, by a majority owned subsidiary of ADP,
provided that:
(a) such proposed subsidiary is capable of meeting the MCA bid
requirements as set out by the competent Mexican authorities;
(b) the minority shareholder(s) in such subsidiary shall not in any
manner or capacity seek to obtain business contracts, financial
profit, rights or benefits other than its share of the economic
benefits of its shareholding in such subsidiary;
(c) the minority shareholder(s) agree(s) and covenant(s) as a
condition precedent not to establish any arrangements with any
third parties aiming at the same or similar object, neither
directly nor through any Related Parties, acting for themselves
or jointly, and not to develop any activity to the benefit of any
other existing or potential competitors, as well as in relation
to SCT itself which might jeopardize the activity and the
objectives of VASA and AEROINVEST; and
(d) ADP shall remain bound by the exclusivity provisions hereunder.
6) CICASA and COINSA acknowledge and agree that they shall be bound by
this Clause 11.2 as if they were a Party to this Consortium Agreement.
11.3 PARTICIPATION IN OTHER MEXICAN AIRPORT GROUPS
Subject to Clause 11.2 hereof and the applicable restrictions under Mexican
law and any other restriction under the Transaction Documents, it is the
intention of the Parties to jointly participate, directly or indirectly,
through Related Parties, in the capital stock of any other Mexican airport
concessionaire or holding company, other than GCN and MCA, subject to terms
and conditions to be mutually agreed upon, provided that:
(a) if any Party or its Related Parties proposes to enter into a new
business, it shall first offer the other Parties and their Related
Parties the opportunity jointly to pursue such new business; and
(b) the other Parties shall have thirty (30) days after receipt of the
notice of such offer to determine whether or not they will pursue such
new business, and if the other Parties determine not to enter into
such new business, the proposing Party may pursue it on its own.
For the purpose of this entire Clause 11, CICASA and COINSA shall each be
deemed a Related Party of AEROINVEST.
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XII. CONFIDENTIALITY
The Parties shall treat as confidential any information or documents
exchanged among themselves as required for the development of the purpose
of this Agreement (the "Confidential Information"), including, but not
limited to, information or documents relating to sales, trade secrets,
customers, financial and accounting details, employees, and arrangements
with suppliers. Any information related to assets protected by intellectual
or industrial property rights or equivalent rights shall be treated with
strict respect for such rights.
No Party may, without prior unanimous agreement in writing by the other
Parties, (i) use Confidential Information for any other purpose than for
the Project or this Agreement or (ii) disclose Confidential Information,
unless the Confidential Information is:
(a) in the public domain at the time of the disclosure,
(b) required by law to be disclosed, or
(c) required to be used or disclosed for the performance of an obligation
under this Agreement or an Obligation.
Each Party shall procure that its Related Parties, and suppliers, comply
with the exclusivity obligations contained in Clause 11 and the
confidentiality obligations of this Clause.
The confidentiality obligations under this Agreement will elapse five years
after the date of its signature or before if all Parties so agree in
writing.
XIII. MISCELLANEOUS
13.1 LANGUAGE
In the construction and interpretation of the terms and provisions of this
Agreement, the English language version of this Agreement shall be the
official version of this Agreement and any version of this Agreement that
has been translated into another language shall (if the Parties have all
agreed on such transactions) have no force or effect except for purposes of
enforcing this Agreement in a court of law that requires that the Agreement
be presented in another language. The working language of the Parties will
be English.
13.2 APPLICABLE LAW
This Agreement is governed by and construed in accordance with the laws of
the United Mexican States.
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13.3 DURATION AND TERMINATION
This Agreement shall remain in full force and effect until termination
adopted by unanimous written agreement of the Parties.
Termination of this Agreement in no event shall signify the cancellation of
any pending obligations between the Parties derived from or in connection
therewith.
The provisions of Clause 11.2 and Section 12 shall survive the termination
of this Agreement.
13.4 DISPUTES
13.4.1 AMICABLE SETTLEMENT OF DISPUTES
If a dispute shall arise, under or in connection with this Agreement, the
Parties shall use their best endeavors to resolve such dispute within ten
(10) Business Days following the notice thereof of any Party to the others.
If within the said ten (10) Business Days the Parties are unable to resolve
said dispute, the Parties shall notify the said dispute to the
Representatives. The Representatives shall meet to resolve the said dispute
within the following five (5) Business Days as from the date of notice to
them if the Representatives are unable to resolve the said dispute within
the said five (5) Business Days, any Party may refer the dispute to
arbitration in accordance with Clause 13.4.2.
13.4.2 ARBITRATION
(a) Arbitration. All disputes arising out of or in connection with the
present Agreement shall be finally settled under the Rules of
Arbitration of the International Chamber of Commerce (the "ICC Rules")
by three arbitrators appointed in accordance with the ICC Rules.
(b) Appointment of Arbitrators. The arbitrators shall be nominated and
confirmed in accordance with the ICC Rules. The two arbitrators
nominated by the claimant and the respondent, respectively, shall,
within thirty (30) days of their confirmation, nominate the third
arbitrator, who shall serve as a chairman of the arbitral tribunal.
All of the arbitrators must be able to read, write and fluently speak
both Spanish and English.
(c) Arbitral Procedure. The place of the arbitration shall be the City of
New York, State of New York, United States of America. The language of
arbitration shall be English.
13.5 NOTICES
All notices, demands, waivers, requests and other communications required
or permitted to be given hereunder shall be in writing and shall be deemed
to have been duly given when delivered in person, or when sent by telex or
telecopy or other facsimile transmission (with receipt confirmed), or on
the seventh Business Day after posting
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thereof by registered or certified mail, with return receipt requested,
prepaid and addressed to the "list of contacts", attached hereto as Exhibit
C.
Each Party shall promptly notify the other Parties within eight (8)
calendar days of any change of address.
13.6 AMENDMENTS
This Agreement shall not be modified or amended except with the unanimous
agreement in writing of the Parties.
13.7 FURTHER ASSURANCES
The Parties hereto agree that they shall cooperate with each other and will
execute and deliver, or cause to be delivered, all such other instruments,
and shall take all such other actions as a Party hereto may reasonably
request from time to time in order to give effect to the provisions and
purposes hereof.
13.8 ATTORNEYS' FEES
If any proceeding is brought by a Party or Parties against another Party or
Parties to enforce, or for breach of, any of the provisions in this
Agreement, the prevailing Party or Parties shall be entitled in such
proceeding to recover reasonable attorneys' fees together with the costs of
such proceeding therein incurred as determined by the arbitrators.
13.9 DOLLARS
All sums expressed herein or to be paid hereunder shall be calculated or
paid, as applicable, in United States Dollars. If for purposes of this
Agreement or for the purpose of obtaining judgment in any court or award by
an arbitral body it is necessary to convert any currency into Dollars, then
the Parties agree, to the fullest extent that they may legally and
effectively do so, that the rate of exchange used for such conversion shall
be that published or announced by Citibank, N.A. in New York, New York,
United States, at 12:00 hours ET, on the Business Day immediately preceding
the day on which such calculation is to be made or such judgment or award
is final. The obligations of the Parties in respect of any sums due from
them hereunder shall, notwithstanding any judgment/award in a currency
other than United States Dollars, be discharged only to the extent that, on
the Business Day next succeeding receipt by the obligee(s) of any sum
adjudged to be so due in the judgment/award currency, the obligee(s) may,
in accordance with normal banking procedures, purchase United States
Dollars with the judgment/award currency. If the United States Dollars so
purchased (less exchange fees and related charges) are less than the sum
originally due to the obligee(s) and notwithstanding any such
judgment/award, are insufficient to indemnify the obligee(s) against such
loss, then, the obligor(s) shall remit such shortfall to the obligee(s) and
if the United States Dollars so purchased exceed the sum originally due to
the obligee(s) in Dollars, the obligee(s) shall remit such excess to the
obligor(s), as applicable.
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13.10 BINDING EFFECT
This Agreement shall be binding upon and inure to the benefit of a) the
Parties hereto and their estates, legatees, heirs, personal representatives
and other successors in interest, and b) SETA, its successors and assigns.
13.11 HEADINGS
The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or
interpretation of this Agreement.
13.12 COUNTERPARTS
This Agreement may be executed in three or more counterparts, each of which
shall be deemed an original, but all of which shall constitute the one and
the same Agreement.
13.13 ENTIRE AGREEMENT
All references to Exhibits are to Exhibits in or to this Agreement unless
specified otherwise. This Agreement and the Exhibits are intended to amend
and supersede the 2000 Consortium Agreement. For the avoidance of doubt,
the Parties acknowledge and agree that this Agreement is intended only to
incorporate amendments to the 2000 Consortium Agreement and does not nor
shall not be deemed to constitute a novation (novacion) of the 2000
Consortium Agreement or a termination of the 2000 Consortium Agreement. All
other documents related to the Project shall also remain in full force and
effect, including, but not limited to, the Direct Agreement dated
September, 26 2003 among ADP, VASA, AEROINVEST, COINSA, COMPANIA
EMPRESARIAL ANDREA-J, S.A. DE C.V. (CEA-J), AND MESSRS. BERN ARDO QUINTANA
ISAAC, ALEXANDRA KAWAGE DE QUINTANA, DIEGO QUINTANA KAWAGE, ANA ALEXANDRA
QUINTANA KAWAGE, ANDREA QUINTANA KAWAGE, RODRIGO QUINTANA KAWAGE, JERONIMO
QUINTANA KAWAGE AND ALONSO QUINTANA KAWAGE.
13.14 PARTIAL INVALIDITY AND INTENTION OF PARTIES
13.14.1 If any provision of this Agreement, or the application of a provision to
any person or circumstance, shall be held by any competent authority to be
invalid or unenforceable in any jurisdiction, the validity or legality of
the remainder of this Agreement, or the application of such provision to
persons or circumstances other than those to which it is held invalid,
shall not be affected. To the extent permitted by applicable law, the
Parties hereby waive any provision of law which renders any provision
hereof prohibited or unenforceable in any respect.
13.14.2 If any third party contests the validity or this Agreement under Mexican
law, the Parties shall use their best efforts to achieve the intention of
this Agreement in the best interests of the Project.
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13.14.3 If any of the provisions of this Agreement does not conform with Mexican
law, the Parties shall seek on a best-efforts basis to ensure that their
intention is put into effect.
13.15 PERSON AND GENDER
The masculine gender shall include the feminine and neuter genders and the
singular shall include the plural.
13.16 ACKNOWLEDGMENT
Each of the Parties acknowledges that this Agreement has been duly executed
and delivered by the Parties and as from its date of execution will
constitute the valid, legal and binding obligations and is enforceable
against each of the Parties, in accordance with its terms.
13.17 PRECEDENCE OF PROVISIONS
In the case of a conflict between any provision of this Agreement (a
"Consortium Provision") and any provision of the Operation Agreement, the
Consortium Provision shall prevail.
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IN WITNESS WHEREOF, each of the Parties hereto has caused a counterpart of
this Agreement to be duly executed as of _____ July, 2004.
AEOPORTS DE PARIS
[illegible]
----------------------------------------
By: [illegible]
------------------------------------
Title: [illegible]
---------------------------------
AEROINVEST, DE C.V.
[illegible]
----------------------------------------
By: [illegible]
------------------------------------
Title: Vice President
VINCI AIRPORTS S.A.
[illegible]
----------------------------------------
By: Renaud de Methard
Title: Director
ACCEPTED AND AGREED AS OF ___
VINCI S.A.
[illegible]
- -------------------------------------
By: [illegible]
---------------------------------
Title: [illegible]
------------------------------
CONSTRUCTORAS ICA, S.A. DE C.V.
[illegible]
- -------------------------------------
By: Luis Zarate Rocha
Title: Vice President
44
CONTROLADORA DE OPERACIONES DE
INFRAESTRUCTURA, S.A. DE C.V.
[illegible]
- -------------------------------------
By: [illegible]
---------------------------------
Title: Vice President
45