AMENDMENT TO THE TECHNICAL ASSISTANCE AND TRANSFER OF TECHNOLOGY AGREEMENT ENTERED INTO BY AND BETWEEN GRUPO AEROPORTUARIO DEL SURESTE, S.A.B. DE C.V. (HEREINAFTER, THE “CONTROLLING COMPANY”), SERVICIOS AEROPORTUARIOS DEL SURESTE, S.A. DE C.V....
Exhibit 4.6
AMENDMENT TO THE TECHNICAL ASSISTANCE AND TRANSFER OF TECHNOLOGY AGREEMENT ENTERED INTO BY AND
BETWEEN GRUPO AEROPORTUARIO DEL SURESTE, S.A.B. DE C.V. (HEREINAFTER, THE “CONTROLLING COMPANY”),
SERVICIOS AEROPORTUARIOS DEL SURESTE, S.A. DE C.V. (HEREINAFTER, THE “SERVICE COMPANY”), AEROPUERTO
DE CANCÚN, S.A. DE C.V., AEROPUERTO DE COZUMEL, S.A. DE C.V., AEROPUERTO DE HUATULCO, S.A. DE C.V.,
AEROPUERTO ▇▇ ▇▇▇▇▇▇, ▇.▇. DE C.V., AEROPUERTO DE MINATITLÁN, S.A. DE C.V., AEROPUERTO DE OAXACA,
S.A. DE C.V., AEROPUERTO DE TAPACHULA, S.A. DE C.V., AEROPUERTO DE VERACRUZ, S.A. DE C.V., AND
AEROPUERTO DE VILLAHERMOSA, S.A. DE C.V., (JOINTLY, THE “CONCESSIONAIRE COMPANIES”) AS ONE PARTY,
AND BY INVERSIONES TÉCNICAS AEROPORTUARIAS, S.A. DE C.V. (HEREINAFTER, “THE STRATEGIC PARTNER”);
▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ AND COPENHAGEN AIRPORTS A/S (KOBENHAVNS LUFTHAVNE A/S (“THE
PARTNERS OF THE STRATEGIC PARTNER”) AS ANOTHER PARTY, IN ACCORDANCE WITH THE FOLLOWING PRECEDENTS,
RECITALS AND CLAUSES:
PRECEDENTS
One.- On December 18th, 1998, the parties entered into a Technical Assistance and
Transfer of Technology Agreement, in order for the company Inversiones Técnicas Aeroportuarias,
S.A. de C.V. to provide training and assistance in connection with the management of the Airports
that the Federal Government, through the Ministry of Communications and Transportation, granted
under concession to the Concessionaire Companies, as well as training and assistance to the Service
Company to properly conduct the operation, management and planning of the Assigned Airports
(hereinafter, the “Technical Assistance and Transfer of Technology Agreement”).
Two.- On March 19th, 1999, the parties executed an Amendment to amend section 5.1 of the
Technical Assistance and Transfer of Technology Agreement, by virtue of a resolution adopted by the
Shareholders’ Meeting of the Controlling Company on such date and with basis on the provisions of
section 15.2 of the abovementioned Agreement, in connection with section 2.1.4 of the Shareholders’
Agreement (hereinafter, the “First Amendment to the Technical Assistance and Transfer of Technology
Agreement”).
Three.- On February 28th, 2000, the parties executed an Amendment to the Technical
Assistance Agreement in order to eliminate section 2.1.4 and amend sections 2.1 and 2.1.3 thereof
to redraft them completely (hereinafter, the “Second Amendment to the Technical Assistance and
Transfer of Technology Agreement”).
Four.- On July 23rd, 2001, the parties executed an Amendment to the Technical Assistance
and Transfer of Technology Agreement for the purpose of amending sections 6.2 and 6.3.2
(hereinafter, the “Third Amendment to the Technical Assistance and Transfer of Technology
Agreement”).
RECITALS:
I. The Controlling Company states, represents and warrants that:
Its legal representative evidences his/her authority with notarized public instrument number 52,847
issued on May 10th, 1999 by Mr. Luis de Angoitia ▇▇▇▇▇▇▇, Notary Public number 109 of
the Federal District, which was recorded in the Public Registry of Commerce of Mexico City, Federal
District under commercial folio number 237658, entry 19603, on July 8th, 1999, and that
such authority has not been revoked, modified or limited in any way to date.
II. The Service Company states, represents and warrants that:
Its legal representative evidences his/her authority with notarized public instrument number 52,609
issued on June 2nd,1999, by Mr. Luis de Angoitia ▇▇▇▇▇▇▇, Notary Public number 109 of
the Federal District, which was recorded in the Public Registry of Commerce of Mexico City, Federal
District under commercial folio number 237657, entry 12959, on July lst, 1999, and that
such authority has not been revoked, modified or limited in any way to date.
III. The Concessionaire Companies state, represent and warrant:
AEROPUERTO DE CANCÚN, S.A. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,812 dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109 of the Federal District, which was recorded in the Public
Registry of Commerce of Cancún, ▇▇▇▇▇▇▇▇ Roo, under number 83, pages 941 — 981, Volume CCVIII,
Section IV, on October 13th, 1999, and that such authority has not been revoked,
modified or limited in any way to date.
AEROPUERTO DE COZUMEL, S.A. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,813 dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109 of the Federal District, which was recorded in the Public
Registry of Commerce of Cozumel, ▇▇▇▇▇▇▇▇ Roo, under number 21, pages 356 — 397, Volume XXXVIII,
Section IV, on September 14th,1999, Electronic Folio number 2154, and that such
authority has not been revoked, modified or limited in any way to date.
AEROPUERTO DE HUATULCO, S.A. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,816 dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109 of the Federal District, which was recorded in the Public
Registry of Commerce of Santa ▇▇▇▇, Huatulco, Pochutla, Oaxaca, under number 54, Commerce Section
Book, Volume I, on September 23rd, 1999, and that such authority has not been revoked,
modified or limited in any way to date.
AEROPUERTO ▇▇ ▇▇▇▇▇▇, ▇.▇. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,817 dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109 of the Federal District, which was recorded in the Public
Registry of Commerce of Mérida, Yucatán, under number 32,212, Entry 3rd, Folio 28,
Volume 52, Volume “B”, Book 1, on September 3rd, 1999, Electronic Commercial Folio
number 8695 1, and that such authority has not been revoked, modified or limited in any way to
date.
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AEROPUERTO DE MINATITLÁN, S.A. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,818, dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109, of the Federal District, which was recorded in the Public
Registry of Commerce of Minatitlán, Veracruz, under number 182, Pages 1283 — 1323, Volume III,
Commerce Section, on September 8th, 1999, and that such authority has not been revoked,
modified or limited in any way to date.
AEROPUERTO DE OAXACA, S.A. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 93,330 dated June 8th, 2007, issued by ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, Notary Public number 38 of Oaxaca, which was recorded in the Public Registry of Commerce of
Oaxaca, with Electronic Commercial Folio number 1269 ID l, on June 20th, 2007, and that
such authority has not been revoked, modified or limited in any way to date.
AEROPUERTO DE TAPACHULA, S.A. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,820 dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109 of the Federal District, which was recorded in the Public
Registry of Commerce of Tapachula, Chiapas, under number 322, Book I, Section V, Volume 1023, on
October 8th, 1999, and that such authority has not been revoked, modified or limited in
any way to date.
AEROPUERTO DE VERACRUZ, S.A. DE C.V.- It has the necessary representational authority to
enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,821 dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109 of the Federal District, which was recorded in the Public
Registry of Veracruz, Veracruz, under number 1360, pages 1 to 21, Section L-I Com., Volume 20, on
September 22nd, 1999, and that such authority has not been revoked, modified or limited
in any way to date.
AEROPUERTO DE VILLAHERMOSA, S.A. DE C.V.- It has the necessary representational authority
to enter into this Amendment and be bound by its terms and conditions, as evidenced by notarized
public instrument number 52,822 dated August 13th, 1999, issued by Mr. Luis de Angoitia
▇▇▇▇▇▇▇, Notary Public number 109 of the Federal District, which was recorded in the Public
Registry of Villahermosa, Tabasco under number 830, General Book of Entries, Folios 5932 to 5953,
Book of duplicates, Volume 104, being annotated under folio 52 of the First Book of Commerce,
Volume VI, on September 13th, 1999, and that such authority has not been revoked,
modified or limited in any way to date.
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IV. The Strategic Partner states, represents and warrants that:
Its legal representative evidences his/her authority with notarized public instrument number 15,691
dated June 25th, 2002, issued by ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Notary Public number 119 of
the Federal District, which was recorded in the Public Registry of Commerce of Mexico City, Federal
District under commercial folio number 242982 on July 2nd, 2002, and that such authority
has not been revoked, modified or limited in any way to date.
V. Common statements, representations and warranties of the parties hereto:
| 1. | They wish to enter into this Amendment for the purpose of amending the Technical Assistance
and Transfer of Technology Agreement referred under the first recital hereof. |
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| 2. | Through their respective representatives, the parties mutually acknowledge the capacity with
which they execute this instrument and the authority to state their will and consequently, to
be bound by the terms hereof. |
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| 3. | They wish to amend section 6 entitled Economic Terms, specifically section 6.3.2 of the
Technical Assistance and Transfer of Technology Agreement, in accordance with the clauses of
this Amendment. |
By virtue of the foregoing recitals, the parties agree to be bound by the terms of the following:
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CLAUSES
ONE. The Controlling Company, the Service Company, the Concessionaire Companies, the Strategic
Partner, and the Partners of the Strategic Partner, hereby agree to amend, as of January
1st, 2008, section 6 of the Technical Assistance and Transfer of Technology Agreement
entitled Economic Terms, specifically section 6.3.2, as follows:
6. Economic Terms:
The Service Company agrees to pay to the Strategic Partner, for the performance of its obligations
contained under Section 2 above:
6.3 Form of Payment.
6.3.1 .....................
6.12 With respect to the consideration referred under section 6.2, the
Service Company will pay the amount set forth under Section 6.2 on a
quarterly basis and in accordance with the calculation for the terms (January to
March, April to June, July to September, October to December), after the Board of
Directors of the Controlling Company approves the results of the term, and within 10
(ten) calendar days after receiving the relevant invoice issued by the Strategic
Partner.
After holding the annual general ordinary shareholders’ meeting of the Controlling
Company that approves the consolidated financial statements of the Airport Group for
the annual period, showing the results of the fiscal year of the Airport Group on a
consolidated basis, the parties hereto will determine whether the consideration that
corresponds to the Strategic Partner is the consideration referred under Section
6.2. If the amount that results from applying 5% (five percent) over the amount
that results from decreasing the net income, the sum of costs and the services
provided and the operation expenses corresponding to the airport group on a
consolidated basis, is greater than the sum of the amounts paid on a quarterly basis
indicated under Section 6.3.2, the Service Company will pay to the strategic
partner, within 15 business days after the date of the Annual General Ordinary
Shareholders’ Meeting of the Controlling Company, at the latest, the corresponding
difference to cover the consideration provided under Section 6.2.;
otherwise, the additional payment will be adjusted in the next term following the
date of the Meeting.
TWO. The parties state that their only intent is to amend the Agreement in the terms provided
under Clause One of this instrument. Therefore, the rest of the terms and conditions not amended
by this Amendment will remain in effect in the same manner for all legal purposes, being hereby
incorporated by reference, for which it does not imply and novation of any kind.
THREE. The parties agree that this instrument must be considered part of the Participation
Agreement and the Shareholders’ Agreement.
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Having read this Amendment, the parties hereto sign 4 counterparts hereof on each page and at the
bottom of this last page, on January 1st, 2008, in Mexico City, Federal District,
stating that there existed no fraud, violence, injury or any other kind of mistake or lack of
agreement that could invalidate it, for which it shall become part of the Technical Assistance and
Transfer of Technology Agreement, for any and all legal purposes.
Grupo Aeroportuario del Sureste,
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Inversiones y Técnicas Aeroportuarias, | |
S.A.B. de C.V.
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S.A. de C.V. | |
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Servicios Aeroportuario del Sureste,
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Acting personally: | |
S.A. de C.V. |
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Aeropuerto de Cancún, S.A. de C.V.
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Copenhagen Airports A/S | |
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Aeropuerto de Cozumel, S.A. de C.V.
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Aeropuerto de Huatulco, S.A. de C.V. | |
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Aeropuerto ▇▇ ▇▇▇▇▇▇, ▇.▇. de C.V.
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Aeropuerto de Minatitlán, S.A. de C.V. | |
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Aeropuerto de Oaxaca, S.A. de C.V.
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Aeropuerto de Tapachula, S.A. de C.V. | |
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Aeropuerto de Veracruz, S.A. de C.V.
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Aeropuerto de Villahermosa, S.A. de C.V. | |
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THIS SIGNATURE PAGE CORRESPONDS TO THE AMENDMENT TO THE TECHNICAL ASSISTANCE AND TRANSFER OF
TECHNOLOGY AGREEMENT ENTERED INTO BY AND BETWEEN GRUPO AEROPORTUARIO DEL SURESTE, S.A.B. DE C.V.
(HEREINAFTER, THE “CONTROLLING COMPANY”), SERVICIOS AEROPORTUARIOS DEL SURESTE, S.A. DE C.V.
(HEREINAFTER, THE “SERVICE COMPANY”), AEROPUERTO DE CANCÚN, S.A. DE C.V., AEROPUERTO DE COZUMEL,
S.A. DE C.V., AEROPUERTO DE HUATULCO, S.A. DE C.V., AEROPUERTO ▇▇ ▇▇▇▇▇▇, ▇.▇. DE C.V., AEROPUERTO
DE MINATITLÁN, S.A. DE C.V., AEROPUERTO DE OAXACA, S.A. DE C.V., AEROPUERTO DE TAPACHULA, S.A. DE
C.V., AEROPUERTO DE VERACRUZ, S.A. DE C.V., AEROPUERTO DE VILLAHERMOSA, S.A. DE C.V. (JOINTLY, THE
“CONCESSIONAIRE COMPANIES”) AS ONE PARTY AND BY INVERSIONES TÉCNICAS AEROPORTUARIAS, S.A. DE C.V.
(HEREINAFTER “THE STRATEGIC PARTNER”); ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, COPENHAGEN AIRPORTS A/S
(KOBENHAVNS LUFTHAVNE A/S) (“THE PARTNERS OF THE STRATEGIC PARTNER”) AS ANOTHER PARTY, EXECUTED ON
JANUARY 1ST, 2008.
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