Exhibit 4.13
AMENDMENT NO. 1 TO
AMENDED AND RESTATED CONSORTIUM AGREEMENT
Amendment No. 1 to Amended and Restated Consortium Agreement, dated as of
December 13, 2005 (this "Amendment"), by and among Aeroports de Paris ("ADP") a
French state-owned entity with legal capacity and its own assets, Aeroinvest,
S.A. de C.V. ("Aeroinvest"), a sociedad anonima de capital variable organized
under the laws of the United Mexican States ("Mexico"), Vinci Airports, S.A.S.
("VASA"), a corporation organized under the laws of France, Constructorao ICA,
S.A. de C.V. ("CICASA") and Controladora de Operaciones de Infraestructura, SA,
de C.V. ("COINSA"), as joint and several obligors of Aeroinvest, and Vinci, S.A.
("VINCI") as obligor of VASA, with the acknowledgment and agreement of Servicios
de Tecnologia Aeroportuaria, S.A. de C.V. ("SETA").
WHEREAS, as of the date of this Amendment ADP, Aeroinvest and VASA are the
shareholders (the "Shareholders") of SETA, with ownership interests of 25.50%,
37.25% and 37.25%, respectively, in the capital stock of SETA, with shareholder
loans against SETA in the principal outstanding amounts of US$5,526,041.50,
US$8,072,353.37 and US$8,072,353.37, respectively, and with contributions made
for future capital increases in SETA in the amounts of $58,041,570 Mexican
pesos, $84,786,215 Mexican pesos, and $84,786,215 Mexican pesos, respectively,
WHEREAS, the Shareholders, CICASA, COINSA, and VINCI are bound by the
Amended and Restated Consortium Agreement, dated as of July 6, 2004 (as amended
or supplemented to the date hereof, the "ARCA") which, among other things
establishes rules regarding the governance of SETA and Grupo Aeroportuario del
Centro Norte, S.A. de C,V, ("GACN").
WHEREAS, SETA Is the Strategic Partner of GACN with an ownership interest
of 15% of the capital stock of GACN, held through a Mexican trust with Banco
Nacional de Comercio Exterior, Sociedad Nacional de Credito, Division
Fiduciaria.
WHEREAS, in a proposed transaction (the "VASA Transaction") COINSA wishes
to purchase from VASA, and VASA Is willing to sell to COINSA, all of VASA's
interest in SETA consisting of a 37.25% ownership interest in SETA, a loan
against SETA In the principal outstanding amount of US$8,072,353.37 and a
contribution In the amount of $84,786,215 Mexican pesos for future capital
increases in SETA (together, the "VASA Interest"), in the terms and subject to
the conditions set forth in that certain Stock Purchase Agreement dated as of
September 14, 2005, between VASA and COINSA, a true and complete copy of which
is attached hereto as Annex A (the "VASA Transaction Documents").
WHEREAS, immediately following the acquisition of the VASA Interest by
COINSA, COINSA will transfer the VASA Interest to Aeroinvest (the
"COINSA/Aeroinvest Transaction"), in the terms and subject to the conditions set
forth in that certain Stock Purchase Agreement to be dated and effective
concurrently with the closing of the VASA Transaction, a true and complete copy
of which is attached hereto as Annex B, which will result in an increase of
Aeroinvest's ownership interest in SETA to 74.5% of the capital stock of SETA.
WHEREAS, In a proposed transaction (the "NAFIN Transaction") Aeroinvest
wishes to purchase 36% of GACN's capital stock from the Mexican Government
through National Financiera, Sociedad Nacional de Credito, Direccion Fiduciaria
("NAFIN"), as trustee of a Mexican trust holding and controlling 85% of GACN's
capital stock, pursuant to the exercise of the option set forth in Section 3.4
of the Participation Agreement to purchase 36% of GACN capital stock (the "36%
Option"), which 36% Option was assigned by SETA to Aeroinvest in the terms and
subject to the conditions set forth in that certain Rights and Obligations
Assignment Agreement dated as of June 14, 2005, by and among SETA, as assignor,
Aeroinvest, as assignee, ADP and VASA, as amended, a true and complete copy of
which is attached hereto as Annex C.
WHEREAS, CICASA and COINSA are the joint and several obligors of the
obligations of Aeroinvest under the ARCA, as amended by this Amendment and as
may be further amended or supplemented from time to time.
WHEREAS, SETA wishes to acknowledge and agree to the transactions
contemplated by this Amendment and has been authorized to that effect pursuant
to the Unanimous Shareholders Resolution attached hereto as Annex D.
WHEREAS, in a proposed transaction (the "West LB Existing Loan
Transaction") Aeroinvest has agreed to advance funds to SETA to repay the
outstanding principal amount owing to West LB AG New York Branch under the
Amended and Restated Senior Secured Credit Agreement, dated as of December 19,
2002 (the "Existing West LB Loan Agreement"), among SETA, WestLB AG, ADP, VASA
and COINSA, which outstanding principal amount as of the date hereof is
US$11,907,000, pursuant to a Loan Agreement between Aeroinvest as lender and
SETA as borrower in the form attached hereto as Annex E (the "Aeroinvest
Unsecured Loan Agreement").
WHEREAS, WestLB AG has given its written consent to the VASA Transaction,
the COINSA/Aeroinvest Transaction, the NAFIN Transaction, the WestLB Existing
Loan Transaction and to the transactions contemplated in this Amendment, a true
and correct copy of which is attached hereto as Annex F.
WHEREAS, in connection with the VASA Transaction, the COINSA/Aeroinvest
Transaction, the NAFIN transaction and the WestLB Existing Loan Transaction, the
parties hereto have determined that It is in their mutual interest to amend the
terms of the ARCA on the same terms and subject to the conditions set forth
herein.
NOW THEREFORE, in consideration of the foregoing premises, the parties
hereto each hereby consents to the following:
AGREEMENT
SECTION 1. CAPITALIZED TERMS. Capitalized terms used but not otherwise
defined herein shall have the meanings specified in the ARCA, as amended and
supplemented by this Amendment.
SECTION 2. CONDITIONAL AMENDMENTS. The NAFIN Transaction shall not take
place prior to the purchase by Aeroinvest of all the shares directly or
indirectly held by VASA in
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SETA. The following amendments to the ARCA shall become effective, without the
need of any further action by the parties hereto, only upon the completion of
the purchase or other acquisition, directly or indirectly, by COINSA, Aeroinvest
or any Related Party of COINSA or Aeroinvest of all the shares directly or
indirectly held by VASA in SETA or any interest or voting or other rights
attached to such shares:
2.1. All references to the terms "VASA" and "VINCI" throughout the
ARCA shall be deleted, and VASA shall cease to be a Party to the ARCA and
from and after the completion of the VASA Transaction VASA and VINCI shall
be released from their respective obligations under the ARCA and the
Transaction Documents. Notwithstanding the preceding sentence, the parties
hereto agree that (a) VASA and VINCI shall retain any obligations, duties
and liabilities of any type and nature whatsoever accrued or arising under
or pursuant to the ARCA or, the Transaction Documents in respect of events
occurring prior to the completion of the VASA Transaction and (b) VASA and
VINCI shall remain bound by the provisions of Clause XII of the ARCA for a
term of five years following the date of this Amendment.
2.2. The term "Parties" as used in the ARCA is hereby amended to mean
collectively ADP and AEROINVEST.
2.3. The following terms as used in the ARCA are hereby amended as
follows:
2.3.1. The term "Deadlock" as follows;
"Deadlock" shall mean the event of an unresolved matter or
impossibility to reach a resolution (i) 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 or (ii) at the
Shareholders Meeting of SETA in respect of the matters listed in
Clause 3.1.4 (a), (d) or (e) or (iii) at the Shareholders Meeting of
SETA when the unanimous consent is required, in each case for lack of
quorum on a second call, or for lack of the required affirmative votes
to validly resolve such matter or reach such resolution in such Board
or Shareholders Meeting as the case may be, held in first or
subsequent call."
2.3.2. The term "Interest" or "Shares" as follows:
"lnterest" 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 Partner 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, but
expressly excluding any participation in the Secured Credit Agreement
or any substitution or refinancing thereof and excluding the loan
given by Aeroinvest to SETA in the principal amount of US$11,007,000
dollars to repay the Secured Credit Agreement pursuant to an unsecured
loan agreement between Aeroinvest as lender and SETA as borrower (the
"Aeroinvest Unsecured Loan.").
2.3.3. The term "Representatives" by deleting the following words:
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"c) VASA: Renaud de Matharel or his replacement as VASA may
solely decide from time to time."
2.4. Clause 3.1.3 of the ARCA is hereby amended to read as follows:
"3.1.3 Quorum & Voting Rules
A quorum for the SETA Shareholders' Meeting installed in first or
subsequent call shall exist where 90% 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 always be required for
the Shareholder Meetings where decision regarding Clauses 3.1.5
(c), (e), (g), (j) and (m) are to be taken. In case of non
attendance of a Nominee due to unforeseeable reasons beyond his
reasonable control, the meeting shall be rescheduled for the
following week (but at least 4 Business Days later) at the
earliest, unless otherwise agreed by all the Nominees.
If the required quorum is not achieved in first call, a second or
subsequent call will be issued for such 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.
The resolutions in the ordinary and extraordinary shareholders
meetings in first or subsequent call will be considered legally
adopted when favorable vote of 90% of the capital stock is
obtained, except for resolutions in respect of the matters listed
in Clauses 3.1.5 (c), (e), (1), (g), (1) and (m) where the
favorable vote of 100% of the capital stock shall be required.
Each shareholder shall have the same number of votes as the
number of Shares held by it in the capital stock of SETA."
2.5. The second paragraph of Clause 3.1.4 and paragraph (e) thereof
are hereby amended to read as follows:
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"3.1.4 Ordinary Meetings
_________________________________________________________________
The following decisions shall require the affirmative vote of at
least a 90% interest of the shareholders in the Strategic
Partner:
(a) _____________________________________________________________
(b) _____________________________________________________________
(c) _____________________________________________________________
(d) _____________________________________________________________
(e) approval of the dividend policy of GCN before it is proposed
by the Operating Committee of GCN to the Board of GCN for
approval or before it is proposed by the Board of GCN to the
shareholders' meeting of GCN for approval, and any interpretation
or application of such dividend policy; and
(f) _____________________________________________________________
2.6. Paragraph (a) of Clause 3.1.5 of the ARCA is hereby deleted and
replaced with the words "Omitted".
2.7. Paragraphs (a) and (d) of Clause 3.1.5 of the ARCA are hereby
deleted and replaced with the following paragraphs:
"(c) pledge or create any other security interest in any Shares
held in the Strategic Partner or pledge, create any other
security interest, sale or otherwise transfer any shares or
other shareholding interest held directly or indirectly by
the Strategic Partner or by AEROINVEST in GCN;
(d) resolution of a Deadlock in respect of matters not requiring
unanimous consent. In such circumstances, the prior written
notice referred to in Clause 3.1.1(c) shall be reduced to
one week;
2.8. Paragraph (f) of Clause 3.1.5 of the ARCA is hereby deleted and
replaced with the following paragraph:
"(f) amend or terminate the by-laws of the Holding Company, or
the Participation Agreement, or the Shareholders Agreement
dated June 14 2000, or the Shareholders Agreement between
Aeroinvest and SETA regarding the governance of GCN, as
direct or indirect shareholders of GCN, or the Technical
Assistance and Technology Transfer Agreement or the Option
Agreement or the Operation Agreement;"
2.9. The last paragraph of Clause 3.1.5 of the ARCA is hereby amended
to read as follows:
"Decisions regarding Clause 3.1.5 (c),(e), (f), (g), (j) and (m)
shall be made by unanimous consent. Except for such decisions and
as
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otherwise provided in Clause 3.1.5 (d), all other decisions
regarding Clauses 3.1.4 and 3.1.5 shall require a super majority
approval of 90% of voting shares."
2.10. The second paragraph of Clause 3.2.2 of the ARCA is hereby
amended to read as follows:
"3.2.2 Members
_________________________________________________________________
The Chairman of the Board shall be a Director designated by
AEROINVEST. The Chairman shall not have a tie-breaking vote.
_________________________________________________________________
2.11. The second paragraph of Clause 3.2.3 of the ARCA is hereby
amended to read as follows:
"3.2.3 Members
Quorum & Voting Rules
_________________________________________________________________
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, where 6 (six) of the
Directors or their corresponding attendees shall be required to
be present to constitute legal quorum.
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
2.12. The first paragraph of Clause 3.2.6 of the ARCA is hereby
amended to read as follows:
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"3.2.6 Attendance and Reporting of the Executive Committee of GCN
The four 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.
_________________________________________________________________
2.13. Clause 3.2.8 of the ARCA is hereby amended by amending paragraph
(a) and adding a new paragraph (c) to read as follows:
(a) within three (3) Business Days of the occurrence of such
Deadlock, the Parties 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 vote at the Shareholders Meeting or
instruct their respective Directors in the Strategic Partner
to vote at the Board, as agreed by the Representatives;
(b) ____________________________________________________________
(c) if a Deadlock arises in connection with the matters listed
in paragraphs (a,) (d) or (e) of Clause 3.1.4 hereof and the
Representatives are unable to resolve the Deadlock pursuant
to paragraph (a) of this Clause 3.2.8, instead of convening
an Extraordinary SETA Shareholder Meeting as provided in (b)
above, the Parties agree to refer the matters subject of
such Deadlock, within ten (10) Business Days following the
referral of such Deadlock to the Representatives as provided
in (a) above, to the binding resolution of an independent
Mexican accounting firm (other than SETA's or GCN's external
auditors) member of a global accounting firm with
international recognition (such accounting firm to be chosen
by AEROINVEST out of two Mexican accounting firms proposed
by ADP) (the "Independent Expert"). The Independent Expert
shall decide in written resolution to be issued within 30
(thirty) calendar days following such appointment the
specific matters subject of such Deadlock by strictly
applying Mexican Generally Accepted Accounting Principles
("Mexican GAAP"), and the terms of the engagement of the
Independent Expert shall require that such resolution be
issued by the Independent Expert within such period of 30
(thirty) calendar days. The Parties agree to be bound by the
terms of the resolution issued by the Independent Expert and
agree to reflect the resolution of the Independent Expert in
the financial statements of SETA or GCN, as the case may be,
and to approve such financial statements with all required
corporate formalities within 30 (thirty) calendar days
following the resolution of the Independent Expert. The
costs incurred in connection with the engagement of the
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Independent Expert shall be borne equally by AEROINVEST and
ADP."
2.14. The definition of "Prepayment Parties" set forth in page 18
paragraph (ii) of Clause 3.2.9 of the ARCA is hereby amended to read as
follows:
"(ii) Parties holding in the aggregate more than 90% of the
Consortium interest (the "Prepayment
Parties")________________________________________________________
2.15. Subject to Section 2.1 of this Amendment, paragraph (b) of
Clause 3.2.12 of the ARCA is hereby deleted and replaced with the words
"Omitted".
2.16. Paragraph (b) of Clause 4.1.1 of the ARCA is hereby amended to
read as follows:
"(b) AEROINVEST shall designate (2) two members and their
corresponding alternates."
2.17. Paragraph (c) of Clause 4.1.1 of the ARCA and the last paragraph
of Clause 4.1.1 of the ARCA are amended to read as follows:
"(c) in the event that the Board of GCN is comprised by eleven
Directors, the eleventh Director shall be an independent
director to be designated by AEROINVEST, which must meet the
criteria in order to be considered to be an independent
member of the board pursuant to the US Sarbanes-Oxley Act of
2002.
The Parties hereby agree that the directors of the board of GCN
appointed by SETA shall not be Officers of GCN. The Parties further
agree that at least three of such directors shall be Directors of the
Board of SETA."
2.18. Clause 4.1.2 of the ARCA is hereby amended by deleting the last
two paragraphs.
2.19. Clause 4.1.3 of the ARCA is hereby amended to read as follows:
"4.1.3. The three Directors of GCN directly or indirectly appointed by
SETA and all other Directors of GCN appointed directly or
indirectly by AEROINVEST shall vote (including use of veto) at
the board of GCN in strict compliance with the decisions made by
the Shareholders or the Board of SETA to the extent the item on
the agenda of the GCN board meeting falls within the powers of
the Shareholders or the Board of SETA, as the case may be. For
all other items (including use of veto), the three Directors of
GCN appointed directly or indirectly by SETA and all other
Directors of GCN appointed directly or indirectly by AEROINVEST,
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
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position, they will attempt to delay the decision on the board of
GCN in order to obtain instructions from the shareholders of
SETA,"
2.20. Paragraphs (b) and (c) of Clause 4.2.1 of the ARCA are hereby
amended to read as follows:
"(b) the Chief Financial & Administration Manager of GCN shall be
appointed by AEROINVEST with the prior approval of ADP which
may not be unreasonably withheld, and
"(c) As long as ADP continues to be a shareholder of SETA and the
Airport Operator (as the term "Socio Operador Aeroportuario"
is defined in the Participation Agreement), the Chief
Operations & Commercial Development Manager of GCN shall be
appointed by ADP, with the prior approval of AEROINVEST,
which may not be unreasonably withheld."
2.21. Clause 4.2.2 of the ARCA Is hereby amended to read as follows:
"4.2.2 The following three managers of GCN shall be appointed as
follows:
(a) As long as ADP continues to be a shareholder of SETA and the
Airport Operator (as the term "Socio Operador Aeroportuario"
is defined in the Participation Agreement), the Chief Safety
& Quality Control Manager shall be appointed by ADP, with
the prior approval of AEROINVEST, which may not be
unreasonably withheld,
(b) the Chief Human Resources Manager shall be appointed by
AEROINVEST with the prior approval of ADP which may not be
unreasonably withheld, and
(c) the General Counsel shall be appointed by AEROINVEST with
the prior approval of ADP which may not be unreasonably
withheld.
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)."
2.22. Paragraphs (b) and (d) of Clause 4.2.4 of the ARCA are hereby
amended to read as follows:
"(b) the managers of GCN appointed according to Clauses 4.2.1,
4.2,2 and 4.2.3 shall be Officers. Each Party shall use its
best efforts to maintain as much as possible the principle
of specialization in designating GCN's Officers;
(c) ____________________________________________________________
(d) at the written request of any Party, any Officer shall be
dismissed if such
9
request is acknowledged as valid by the other Party. Any
such Officer so dismissed shall be replaced in accordance
with this Clause 4.2;"
2.23. Clause 4.3.1 of the ARCA is hereby amended to read as follows:
"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 three 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."
2.24. Clause 4.3.2 of the ARCA is hereby amended to read as follows:
"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 plus the Chief Safety & Quality Control Manager
appointed in accordance with Clause 4.2.2 (a).
(b) The chairman of the Executive Committee shall be the General
Director of GCN. The chairman of the Executive Committee
shall not have a casting vote."
2.25. Paragraphs (a), (d) and (e) of Clause 4.3.3 of the ARCA are
hereby amended to read as follows:
"4.3.3 Quorum and Voting rules
(a) The Executive Committee will hold meetings only if all four
members are able to attend physically. Presence by proxy
shall not be permitted,
(b) ____________________________________________________________
(c) ____________________________________________________________
(d) However, should a disagreement arise on a matter discussed
during a meeting of the Executive Committee, a vote among
the four members shall take place. The decision to resolve
such matter shall be a decision approved by at least three
of the four Officers member of the Executive Committee. In
addition, the General Director will have the right to veto a
decision proposed by the three 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 three of the four
Officers of the Committee (notwithstanding any veto of the
General Director), then such matter of
10
disagreement will be referred to the Board of SETA who shall
proceed as follows:
i. _________________________________________________________
ii. ________________________________________________________
iii. _______________________________________________________
2.26. Paragraph (c) and the second to last paragraph of Clause 4.3.6
of the ARCA are hereby amended to read as follows:
4.3.6 Powers of the Executive Committee
_________________________________________________________________
(a) The Executive Committee will hold meetings only if all four
members are able to attend physically. Presence by proxy
shall not be permitted,
(b) _____________________________________________________________
(c) _____________________________________________________________
(d) 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 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$6,000 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 expenses of the Holding Company or the Service
Company,
ii. US$15,000 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$30,000 for an airport with traffic comprised between 1
million and 3 million PAX in the year preceding the year
when the debit is made,
iv. US$60,000 for an airport with traffic above 3 million PAX in
the year preceding the year in which the debit is made,
shall require the sign-off of a member of the Executive
Committee appointed by ADP as long as ADP maintains a
shareholding participation in SETA of more than 10% of the
capital stock of SETA."
(d) _____________________________________________________________
(e) _____________________________________________________________
(f) _____________________________________________________________
(g) _____________________________________________________________
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In the event the four members of the Executive Committee are
unable to agree on a course of action, the provisions under
Clause 4.3.3(d) and (e) hereof shall apply.
_________________________________________________________________
2.27. Clause 4.4.2 is hereby deleted and replaced with the following:
"4.4.2 The Audit Committee of GCN shall be comprised by three (3)
members. AEROINVEST shall have the right to appoint two members,
one of which must meet the criteria in order to be considered to
be an independent member pursuant to the US Sarbanes-Oxley Act of
2002, and ADP shall have the right to appoint the third member."
2.28. Paragraphs (b), (c) and (d) of Clause 7.1.4 of the ARCA are
hereby amended to read as follows:
"(b) Any one or more of the other SETA Shareholders shall thereupon be
entitled to purchase the Offered Shares or nominate one or more
proposed purchases of the Offered Shares, in each case 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 or nominate purchasers for a number of Shares in excess
of the number of Offered Shares, the Offered Shares shall be
allotted among such SETA Shareholders and/or proposed purchasers
pro rata to the respective shareholdings of the SETA
Shareholders;
(c) Not later than eight (8) Business Days following receipt of the
copy of the Sale Notice, the SETA Shareholder, willing to
exercise their preemption right or their right to nominate one or
more proposed purchasers 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 or their right to nominate one or
more proposed purchasers, as the case may be, together with
the identity of the proposed purchasers so nominated,
ii. the number of Offered Shares which each SETA Shareholder
and/or proposed purchaser so nominated wishes to purchase,
iii. the period for completion of the sale, which shall not
exceed forty Business Days after the date of the receipt of
the Sale Notice subject to any governmental notification or
approval; provided. however, that if the Seller is ADP and
the SETA Shareholders
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willing to exercise their preemption right and/or the
proposed purchasers so nominated do not complete the
purchase of the Offered Shares in the terms set forth in the
Sale Notice within such forty (40) Business Days period for
any reason whatsoever (other than, with respect to a failure
to complete the sale of Offered Shares that are subject to
minimum holding requirements pursuant to Section 2.4.1 of
the Participation Agreement, the lack of any SCT approval
required in connection with such sale by ADP), ADP shall be
entitled to sell or transfer all of the Offered Shares
without any restrictions and the Transfer Restrictions,
Preemption Rights and Extended Transfer Restrictions set
forth in Clauses 7.1.1, 7.1.3, 7.1.4 and 7.1.5 of this
Agreement shall not apply to any such sale or transfer by
ADP or any future sale or transfer by ADP of the Offered
Shares which is consummated within one hundred and twenty
(120) Business Days following the date of the Sale Notice on
substantially the terms contained in such Sale Notice."
2.29. A new paragraph 7.3 is added to Clause VII to read as follows:,
"7.3 ADP's Transfer Rights.
At the request of ADP, the Parties agree to cause SETA to issue
multiple certificates of Shares representing ADP's interest in
SETA in exchange for or in lieu of other certificates of Shares
representing ADP's interest in SETA to facilitate any partial
sale or transfer. Notwithstanding anything contained to the
contrary in this Agreement, the Transfer Restrictions, Preemption
Rights and Extended Transfer Restrictions set forth in Clauses
7.1.1, 71.3, 7.1.4 and 7.1.5 of this Agreement shall not apply to
any exercise by ADP of a Tag-Along Right or a Put Option."
2.30. A new paragraph 7.4 is added to Clause VII to read as follows:
7.4 ADP Tag-Alone Right
7.4.1 For so long as ADP continues to own any Shares, if AEROINVEST or
any successor or assignee thereof (in each case, a "Selling
Shareholder") proposes to sell or otherwise transfer, directly or
indirectly, any of its Shares to any non-Related Party (the
"Purchaser"), in a single transaction or series of related
transactions, then ADP shall have the right (the "Tag-Along
Right"), exercisable as set forth in Clause 7.4.3, to (i) sell or
transfer to the Purchaser, upon the same terms (including but not
limited to the amount and type of consideration paid at the date
of closing for each Share that is the subject of the relevant
sale or transfer) and subject to the same conditions (including
providing such representations and warranties as may be
reasonably required by the Purchaser with
13
respect to the relevant shares owned by ADP) as the Selling
Shareholder, that number of Shares to be sold in the proposed
transaction free and clear of any security interest, lien,
encumbrance, injunction or garnishment (rounded up to the nearest
whole number of shares) equal to the aggregate number of Shares
owned, in the aggregate, beneficially by ADP multiplied by a
fraction, the numerator of which is the number of Shares to be
sold by the Selling Shareholder and the denominator of which is
the total number of Shares owned beneficially by the Selling
Shareholder and any Related Party; provided, however, that a
Tag-Along Right with respect to Shares owned by ADP subject to
minimum holding requirements pursuant to Section 2.4.1 of the
Participation Agreement may only be exercised following the
expiration of the 15 Year Waiting Period set forth in Section
2.4.1 of the Participation Agreement or before, if the 51%
minimum shareholding participation requirement for the Key
Partners and the 10% minimum shareholding participation
requirement for the Operating Partner are removed, waived by the
SCT or otherwise no longer applicable, and (ii) sell or transfer
to the Purchaser the same percentage, based on the number of
Shares to be transferred or sold by ADP, of then outstanding
loans granted and capital contributions made by ADP to the
Strategic Partner. The Selling Shareholder shall, to the extent
necessary, reduce the number of Shares that it is seeking to sell
to allow for the appropriate Shares of ADP to be sold in such
proposed transaction.
7.4.2 The Selling Shareholder shall give written notice (the
"Tag-Along Notice") to ADP of each proposed sale or transfer by
it of Shares which gives rise to the rights of ADP set forth in
Clause 7.4.1, at least twenty (20) days prior to the proposed
consummation of such sale, setting forth (i) the identity of the
Purchaser and of its immediate shareholders or partners, (ii) the
consideration per Share to be paid in the subject sale or
transfer (including a copy of the underlying agreement, if any,
with the Purchaser), (iii) the proposed closing date for such
transaction and (iv) the other material terms and conditions of
such transaction.
7.4.3 The Tag-Along Right may be exercised by ADP, by delivering a
written notice (the "Tag-Along Exercise Notice") to the Selling
Shareholder, within fifteen (15) days (the "Tag-Along Exercise
Period") following the delivery of the Tag-Along Notice. The
Tag-Along Exercise Notice shall indicate the wish of ADP to
exercise its Tag-Along Right and specify the number of Shares (up
to the maximum number of Shares required to be purchased by the
Purchaser) and the amount of outstanding loans granted and
capital contributions made by ADP to the Strategic Partner that
it wishes to sell or transfer in the proposed transaction, and
the Selling Shareholder shall be obligated to include (and the
Purchaser obligated to purchase) such number of Shares and amount
of outstanding loans and capital contributions as part of the
proposed transaction. ADP and the Selling Shareholder shall
thereafter take all action, as may reasonably be
14
requested in order to facilitate the closing of the applicable
transaction and to effectuate the provisions of this Clause 7.4
(including the execution and delivery of the relevant purchase
agreements and other instruments for the consummation of the
proposed transaction) within a period not to exceed 90 days.
7.4.4 If ADP does not timely deliver its Tag-Along Exercise Notice or
elects not to exercise its Tag-Along Right, the Selling
Shareholder shall have one hundred and twenty (120) calendar days
following the expiration of the Tag-Along Exercise Period in
which to consummate the proposed transaction on substantially the
terms contained in the Tag-Along Notice, subject to Clause 7.1.4.
Promptly after the consummation of any such transaction, the
Selling Shareholder shall notify ADP of the consummation thereof.
If the Selling Shareholder does not complete the transaction
within the 120-calendar-day period specified in this Clause 7.4.4
or if the terms of the proposed transaction differ in any
material respect from those described in the Tag-Along Notice,
the Selling Shareholder may not engage in such transaction
without repeating the procedures in this Clause 7.4.
7.4.5 If subsequent to the consummation of any transaction in respect
of which ADP elected to exercise its Tag-Along Right, the Selling
Shareholder or any Related Party of the Selling Shareholder
receives any additional consideration in respect of such
transaction, directly or indirectly, from the Purchaser or from a
Related Party of the Purchaser or from any person directed by the
Purchaser, the Seller shall be obligated to share such additional
consideration with ADP, taking into account the number of Shares
transferred by each of them respectively."
2.31. A new paragraph 7.5 is added to Clause VII to read as follows:
"7.5 Put Option
7.5.1 The Put Option
In consideration of ADP agreeing to enter into this Amendment,
each of AEROINVEST, CICASA and COINSA (collectively the "Put
Option Obligors") hereby grants to ADP an option to require any
one or more of the Put Option Obligors, all of which shall be
jointly and severally obligated, to purchase in one or more
transactions (i) all of the Shares owned by ADP in excess of 10%
of the outstanding capital stock of SETA (the "Unrestricted Put
Option Shares"), (ii) following the expiration of the 15 Year
Waiting Period set forth in Section 2.4.1 of the Participation
Agreement or before, if the 51% minimum shareholding
participation requirement for the Key Partners and the 10%
minimum shareholding participation requirement for the
15
Operating Partner are removed, waived by the SCT or otherwise no
longer applicable, all of the Shares owned by ADP representing
the remaining 10% of the outstanding capital stock of SETA (the
"Restricted Put Option Shares"), and (iii) all or a portion of
the then outstanding loans granted, and contributions for future
capital increases made, by ADP to the Strategic Partner (the "ADP
Put Option Shareholder Loans"), on the terms of this Clause 7.5
(each a "Put Option")(provided that the Put Option Obligors may
allocate among themselves, at their sole discretion, the number
of Unrestricted Put Option Shares, Restricted Put Option Shares
and ADP Put Option Shareholder Loans to be purchased by each Put
Option Obligor).
7.5.2 Exercise
A Put Option may be exercised by ADP during the period commencing
on June 14, 2009 and ending on the later to occur of (i) June 14,
2015 or (ii) six months following the expiration or other valid
termination of the Technical Assistance and Technology Transfer
Agreement in respect of the Project (the "Put Option Period"),
and thereafter shall lapse.
A Put Option may be exercised by ADP by delivering a written
notice (a "Put Option Notice") specifying whether the Put Option
relates to the Unrestricted Put Option Shares and/or the
Restricted Put Option Shares and/or ADP Put Option Shareholder
Loans which are to be the subject of the relevant Put Option and
the corresponding Put Option Price (as defined below) upon any
one or more of the Put Option Obligors, whereupon ADP shall sell
and the Put Option Obligors shall purchase such Unrestricted Put
Option Shares and/or Restricted Put Option Shares, and ADP Put
Option Shareholder Loans, as the case may be.
ADP may exercise one or more Put Options during the Put Option
Period. Each Put Option shall expire at the end of the last day
of the Put Option Period.
7.5.3 Put Option Completion
Each sale and purchase of Unrestricted Put Option Shares and/or
Restricted Put Option Shares and ADP Put Option Shareholder Loans
shall be completed at the registered office of SETA or at such
other place as ADP and the Put Option Obligors may agree, within
thirty days following the delivery of the Put Option Notice,
whereupon ADP shall deliver to the Put Option Obligors duly
executed transfers in respect of the relevant Unrestricted Put
Option Shares and/or Restricted Put Option Shares, as the case
16
may be, and ADP Put Option Shareholder Loans, together with the
relative certificates against payment of the corresponding Put
Option Price by the Put Option Obligors, with the Put Option
Price becoming payable (i) in full in US Dollars in same day
funds on completion by wire transfer of funds to such bank
account as ADP shall notify in a written notice to the Put Option
Obligors or (ii) at the option of ADP, in GCN shares (valued by
reference to the price per GCN share at the closing of the
Mexican stock exchange on the date of the relevant Put Option
Notice) provided that the shares of GCN are listed on the Mexican
stock exchange on completion and that such payment in GCN shares
does not dilute the direct or indirect holdings of the Put Option
Obligors and their Related Parties in GCN below 51% of the
outstanding capital stock of GCN (unless such dilution takes
place prior to the date of the relevant Put Option Notice).
7.5.4 Put Option Price
For purposes of this Clause 7.5:
(a) The Put Option Price for the Unrestricted Put Option Shares
means the highest of:
(i) the value of the Technical Assistance and Technology
Transfer Agreement for the Project, calculated as the sum of
future Management Fees equal to 5% of GCN EBITDA as per
Schedule I attached hereto, discounted at a rate of 10.75%
plus the value of SETA's interest in GCN based on GCN equity
valued at the price per share in U.S. Dollars payable in
connection with the exercise of the 36% Option (less
dividends paid by GCN from the date of exercise of the 36%
Option up to an amount of US$140 million) pursuant to
Section 3.4.1 of the Participation Agreement, indexed at a
rate per annum equal to 5%, minus the Net Debt of SETA and
(ii) the average between (x) the value of the Technical
Assistance and Technology Transfer Agreement, calculated as
described in (i) above, plus the value of SETA's interest in
GCN equity on the basis of the most recent twelve months
EBITDA of GCN multiplied by 9 times (minus GCN Net Debt),
minus the Net Debt of SETA, and (y) the valuation provided
by an internationally recognized investment bank through the
delivery of a fairness opinion (such investment bank to be
chosen by the Put Option Obligors out of two investment
banks proposed by ADP, with the costs incurred in connection
with the engagement of such investment bank to be borne
50/50 between the Put Option Obligors on the one hand and
ADP on the other hand).
17
For purposes of this Agreement the term "EBITDA" shall mean,
for any period, (a) total operating regulated and non
regulated income for such period minus (b) operating costs
(including cost of sales, administrative costs, Management
Fees) for such period, in each case taking into account the
adjustment amount (actualization) applied to income and
costs in accordance with Mexican GAAP.
For purposes of this Agreement the term "Net Debt" shall
mean, as to any Person, (i) the aggregate amount of total
Indebtedness minus, (ii) the amount of total cash on hand
and marketable securities, in each case of such Person at
such date determined in accordance with Mexican GAAP.
For purposes of the definition of Net Debt, the term
"Indebtedness" shall mean, as to any Person, without
duplication, (a) all indebtedness of such Person for
borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities
incurred In the ordinary course of business and payable in
accordance with customary practices) and (b) any other
indebtedness of such Person which is evidenced by a note,
bond, debenture or similar instrument.
(b) The Put Option Price per Restricted Put Option Share, if
sold together with the Unrestricted Put Option Shares, shall
be the same price per Unrestricted Put Option Share
calculated in accordance with paragraph (a) above.
(c) The Put Option Price per Restricted Put Option Share, if not
sold together with the Unrestricted Put Option Shares, shall
be the same price in U.S. Dollars per Unrestricted Put
Option Share calculated in accordance with paragraph (a)
above, indexed at a rate per annum equal to 5% from the date
of payment of the Put Option Price for the Unrestricted Put
Option Shares until the date of payment of the Put Option
Price for the Restricted Put Option Shares.
(d) The Put Option Price for the ADP Put Option Shareholder
Loans shall be the outstanding principal amount of such ADP
Put Option Shareholder Loans plus any accrued but unpaid
interest up to and including the date of payment of such Put
Option Price.
(e) The Put Option Price per Unrestricted Put Option Share and
per Restricted Put Option Share shall be adjusted to take
into account any stock splits, reverse stock splits,
reclassification of shares, capital increases and similar
actions.
18
7.5.5 Other Terms
Upon exercise of a Put Option with respect to Unrestricted Option
Shares and/or Restricted Option Shares, as the case may be, ADP
shall sell such Option Shares with full title guarantee, free
from security interests created by ADP or any other injunction,
encumbrance or garnishment and with all rights and obligations
then or subsequently attaching to them, but otherwise without any
representation or warranty, and ADP shall execute and deliver
other documents and take other steps at the reasonable request of
the Put Option Obligors following the relevant completion where
this is required to vest such Option Shares in the Put Option
Obligors and otherwise to give it the full benefit of this
clause."
2.32. A new paragraph 7.6 is added to Clause VII to read as follows:
"7.6 Call Option
7.6.1 The Call Option
In consideration of AEROINVEST agreeing to enter into this
Amendment, ADP hereby grants to AEROINVEST an option to require
ADP to sell to AEROINVEST (i) all of the Shares owned by ADP in
excess of 10% of the outstanding capital stock of SETA (the
"Unrestricted Call Option Shares"), (ii) following the expiration
of the 15 Year Waiting Period set forth in Section 2.4.1 of the
Participation Agreement or before, if the 51% minimum
shareholding participation requirement for the Key Partners and
the 10% minimum shareholding participation requirement for the
Operating Partner are removed, waived by the SCT or otherwise no
longer applicable, all of the Shares owned by ADP representing
the remaining 10% of the outstanding capital stock of SETA (the
"Restricted Call Option Shares"), and (iii) all of the then
outstanding loans granted, and contributions for future capital
increases made, by ADP to the Strategic Partner (the "ADP Call
Option Shareholder Loans"), on the terms of this Clause 7.6 (the
"Call Option").
7.6.2. Exercise
The Call Option may be exercised by AEROINVEST during the period
commencing on June 14, 2009 and ending on the later to occur of
(i) June 14, 2015 or (ii) six months following the expiration or
other valid termination of the Technical Assistance and
Technology Transfer Agreement in respect of the Project (the
("Call Option Period") and thereafter shall lapse; provided that
in any event the Call Option may only be exercised in case of a
19
Deadlock that the Parties are unable to resolve, acting in good
faith, pursuant to Clause 3.2.8 of this Agreement.
If the Call Option is exercised during the 15 Year Waiting Period
set forth in Section 2.4.1 of the Participation Agreement and the
51% minimum shareholding participation requirement for the Key
Partners and the 10% minimum shareholding participation
requirement for the Operating Partner are still in effect,
AEROINVEST may exercise the Call Option during the Call Option
Period in case of a Deadlock that the Parties are unable to
resolve, acting in good faith, pursuant to Clause 3.2.8 of this
Agreement, in one transaction purchasing from ADP all of the
Unrestricted Call Option Shares and the ADP Call Option
Shareholder Loans, and in a subsequent second transaction
purchasing from ADP all of the Restricted Call Option Shares
following the expiration of the 15 Year Waiting Period set forth
in Section 2.4.1 of the Participation Agreement or before, if the
51% minimum shareholding participation requirement for the Key
Partners and the 10% minimum shareholding participation
requirement for the Operating Partner are removed, waived by the
SCT or otherwise no longer applicable.
If the Call Option is exercised following the expiration of the
15 Year Waiting Period set forth in Section 2.4.1 of the
Participation Agreement or before, if the 51% minimum
shareholding participation requirement for the Key Partners and
the 10% minimum shareholding participation requirement for the
Operating Partner are removed, waived by the SCT or otherwise no
longer applicable, AEROINVEST may only exercise the Call Option
during the Call Option Period in case of a Deadlock that the
Parties are unable to resolve, acting in good faith, pursuant to
Clause 3.2.8 of this Agreement, in one transaction purchasing
from ADP all of the Unrestricted Call Option Shares, the
Restricted Call Option Shares and the ADP Call Option Shareholder
Loans.
The Call Option may be exercised by AEROINVEST by delivering a
written notice (a "Call Option Notice") specifying whether the
Call Option relates to the Unrestricted Call Option Shares and/or
the Restricted Call Option Shares and/or ADP Call Option
Shareholder Loans which are to be the subject of the Call Option
and the corresponding Call Option Price (as defined below),
whereupon ADP shall sell and AEROINVEST shall purchase such
Unrestricted Call Option Shares and/or Restricted Call Option
Shares, and ADP Call Option Shareholder Loans, as the case may
be.
20
AEROINVEST may exercise a Call Option during the continuation of
a Deadlock that the Parties are unable to resolve, acting in good
faith, pursuant to Clause 3.2.8 of this Agreement. The Call
Option shall expire at the end of the last day of the Call Option
Period.
7.6.3 Call Option Completion
The sale and purchase of Unrestricted Call Option Shares and/or
Restricted Call Option Shares and ADP Call Option Shareholder
Loans pursuant to the exercise of the Call Option shall be
completed at the registered office of SETA or at such other place
as ADP and AEROINVEST may agree, within thirty days following the
delivery of the Call Option Notice, whereupon ADP shall deliver
to AEROINVEST duty executed transfers in respect of the relevant
Unrestricted Call Option Shares and/or Restricted Call Option
Shares, as the case may be, and ADP Call Option Shareholder
Loans, together with the relative certificates against payment of
the corresponding Call Option Price by AEROINVEST with the Call
Option Price becoming payable in full in US Dollars in same day
funds on completion by wire transfer of funds to such bank
account as ADP shall notify in a written notice to AEROINVEST.
7.6.4 Call Option Price
For purposes of this Clause 7.6:
(a) The Call Option Price for the Unrestricted Call Option
Shares means the highest of:
(i) the value of the Technical Assistance and Technology
Transfer Agreement for the Project, calculated as the sum of
future Management Fees equal to 5% of GCN EBITDA as per
Schedule I attached hereto, discounted at a rate of 10.75%
plus the value of SETA's interest in GCN based on GCN equity
valued at the price per share in U.S. Dollars payable in
connection with the exercise of the 36% Option (less
dividends paid by GCN from the date of exercise of the 36%
Option up to an amount of US$140 million) pursuant to
Section 3.4.1 of the Participation Agreement, indexed at a
rate per annum equal to 5%, minus the Net Debt of SETA and
(ii) the average between (x) the value of the Technical
Assistance and Technology Transfer Agreement, calculated as
described in (i) above, plus the value of SETA's interest in
GCN equity based on the basis of the most recent twelve
months EBITDA of GCN multiplied by 9 times (minus GCN Net
Debt), minus the Net Debt
21
of SETA, and (y) the valuation provided by an
internationally recognized investment bank through the
delivery of a fairness opinion (such investment bank to be
chosen by AEROINVEST out of two investment banks proposed by
ADP, with the costs incurred in connection with the
engagement of such investment bank to be borne equally by
AEROINVEST and ADP).
(b) The Call Option Price per Restricted Call Option Share, if
sold together with the Unrestricted Call Option Shares,
shall be the same price per Unrestricted Call Option Share
calculated in accordance with paragraph (a) above.
(c) The Call Option Price per Restricted Call Option Share, if
not sold together with the Unrestricted Call Option Shares,
shall be the same price per Unrestricted Call Option Share
calculated in accordance with paragraph (a) above, indexed
at a rate per annum equal to 5% from the date of payment of
the Call Option Price for the Unrestricted Call Option
Shares until the date of payment of the Call Option Price
for the Restricted Call Option Shares.
(d) The Call Option Price for the ADP Call Option Shareholder
Loans shall be the outstanding principal amount of such ADP
Call Option Shareholder Loans plus any accrued but unpaid
interest up to and including the date of payment of such
Call Option Price.
(e) The Call Option Price per Unrestricted Call Option Share and
per Restricted Call Option Share shall be adjusted to take
into account any stock splits, reverse stock splits,
reclassification of shares, capital increases and similar
actions.
7.6.5 Other Terms
Upon exercise of the Call Option with respect to Unrestricted
Call Option Shares and/or Restricted Call Option Shares, as the
case may be, ADP shall sell such Call Option Shares with full
title guarantee, free from security Interests created by ADP or
any other injunction, encumbrance or garnishment and with all
rights and obligations then or subsequently attaching to them,
but otherwise without any representation or warranty, and ADP
shall execute and deliver other documents and take other steps at
the reasonable request of AEROINVEST following the relevant
completion where this is required to vest such Call Option Shares
in AEROINVEST and otherwise to give it the full benefit of this
clause."
22
2.33. The second paragraph of Clause 9.3 of the ARCA is hereby amended
to read as follows:
"The remaining part of the Management Fee will be shared between
the Parties according to their interest in the Strategic Partner,
after the deduction of an amount payable to ADP in the month of
December of every calendar year, commencing on December 2005,
equal to the highest of
(i) 8% of the yearly incremental EBITDA of GCN when comparing
EBITDA of GCN as of November 30 on the year prior to the
year when the calculation is made against EBITDA as of
November 30 on the year of calculation, and
(ii) US$150,000 dollars,
which amount payable to ADP (a) shall be payable for as long as
ADP continues to be the Airport Operator (as the term "Socio
Operador Aeroportuario" is defined In the Participation
Agreement) and (b) shall be pari passu in priority and payment to
the Secured Credit Agreement but senior In priority and payment
to any other contractual obligation of the Strategic Partner
which is not mandatory preferred by operation of law."
2.34. Paragraph (a) of Clause 10.1 of the ARCA is hereby deleted and
replaced with the words "Omitted".
2.35. Subject to Section 2.1, paragraph (e) of Clause 10.1 of the ARCA
is hereby deleted and replaced with the words "Omitted".
SECTION 3. RATIFICATION OF OTHER TERMS. All other terms and conditions of
the ARCA which are not specifically amended by this Amendment shall remain
unchanged and are hereby ratified by the parties hereto and shall continue to be
in full force and effect.
SECTION 4. MISCELLANEOUS PROVISIONS. The provisions of Clause XIII of the
ARCA (other than Clauses 13.13 and 13.17 which are not applicable to this
Amendment) shall apply to this Amendment and are incorporated herein by
reference mutatis mutandis.
SECTION 5. EFFECT OF AMENDMENT. In the event of any conflict between the
provisions of this Amendment and either the ARCA or any other agreement executed
prior to the date hereof, the provisions of this Amendment shall prevail over
the provisions of the ARCA, and the specific provisions of this Amendment shall
prevail over any general provisions in other agreements relating to the same
subject matter except if such specific provisions would breach applicable law or
any provision of any of the Transaction Documents.
SECTION 6. SPECIFIC AMENDMENTS TO SETA'S BY-LAWS. The Shareholders of SETA
hereby agree to further implement the terms of this Amendment by taking the
necessary
23
corporate actions to reflect and give effect on the date hereof to the specific
amendments to the by-laws of SETA set forth in Annex_G hereto.
SECTION 7. INDEMNITY. Each of Aeroinvest, CICASA and COINSA agrees to
indemnify and hold harmless each of ADP and its Related Parties, and their
respective officers, directors, employees, agents and advisors, including,
without limitation, the members and alternate members of the SETA Board of
Directors appointed by ADP, lawyers, accountants, consultants, bankers,
financiers and any of such advisors' representatives (each an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities and
expenses (including without limitation reasonable fees and expenses of counsel)
that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation or
proceedings or preparation of defense in connection therewith) this Amendment,
the VASA Transaction, the NAFIN Transaction, the COINSA/Aeroinvest Transaction,
the WestLB Existing Loan Transaction or any of the transactions contemplated
herein or therein. In the case of an Investigation, litigation or other
proceeding to which the Indemnity hereunder applies, such Indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by the directors, equityholders or creditors of an Indemnified Party or by any
other person, whether or not any Indemnified Party is otherwise a party thereto
and whether or not the VASA Transaction, the NAFIN Transaction, the
COINSA/Aeroinvest Transaction, the WestLB Existing Loan Transaction or the
transactions contemplated hereby are consummated.
SECTION 8. ADMINISTRATION TRUST. To establish a mechanism to ensure
performance of the obligations of the Put Option Obligors under Clause 7.5 of
the ARCA, Aeroinvest hereby irrevocably agrees to transfer, upon completion of
the VASA Transaction and the COINSA/Aeroinvest Transaction, Shares representing
33.5% of the capital stock of SETA to an Administration Trust created pursuant
to an Administration Trust Agreement in the form attached hereto as Annex H;
provided that the creation of the Administration Trust and the establishment of
the mechanism contemplated therein does not constitute payment of, and shall not
be construed to constitute a release of the Put Option Obligors performance of,
their respective obligations as set forth in Clause 7.5 of the ARCA.
SECTION 9. VOTING OF 36% OPTION SHARES. Aeroinvest agrees to vote all of
the shares representing capital stock of GACN purchased by Aeroinvest in
connection with the NAFIN Transaction (collectively the "36% Option Shares") (or
cause all such shares to be voted) in all shareholder meetings of GACN always as
a block in the same manner as SETA decides to vote the shares it holds directly
or indirectly in GACN; provided, however, that if ADP maintains a shareholding
participation in SETA of 10% or less of the capital stock of SETA, Aeroinvest
shall be required to vote the 36% Option Shares (or cause all such shares to be
voted) in all shareholder meetings of GACN as a block in the same manner as SETA
decides to vote the shares it holds directly or indirectly in GACN but only to
the extent the item on the agenda of the GACN shareholders meeting falls within
the matters set forth in Clause 3.1.5 (c), (e), (f), (g), (j) or (m) of the ARCA
as amended by this Amendment, and provided, further, that before voting the 36%
Option Shares in any shareholder meeting of GACN to approve any dividend
payment, reduction or reimbursement of capital, amortization of shares or
delivery of liquidation quotas or other distributions, in each case payable by
GACN in kind, Aeroinvest shall obtain the prior
24
written consent and instruction of West LB AG New York Branch, as Beneficiary in
First Place in the Guaranty Trust Agreement (as defined below).
Each of the parties hereto acknowledges and agrees that all of the 36% Option
Shares will be contributed by Aeroinvest, concurrently with the purchase
thereof, into an irrevocable guaranty and source of payment trust created
pursuant to an irrevocable guaranty and source of payment trust agreement (the
"Guaranty Trust Agreement") with GE Capital Bank, S.A., Institucion de Banca
Multiple, GE Capital Grupo Financiero as trustee (the "Guaranty Trust Trustee")
(i) to secure a bank financing to be obtained by Aeroinvest to complete the
NAFIN Transaction, (ii) to ensure that in all circumstances all of the 36%
Option Shares are always voted in all shareholder meetings of GACN by the
Guaranty Trust Trustee as a block in the manner described in this Section 9 and
(iii) to ensure that upon expiration or termination of the Guaranty Trust
Agreement for reasons other than (a) a foreclosure of the security created
therein and the sale of the 36% Option Shares to a third party which is not a
Related Party of Aeroinvest, (b) a public offering of the 36% Option Shares, or
(c) a transfer of the 36% Option Shares to an irrevocable trust where the
trustee thereof is required to vote the 36% Option Shares in the same manner as
the majority of the capital stock of GACN decides to vote, pursuant to paragraph
B of Clause Eighth of the Guaranty Trust Agreement, following the fifth
anniversary of the Guaranty Trust Agreement when Aeroinvest elects not to sell
through a public offering the 36% Option Shares for the pricing considerations
set forth in such paragraph B, the 36% Option Shares (and any other shares
representing capital stock of GACN then forming part of the assets of the trust
created pursuant to the Guaranty Trust Agreement) shall be reverted indirectly
to Aeroinvest, as settlor and beneficiary in second place in the Guaranty Trust
Agreement, or sold to the third party purchaser thereof that is a Related Party
of Aeroinvest, as the case may be, by having the Guaranty Trust Trustee transfer
all such shares to a Mexican bank acting as trustee of a trust to be established
with Aeroinvest or such related third party purchaser, as the case may be, as
beneficiary, which trust shall provide the same voting arrangements in respect
of all such shares as those set forth in the Guaranty Trust Agreement and the
Irrevocable Mandate Agreement referred to below, the terms and conditions of
which shall be in form and substance satisfactory to ADP.
Aeroinvest agrees to fully implement and reflect in the Guaranty Trust
Agreement, concurrently with the purchase of the 36% Option Shares, the
provisions set forth in this Section to the satisfaction of ADP. Furthermore,
ADP's consent to the NAFIN Transaction is subject to the condition that
Aeroinvest and the Guaranty Trust Trustee shall have executed concurrently with
the purchase of the 36% Option Shares and the execution of the Guaranty Trust
Agreement an Irrevocable Mandate Agreement in the form attached hereto as Annex
I.
Aeroinvest acknowledges and agrees that a breach of the agreements contained
herein would constitute a breach of a material obligation assumed for the
benefit of ADP that would cause irreparable harm to ADP and that monetary
damages would not be sufficient to compensate ADP for such a breach.
SECTION 10. PURCHASE OF ADDITIONAL SHARES AT GCN. Except for a 36% interest
in GACN to be purchased by Aeroinvest in connection with the NAFIN Transaction,
each of Aeroinvest, COINSA and CICASA agrees not to purchase or otherwise
acquire, directly or indirectly, (whether by purchase, exchange, issuance of
capital stock, merger, reorganization or
25
any other method) any shares or other interest in GACN or in any of GCN's
Subsidiaries, without prior consultation with, and adequate opportunity to
comment being Afforded to, ADP.
SECTION 11. GACN SHAREHOLDERS AGREEMENT. Each of SETA and Aeroinvest agrees
to enter on the date hereof into a shareholders agreement, in the form attached
hereto as Annex J, to establish the rules regarding the governance of GACN.
SECTION 12. REPAYMENT OF THE EXISTING WESTLB LOAN AGREEMENT. Each of SETA
and Aeroinvest agrees to enter into the Aeroinvest Unsecured Loan Agreement, the
form of which is attached hereto as Annex E, to cause SETA to repay the Existing
WestLB Loan.
26
IN WITNESS WHEREOF, each party hereto has cause this Amendment No.1 to the
Amended and Restated Consortium Agreement to be executed by its authorized
representative as of this 13 day of December 2005.
AEROPORTS DE PARIS AEROINVEST, S.A. DE C.V.
By [illegible] By [illegible]
---------------------------------- -----------------------------------
Name: [illegible] Name: [illegible]
------------------------------- ----------------------------------
Title: [illegible] Title: [illegible]
------------------------------ ----------------------------------
VINCI AIRPORTS, S.A.S.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
27
ACCEPTED AND AGREED AS OF THIS 13
DAY OF DECEMBER 2005
VINCI, S.A.
By [illegible]
---------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
ACCEPTED AND AGREED AS OF THIS __ DAY
OF DECEMBER 2005
CONSTRUCTORAS ICA, S.A. DE C.V.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
ACCEPTED AND AGREED AS OF THIS __ DAY
OF DECEMBER 2005
CONTROLADORA DE OPERACIONES DE
INFRAESTRUCTURA, S.A. DE C.V.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
ACCEPTED AND AGREED AS OF THIS __ DAY
OF DECEMBER 2005
SERVICIOS DE TECNOLOGIA
AEROPORTUARIA, S.A. DE C.V.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
28
Continuation of Signature Page to
Amendment No. 1 to Amended and Restated
Consortium Agreement.
ACCEPTED AND AGREED AS OF THIS __ DAY
OF DECEMBER 2005
VINCI, S.A.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
ACCEPTED AND AGREED AS OF THIS 13 DAY
OF DECEMBER 2005
CONSTRUCTORAS ICA, S.A. DE C.V.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
ACCEPTED AND AGREED AS OF THIS 13 DAY
OF DECEMBER 2005
CONTROLADORA DE OPERACIONES DE
INFRAESTRUCTURA, S.A. DE C.V.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
ACCEPTED AND AGREED AS OF THIS 13 DAY
OF DECEMBER 2005
SERVICIOS DE TECNOLOGIA
AEROPORTUARIA, S.A. DE C.V.
By [illegible]
----------------------------------
Name: [illegible]
-------------------------------
Title: [illegible]
------------------------------
29