Exhibit 4.13
AMENDMENT NO. 2 TO
AMENDED AND RESTATED CONSORTIUM AGREEMENT ("ARCA")
Amendment No. 2 to Amended and Restated Consortium Agreement, dated as of
September 5th, 2006 (this "Amendment"), by and among Aeroports de Paris
Management ("ADPM"), a French state-owned entity with legal capacity and its own
assets, Aeroports de Paris ("ADP"), Aeroinvest, S.A. de C.V. ("Aeroinvest"). a
sociedad anonima de capital variable organized under the laws of the United
Mexican States ("Mexico"). 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, with the acknowledgment and agreement
of Servicios de Tecnologia Aeroportuaria, S.A. de C.V. ("SETA").
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, CICASA and COINSA are the joint and several obligors of the
obligations of Aeroinvest under the ARCA, as amended and as may be further
amended or supplemented from time to time.
WHEREAS, ADP has transferred to ADPM ADP's interest in SETA consisting of
25.5% of the outstanding capital stock of SETA and certain shareholder loans
against SETA.
WHEREAS, as of the date of this Amendment, ADPM and Aeroinvest are the
shareholders (the "Shareholders") of SETA, with ownership interests of 25.5% and
74.5% respectively, in the capital stock of SETA.
WHEREAS, in connection with the transfer of ADP's participation in SETA to
ADPM, the parties hereto have determined that it is in their mutual interest to
amend the terms of the ARCA on the 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. REFERENCES. Except as provided in Section 3 below, all
reference to the term "ADP" throughout the ARCA shall be replaced by the term,
"ADPM".
SECTION 3. AMENDMENTS TO CLAUSE 9.3. Clause 9.3 is hereby amended to read
as follows:
"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 he repaid to the Parties if properly incurred
in accordance with this Agreement.
The remaining part of the Management Fee will he shared between the
Parties according to their Interest in the Strategic Partner, after
the deduction of an amount payable to ADP, (or ADPM if the Operation
Agreement is transferred to from ADP to ADPM) in the month of
December of every calendar year, commencing on December 2005, equal
to the highest of
(a) 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
(b) US$150,000 dollars,
which amount payable to ADP (or ADPM if the Operation Agreement is
transferred to from ADP to ADPM) (a) shall be payable for as long as
ADPM 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
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priority and payment to any other contractual obligation of the
Strategic Partner which is not mandatory preferred by operation of
law."
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. 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.
IN WITNESS WHEREOF, each party hereto has caused this Amendment No. 2 to
the Amended and Restated Consortium Agreement to be executed by its authorized
representative as of this 5th day of September, 2006.
ADPM AEROINVEST, S.A. DE C.V.
By /s/ Dominique Pannier By /s/ Pedro Martinez Becerrk
----------------------------- ----------------------------
Name: Dominique Pannier Name: Pedro Martinez Becerrk
Title: Authorized Representative Title: Authorized Representative
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ACCEPTED AND AGREED AS OF THIS 5th DAY OF SEPTEMBER, 2006
AEROPORTS DE PARIS
By /s/ Marc Noyelle
-----------------------------
Name: Marc Noyelle
Title: Director General Pi
ACCEPTED AND AGREED AS OF THIS 5th DAY OF SEPTEMBER, 2006
CONSTRUCTORAS ICA, S.A. DE C.V.
By /s/ Pedro Martinez Becerril
-----------------------------
Name: Pedro Martinez Becerril
Title: Legal Representative
ACCEPTED AND AGREED AS OF THIS 5TH DAY OF SEPTEMBER, 2006
CONTROLADORA DE OPERACIONES DE INFRAESTRUCTURA, S.A. DE C.V.
By /s/ Pedro Martinez Becerril
-----------------------------
Name: Pedro Martinez Becerril
Title: Legal Representative
ACCEPTED AND AGREED AS OF THIS 5TH DAY OF SEPTEMBER, 2006
SERVICIOS DE TECNOLOGIA AEROPORTUARIA, S.A. DE C.V.
By /s/ Luis Zarate Rocha
-----------------------------
Name:
Title:
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