NOTE 152/08 ISSUED BY ORSNA AND FINAL MEMORANDUM AGREEMENT BY AND BETWEEN AEROPUERTOS ARGENTINA S.A. AND THE ARGENTINE GOVERNMENT
Exhibit 10.2(b)
[Translation for information purposes only]
NOTE 152/08 ISSUED BY ORSNA AND FINAL MEMORANDUM AGREEMENT BY AND
BETWEEN AEROPUERTOS ARGENTINA S.A. AND THE ARGENTINE GOVERNMENT
“2008 - Year of Science Teaching”
ORSNA – Organismo Regulador del Sistema Nacional de Aeropuertos (National Airport System Regulating Institution)
ORSNA NOTE N° 152 – 08
REF: AA2000-DIR-088/08
BUENOS AIRES, FEBRUARY 12th, 2008
To the President of
AEROPUERTOS ARGENTINA 2000 S.A.
Xx. Xxxxx Xxxxxxx XXXXXXXXX XXXXX
PRESENT
I am pleased to write to you in response to the query made through Note AA2000-DIR-088/08 in order to inform you that within the framework of the provisions of the Concession Contract, the ORSNA must perform a yearly analysis of the financial projections of the Concession, based on the data as of January 1st, 2006, taking into account projected income, operation costs and investment obligations, among other items. In compliance with the Income and Expenses Financial Projection of the Concession, the ORSNA is entitled to make adjustments to the specific allocation of incomes, aeronautical service charges and/or the company’s investment obligations, in order to preserve the Economic-Financial balance of the Concession Contract. For such purpose, it shall use the following parameters, which were previously established in the Contract Renegotiation between the UNIREN and the company AA2000 S.A., and which were ratified by decree N° 1799/07.
A) From the analysis of the aforementioned documentation of the Contract Renegotiation between the National State (UNIREN) and Aeropuertos Argentina 2000 S.A., based on the polynomial formulas used and weighting thereof, in the case of restated Incomes and Expenses for the period 1998-2005 the amount of (-) $857.693 millions was reached, at values corresponding to December 31st, 2005, equivalent to an initial disbursement of the company.
B) The Income and Expenses Financial Projection, which is included in Annex V of the Memorandum of Agreement, establishes a Net Flow of Funds for each year (2006-2028), at values corresponding to December 31st, 2005, as described below:
| Year | Net Flow of Funds (in thousands of pesos) | |||
| 2006 | 67,007 | |||
| 2007 | 92,709 | |||
| 2008 | 81,050 | |||
| 2009 | 30,672 | |||
| 2010 | 31,614 | |||
| 2011 | 138,883 | |||
| 2012 | 198,990 | |||
| 2013 | 228,696 | |||
| 2014 | 210,184 | |||
| 2015 | 211,220 | |||
| 2016 | 260,170 | |||
| 2017 | 307,013 | |||
| 2018 | 309,988 | |||
| 2019 | 320,638 | |||
| 2020 | 282,518 | |||
| 2021 | 315,935 | |||
| 2022 | 348,995 | |||
| 2023 | 363,252 | |||
| 2024 | 380,852 | |||
| 2025 | 394,789 | |||
| 2026 | 417,704 | |||
| 2027 | 440,562 | |||
| 2028 | 23,783 | |||
| Total for the Period | 5,457,222 | |||
Also, in order to preserve the contractual economic-financial balance as is established in the Memorandum of Agreement, the Concession Contract provides for an annual review, which will permit to correct any deviation that may occur between the considered variables.
Yours faithfully,
[There appears and illegible signature, followed by a partially illegible seal corresponding to the PRESIDENT of the ORSNA]
[Below, there appears a seal that reads:]
Signature: [there appears an illegible signature
Clarification: Xxx Xxx De Oto
Date: February 13th, 2008
Time: 5.10 p.m.
Xx. Xxxxxxxxxx 000 – X0000XXX - Xxxxxx Xxxxx - Xxxxxxxxx - Tel: 0000-0000/0000-0000 - Fax: 0000-0000
Decree 1799/2007
The contract renegotiation Memorandum of Agreement signed between the Public Service Contract Analysis and Renegotiation Unit and Aeropuertos Argentina 2000 S.A. is hereby ratified.
Bs. As., December 4th, 2007
File N° S01:0052536/2004 of the Registry of the MINISTRY OF ECONOMY AND PRODUCTION, its non consolidated additional case file N° S01:0314363/2006 of the same Registry, and Laws N° 25,561, 25,790, 25,820, 25,972, 26,077 and 26,204, Decree N° 311 dated on July 3, 2003, Joint Resolution N° 188 of the MINISTRY OF ECONOMY AND PRODUCTION and N° 44 of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES dated on August 6th, 2003, Joint Resolution N°728 of the MINISTRY OF ECONOMY AND PRODUCTION and N° 1584 of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES dated on September 12th, 2006, Resolutions of the HONORABLE SENATE OF THE NATION (CD-2/07) and the HONORABLE CHAMBER OF DEPUTIES OF THE NATION (OD 1996), both dated on February 13th, 2007, having been reviewed, AND
WHEREAS:
Law N° 25,561 declared public emergency in social, economic, administrative, financial and exchange matters, delegating to the NATIONAL EXECUTIVE POWER the powers to enact measures aimed at solving the critical situation.
That the aforementioned rule provided for the end of the convertibility regime that established a fixed Peso-US Dollar parity, and authorized the NATIONAL EXECUTIVE POWER to renegotiate the concessionned public works and services contracts, which were in a critical situation due to the end of said convertibility regime, making those contracts that used said regime as an adjustment mechanism, which was thus left without effect, lose their reference point.
That said law established certain criteria to be followed within the frame of the renegotiation process, such as the tariff impact on the economy competitiveness and on the income distribution; the service quality and investment plans, when they are contemplated in contracts; the users’ interest and the service availability; security of the systems involved; and company profitability.
That the provisions in Law N° 25,561 have been later ratified and extended through the passing of Laws N° 25,790, 25,820, 25,972, 26,077 and 26,204, as well as through different regulatory and complementary rules.
That, in order to comply with the precepts of the HONORABLE CONGRESS OF THE NATION, the contract renegotiation process has been developed up to the present with Licensee Companies of public works and services.
That, in the course of said process, carried out pursuant to the criteria established in Section 9 of Law 25,561, the NATIONAL STATE shall make sure that the public service availability, safety and quality conditions are kept.
That the aforementioned process involves the company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX, a concessionaire of the EXPLOITATION, ADMINISTRATION AND OPERATION OF GROUP “A” OF AIRPORTS, pursuant to the concession that was granted by means of Decree N 163, dated on February 11th, 1998.
That the contract renegotiation is regulated by Decree N° 311, dated on July 3rd, 2003 and Joint Resolution N° 188 of the MINISTRY OF ECONOMY AND PRODUCTION and N° 44 of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES dated on August 6th, 2003.
That, in order to carry out the renegotiation with the Service Provider Companies, Decree N° 311/03 provided for the creation of the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT (“UNIREN”) within the scope of the MINISTRIES OF ECONOMY AND PRODUCTION AND OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES.
That the abovementioned Unit has been assigned the missions, among others, to carry out the renegotiation process of the Public Services and Works Contracts, to sign full or partial agreements with licensee companies of public services “ad referendum” of the NATIONAL EXECUTIVE POWER, to bring forward ruling projects related to possible temporary price or tariff adjustments and/or segmentations thereof, and to contractual clauses related to public services, as well as the mission to make any recommendation concerning public services and works contracts and the operation of such services.
That, in relation to the concession granted to the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX ANONIMA, the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT has analyzed the contractual situation and taken the necessary steps to achieve a contractual renegotiation understanding.
That, within the frame of the aforementioned renegotiation process, a Letter of Understanding was signed on July 20th, 2005 between said Unit and the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX ANONIMA, which established the GUIDELINESS for the renegotiation of the CONCESSION CONTRACT for the EXPLOITATION, ADMINISTRATION AND OPERATION OF GROUP “A” OF THE NATIONAL SYSTEM OF AIRPORTS, based on the guidelines set by the TRANSPORTATION DEPARTMENT of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES, as a member of the SECTORIAL COMMITTEE of the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT.
That, by virtue of the established guidelines and as a result of the negotiations that were carried out, said Unit and the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX signed a LETTER OF UNDERSTANDING on June 16th, 2006 -which was replaced by a new LETTER OF UNDERSTANDING signed on August 23rd, 2006 - that included the points of agreement on the contract adjustment.
That this last instrument established the terms and conditions of the contract renegotiation agreement to be entered into by the LICENSOR and the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX.
That the LETTER OF UNDERSTANDING was submitted to a PUBLIC HEARING process called by Joint Resolution N° 728 of the MINISTRY OF ECONOMY AND PRODUCTION and N° 1584 of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES dated on September 12th, 2006.
That the PUBLIC HEARING permitted users and consumers, as well as different social sectors and players, to participate and express their opinion; and these elements of judgment were added by the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT to the renegotiation analysis.
That as a result, said Unit deemed convenient to modify aspects of the understanding that had been achieved before, as was stated in the PUBLIC HEARING Assessment Report attached with the proceedings and published in the Internet page of the abovementioned Unit.
That the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT and the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX found points of coincidence as regards the proposed modifications after the PUBLIC HEARING had been held.
That said agreement was reflected on a MEMORANDUM OF AGREEMENT proposal which, pursuant to the provisions of Decree N° 311/03, was signed by the Authorities of the abovementioned Unit and the representatives of the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX ANONIMA, after complying with the usual procedures and “ad referendum” of the NATIONAL EXECUTIVE POWER.
That said MEMORANDUM OF AGREEMENT includes the complete renegotiation of the CONCESSION CONTRACT for the EXPLOITATION, ADMINISTRATION AND OPERATION OF GROUP “A” OF THE NATIONAL SYSTEM OF AIRPORTS, aimed at preserving the continuity and quality of the service rendered.
That the NATIONAL TREASURY has issued its ruling, pursuant to the provisions of Section 8 of Decree N° 311/03, which included remarks aimed at achieving a better effectiveness of the MEMORANDUM OF AGREEMENT, and did not contain any objection to the terms and conditions thereof.
That the ARGENTINE GENERAL ACCOUNTING OFFICE, decentralized entity within the scope of the PRESIDENCY OF THE NATION, has taken proper action in accordance with the provisions of Section 14 of Joint Resolution N° 188/03 of the MINISTRY OF ECONOMY AND PRODUCTION and N° 44/03 of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES, and stated that no objections were raised as regards the procedure that had been carried out.
That, in compliance with the applicable regulations, the intervention of the HONORABLE CONGRESS OF THE NATION was requested in order to consider the MEMORANDUM OF AGREEMENT.
That the AGREEMENT proposal has been approved by the HONORABLE CONGRESS OF THE NATION, by Resolutions of the HONORABLE SENATE OF THE NATION (CD-2/07) and the HONORABLE CHAMBER OF DEPUTIES OF THE NATION (OD 1996), both dated on February 13th, 2007.
That the final MEMORANDUM OF AGREEMENT was signed on April 3rd, 2007, adding the proposed adjustments by the NATIONAL TREASURY and the recommendations of the HONORABLE CONGRESS OF THE NATION that were deemed feasible within the framework of the agreement achieved.
That, once the requirements set in the applicable standards to the renegotiation process had been complied with, the Authorities of the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT and the legal representative of the Concessionaire Company signed the MEMORANDUM OF AGREEMENT that formalizes the contractual renegotiation, ad referendum of the NATIONAL EXECUTIVE POWER.
That said AGREEMENT adds the proposed adjustments by the NATIONAL TREASURY and the recommendations of the HONORABLE CONGRESS OF THE NATION that were deemed feasible within the framework of the agreement achieved.
That the requirements set in the applicable regulations have been complied with, which permits to start the ratification process of the agreements, which shall be carried out by the NATIONAL EXECUTIVE POWER.
That, in such sense, the assessment performed by the NATIONAL EXECUTIVE POWER merits the decision to ratify the MEMORANDUM OF AGREEMENT for the contract renegotiation subscribed by the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT and the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX.
That, due to the change of the head of the Ministry of Economy and Production through decree N° 910, dated on July 16th, of the current year, it has become necessary to permit his intervention in these proceedings. Nevertheless - and for the purposes of avoiding delays that could affect the present proceeding - a decision has been made to preserve the integrity of the text of the MEMORANDUM OF AGREEMENT duly subscribed by the outgoing Minister.
That the NATIONAL OFFICE OF LEGAL AFFAIRS of the MINISTRY OF ECONOMY AND PRODUCTION has taken proper action in accordance with the provisions of Section 9 of Decree N° 1142, dated on November 26th, 2003.
That the current measure is issued in exercise of the powers granted by Section 99, subsection 1 of the NATIONAL CONSTITUTION, and pursuant to the provisions of Laws N° 25,561, 25,790, 25,820, 25,972, 26,077 and 26,204.
Therefore,
THE PRESIDENT OF THE ARGENTINEAN NATION
HEREBY DECREES:
Article 1° - The MEMORANDUM OF AGREEMENT for the contract renegotiation signed by the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT and the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX on April 3rd, 2007, which is an integral part of the present measure attached as Annex I herewith, is hereby ratified.
Article 2° — It is ordered that notice be given to the BICAMERAL COMMITTEE of the HONORABLE CONGRESS OF THE NATION created FOR THE FOLLOW UP OF THESE MATTERS, pursuant to the provisions of Section 20 of Law N° 25,561.
Article 3° — It is ordered that notice be given to, timely publication be made and this is forwarded to the National Directorate of Official Records and closed XXXXXXXX. — Xxxxxxx X. Xxxxxxxxx. — Xxxxx X. Xx Xxxx. — Xxxxxx X. Xxxxxxx.
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
MEMORANDUM OF AGREEMENT
LICENSE CONTRACT ADJUSTMENT
In Buenos Aires on April 3, 2007, within the framework of the process for the renegotiation of public service contracts established by Laws N° 25,561, 25,790, 25,820, 25,972, 26,077 and 26,204 and its supplementary rule Decree N° 311/03, the MINISTER OF ECONOMY AND PRODUCTION, Licentiate Xxxxxx Xxxxxxxx XXXXXX, and the MINISTER OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES, Architect Xxxxx XX XXXX, as Presidents of the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT (“Unidad de Renegotiatión y Análisis de Contratos de Servicios Públicos”- Uniren), on the one hand, and the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX, on the other hand, represented by Xx. Xxxxxxx Xxxxx XXXXXXX, according to what is shown by the documentation attached in file CUDAP EXP-S01: 0052536/2004 pending, are present in order to sign this instrument, “ad referéndum” approval of what is herein agreed by the NATIONAL EXECUTIVE POWER.
The parties state having reached an agreement on the renegotiation of the LICENSE CONTRACT FOR THE EXPLOITATION, ADMINISTRATION AND OPERATION OF GROUP “A” OF THE NATIONAL AIRPORT SYSTEM, established by this MEMORANDUM OF AGREEMENT pursuant the following considerations and terms.
FIRST PART
BACKGROUND AND CONSIDERATIONS
The NATIONAL EXECUTIVE POWER, by means of the Administrative Decision N° 60 dated January 23, 1998, awarded the Consortium “AEROPUERTOS ARGENTINA 2000” the license for the administration, exploitation and operation of the group of airports that are part of the National Airport System which was called by Decree N° 375 of April 24, 1997.
Later, by means of Decree N° 163 of February 13, 1998, the corresponding License Contract was approved. Said License Contract was signed on February 9, 1998 between the NATIONAL STATE and the Consortium XXXXXXXXXXX XXXXXXXXX 0000, XXXXXXXXXXX XXXXXXXXX 2000 SOCIEDAD ANÓNIMA at present.
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
Due to the severe crisis that affected the country at the end of 2001, the NATIONAL CONGRESS issued Law N° 25,561, which declared public emergency in social, economic, administrative, financial and exchange matters until December 10, 2003, delegating on the NATIONAL EXECUTIVE POWER the necessary powers to adopt the measures to avert the acute emergency situation and stipulating the renegotiation of public service contracts.
The provisions in Law N° 25,561 have been later ratified and developed through the passing of Laws 25,790, 25,820, 25,972, 26,077 and 26,204, as well as through different regulatory and complementary rules.
The renegotiation process of Public Services and Works Contracts has been basically regulated and implemented in a first institutional stage through Decrees N° 293 of February 12, 2002 and N° 370 of February 22, 2002. And in a second stage, by Decree N° 311 of July 3, 2003 and Joint Resolution N° 188 and N° 44 of the Ministries of ECONOMY AND PRODUCTION, and of FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES, respectively, both dated August 6, 2003.
Decree N° 311/03 established that the renegotiation process shall be carried out through the PUBLIC SERVICE CONTRACT ANALYSIS AND RENEGOTIATION UNIT (“UNIREN”) presided by the Ministers of Economy and Production and of Federal Planning, Public Investments and Services.
UNIREN has been assigned the missions, among others, to carry out the process of renegotiating the Public Services and Works Contracts, to sign agreements with licensee companies of public services “ad referendum” of the NATIONAL EXECUTIVE POWER, to bring forward ruling projects related to possible temporary price adjustments and to contractual clauses related to public services, as well as the mission to make any recommendation concerning public services and works contracts and the operation of such services.
By means of the Joint Resolution of the MINISTRY OF ECONOMY AND PRODUCTION N° 188/03 and of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES N° 44/03, it has been established that UNIREN be formed additionally by a Public Service Contract Analysis and Renegotiation Sector Committee (“Comité Sectorial de Renegociación y Análisis de Contratos de Servicios Públicos”) and by the Executive Secretary of the Unit (“Secretario Ejecutivo de la Unidad”).
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
Said Committee is formed by State Secretaries with specific authority in the sectors related to public services and/or public works contracts subject to renegotiation, and by the Executive Secretary of the UNIREN.
Within the framework of said renegotiation procedures, a Memorandum of Understanding was signed between the NATIONAL STATE and the company AA2000 on July 20, 2005, which set forth the GUIDELINES for the renegotiation of the LICENSE CONTRACT for the EXPLOITATION, ADMINISTRATION AND OPERATION OF GROUP “A” OF THE NATIONAL AIRPORT SYSTEM, basing on the guidelines established by the SECRETARIAT OF TRANSPORT.
ORSNA, a decentralized Controlling Entity within the area of the SECRETARIAT OF TRANSPORT of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES, pursuant to the terms of Section 7° of Decree N° 311/03 and Section 13 of the Joint Resolution N° 188/03 and 44/03 of the Ministries of ECONOMY AND PRODUCTION, and of FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES, carried out the analysis of the situation and degree of fulfillment obtained by the LICENSE CONTRACT FOR THE EXPLOITATION, ADMINISTRATION AND OPERATION OF GROUP “A” OF THE NATIONAL AIRPORT SYSTEM, and sent to UNIREN several reports on this respect.
The Executive Secretariat of UNIREN has complied with the obligation of making the Report on the Fulfillment of the Contract set forth in Section 7 of the Joint Resolution of the MINISTRY OF ECONOMY AND PRODUCTION N° 188/03 and the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES N° 44/03. This Report has been produced with the aim of presenting a fulfillment statement of the LICENSE CONTRACT FOR THE EXPLOITATION, ADMINISTRATION AND OPERATION OF GROUP “A” OF THE NATIONAL AIRPORT SYSTEM to serve as background and basis of the renegotiation process of the aforementioned contract, pursuant to the terms of Law N° 25,561 and subsequent and complementary rules.
Pursuant to the terms of the Memorandum of Understanding dated July 20, 2005 regarding the implementation of a new management model that allows the NATIONAL STATE an adequate direct control of the airport activity, both parties have agreed to introduce elements to allow the improvement of the regulation and control systems of the LICENSE.
Pursuant to international standards on the subject that impose income reinvestment in the activity, it was found sound, so as to make more efficient the allocation of this kind of resources, to adjust the obligations of the LICENSEE by turning a percentage of the LICENSE income into equity subject to specific allocation, for the investments that are necessary in infrastructure in the Airports of the National System. Moreover, what has been established in Law N° 25,924, Decree N° 1152/04 and Decree N° 642/97 can also be applied.
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
Pursuant to the principles of Law N° 17,520, the parties find convenient forming a Fund for studies, control and regulation of the LICENSE, by means of the specific allocation of income.
Moreover, it is herein determined that according to the principles that guided the license process, it is necessary to promote the instrumentation of mechanisms that allow to guarantee investment financing, both in licensed and not licensed airports, with the aim of obtaining the standards and levels of service quality demanded by the rules in force on the subject and the international treaties in which the NATION is party to.
Every time that in general terms the functions of regulation and management of the LICENSE CONTRACT are substantially different and imply the intervention of authorities competent on subjects of different nature, it is necessary to solve such differences regarding the assignment of said powers.
In this respect it is convenient to keep within the area of ORSNA the regulation and control powers differentiated from the powers of the ENFORCEMENT AUTHORITY that shall be assigned to the SECRETARIAT OF TRANSPORT of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES as body with primary competence on the subject of management of transport systems, among them infrastructure and airport services.
The fulfilled renegotiation process has taken into account: a) the terms of Sections 8°, 9° and 10° of Law N° 25,561, Laws N° 25,790, 25,820, 25,972, 26,077 and 26,204 and Decree N° 311/03, as well as its regulatory and complementary rules; b) the provisions of the LICENSE CONTRACT; c) the background and projections of the service of the LICENSE according to the reports and analysis on record; and d) the conditions related to the economic and social situation of our country.
The renegotiation is based on rules and procedures to find the equilibrium point in the contracts adjustment.
The discussions conducted with the Company AEROPUERTOS ARGENTINA 2000 S.A. led to a first agreement expressed in a Memorandum of Understanding signed on June 16, 2006, which was finally replaced by a new MEMORANDUM OF UNDERSTANDING signed on August 23, 2006.
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
This latter MEMORANDUM OF UNDERSTANDING included the terms that were considered reasonable to adjust the conditions of the LICENSE CONTRACT, and to provide a complete solution to the necessity declared in Decrees N° 1,535 of August 20, 2002, N° 1,227 of May 20, 2003 and N° 878 of October 8, 2003.
The aforementioned MEMORANDUM OF UNDERSTANDING specified the conditions of the agreement to be entered into between the LICENSEE and the LICENSOR; in accordance with the requirements set forth it was submitted to a process of PUBLIC HEARING called through Joint Resolution of the MINISTRY OF ECONOMY AND PRODUCTION N° 728 and the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES N° 1,584 of September 12, 2006, published by the Official Bulletin of the Argentine Republic N° 30,989 of September 13, 2006 and N° 30,990 of September 14, 2006, and Provision N° 3 of September 21, 2006, published by the Official Bulletin of the Argentine Republic N° 30,996 of September 22, 2006 and N° 30,997 of September 25, 2006.
The PUBLIC HEARING was carried out on October 27, 2006 in the Town XXXXXX SPEGAZZINI, District of EZEIZA, of the Province of Buenos Aires, in order to discuss the MEMORANDUM OF UNDERSTANDING put forward for consideration by public opinion.
Many and diverse opinions and arguments on behalf of different Actors were expressed because of the Hearing. Said opinions and arguments were dully analyzed by the UNIREN.
As a result of the evaluation of the opinions obtained in the Hearing, UNIREN considered proper to modify certain partial aspects of the understanding previously agreed, as it appears on the REPORT OF THE EVALUATION OF THE PUBLIC HEARING.
Considering that circumstances, another negotiation instance was carried out with the Company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX to analyze the proposed changes, and an agreement was reached on the new understanding terms to be signed.
This instrument, which includes the terms of the complete renegotiation carried out, results from said understanding, and establishes the adjustment conditions of the LICENSE CONTRACT for the exploitation, administration and operation of Group “A” of the National Airport System, which was approved by Decree N° 163 of February 13, 1998, Pursuant to the applicable law, the instrumented proposal was submitted to the CONGRESS OF THE NATION (art, 4° Law N° 25,790) and, once it was passed, this MEMORANDUM OF AGREEMENT was signed “ad referendum” of the decision of the NATIONAL EXECUTIVE POWER, in its capacity of GRANTOR of the licensed service object of this agreement.
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
SECOND PART
GLOSSARY
For construing effects, the terms used in this MEMORANDUM OF AGREEMENT shall have the meaning given in the glossary that follows:
MEMORANDUM OF AGREEMENT or COMPLETE CONTRACT RENEGOTIATION AGREEMENT or RENEGOTIATION AGREEMENT or AGREEMENT: It the present agreement entered into between the representatives of the LICENSOR and the LICENSEE, which includes the terms and conditions of the adaptation of the LICENSE CONTRACT in compliance with Laws N° 25,561, 25,790, 25,820, 25,972, 26,077 and 26,204 and Decree N° 311/03 and other applicable rules.
AIRPORT: Airport authorized by the appropriate authority as entrance and exit port, Defined ground or water area suitable for the arrival, exit and movement on surface of aircrafts, permanently open to the public, on which there are buildings and air and service facilities to regularly assist aeronautical activities, to allow aircrafts parking and to receive or send off passengers, cargo and mail, according to the terms of the Aeronautical Code (Law N° 17,285) and the rules that modify and/or regulate it.
INTERNATIONAL AIRPORT: Airport used for the operation of aircrafts to or from abroad, where customs, migrations, border sanitary, and related services are provided.
ENFORCEMENT AUTHORITY: As from the approval of the MEMORANDUM OF AGREEMENT, it shall be the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES OF THE NATION, through the SECRETARIAT OF TRANSPORT.
MEMORANDUM OF UNDERSTANDING: It is the document signed between the UNIREN and the company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX dated August 23, 2006, which includes the terms and conditions for the adjustment of the LICENSE CONTRACT and which was subjected to a Public Hearing process.
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
CALCULATION OF TERMS: Unless this MEMORANDUM OF AGREEMENT has expressed otherwise, the terms calculated in days shall be counted according to what has been set forth in the rules in force applicable to the LICENSE.
LICENSOR: It is the ARGENTINE NATIONAL STATE.
LICENSEE: It is the company XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX ANÓNIMA (AA2000).
CONTRACT OR LICENSE CONTRACT OR LICENSE: It refers to the instrument by means of which the NATIONAL STATE granted the LICENSE for the exploitation, administration and operation of GROUP “A” of the NATIONAL AIRPORT SYSTEM, approved by Decree N° 163 of February 13,1998.
SETTLEMENT: It refers to the instrument concluded on August 23, 2004, between the NATIONAL STATE, through the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES, and the Government of the CITY OF BUENOS AIRES, as regards Xxxxx Xxxxxxx Airport.
TARIFF CHART: It is the detail of charges applied for the rendering of aeronautical services.
NATIONAL AIRPORT SYSTEM IMPROVEMENT TRUST or TRUST: It is a trust stipulated to respond to different investment needs and to adequate the infrastructure of the airports that are part of the NATIONAL AIRPORT SYSTEM.
OFFER: It is the presentation made by the company AA2000, by means of which it became the successful bidder.
AIR OPERATORS: They are the physical or legal persons, public or private, national or foreign, who legally use an aircraft, on their own, even for non profit purposes, pursuant to Chapter VIII of the Aeronautical Code.
ORSNA: It is the National Airport System Regulating Institution.
RENEGOTIATION GUIDELINES: They are those that arise from the MEMORANDUM OF UNDERSTANDING signed between UNIREN and AA2000, on July 20, 2005, Moreover, it includes those guidelines provided by the SECRETARIAT OF TRANSPORT for the renegotiation of the CONTRACT.
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Public Service Contract Analysis | “2006 – Year in tribute of Xxxxx XXXXXXXX” |
INVESTMENT PLAN: They are the investment provisions expressed both in physical and monetary terms that the LICENSEE promises to perform during the LICENSE period. The INVESTMENT PLAN shall be determined by five-year periods and shall be approved, revised and controlled by ORSNA according to the guidelines defined in this MEMORANDUM OF AGREEMENT.
MASTER PLAN: It is the document that includes, as a general guideline, the foreseen evolution of each airport for the whole LICENSE period, taking into account the demand of aeronautical and non aeronautical services, as well as the levels of satisfaction related to them according to international and local rules and standards. The LICENSEE shall be responsible for the presentation of the plan, and ORSNA shall be in charge of approving it, authorizing its modifications and verifying its fulfillment.
INCOME AND EXPENSES FINANCIAL PROJECTION: It is the detail of income and expenses related to the rendering of the licensed services, including investment obligations.
BIDDING TERMS AND CONDITIONS: They are the Bidding Terms and Conditions of the National and International Public Bid that gave rise to the CONTRACT.
AIPORT SECURITY POLICE (PSA, (as per Spanish acronym)): It is a body dependent on the MINISTRY OF DOMESTIC AFFAIRS that is responsible for safeguarding and guaranteeing domestic security within the airport jurisdictional area, pursuant to Law N° 26,102.
MUTUAL OR PENDING CLAIMS: They are all the requirements, remedies or legal actions filed or brought by the LISENSOR OR LICENSEE, administratively or judicially, before the MEMORANDUM OF UNDERSTANDING signed on August 23, 2006, on certain disagreed or questioned subjects, aspects or acts regarding the development of the LICENSE CONTRACT, and which correspond to the period elapsed since the Act of Taking Possession by the LICENSEE until the ratification of the RENEGOTIATION AGREEMENT.
TARIFF SYSTEM: It is the system contemplated by contract.
INVESTMENT REGISTRY: It is the Registry where the performed works contemplated in the INVESTMENT PLAN and the amount in pesos for said works will be entered under signature of the LICENSEE. This Registry shall be created under the scope of ORSNA.
REGULATORY ACCOUNTING SYSTEM: It is a system of data collection, allocation and entry that unifies the methodology and the formats to be used by the company rendering the regulated services at the moment of submitting the technical, accounting and economic information requested by the regulating institution with respect to aeronautical and non aeronautical activities carried out by the LICENSEE within the framework of the LICENSE CONTRACT.
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NATIONAL AIRPORT SYSTEM (SNA (as per Spanish acronym)): It is the group of airports, specified in APPENDIX III of Decree N° 375/97 of the NATIONAL EXECUTIVE POWER.
SLOT: It is the time allocated for landing and take off.
ACT OF TAKING POSESSION: It is the moment after which the LICENSEE is responsible for the exploitation, administration and operation of GROUP “A” OF THE NATIONAL AIRPORT SYSTEM, in accordance with the Bidding Terms and Conditions and its Appendixes.
ARGENTINE AUDIT OFFICE (“Sindicatura General de la Nación”)(SIGEN (as per Spanish acronym)): It is the internal controlling body of the NATIONAL EXECUTIVE POWER.
THIRD PART
SUSPENSION AND ABANDONMENT ON PART OF THE LINCENSEE AND THE STATE.
EVENTS OF CONTRACTUAL BREACH. EFFECTS.
1. SUSPENSION OF ACTIONS
1.1 The Licensee will hold in suspension all the claims, remedies and legal actions filed or pending at the administrative, arbitral or judicial level in our country against the NATIONAL STATE and/or its decentralized entities, whatever their cause may be, until the date established in the second clause, paragraph 2.1. of these presents.
2. ABANDONMENT OF THE RIGHT OF ACTION AND OF THE ACTIONS
2.1. Within a term of 10 (TEN) days after the ratification of this RENEGOTIATION AGREEMENT by the NATIONAL EXECUTIVE POWER, the LICENSEE shall dismiss all the claims, remedies or legal actions filed or pending at the administrative, arbitral or judicial level in our country against the NATIONAL STATE and/or its decentralized entities, whatever their cause may be. Such abandonment shall not imply the acknowledgment of the situation that gave rise to the claim, remedy or legal action Specifically in the case of fines imposed and for which the LICENSEE started administrative and/or judicial claims, abandonment thereof shall be done for the purposes of this renegotiation and this shall not imply that the fines can be deemed legitimate.
The obligation undertaken by the LICENSEE in this clause shall be performed by the passing of the time stipulated.
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The abandonment shall include the request that each party shall bear its own costs.
2.2. In this regard, the LICENSEE shall submit before ORSNA the instruments dully certified and legalized. The abandonment of the right of action and of the actions must be expressly and completely stated on those instruments according to the terms established in the previous clause.
2.3. The NATIONAL STATE shall suspend the application of this AGREEMENT in case the term fixed in subsection 2.1 concludes and the LICENSEE has not complied with the corresponding abandonment. In such case, the NATIONAL STATE shall proceed to notify the LICENSEE to comply with the submission of the agreed abandonment within a new term of 15 (FIFTEEN) days.
2.4. Once said term is due and in case of noncompliance of the LICENSEE regarding the submission of the agreed abandonment, the NATIONAL STATE shall be able to denounce this AGREEMENT for reasons attributable to the LICENSEE and to proceed to the revocation and lapsing of the LICENSE due to noncompliance on part of the LICENSEE.
3. ACTIONS GROUNDED ON THE EFFECTS OF PUBLIC EMERGENCY
3.1. Apart from the suspensions and abandonment established in the previous clauses, in case a presentation, claim, remedy or legal action is filed, regarding the LICENSE CONTRACT, on part of the LICENSEE, at administrative, arbitral or judicial level in our country, grounded or related to the facts or measures adopted because of the emergency established by Law N° 25,561, the NATIONAL STATE shall request the immediate retraction and withdrawal of the claim made or the abandonment of said action, granting in this regard a term of 15 (FIFTEEN) days.
3.2. In the event that the term is due and there has not been retraction or withdrawal of the claim, or the abandonment of the action filed, the NATIONAL STATE shall be able to denounce this RENEGOTIATION AGREEMENT, for reasons attributable to the LICENSEE, and to proceed to the revocation or lapsing of the LICENSE.
4. ACTIONS BEFORE FOREIGN COURTS
4.1. The LICENSEE declares, as an affidavit, that neither XXXXXXXXXXX XXXXXXXXX 0000 XXXXXXXX XXXXXXX nor it shareholders have presented claims or filed legal actions against the NATIONAL STATE, nor its institutions or entities, before any foreign court, regarding the differences existing between the Parties, including the effects of the public emergency declared by Law N° 25,561 and its complementary rules.
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Before the ratification of the MEMORANDUM OF AGREEMENT, the LICENSEE shall have to submit the aforementioned voluntary declaration, as affidavit, regarding its shareholders. Failure to attach said instruments, shall impede the ratification of the AGREEMENT on part of the NATIONAL EXECUTIVE POWER.
4.2. Moreover, both the LICENSEE and its shareholders undertake not to present claims or file legal actions for those circumstances before foreign courts in the future. Furthermore, it being understood that the signature of this MEMORANDUM OF AGREEMENT satisfies the interests of the Parties.
4.3. According to what was established in paragraphs 4.1 and 4.2, the LICENSEE has attached the proper instruments, with their authenticity and validity dully certified and legalized, proving the abandonment of all rights and actions that the LICENSEE and its shareholders could assume to file claims or legal actions before foreign courts.
5. SUMMARY PROCEEDINGS
5.1. Once the LICENSEE has submitted the evidence contemplated in paragraphs 2.2 and 4.3, and once this AGREEMENT has been ratified by the NATIONAL EXECUTIVE POWER, ORSNA shall have to desist the summary proceedings brought in File N° 106,736/02 “ORSNA vs. XXXXXXXXXXX XXXXXXXXX 0000 S.A., for execution proceedings” pending before the National Court in Administrative Federal Matters N°1, Secretariat N°1.
5.2. Costs shall be born by each of the parties as appropriate. Under no circumstances neither the NATIONAL STATE nor ORSNA shall assume the eventual fees corresponding to the defendant.
FOURTH PART
TERMS AND CONDITIONS INCLUDED IN THE AGREEMENT
1. PROVISIONS
This AGREEMENT includes the terms and conditions agreed between the LICENSOR and the LICENSEE to adjust the LICENSE for the exploitation, administration and operation of GROUP “A” of the NATIONAL AIRPORT SYSTEM, approved by Decree N° 163 of February 13, 1998, pursuant to Law N° 25,561 and other rules related to the emergency, trying to preserve within the framework of said rules, the substantive principles and aspects of Law N° 24,076 and the regulations derived from them.
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The provisions included in this AGREEMENT have as direct background the MEMORANDUM OF UNDERSTANDING signed between the parties on August 23, 2006, and other background documents, which was submitted to a Public Hearing in the Town XXXXXX SPEGAZZINI, District of EZEIZA, of the Province of Buenos Aires on October 27, 2006. The conclusions of the Public Hearing were considered to establish the terms and conditions that form this AGREEMENT.
2. TYPE AND CONDITION OF THE AGREEMENT
The AGREEMENT shall be the COMPLETE RENEGOTIATION of the LICENSE CONTRACT FOR THE EXPLOITATION, ADMINSTRATION AND OPERATION OF GROUP “A” OF THE NATIONAL AIRPORT SYSTEM, pursuant to Laws N° 25,561, 25,790, 25,820, 25,972, 26,077 and 26,204 and Decree N° 311/03.
3. SERVICE QUALITY SYSTEM
In order to maintain the quality in the rendering of the services of GROUP “A” of the NATIONAL AIRPORT SYSTEM, the LICENSEE shall have to adapt to the standards detailed in APPENDIX I in this MEMORANDUM OF AGREEMENT and meet them.
4. TARIFF CHART
4.1. The value of the charges for the aeronautical services to be collected by the LINCESEE and other official institutions with the power to do so are included in APPENDIX II of this MEMORANDUM OF AGREEMENT, and they will come into force from the moment the COMPLETE CONTRACT RENEGOTIATION AGREEMENT becomes effective. Moreover, the tariff system approved by Decrees N° 577/02 y 1,910/02 shall continue in force and the authorized beneficiaries mentioned in said Decrees shall continue to be the same ones.
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4.2. The tariff chart in APPENDIX II includes the maximum amounts that the LICENSEE and other official institutions with the power to do so can collect for the invoicing of the services rendered to USERS and AIR OPERATORS.
4.3. The prices for non aeronautical services can be freely established by the parties according to the provisions of the rules in force for the LICENSE. The LICENSEE will have to submit to ORSNA, in the form of affidavit, the information requested by ORSNA according to the procedures already established or to be established regarding the agreements entered into on this subject within 30 (THIRTY) days as of its execution.
4.4. For the purposes of the previous clause, non aeronautical services are those rendered by the LICENSEE, on his own or through third parties, by virtue of the LICENSE CONTRACT and which are not included in the tariff chart included in Appendix II. Based on the current progress of the concession, we can provide the following list of services, for the purposes of illustration:
a) Activities related to aero-commercial transportation. Some of them can be developed by the same airlines and include: keeping the aircraft in hangars, aircraft maintenance, pilot training, exploitation of exclusive spaces for airlines, air cargo, ramp services, catering services, air-taxi services, fuel plants for aircraft and lubricant plants for aircraft.
b) Commercial exploitation of the airport. These are the activities that have an indirect relationship with the aero-commercial activity, and include: fiscal deposits, duty free shops, cuisine related activities, pre and post air transportation services, vehicle rent, vehicle parking lot, shops, banks and Exchange stores; pay phone-centers, telephony and communications, passenger services (insurance, luggage keeping services, luggage protection services, tourist information, hotel room booking, etc ) and advertising and promotion.
c) Secondary activities developed at the Airport. These include those services that are rendered to companies operating inside the airport, and are the following ones: cleaning services, private security services and building maintenance services.
5. SPECIFIC ALLOCATION OF INCOME OF THE LICENSE
5.1. The LICENSEE shall have to specifically allocate monthly an amount in pesos equivalent to 15% (FIFTEEN PERCENT) of the total income of the LICENSE.
5.2. The use of funds stated in 5.1 shall be carried out according to APPENDIX III.
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5.3. The amounts included in this clause shall be accrued as of January 1, 2006 as detailed in APPENDIX III, but its effects shall be contingent upon the ratification of the MEMORANDUM OF AGRREMENT by the NATIONAL EXECUTIVE POWER. From that moment what was established in clause 17.1 of the LICENSE CONTRACT shall no longer be in force.
5.4. Under the terms included in APPENDIX III, ORSNA is requested to draw up the calculation procedures and methodology for the specific allocation set forth herein.
6. INVESTMENT PLAN
6.1. The INVESTMENT PLAN for the 2006-2028 period of the LICENSE is detailed in APPENDIX IV of this MEMORANDUM OF AGREEMENT. This PLAN shall have to be performed under the exclusive responsibility of the LICENSEE.
6.2. The execution of the INVESTMENT PLAN for the 2006-2010 period shall have to commence as of the signature of the MEMORANDUM OF AGREEMENT. Said plan is composed of: (i) necessary works to meet the standards defined regarding security and service quality and (ii) works that, although necessary, were pending performance on part of the LICENSEE for different reasons at the moment of the signature of this MEMORANDUM OF AGREEMENT.
Once the MEMORANDUM OF AGREEMENT enters into force during or after 2006, the compliance with the investment commitments shall be evaluated in the first five-year period, taking into account a postponement equivalent to the time calculated as of January 1, 2006.
6.3. The INVENSTMENT PLAN for the remaining years of the LICENSE (2011 - 2028) will be determined through five-year plans. For that period the amount of planned investments has been calculated given the relation between the committed investments and the aeronautical incomes set in the offer made by the LICENSEE, complemented by the remaining amount of the necessary investments pending performance that are planned to be concluded in 2015.
In the event that the extension established in clause 26.3 of the FOURTH PART comes into effect, the revision of the Investment Plan included in APPENDIX IV shall have to done.
6.4. The FIVE-YEAR INVESTMENT PLANS shall be approved, revised and controlled by ORSNA basing on the investment amounts provided in the INCOME AND EXPENSES FINANCIAL PROJECTION detailed in APPENDIX V, and according to the procedure established in the following Point 8.
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6.5. In the ordinary and extraordinary revisions of the INCOME AND EXPENSES FINANCIAL PROJECTION the fulfillment of the investments shall be weighted taking into account what is shown in the INVESTMENT REGISTRY of the LICENSE.
6.6. The investments foreseen in the FIVE-YEAR INVESTMENT PLANS shall have to be aimed, in all cases, to cover the operative necessities and the capacity and demand growth, and to meet the international standards of quality and security, within GROUP “A” of the NATIONAL AIRPORT SYSTEM, so as to guarantee the fulfillment of airports first level categorization criteria according to the standards established by the INTERNATIONAL CIVIL AVIATION ORGANIZATION (ICAO) and the INTERNATIONAL AIR TRANSPORT ASSOCIATION (IATA).
6.7. Upon approval on part of ORSNA, the following works shall be included at the expense of the LICENSEE: i) Consulting Program for environmental liabilities final diagnosis; ii) Remediation of environmental liabilities included in the consulting program; iii) The works planned to be performed inside the airport premises of the Xxxxx Xxxxxxx Airport, within the framework of the SETTLEMENT between the NATIONAL STATE and the Government of the CITY OF BUENOS AIRES of August 23, 2004. Under no circumstances the terms set forth in this clause can imply the obligation for the LICENSEE of undertaking more commitments than those established pursuant to the application of the terms in clauses 6.1 and 6.3.
6.8. Within 180 (ONE HUNDRED AND EIGHTY) days the parties shall define the form of participation of the LICENSEE with relation to the policies that the appropriate authorities will set forth, specially the MINISTRY OF DOMESTIC AFFAIRS and the AIRPORT SECURITY POLICE, regarding the fight against crime, drug-dealing and terrorism.
6.9. ORSNA shall verify that the commitments assumed by the NATIONAL STATE in the Agreements signed with the Provincial and/or Municipal States shall not be altered due to the transfer of some airport object of the LICENSE.
6.10. The LICENSEE shall not commence works that are not authorized by ORSNA and included in the corresponding INVESTMENT PLAN.
6.11. ORSNA shall be able to revise the schedule designed in the INVESTMENT PLAN and to request the LICENSEE to anticipate planned works for that purpose or to include some not scheduled work, without modifying the equilibrium of the contractual variables. Under no circumstances the abovementioned terms can imply the obligation of the LICENSEE of assuming more investment commitments than those contemplated for the annual period. In this context, ORSNA shall decide which works will be substituted in the plan and postponed for another period.
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6.12. In order to guarantee the performance of the works, the investment guarantee in force is no longer effective. Annually and before March 31 of every year, the LICENSEE shall have to create an investment guarantee with a value equivalent to 50% (FIFTY PERCENT) of the works annually planned.
Upon ORSNA authorization this amount shall be reduced proportionally based on the evolution shown in the INVESTMENT REGISTRY.
ORSNA shall have to decide on the requests for guarantee reduction submitted by the LICENSEE within 30 (THIRTY) days after the request was made. The creation of this Guarantee shall not be invoked by the LICENSEE to reduce or avoid full performance of all the obligations within the frame of the LICENSE CONTRACT.
6.13. Pledge of securities or goods and/or mortgages, as well as guarantee bonds shall be offered as guarantee to the satisfaction of ORSNA.
7. PROCEDURES FOR THE APPROVAL OF THE INVESTMENT PLAN
7.1. The LICENSEE shall have to submit FIVE-YEAR INVESTMENT PLANS before ORSNA, setting as term to make such presentation January 31 of the year previous to year in which the five-year period would come into force. Once the FIVE-YEAR INVESTMENT PLAN has been submitted, ORSNA shall have to issue a decision on the matter within a term of 90 (NINETY) days.
7.2. In the event ORSNA makes remarks to the submission made and once they have been notified to the LICENSEE, the LICENSEE shall have 30 (THIRTY) days to make the corresponding modifications.
7.3. In the event ORSNA makes remarks and the LICENSEE does not present the modifications in the term established in the previous paragraph, such modifications shall be done by ORSNA and then notified to the LICENSEE during the following 30 (THIRTY) days. Without prejudice to the foregoing, such negative shall be considered a breach; therefore, it shall be subject to the corresponding sanctions.
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7.4. ORSNA, within 90 (NINETY) days as of the signature of this MEMORANDUM OF AGREEMENT, shall develop a methodology for the presentation of the FIVE-YEAR INVESTMENT PLAN, which must be notified to the LICENSEE by any reliable means.
8. INVESTMENT REGISTRY
8.1. The INVESTMENT REGISTRY is set up within the scope of the ORSNA. The investment works performed contemplated in the INVESTMENT PLAN shall be entered in this registry under the signature of the LICENSEE. The INVESTMENT REGISTRY will show the physical and economic evolution of the INVESTMENT PLAN performed by the LICENSEE. Furthermore, the amounts corresponding to the different events for LICENSE termination shall be considered as the base to liquidate the LICENSEE. ORSNA shall decide on the information that said INVESTMENT REGISTRY must include.
8.2. The LICENSEE shall have to provide all the necessary documentation and any other data or report requested by the ORSNA on this regard for the implementation and updating of the registry.
9. PROCEDURE FOR THE PERMISSION, CONTROL, AUTHORIZATION AND APPROVAL OF WORKS
9.1. For any planned work in Group “A” Airports of the National Airport System, the LICENSEE shall have to comply with the terms of the corresponding applicable procedure, which shall be determined by ORSNA.
9.2. Within a term of 90 (NINETY) days as of the signature of the MEMORANDUM OF AGREEMENT, ORSNA shall issue the specific rules for the authorization of the works. In order to comply with the aspects related to aviation security, upon approval, ORSNA shall give notice to the Airport Security Police.
9.3. The rules provided for in the preceding item shall contemplate the PSA intervention before approval of the works, so that, within a peremptory term fixed by it, the PSA can issue an opinion based on its scope of expertise. The same criterion shall be used to assign spaces to state agencies.
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10. MASTER PLAN
10.1. Within 120 (ONE HUNDRED AND TWENTY) days as of the moment the MEMORANDUM OF AGREEMENT becomes effective, the NATIONAL STATE in the scope of its exclusive powers shall establish through ORSNA the planning parameters (Plans on the Use of the Soil) which the LICENSEE shall have to respect in the drawing up of the corresponding MASTER PLANS.
10.2. Within the following 180 (ONE HUNDRED AND EIGHTY) days, the LICENSEE shall attach the MASTER PLAN which has to include the effects and impacts of the provisions contemplated in this AGREEMENT.
10.3. Within a term of 90 (NINETY) days as of the signature of the MEMORANDUM OF AGREEMENT, ORSNA shall issue the specific rules for the authorization of the MASTER PLANS. In order to guarantee the participation of the users, said rules must be informed to the ADVISORY COMMITTEE OF ORSNA before their approval.
11. XXXXX XXXXXXX AIRPORT
11.1. The LICENSEE agrees to maintain the Xxxxx Xxxxxxx Airport in its present location during the remaining time of the LICENSE, pursuant to the guidelines contemplated in the SETTLEMENT entered into between the NATIONAL STATE, through the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES and the Government of the CITY OF BUENOS AIRES on August 23, 2004.
11.2. The LICENSEE shall request the Aeronautical Authority to analyze the possibility of deviating flights, when in its own discretion, those flights were affected as regards security.
12. GOBERNADOR XX. XXXXXXX XXXXXX AIRPORT
12.1. The parties declare that the reasons for not Taking Possession of the Gobernador Xx. Xxxxxxx Xxxxxx Airport of the Province of JUJUY, which at present is part of the GROUP “A” of the NATIONAL AIRPORT SYSTEM, are not attributable to them.
12.2. The LICENSEE waives the right to start any kind of administrative and/or judicial claim against the LICENSOR directly or indirectly deriving from such situation, and expressly accepts the possible removal of said airport from Group “A” of the NATIONAL AIRPORT SYSTEM according to the decision adopted by the provincial authorities.
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12.3. The NATIONAL STATE shall agree with the Province of JUJUY the delivery of the said airport to the LICENSEE within a term of 6 (SIX) months from the signature of this MEMORANDUM OF AGREEMENT. In that case, the additional income and expenses shall be included in the INCOME AND EXPENSES FINANCIAL PROJECTION.
12.3.1. If the NATIONAL STATE does not reach an agreement with the Province of JUJUY in the term contemplated in clause 12.3, ORSNA shall formalize the removal of the mentioned airport from Group “A”, although it will remain in National Airport System.
12.4. The economic impact and the influence of the terms of this clause shall be considered by ORSNA so that the contract is not altered.
13. ABN AMRO BANK N.V. TRUST CONTRACT
13.1. It is herein decided that the LICENSEE shall have to reformulate the Trust Contract concluded with ABN AMRO BANK N.V., Argentine Branch on May 3, 2002, pursuant to the terms contemplated in APPENDIX VI of this MEMORANDUM OF AGREEMENT.
Before AA2000 and the banking entity can sign the necessary documents to comply with the provisions of this clause, the NATIONAL TREASURY shall intervene.
13.2. Under no circumstances can the rights and obligations arising from said contract affect the compliance with the contractual obligations of the LICENSEE. Moreover, they are ineffective against the NATIONAL STATE.
13.3. The LICENSEE shall have to regularize its situation in a term of 90 (NINETY) days as of the moment this AGREEMENT enters into force. ORSNA shall extend this term provided that the LICENSEE decides the complete redemption of the corporate notes issued until now by the LICENSEE within the next 12 (TWELVE) months. This redemption shall not affect neither the fulfillment of point 5 of the FOURTH PART, nor the performance of the INVESTMENT PLAN contemplated in APPENDIX V herein.
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14. MUTUAL CLAIMS BETWEEN THE LICENSOR AND THE LICENSEE
14.1. The claims on the LICENSE pending resolution until the date of these presents, made by the LICENSOR and the LICENSEE, considered as MUTUAL CLAIMS, are included in APPENDIX VII that is part of this AGREEMENT. A special procedure has been agreed for the resolution of those differences.
14.1.1. The parties have agreed on a procedure for the definitive resolution of MUTUAL CLAIMS pursuant APPENDIX VII in view of the circumstances that affected the LICENSE CONTRACT and taking into account the effects of the special situation of the industry. The LICENSOR and the LICENSEE shall expressly desist to continue the MUTUAL CLAIMS at the administrative, arbitral or judicial level for the complete renegotiation of the LICENSE CONTRACT, according to the terms and conditions contemplated in point 2 and 3 of the THIRD PART of this MEMORANDUM OF AGREEMENT.
14.1.2. From the application of the procedure mentioned before there is a credit balance for the LICENSOR that shall be cancelled as follows:
| A. | The equivalent to 22.96% (TWENTY-TWO POINT NINETY-SIX PERCENT) of the total credit balance for the LICENSOR shall be paid by means of the allocation of 7% (SEVEN PERCENT) of the International Airport Income. The duration of this allocation is contemplated in the SUBAPPENDIX VII-A or until the amount mentioned in this paragraph (a) has been paid, whichever occurs first. |
| B. | The equivalent to 18.61% (EIGHTEEN POINT SIXTY-ONE PERCENT) of the total credit balance for the LICENSOR shall be paid by means of the delivery to the LICENSOR of corporate notes convertible in separated common shares by a total nominal amount equivalent to the amount that that percentage represents, according to what has been detailed in SUBAPPENDIX VII-B. |
| C. | The equivalent to 58.43% (FIFTY-EIGHT POINT FORTY-THREE PERCENT) of the total credit balance for the LICENSOR shall be paid by means of the delivery to the LICENSOR of callable preferred shares of AEROPUERTOS ARGENTINA 2000 S.A., convertible in separated common shares, according to what has been detailed in SUBAPPENDIX VII-C. |
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14.1.3. If the LICENSEE defaults in the payments referred in this point and in SUBAPPENDIX VII-A, or fails to implement the repayment mechanisms contemplated pursuant point 1, FIFTH PART, of this MEMORANDUM OF AGREEMENT, and APPENDIX III: “Fund Allocation”, SUBAPPENDIX III-A “National Airport System Improvement Trust” (Part II. B. Trust property for settlement of Mutual Claims), APPENDIX VII: “Mutual Claims” and SUBAPPENDIXES VII-A: “Repayment Mechanisms”, VII-B: “Negotiable Obligations that can be converted into Common Shares” and VII-C: “Preferred Shares that can be Redeemed and Converted into Common Shares”, within the terms specified and according to the requirements and conditions stipulated therein, the ENFORCEMENT AUTHORITY shall have the right of leaving without effect the COMPLETE CONTRACT RENEGOTIATION AGREEMENT and considering the LICENSE as terminated, and this measure shall have retroactive effect.
In the event of default in the payments mentioned, AA200 shall automatically owe the NATIONAL STATE, without any previous notice on its behalf, the unpaid amount resulting from the balance for mutual claims established in SUBAPPENDIX VII-A, plus the corresponding interests and compensations.
14.1.4. Under no circumstances can AA2000 reduce the interest in common shares of the NATIONAL STATE by means of future issuances and/or capital restructuring. The situation of NATIONAL STATE in said company shall not be modified pursuant to the provisions of paragraph 14.1.2. and SUBAPPENDIX VII-A.
14.2. In order to simplify the procedures contemplated in the Resolutions ORSNA N°161/99 and N°271/99 that include AFIP clarifications of 05/27/99, File ORSNA N°756/98, the LICENSEE requests ORSNA to take the corresponding actions before the signature of the AGREEMENT so that the International Air Station Usage Rate (TUAI, (as per Spanish acronym)) be taxed with 0% VAT (ZERO PERCENT). From the moment of the application of such tax on the TUAI, the applicable procedure pursuant Resolution ORSNA N° 199/98 shall be left without effect. By means of this resolution, a claim filed by the LICENSEE was sustained in order to compensate the effect of having declared the TUAI VAT-exempt with the license fee to be paid for expired semester.
15. ACTIVITIES OF THE LICENSEE AS OPERATOR
15.1. The LICENSEE shall participate as airport operator in airport projects different from GROUP “A” of the NATIONAL AIRPORT SYSTEM, and it shall have to request previously the authorization of the ENFORCEMENT AUTHORITY for those projects.
15.2. Under no circumstances can the participation as airport operator cause a decrease of the service quality, affect the income of the LICENSE, or actually or potentially affect the fulfillment of the contract obligations of the LICENSEE stipulated in the LICENSE CONTRACT, in the MEMORANDUM OF AGREEMENT and in others rules in force.
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16. TECHNICAL EXPERT
16.1. For the initial period of the LICENSE consisting of 5 (FIVE) years (from the first Act of Taking Possession), Technical Expert is the one previously authorized in the License.
After that, any private shareholder who maintains for at least 5 (FIVE) years an ownership percentage of not less than 10% (TEN PERCENT) of the corporate capital in the LICENSEE shall be considered Technical Expert.
16.2. The requirement of maintaining 10% (TEN PERCENT) of the shares in the possession of at least one private shareholder who proves at least the aforementioned seniority shall be kept until the termination of LICENSE Any substitution of all the private shareholders who qualified as Technical Expert must be approved previously by the ORSNA.
16.3. The LICENSEE can not merge nor divide during the term of the LICENSE CONTRACT.
17. USE AND AVAILAVILITY OF SPACES
17.1. In case of registering violations to the use and availability of spaces in the airport premises, and to guarantee full use and enjoyment pursuant the exploitation right within the framework of the LICENSE CONTRACT, the LICENSEE, with grounds, shall request ORSNA to start legal actions for the eviction of the occupiers of the licensed public domain, pursuant to the procedure of Law N° 17,091. This request shall be made if a prejudice in the airport public service quality or inconveniences for the continuous and correct rendering of the service can be proved.
18. CONTRACTS TO BE CONCLUDED WITH THIRD PARTIES WHICH INCLUDE NEW INFRASTRUCTURE WORKS
18.1. In order to encourage the execution of new works in the airports and upon authorization of ORSNA, the LICENSEE shall stipulate in the contracts concluded with third parties for the rendering of services that require investment in new works, that these contracts continue in force even in the event of early termination of the LICENSE, and the LICENSOR and/or whoever it appoints in that case shall subrogate the rights and obligations of the LICENSEE.
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18.2. The grant of the authorization contemplated in the previous paragraph shall be a discretionary power of the Administration.
19. APRON OPERATIONS
19.1. The LICENSEE shall be responsible for the control and coordination of the operations and activities on apron, under the supervision of the Aeronautical Authority responsible for the operational security. All this, without prejudice of the control functions that correspond to the PSA.
20. SLOTS
20.1. The NATIONAL STATE through the SECRETARIAT OF TRANSPORT undertakes to regulate in a term of 180 (ONE HUNDRED AND EIGHTY) days from the signature of this MEMORANDUM OF AGREEMENT a procedure for slot allocation that guarantees objective criteria for distribution, efficient rendering of the service and optimal use of the airport infrastructure. In order to collect and incorporate in the regulation the experience acquired on the subject, the ARGENTINE AIR FORCE (“Fuerza Aérea Argentina”), ORSNA and the LICENSEE shall participate in the discussion process. Furthermore, the CHAMBER OF AIRLINE COMPANIES OF THE ARGENTINE REPUBLIC (XXXXX (as per Spanish abbreviation)) and the INTERNATIONAL AIR TRANSPORT ASSOCIATION (IATA) shall be invited to participate, by means of the appointment of one representative for each entity, in representation of the airline companies.
21. PAYMENT OF AIRPORT CHARGES AND RESOURCES
21.1. LEASE income and the effective collection of the airport charges are essential for the sustainability of the national airport service.
21.2. Within 180 (ONE HUNDRED AND EIGHTY) days following the signature of this MEMORANDUM OF AGREEMENT, ORSNA shall issue the Regulation for the Approval and Certification of the debts of the Air Operators. This term shall be extended by ORSNA, with grounds, for a period of 60 (SIXTY) running days.
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21.2.1. The LICENSEE shall be able to request ORSNA to issue a Debt Certificate for default in payment of the airport charges on part of the AIR OPERATORS. In this regard, the LICENSEE shall have to submit to ORSNA the accounting certification of the debt for airport charges together with the written proof of the flight issued by the ARGENTINE AIR FORCE.
21.2.2. The regulation shall foresee the creation of a common data base that shall be consulted at any time by the ORSNA, the ARGENTINE AIR FORCE and air operators.
21.3. After 90 (NINETY) days from the signature of this MEMORANDUM OF AGREEMENT, ORSNA shall issue, in prior coordination with the corresponding governmental bodies, the regulation that includes an appropriate procedure to guarantee the anticipated payment of the expenses deriving of the air operation (charges) on part of those air operators who keep debts for that concept with the ARGENTINE AIR FORCE, other state institutions and the LICENSEE during a time longer than 30 (THIRTY) days. This term shall be extended by ORSNA, with grounds, for a period of 60 (SIXTY) running days. In order to guarantee the participation of the users, said regulation shall be informed to the ADVISORY COMMITTEE OF ORSNA before its approval.
21.4. The regulation must guarantee the right to intervene of all the interested parties and the due process.
22. PENALTIES SYSTEM
22.1. Within a term of 180 (ONE HUNDRED AND EIGHTY) days from the signature of this MEMORANDUM OF AGREEMENT, ORSNA shall approve a Regulation on Airport Infractions and Penalties applicable to all the persons that carry out activities in the airport. In order to guarantee the participation of the users, said regulation shall be informed to the ADVISORY COMMITTEE OF ORSNA before its approval. All this, without prejudice of the specific functions and powers that under the rules in force correspond to the PSA.
23. MEDICAL SERVICE
23.1. For the purpose of regulating the medical assistance service rendered to the users and people who perform activities inside the airports that form part of GROUP “A” of the NATIONAL AIRPORT SYSTEM, ORSNA shall issue the appropriate regulation that will determine the relations between the parties and its financing within 180 (ONE HUNDRED AND EIGHTY) days after the signature of this MEMORANDUM OF AGREEMENT. In order to guarantee the participation of the users, said regulation shall be informed to the ADVISORY COMMITTEE OF ORSNA before its approval.
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24. INCOME AND EXPENSES FINANCIAL PROJECTION
24.1. The INCOME AND EXPENSES FINANCIAL PROJECTION of the LICENSE for the period 2006-2028 is detailed in APPENDIX V. This INCOME AND EXPENSES FINANCIAL PROJECTION reflects the projection of all income, operational expenses, investment obligations of the LICENSE and repayment mechanisms stipulated for the repayment of the balance of MUTUAL CLAIMS herein established. It has been prepared in pesos.
The resulting amounts for sanctions for non-compliances on part of the LICENSEE shall not be considered as expenses for the evaluation of the INCOME AND EXPENSES FINANCIAL PROJECTION.
25. REGULATORY ACCOUNTING SYSTEM
25.1. ORSNA shall be in charge of implementing a REGULATORY ACCOUNTING SYSTEM.
25.2. In a term of 180 (ONE HUNDRED AND EIGHTY) days from the signature of this MEMORANDUM OF AGREEMENT, ORSNA shall issue the Regulation of the REGULATORY ACCOUNTING SYSTEM. This term shall be extended by ORSNA, with grounds, for a period of 60 (SIXTY) running days. This Regulation shall include a regulatory accounting manual to define the appropriate technical criteria compatible with the generally accepted accounting principles, so as to have reliable information homogeneous with respect to the entries of the LICENSEE regarding income, costs and expenses of the services and investments under the regulation, as well as information on the demand for said services and investments under the regulation in a permanent and standardized way. Furthermore, the content of the manual shall deal with the definition, uses, assessment and treatment of assets, liabilities, earnings and investments, accounting structure of the information and methodology of the accounting analysis related to the rendering of the services under the regulation.
25.3. So as to comply with the terms stipulated in the preceding paragraph 25.1, the LICENSEE shall provide ORSNA with the information with the degree of detail requested by the institution for the REGULATORY ACCOUNTING SYSTEM application.
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26. PUBLIC OFFERING OF SHARES
26.1. From the moment the AGREEMENT becomes effective, the LICENSEE is authorized to make public offering of the shares and to list shares on Buenos Aires Stock Exchange and others stock exchanges of the country in compliance with the requisites provided by the National Securities Commission (“Comisión Nacional de Valores”) and the rules in force on the subject, as well as on other well-known markets. To that end, it must fulfill all the necessary formalities for the placement of a maximum of 30% (THIRTY PERCENT) of its corporate capital within the following year, as of the moment the MEMORANDUM OF AGREEMENT becomes effective.
26.2. At all times the public offering must follow, implement and respect the principles, rights, obligations, duties and rules established by Decree N° 677/01, Public Offering Transparency System.
26.3. Upon intervention of the Enforcement Authority and authorization of the LICENSOR pursuant Clause V 2 of the original CONTRACT, the term of the LICENSE shall be extended for a period of 10 (TEN) years at the moment the public offering of shares becomes effective.
27. INSURANCE POLICIES
27.1. The minimum amount of insurance for general liability pursuant the terms of clause 18 of the LICENSE CONTRACT shall not be less than $ 300,000,000 (THREE HUNDRED MILLION PESOS). This amount shall be kept constant during the whole term of the CONTRACT according to the evolution of the international air station usage rate.
27.2. Within 30 (THIRTY) days from the signature of the MEMORANDUM OF AGREEMENT the LICENSEE shall prove before ORSNA the taking out of the policies pursuant the terms of paragraph 27.1.
28. PERFORMANCE BOND
28.1. It is herein established that the LICENSE CONTRACT guarantees apply to the performance of the obligations undertaken by the LICENSEE in the COMPLETE CONTRACT RENEGOTIATION AGREEMENT.
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28.2. Pursuant to the terms established in the LICENSE CONTRACT, the LICENSEE shall have to maintain a performance bond. Said guarantee shall amount $ 30,000,000 (THIRTY MILLION PESOS).
28.3. The amount established in paragraph 28.2 shall be kept constant during the whole term of the LICENSE, basing on the registered evolution of the international air station usage rate.
28.4. The creation of this guarantee shall not be invoked by the LICENSEE to reduce or avoid full performance of all the obligations within the framework of the LICENSE CONTRACT.
28.5. Pledge of securities or goods and/or mortgages, as well as guarantee bonds shall be offered as guarantee to the satisfaction of ORSNA.
29. GUIDELINES AND MECHANISMS FOR THE REVISION OF INCOME AND EXPENSES FINANCIAL PROJECTION
29.1. The INCOME AND EXPENSES PROJECTION included in APPENDIX V of this MEMORANDUM, reflects the estimated income, operational expenses, investments and obligations of the LICENSE. The purpose of the annual ordinary revision mechanism is to verify and preserve the equilibrium among the projection variables.
29.2. The REVISION MECHANISM shall be carried out on March of each year, becoming operative as of April 1. The fist revision shall be performed on March of 2008.
29.3. Within 90 (NINETY) days from the signature of this MEMORANDUM OF AGREEMENT, ORSNA shall refer for the approval of the SECRETARIAT OF TRANSPORT an administrative act project which includes the mechanisms and procedures for the revision of the INCOME AND EXPENSES FINANCIAL PROJECTION of the LICENSE and the guidelines and conditions for the revision process. This regulation shall consider:
The percentage of specific allocation of income and the relation between direct investments for account of the LICENSEE and its total income, of every year, In the event of modifications between different periods, a representative discount rate shall be applied, which shall be established by ORSNA in the regulation.
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29.4. If the international passenger traffic exceeds the forecasts considered in the Income and Expenses Financial Projection, the aforementioned procedure shall contemplate that decreases shall be stipulated in the Annual Ordinary Revisions for an annual term in the rates to be paid by the air operators for international flights. This decrease shall be applied until reaching an approximate maximum discount of 30% in relation to the values actually in force, considering the maximum actual entries of the previous year and guaranteeing the equilibrium of the contractual financial and economic equation. These discounts shall only be applicable to those air operators who have expressly and directly declared their consent regarding the renegotiation, the tariff system and chart (without implying a necessary requisite for the legal effect) within 30 days before the decree ratifying the Complete Renegotiation Agreement.
29.4. When the Income and Expenses Financial Projection is carried out, the ORSNA shall analyze the convenience and suitability of the following actions:
a) Promote a rate decrease system of at least 25% for the airline companies that start to offer new flights after the aforementioned revision, with the purpose of stimulating the growth of the number of international operations of airlines in Argentina – in the licensed airports.
b) Extend the decrease in rates if the passenger traffic exceeds the forecasts considered in the contract. For each percentage point of growth above the forecasts, a three-percentage-point discount shall be applied to international rates of the airlines, with a maximum discount of 15%.
c) Propose a rate rebalancing system to guarantee the protection of the user of the domestic aero-navigation system and the systemic competitiveness of the navigation model, with the purpose of: i) promoting domestic transportation with discounts and/or elimination of the usage rate for the domestic air-station, ii) reducing the international rates paid by the airlines, by a 30%; and iii) readjusting the usage rates for the international air-station.
The provisions of the present clause shall comply with the provisions of clauses 29.1, 29.2 and 29.3.
30. ESCROW
30.1. The LICENSEE shall be able to assign its escrow income derived from the LICENSE in order to obtain the resources for the fulfillment of its obligations. This assignment shall neither affect the specific allocation of income of the LICENSE stipulated in Appendix III of this MEMORANDUM, pursuant to point 5 of said memorandum, nor affect the resources estimated for financing the Investment Plan detailed in Appendix IV of this presents. If the escrow is constituted by means of a trust it shall remain in force even in the event of the early termination of the LICENSE CONTRACT, as long as the allocation and destiny of the funds are audited by the NATIONAL STATE and/or the consulting company hired for such purpose to the satisfaction of the NATIONAL STATE.
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30.2. Said escrow shall be previously authorized through a grounded resolution by ORSNA, which shall also be responsible for auditing the use of funds.
30.3. Under no circumstances shall the aforementioned escrow cause a reduction in service quality, neither shall it affect the fulfillment of the contractual obligations of the LICENSEE. Moreover, it shall recognize the LICENSOR’S powers and prerogatives stipulated in the LICENSE CONTRACT and guarantee the non-execution of rights or actions threatening the continuity of the airport public service.
30.4. The LICENSEE shall not have the right to compensation for escrow investments before the end of the escrow. Upon the end of the escrow, the LICENSEE shall be paid the corresponding compensation with the deduction of the amounts for which the income escrow became effective.
31. PROGRAM FOR THE DEFENSE AND INTEGRATION OF PHYSICALLY CHALLENGED USERS
The LICENSEE shall have to implement a program to provide all the airports under the license with the necessary resources and mechanisms for the proper movement of physically challenged people inside Group “A” of the National Airport System. All of the foregoing shall be done in order to provide and guarantee an appropriate service access. In this regard the LICENSEE, within 90 (NINETY) days from the signature of this MEMORANDUM OF AGREEMENT, shall submit to ORSNA a schedule with a list of the proposed activities. ORSNA shall have a term of 30 days as of the submission for its discussion and resolution. In order to obtain and include the specific problems of disabled users, ORSNA shall request the ASSOCIATION IN DEFENSE OF THE DISABLED CONSUMER (“Asociación Civil en Defensa del Consumidor Discapacitado”) (ADECODIS (as per Spanish abbreviation)) to make the corresponding remarks. The program shall be approved by ORSNA before it becomes effective and it shall be commenced within 30 (THIRTY) days following its approval.
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FIFTH PART
1. NATIONAL AIRPORT SYSTEM IMPROVEMENT TRUST
1.1. By means of these presents we request the SECRETARIAT OF TRANSPORT to implement the NATIONAL AIRPORT SYSTEM IMPROVEMENT TRUST pursuant the guidelines contemplated in SUBAPPENDIX III-A herein within a term of 120 (ONE HUNDRED AND TWENTY) days from the moment the MEMORANDUM OF AGREEMENT enters into force.
SIXTH PART
COMPLETE CONTRACT RENEGOTIATION AGREEMENT
1. CONDITIONS
1.1. For the effect of the COMPLETE CONTRACT RENEGOTIATION AGREEMENT the following conditions shall be complied with:
1.1.1. Fulfillment of the procedures contemplated in Laws N° 25,561, 25,790, 25,820, 25,972, 26,077 and 26,204; the Decree N° 311/03 and the Joint Resolution N° 188/2003 and 44/2003 of the Ministries of ECONOMY AND PRODUCTION, and of FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES.
1.1.2. The presentation of the duly certified and legalized instruments provided for in the THIRD PART of the present MEMORANDUM OF AGREEMENT.
1.1.3. The submission of the Policies and Performance bonds to the satisfaction of ORSNA, pursuant to the terms of points 27 and 28 of the FOURTH PART of these presents.
1.1.4. The submission of the Minutes of the Board of Directors and Shareholders’ Meeting of the LICENSEE which approve and authorize the signature of the AGREEMENT.
1.2. Upon compliance of those requirements, the conditions to promote the issuance of the Decree of the National Executive Power that ratifies the COMPLETE CONTRACT RENEGOTATION AGREEMENT shall be met. Once the Decree has been issued, the stipulations included in the AGREEMENT shall become effective.
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2. NON-FULFILLMENT
2.1. In case of non-fulfillment on part of the LICENSEE in relation with the obligations undertaken under the MEMORANDUM OF AGREEMENT, it shall be subject to the corresponding sanctions. In case there are no express provisions for such sanctions, ORSNA shall determine them pursuant to the terms of the LICENSE AGREEMENT and the rules in force.
2.2. The sanctions applied for breach of the CONTRACT shall be proportional to those stipulated for similar situations in the rules in force.
3. PROCESSES IMPLEMENTATION AND FOLLOW-UP
3.1. UNIREN shall be in charge of giving impulse to the procedures to ratify the present COMPLETE CONTRACT RENEGOTIATION AGREEMENT, and intervene in those requirements made by the LICENSOR or LICENSEE in relation with their duties.
3.2. Upon ratification of the COMPLETE CONTRACT RENEGOTIATION AGREEMENT by the National Executive Power, the SECRETARIAT OF TRANSPORT and ORSNA, within their powers, shall perform the acts and develop the procedures necessary for the instrumentation, execution and fulfillment of the provisions herein included.
3.3. Within a term of 90 (NINETY) days from the approval of the COMPLETE CONTRACT RENEGOTIATION AGREEMENT by the NATIONAL EXECUTIVE POWER, ORSNA shall issue the integrated and amended text of the LICENSE CONTRACT, including the terms and conditions decided by said AGREEMENT. Moreover, it shall submit the AGREEMENT for the approval by the NATIONAL EXECUTIVE POWER. In this regard, ORSNA shall make to the UNIREN and the LICENSEE the consults and requirements that it considers as necessary.
3.4. The Parties agree that any controversy related to the construal or execution of this MEMORANDUM OF AGREEMENT, 55the COMPLETE CONTRACT RENEGOTIATION AGREEMENT and the LICENSE CONTRACT shall be filed and settled before the Federal Courts of the CITY OF BUENOS AIRES, expressly waiving any other jurisdiction or venue that could correspond.
3.5. The LICENSEE undertakes not to promote the issuance of preliminary injunctions in its favor or any other action against the NATIONAL STATE related to the LICENSE AGREEMENT before any other courts than the ones established in the previous paragraph 3.4.
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3.6. In case this renegotiation is not approved, all what has been herein agreed does not imply justifying delays, inefficiencies or non-fulfillments of the LICENSE rules on part of any of the Parties before or after the signature of these presents. Moreover, it does not imply waiver or abandonment, on part of the LICENSOR or LICENSEE, of the administrative or judicial actions which they consider to be entitled to for the actual non-fulfillments or circumstances occurred before the date of this MEMORANDUM OF AGREEMENT.
4. ENFORCEMENT AUTHORITY
As from the approval of the MEMORANDUM OF AGREEMENT, the ENFORCEMENT AUTHORITY of the CONTRACT shall be the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENTS AND SERVICES OF THE NATION, through the SECRETARIAT OF TRANSPORT. ORSNA shall have the function of Regulating and System Controlling Institution. The ENFORCEMENT AUTHORITY shall promote the issuance of the corresponding administrative acts to determine the powers and the correct division of the functions among the aforementioned institutions.
5. CONTRACTUAL PROVISIONS
The terms and conditions of the LICENSE CONTRACT that have not been modified and do not oppose to this MEMORANDUM OF AGREEMENT are still into force.
In witness whereof, 3 (THREE) copies of the same tenor and to only one effect are signed in the place and on the date stated in the heading.
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APPENDIX I
AIRPORT STANDARDS / SERVICE QUALITY
A. AIRPORT STANDARDS
As regards the design, building, operation, administration, maintenance, renewal, improvements, building development, equipment, fittings and systems typical of the airport activity, the applicable standards shall be the ones reasonably established by the National Airport System Regulating Institution – ORSNA – according to the following guidelines:
| 1. | They shall be materially analogous to the ones established in the Airport Development Reference Manual of the IATA and by the ICAO, pursuant to the Chicago Convention of 1944 (appendixes 2.4, 6, 10, 11, 12, 14, 15, 16, 17, 18.). |
| 2. | Other airports located abroad shall be taken as reference, based on their type, size and passenger traffic. |
| 3. | The equipment shall fulfill the standards of the equipment quality tests carried out by the United States of America. |
| 4. | Consideration of the standards of Annex IX of the ICAO (FACILITATION). |
B. SERVICE QUALITY
The ORSNA shall carry out its own convenience assessment and shall have the right to perform inspection activities in all the airports managed by the LICENSEE. The ORSNA does not need to notify in advance the aspects that will be object to inspection. Such inspections shall be carried out with a minimum frequency of a year for each airport with a passenger movement higher than 750,000 (SEVEN HUNDRED AND FIFTY THOUSAND).
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APPENDIX II
CHARGE SCHEDULE
Landing Fees
International Flights
| US$ per ton | Airport Category | |||||||||||||||
| Aircraft weight (tons) | I | II | III | IV | ||||||||||||
| 5- 30 tons | 4.62 | 2.75 | 1.65 | 1.65 | ||||||||||||
| 31- 80 tons | 5.28 | 3.30 | 1.93 | 1.93 | ||||||||||||
| 81- 170 tons | 6.49 | 3.96 | ||||||||||||||
| > 170 tons | 7.19 | |||||||||||||||
| Minimum fee | 20.00 | 10.00 | 6.00 | 6.00 | ||||||||||||
| Surcharge for an operation out of the normal timetable | 260.00 | 188.00 | 120.00 | 120.00 | ||||||||||||
| Surcharge for night air field lighting | 30 | % | 30 | % | 30 | % | 30 | % | ||||||||
Domestic Flights
| US$ per ton | Airport Category | |||||||||||||||
| Aircraft weight (tons) | I | II | III | IV | ||||||||||||
| 5- 30 tons | 1.05 | 0.67 | 0.43 | 0.26 | ||||||||||||
| 31- 80 tons | 1.14 | 0.76 | 0.52 | - | ||||||||||||
| 81- 170 tons | 1.26 | 0.88 | - | - | ||||||||||||
| > 170 tons | 1.47 | - | - | - | ||||||||||||
| Minimum fee | 14.10 | 10.70 | 7.10 | 3.60 | ||||||||||||
| Surcharge for an operation out of the normal timetable | 260.00 | 188.00 | 120.00 | 68.00 | ||||||||||||
| Surcharge for night air field lighting | 30 | % | 50 | % | 30 | % | 30 | % | ||||||||
This charge shall be paid by all commercial aircrafts that render regular or non-regular services, and also by the private aviation sector in general, with the exception of those smaller aircrafts that weigh less than 2 tons.
| • | Landing surcharge |
International Flights
Rush-hour surcharge equal to a 50% of the landing fee, which would only be applied to international flights that land in Xxxxx Xxxxxxx Airport in the following hours: from 6 to 10 am, and between 6.30 and 9.30 pm for all operations, from Monday to Friday.
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Domestic Flights
Rush-hour surcharge equal to a 50% of the landing fee, which would only be applied to domestic flights that land only in Xxxxx Xxxxxxx Airport in the following hours: from 6 to 10 am, and between 6.30 and 9.30 pm for all operations, from Monday to Friday.
Aircraft Parking Fee
International Flights
| US$ per ton per hour or fraction | Airport Category | |||||||||||||||||||
| Aircraft weight (tons) | EZE/AEP | I | II | III | IV | |||||||||||||||
| 5- 80 tons | 0.28 | 0.14 | 0.10 | 0.08 | 0.08 | |||||||||||||||
| 81- 170 tons | 0.39 | 0.16 | 0.11 | 0.09 | - | |||||||||||||||
| > 170 tons | 0.80 | 0.18 | 0.12 | - | - | |||||||||||||||
| Minimum fee | 6.00 | 4.00 | 2.00 | 2.00 | 2.00 | |||||||||||||||
EZE: Ministro Pistarini-Ezeiza
AEP: Xxxxx Xxxxxxx Airport
This charge shall be paid by all commercial aircrafts that render regular or non-regular services, and also by the private aviation sector in general, with the exception of those smaller aircrafts that weigh less than 2 tons.
There will be no free-parking time in any airport.
Charge for Ezeiza and Aeroparque for aircraft parked only in an operative apron; for aircraft parked in a remote apron, the applicable charge shall be the one corresponding to Category I.
Domestic Flights
| US$ per ton per hour or fraction | Airport Category | |||||||||||||||||||
| Aircraft weight (tons) | EZE/AEP | I | II | III | IV | |||||||||||||||
| 5- 80 tons | 0.17 | 0.10 | 0.08 | 0.06 | 0.04 | |||||||||||||||
| 81- 170 tons | 0.23 | 0.13 | 0.10 | 0.08 | - | |||||||||||||||
| > 170 tons | 0.30 | 0.17 | 0.12 | - | - | |||||||||||||||
| Minimum fee | 7.90 | 5.20 | 3.30 | 2.40 | 1.50 | |||||||||||||||
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EZE: Ministro Pistarini-Ezeiza
AEP: Xxxxx Xxxxxxx Airport
This charge shall be paid by all commercial aircrafts that render regular or non-regular services, and also by the private aviation sector in general, with the exception of those smaller aircrafts that weigh less than 5 tons. These aircrafts shall only pay this charge when parking time is higher than 15 days within a month.
There will be no free-parking time in any airport.
Charge for Ezeiza and Aeroparque for aircraft parked only in an operative apron; for aircraft parked in a remote apron, the applicable charge shall be the one corresponding to Category I.
Air Station Usage Fee
International Flights
| Per boarded passenger | Airport Category | |||||||||||||||
| I | II | III | IV | |||||||||||||
| In effect from 01/01/1998 | US$ | 18.00 | US$ | 13.00 | US$ | 13.00 | US$ | 13.00 | ||||||||
The following people shall not pay this fee: small children, diplomats and in-transit passengers.
Passengers traveling in international flights between the city of Buenos Aires and the Republic of Uruguay shall pay an amount equivalent to US$ 8.00 as air station usage fee.
Passenger traveling in regional flights, with covered distances shorter than or equal to 300 km., shall pay an amount equivalent to US$ 8.00 as air station usage fee.
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For the purpose of exclusion of the application of the Air Station Usage Fee, small children shall be those who are not yet three years of age, for domestic flights, and children who have not turned two years of age yet, for international flights.
“In-transit passenger” is the one who arrives at the airport, makes a stop-over and continues the trip in the same flight. This concept does not include the “passenger in transfer”, who is the one that arrives at the airport and continues the trip an a different flight, and who shall pay this fee.
Domestic Flights
| Per boarded passenger | Airport Category | |||||||||||||||
| I | II | III | IV | |||||||||||||
| US$ | 5.0 | US$ | 3.50 | US$ | 3.50 | US$ | 3.50 | |||||||||
The following people shall not pay this fee: small children, and in-transit passengers.
“In-transit passenger” is the one who arrives at the airport, makes a stop-over and continues the trip in the same flight. This concept does not include the “passenger in transfer”, who is the one that arrives at the airport and continues the trip an a different flight, and who shall pay this fee.
Safety Fee
International Flights
US$ 2.50 fee per international boarded passenger. The following people shall not pay this fee: small children, and in-transit passengers.
Domestic Flights
US$ 1.00 fee per domestic boarded passenger. The following people shall not pay this fee: small children, and in-transit passengers.
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Single Airport Fee for Migration and Customs Services
International Flights
A US$ 10 Single Fee is applied per international boarded passenger.
Regional Flights
Single Fee of US$ 6.
It shall be applied to international passengers traveling in regional flights whose final destination is a foreign airport located at a distance shorter than 300 km in a straight line from the departing Argentinean aerodrome.
Telescopic Jet way Usage Fee
International Flights
| For each half an hour or fraction | Airports | |||||||
| Ezeiza | Others | |||||||
| Per aircraft | US$ | 50.00 | US$ | 50.00 | ||||
Domestic Flights
| For each half an hour or fraction | Airports | |||||||
| Ezeiza | Others | |||||||
| Per aircraft | US$ | 50.00 | US$ | 50.00 | ||||
In-Route Flight Protection Fee
International Flights
| Aircraft weight (MTOW) | |
| < 20 tons | US$ 0.03 x √P |
| 21-40 tons | US$ 0.04 x √P |
| 41-100 tons | US$ 0.05 x √P |
| > 100 tons | US$ 0.055 x √P |
| P: Aircraft Weight | |
Applicable to regular and non-regular transportation aircraft, per covered kilometer and ton of weight.
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Domestic Flights
Aircraft weight in tons. (MTOW) Fee in US$ per ton. - Covered kilometers
Each ton x 0,0035 x covered kilometers = TPV (domestic)
Applicable to regular and non-regular transportation aircrafts (passengers, cargo and mail), and to the private aviation sector in general, per covered kilometer and ton of weight.
Landing Support Fee
International Flights
| Aircraft weight (MTOW) | |
| < 20 tons | US$ 0.20 / ton |
| 21-40 tons | US$ 0.40 / ton |
| 41-100 tons | US$ 0.60 / ton |
| >100 tons | US$ 0.80 / ton |
This Fee is cumulative per weight band. Example: if an aircraft weighs 318 tons, the first 20 tons are calculated at US$ 0.20 each, the following 20 tons are calculated at US$ 0.40 each, the next 60 tons are calculated at US$ 0.60, and the remaining 218 tons, at US$ 0.80 each.
This charge is only applicable in those airports that have their own services and equipment to support landing tasks, that is to say: terminal radars and / or instrument approach systems (ILS).
Domestic Flights
A fee equivalent to a 50% of the landing support fee for international flights shall be applied, under the same applicability conditions.
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APPENDIX III
FUND ALLOCATION PURSUANT TO CLAUSE FIVE
FIRST CATEGORY
• 11.25% Trust for Works of the National Airport System (Pursuant to Sub-Appendix III A). A 30% (thirty per cent) shall be previously discounted from such funds, to be deposited in an account payable to the ANSES.
SECOND CATEGORY
• 1,25% Fund for studies, control and regulation of the LICENSE, which shall be administered and managed by the ORSNA.
• 2.5% Trust for Works of the GROUP “A” of the National Airport System (Pursuant to Sub-Appendix III A).
The ORSNA and/ or the TRANSPORTATION DEPARTMENT can instrument sub-accounts for the purpose of implementing the corresponding cash flow allocation.
Likewise, the ORSNA shall, within a period of 120 (one hundred and twenty) working days after this MEMORANDUM OF AGREEMENT came into effect, establish a proceeding for the calculation and oversight of the allocated amounts based on the provided elements, pursuant to the Regulatory Accounting System.
Such proceedings shall take into account the treatment and method of payment of the accrued amounts from January, 2006 to the trust creation date, as well as the advanced payments the LICENSEE could have made.
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| “2007 – Year Dedicated to Road Safety” |
SUB-APPENDIX Ill-A
NATIONAL AIRPORT SYSTEM IMPROVEMENT TRUST
Terms and conditions
| I. | General terms and conditions for all property subject to the National Airport System Improvement Trust. |
Trustor: AEROPUERTOS ARGENTINA 2000 S.A.
Trustee: Banco de la Nación Argentina.
Beneficiary: NATIONAL STATE.
Investments: the trustee shall only invest the trust property in: (i) fixed term deposits in pesos or US dollars in Argentinean leading financial institutions; (ii) private securities with public offer that have at least an international “AA” risk-scoring; and (iii) mutual funds that invest the assets of the fund in fixed term deposits or private securities that have at least an international “AA” risk-scoring.
Fiduciary accounts: they are the accounts opened in the Banco de la Nación Argentina on behalf of the trust and to the order of the trustee. A fiduciary account shall be opened for each property assigned in trust, pursuant to its terms and conditions.
Applicable Law: the trust shall be subject to the Law in force in the Republic of Argentina.
Usual Clauses: the trust contract shall have the standard clauses for this type of contracts, including the trustor and trustee’s statements and guaranties, the trustor and trustee’s obligations, withdrawal and removal of the trustee, expenses, taxes, rendering of accounts and all provisions covered by Law 24.441.
| II. | Special terms and conditions for all property subject to the National Airport System Improvement Trust. |
| A) | Trust property for studies, control and regulation of the License. |
| (i) | Usage of this trust property: this trust property shall be used for studies, control and operation expenses of the ORSNA related to the regulation of the LICENSE, in execution of its duties. |
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| “2007 – Year Dedicated to Road Safety” |
| (ii) | Trust property: the trustor shall transfer to the trustee, on a monthly basis, on fiduciary ownership, the right to receive the 1.25% of the total income of AEROPUERTOS ARGENTINA 2000 S.A. The proceeds of the investments made by the trustee with the liquid funds and all rights, interests and increases resulting from these, shall also be part of the trust property. |
| (iii) | Beneficiary: the ORSNA |
| (iv) | Term: the property shall be assigned in trust for 30 years, and this term shall be cancelled if the LICENSE is terminated for any reason. |
| B) | Trust property for settlement of Mutual Claims. |
| (i) | Usage of this trust property: the trust property shall be used to pay the balance for MUTUAL CLAIMS to the benefit of the NATIONAL STATE, providing that such amount arises from the documents related to the license contract renegotiation between AEROPUERTOS ARGENTINA 2000 S.A. and the NATIONAL STATE. |
| (ii) | Value: the amount to be settled with the trust property is of $ 195,000,000. |
| (iii) | Trust property: the Trustor shall transfer to the trustee, on fiduciary ownership, the right to get 7% of the income received by AEROPUERTOS ARGENTINA 2000 S.A. as international airport charges (charges in US dollars). The trustor shall transfer such amounts to the corresponding fiduciary accounts. The proceeds of the investments made by the trustee with the liquid funds and all rights, interests and increases resulting from these, shall also be part of the trust property. |
| (iv) | Trust property administration: the Trustee shall be responsible for the administration of the trust property (with the exclusive usage described in paragraph (i) above), pursuant to the instructions given by the TRANSPORTATION DEPARTMENT. |
| (v) | Compensatory interests: the balance shall accrue a compensatory interest equivalent to an annual 2%, which shall be paid on a monthly basis over the unpaid amounts. Payment date for the compensatory interests shall be the first working day of each month. |
| (vi) | Capital repayment: The capital shall be cancelled on a monthly basis on the first working day of each month, based on the available trust property after paying the compensatory rights. |
| (vii) | Beneficiary: NATIONAL STATE |
| (vii) | Beneficiary’s Responsibility: the funds received by the beneficiary shall be used to execute works within the National Airport System. The creation of a secondary fund to be used for not-licensed airports of the National Airport System shall be provided for. |
| (viii) | Term: the trust term for this property shall be extended until the total cancellation thereof and its interests. |
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| “2007 – Year Dedicated to Road Safety” |
| C) | Trust Property to finance Works of the National Airport System. |
| (i) | Usage of this trust property: the trust property shall be exclusively used to finance the infrastructure and service improvement works for the National Airport System. |
| (ii) | Trust Property: the trustor shall transfer to the trustee, on fiduciary ownership, the right to receive 11.25% of its total income. Such transfer shall be made on a monthly basis. The trustor shall transfer such amounts to the corresponding fiduciary accounts. The proceeds of the investments made by the trustee with the liquid funds and all rights, interests and increases resulting from these, shall also be part of the trust property. |
| (iii) | Term: the property shall be assigned in trust for a period no longer than 30 years. The property assigned in trust shall be cancelled if the LICENSE is terminated for any reason. |
| (iv) | Trust property administration: the Trustee shall be responsible for the administration of this trust property (with the exclusive usage described in paragraph (i) above), pursuant to the instructions given by the NATIONAL TRANSPORTATION DEPARTMENT, previous report issued by the ORSNA (National Airport System Regulating Institution). The trustor, acting as LICENSEE, shall be able to submit to the ORSNA (National Airport System Regulating Institution) proposals to execute works, which, like the ones proposed by the Regulating Institution, shall be submitted to the NATIONAL TRANSPORTATION DEPARTMENT, who shall decide the appropriate application of the trust resources. |
| (v) | Beneficiaries: the trustor, acting as licensee of the airports that make up “GROUP A” OF THE NATIONAL AIRPORT SYSTEM, the NATIONAL STATE in relation to the licensed airports, ant the contractors that will execute the airport infrastructure and service improvement works. |
| D) | Trust property to finance works in the airports that make up “Group A” of the National Airport System. |
| (i) | Usage of this trust property: the trust property shall be exclusively used to finance works of the five-year investment plan at the airports that make up “GROUP A” OF THE NATIONAL AIRPORT SYSTEM (pursuant to the terms defined in the license contract entered into between AEROPUERTOS ARGENTINA 2000 S.A. and the NATIONAL STATE) and works included in the new five-year investment plans. |
| (ii) | Trust property: the trustor shall transfer to the trustee in ownership the right to receive the 2.5% of its total income from the exploitation of the LICENSE services. Such transfer shall be made on a monthly basis. The trustor shall transfer such amounts to the corresponding fiduciary accounts. The proceeds of the investments made by the trustee with the liquid funds and all rights, interests and increases resulting from these, shall also be part of the trust property. |
| (iii) | Term: the property shall be assigned in trust for a period no longer than 30 years. The property assigned in trust shall be cancelled if the LICENSE is terminated for any reason. |
| (iv) | Trust property administration: the trustee shall be responsible for the trust property administration, in compliance with the instructions given by the ORSNA (National Airport System Regulating Institution), with the exclusive usage provided for in paragraph (i). |
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| “2007 – Year Dedicated to Road Safety” |
| (v) | Beneficiaries: the trustor, acting as licensee of the airports that make up “GROUP A” OF THE NATIONAL AIRPORT SYSTEM, and the contractors who will execute the works covered by the five-year investment plans. |
| E) | Trust Property for airport works needed due to possible specific rate charges. |
| (i) | Usage: the trust property shall be exclusively used to finance the airport infrastructure works specified by the provisions that gave origin to specific rate charges. |
| (ii) | Trust Property: the trustor shall transfer to the trustee, on fiduciary ownership, the amount equivalent to the 100% of the sums received as specific rate charges that might be created in the future, minus collection expenses, Such transfer shall be carried out with the frequency established by the provision that gave origin to specific rate charges. The trustor shall transfer such amounts to the corresponding fiduciary accounts. The proceeds of the investments made by the trustee with the liquid funds and all rights, interests and increases resulting from these, shall also be part of the trust property. |
| (iii) | Term: the term for each trust property shall be the one established by the provisions that gave origin to specific rate charges. In no case shall this term exceed the 30-year period established by section c) of Article 4° of Law N° 24,441, or the term of effect of the LICENSE CONTRACT, whichever takes place before. |
| (iv) | Fiduciary Administration: the trustee shall be responsible for the trust property administration, with the exclusive usage established by the provisions that gave origin to specific rate charges. |
| (v) | Beneficiaries: the people established by the provisions that gave origin to specific rate charges. |
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| “2007 – Year Dedicated to Road Safety” |
APPENDIX V
INCOME AND EXPENSES FINANCIAL PROJECTION (2006-2028)
The INCOME AND EXPENSES FINANCIAL PROJECTION (IEFP) of the LICENSE, for the period of January 2006 – February 2028, has been made in Pesos, assuming: a) a nominal exchange rate with no changes during the aforementioned period; b) an inflation rate equal to zero for all and each of the years taken into account. The “results” sheet of the projection is added to this APPENDIX.
Below, we expose the main premises used to develop the projection.
1. Income: to determine the income projection of the LICENSE for the 2006-2028 period, we have used as source of information, the passenger traffic and movement curve developed by the ORSNA. We have not considered any charge modification in the projection.
1.1. Aeronautical Income: This includes income received as air station usage fee, parking fee, landing fee and telescopic jet way usage fee.
The following chart exposes the annual increase percentages forecasted by the ORSNA for the aforementioned LICENSE period, discriminating between domestic and international passengers.
Such projection forecasts that movements will have the same evolution as the passenger traffic. The ORSNA forecasts a growth rate for the year 2006 of 9% for international traffic (pax and aircraft movement) and 2.5% for domestic traffic (pax and aircraft movement). For the following years, these rates tend to converge in an average value of around 3.5%.
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| “2007 – Year Dedicated to Road Safety” |
1.2. Commercial Income: To make the commercial income projection, we used as basis the real commercial income for year 2005. Such income base was projected by means of the evolution of linked variables and by applying correlation functions, which are detailed in the following chart:
| Concept | Linked variables | Correlation | ||||
| Ramp Services | Movements | 80 | % | |||
| Fuel | Movements | 100 | % | |||
| Tax Free Shop | International Passengers | 100 | % | |||
| Publicity | Investment Plan (*) | 100 | % | |||
| Parking | Total passengers | 100 | % | |||
| Catering | International Passengers | 100 | % | |||
| Rents | Investment Plan (*) | 75 | % | |||
| Transportation | Total passengers | 100 | % | |||
| Coffee shop | Total passengers | 100 | % | |||
| Services and shops | Total passengers | 100 | % | |||
| Reimbursement of expenses in public services | % of Expenses in public services | 21 | % | |||
(*) This corresponds to the percentage of increase of the net investment.
| Note: | Additionally to the projection by the linked variables, we have taken into account income from payment for goodwill, for an annual average amount of around $ 5 million. |
Likewise, we have adopted the following premises, as regards the business line evolution:
a) Tax Free Shop: The current terms of the LICENSE shall be kept until the end of the projection.
b) Ramp Services: The current terms of the LICENSE shall be kept until the end of the projection.
c) Fiscal Deposits: The premise considers that, from the second semester of 2009, the LICENSEE shall administer and exploit the 100% of the fiscal deposit activity that is currently carried out by Edcadassa. The income from the business, which is assumed to increase to an annual rate of 5%, has been exposed as commercial income from that date on.
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| “2007 – Year Dedicated to Road Safety” |
2. Operative Expenses:
As a basis for the projection, the expenses presented by the LICENSEE in his/her tender for the year 2006 were used. The components of such cost structure are detailed below:
| (Figures in Thousands of Pesos) |
| Personnel |
| Electricity |
| Gas |
| Water |
| Telephone |
| Maintenance and Repair |
| Stationary and Office material |
| Insurance policies |
| Hired Services |
| Fire-fighting and Medical Services |
| Matrix |
| Other Operation Expenses |
Such expense structure is re-expressed based on the following polynomial formula:
[52,59% variation of the salary indexes + 14,23% variation of the exchange rate + 33,18% variation of the Wholesale Internal Price Index].
By applying such formula we obtain a re-expressed value of $194 million, to which we have added $22.3 million corresponding to the projected expenses related to the application of the Gross Income Tax and $4.8 million, corresponding to the debit and credit tax (without tax deductions) and subtracting $11.9 million by way of Management fee, in excess of the resulting amount of 3% over income for this item.
This $209-million basis has been considered as the level of operative expenses that the LICENSEE will have during 2006.
Such expense basis was projected to the year 2006-2028 by means of linked variables and correlation functions that are considered appropriate for the current license reality. Below, we expose such linked variables and the adopted correlation functions.
| Concept | Linked variables | Correlation | ||||
| Salaries | Fixed | |||||
| Public Services | Investment Plan (*) | 55 | % | |||
| Maintenance | Total passengers | 30 | % | |||
| Investment Plan (*) | 35 | % | ||||
| Hired Services | Total passengers | 30 | % | |||
| Insurance policies | Investment Plan (*) | 100 | % | |||
| Fire-fighting and Medical Services | Total passengers | 20 | % | |||
| Other Operation Expenses | Investment Plan (*) | 35 | % | |||
| Matrix | Total passengers | 30 | % | |||
(*) This corresponds to the percentage of increase of the net investment.
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| “2007 – Year Dedicated to Road Safety” |
The aforementioned linked variables and correlation functions shall be considered for the purpose of future reviews.
3. Specific Allocation of the License Income:
The detailed provision in agreement with APPENDIX III to the present LETTER OF UNDERSTANDING was taken into account.
4. Mutual Claim Agreement:
A net balance at the expense of the license of $ 849.16 million and its repayment mechanisms were considered, according to the provisions of APPENDIX VII to the present LETTER OF UNDERSTANDING.
5. Investments:
The INVESTMENT PLAN corresponding to the period 2006-2028 is composed by: (i) Works needed to comply with the defined standards on service safety and quality and (ii) works that were also necessary, but were not being executed, and so have been rescheduled.
The INVESTMENT PLAN for the remaining years of the LICENSE period (2011 - 2028) shall be determined through five-year investment plans. For this period, the foreseen investment amount has been calculated as a function of the relation between committed investments and foreseen aeronautical incomes in the tender submitted by the LICENSEE, complemented by the remaining investment amount of works that have not still been executed, and which are scheduled to be finished in 2015.
Plan de Inversiones (2006-2028)
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| “2007 – Year Dedicated to Road Safety” |
6. (Tax) Amortizations: To make a projection for the tax amortizations, we have assumed that: a) investments have an average useful life of 24 years, b) the property, plant and equipment, pursuant to the provisions of the applicable standards, cannot be adjusted for inflation for tax purposes, and c) 100% of the investments shall be amortized at the end of the license period.
7. Taxes:
It was assumed that the company is affected by the following taxes:
| · | Income tax – Rate: 35% |
| · | Minimum expected income tax – Rate: 1% |
| · | Added Value Tax – Rate: 21% or 27%, depending on the concept. |
| · | Gross Income tax – Rate: 4% |
| · | Financial transfer tax – Rate: 1.2%, of which 0.2% was considered as payment to the account of income tax. |
Additionally, it was considered that the suitability of the contract is not affected by stamp tax.
As regards the Income Tax, the Financial Projection of Incomes and Expenses considers the accumulated tax loss carry forward items.
In relation to the value added tax, the Financial Projection of Incomes and Expenses considers that when the tax position has a favorable balance, the recovery process of such balance shall take place in a period of 90 days.
8. Financing:
We should explain that, even when the Financial Projection of Incomes and Expenses of the License has not been taken into account, the Licensee foresees that he will be able to get financing for around US$ 400 million for the period 2006-2010, with the purpose of canceling the Negotiable Obligations issued by the LICENSEE, and having a working capital.
Below, we have included a detail of the required financing:
| a) | Third quarter 2006: Issuance of Series I for US$ 120 million for a term of 7 years plus one year’s grace, and an annual rate of 12% |
| b) | Third quarter 2006: Payment of the balance of the ON. |
| c) | Issuance Series II, for a total amount of US$ 150 million, for a term of 10 years, with 2 year’s grace and an annual interest rate of 8% |
| d) | Issuance of other Series for US$ 1.30 million for a term of 7 years plus one year’s grace, and an annual rate of 12%. |
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| “2007 – Year Dedicated to Road Safety” |
APPENDIX VI
MODIFICATIONS TO BE INTRODUCED IN THE TRUST CONTRACT ENTERED INTO BETWEEN AEROPUERTOS ARGENTINA 2000 S.A. AND ABN AMRO BANK N.V.,
ARGENTINA BRANCH
| III.- | “TRUST PROPERTY” |
Replace the text of Paragraph 3.02 with the following one:
“The Trustee accepts the fiduciary assignments of the collection rights, acknowledging the powers and prerogatives of the Grantor established in the License Contract, and subject to the fulfillment of the previous conditions established in clauses 5.01 and 5.02”.
| IV.- | “SCOPE OF THE FIDUCIARY ASSIGNMENT OF COLLECTION RIGHTS” |
Replace the text of Paragraph 4.01, subsection b) with the following one:
“it shall not cause the Trustee or the Beneficiaries to be subject to any responsibility or obligation corresponding to the Trustor by virtue of the License Contract, the bidding terms and conditions and/ or any other applicable provision, contract, standard and/ or regulation, whether towards the Users, the Grantor or any other party Exercise by the Trustee of any of the assigned collection rights is subordinated to the complete fulfillment of the obligations undertaken by the Trustor towards the Grantor”.
| V.- | “NOTICE OF THE FIDUCIARY ASSIGNMENT – PREVIOUS CONDITIONS” |
5.01. The present document is subscribed subject to the condition that the Trustee shall not exercise any right or action that jeopardizes the continuity of the airport public service, or affects the financing of the National Airport System (NAS).
Change the documentation of the chapter clauses henceforth, and in the concordances.
| VIII.- | “TRUSTOR’S STATEMENTS AND GUARANTEES” |
Replace the text of Paragraph 8.01, subsection c) with the following one:
“That the collection rights are free of any encumbrance, However, the exercise of these rights is subject to the terms of the License Contract and the rules issued as a consequence by the Enforcement Authority and/ or the political decisions of the Grantor on aeronautical and airport issues.”
| XI.- | “INDEMNITY” |
Remove Paragraphs 11.04 and 11.05 of the agreement.
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| “2007 – Year Dedicated to Road Safety” |
APPENDIX VII
ADDED MUTUAL CLAIMS
| 1. | Introduction |
The License Contract, pursuant to the provisions of Decrees 163/98 and 1227/03, foresees rights and obligations both for the LICENSEE (AEROPUERTOS ARGENTINA 2000 S.A.) and for the LICENSOR (NATIONAL STATE),
Given the special context the LICENSE has been exposed to, during the license period there appeared circumstances that were beyond the parties’ control and which materially altered the course of the LICENSE. In this sense, both the LICENSEE and the LICENSOR have made mutual claims to their contractual counterpart, for the non-compliance of certain obligations established in the License Contract (hereinafter caller “MUTUAL CLAIMS”).
| 2. | Claims of the State that have been added |
The following chart exposes the license fee status, based on the payments made by the LICENSEE and the compensations approved by the ORSNA.
| In thousands of AR $ | 1998 | 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 1998-2005 | |||||||||||||||||||||||||||
| Accrued license fee pursuant to contract | 65.565 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 1.263.412 | |||||||||||||||||||||||||||
| Payments made by the licensee | -41.385 | -92.858 | -121.161 | -5.000 | -11.000 | -58.080 | -72.388 | -36.701 | -438.572 | |||||||||||||||||||||||||||
| Compensations approved by the ORSNA | -24.180 | -11.671 | 0 | 0 | 0 | 0 | 0 | 0 | -35.851 | |||||||||||||||||||||||||||
| License fee Status | 0 | 66.592 | 49.961 | 166.121 | 160.121 | 113.041 | 98.733 | 134.420 | 788.989 | |||||||||||||||||||||||||||
| 3. | Claims of the LICENSEE that have been added |
The following detail exposes the claims made by the LICENSEE that are being considered in the present renegotiation, and with their corresponding valuation reported by the ORSNA (Notes Na 910/05 and 107/06, File ORSNA N° 625/03):
| Claims with temporal imputation | ||||||||||
| 1) | Air station Usage Fee (TUA) for flights shorter than 300km | $ | 1,185,077.00 | |||||||
| 2) | VAT Fiscal Credit (INTERNATIONAL TUA) | $ | 32,802,575.85 | |||||||
| 3) | Incremental cost for financing (negotiable Obligations) | $ | 86,971,688.48 | |||||||
| 4) | Rendering of technical services in private aircraft by the FAA | $ | 889,405.09 | |||||||
| 5) | Shops in Iguazú Airport | $ | 204,667.00 | |||||||
| 6) | Technical services rendered in the Army’s hangars | $ | 7,126,860.80 | |||||||
| 7) | AA2000’s right over airport incomes | $ | 25,823,027.00 | $ | 155,003,301.22 | |||||
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| “2007 – Year Dedicated to Road Safety” |
| Claims without temporal imputation | ||||||||||
| 1) | Situation related to the exploitation of spaces and shops | $ | 32,633,393.82 | |||||||
| 2) | Decrease of Intercargo license fee | $ | 2,190,721.00 | |||||||
| 3) | Equaling of the condition of in-transit passenger and passenger in transfer | $ | 34,690,772.00 | |||||||
| 4) | National Aeronautical Police (PAN) | $ | 6,546,096.40 | |||||||
| 5) | Food service rendering in a restaurant of the FAA (Argentine Air Force) | $ | 2,032,947.00 | |||||||
| 6) | Financial debit and credit tax | $ | 17,726,105.00 | |||||||
| 7) | Tax over paid interests and financial cost of corporate indebtedness | $ | 2,017,422.00 | $ | 97,837,457.22 | |||||
| 4. | Claims of the LICENSEE that have not been added |
4.1. Rejected. The following detail exposes the claims made by the LICENSEE, which were rejected by the ORSNA:
| 1) Dismantling of the NAS (National Airport System) | $ | 3,631,767.00 | ||
| 2) Unavailable spaces in San Xxxxxx | Not Quantified | |||
| 3) Challenging of the REGUFA1 | Not Quantified | |||
| 4) Assignment of rate flexibility (Decree 1409/99) | $ | 9m454,878.00 | ||
| 5) Wrongful information from AIP | Not Quantified | |||
| 6) Fee for extended time | Not Quantified | |||
| 7) Failure to apply effectively the New Rate Schedule | $ | 32,608,260 | ||
| 8) Fire in EZE Airport | $ | 679,618 | ||
| 9) Failure to define the environmental liabilities, urban plan, and existence of environmental problems | $ | 5,088,683 | ||
| 10) Radar setting plan | Not quantified | |||
| 11) Force majeure due to international war | Not quantified | |||
| 12) Failure to implement regulatory policies (Open Skies) | $ | 7,259,274 | ||
| 13) Omission in the enactment of the Airport Infractions and Penalties Regulations (AIPR) | Not Quantified | |||
| 14) Failure to update the calculation formula for the X Factor (adjustment factor) | Not Quantified |
4.2. Waivers. The following detail exposes the compensation items for past damages claimed by the LICENSEE, and waived by him in this conciliation instance, at the moment when the RENEGOTIATION CONTRACT comes into effect:
| 1) Inventory deficiencies | $ | 936,158.00 | ||
| 2) Municipal Charges | $ | 9,517,841.00 | ||
| 3) “EI Calafate” Airport | $ | 1,680,946.00 | ||
| 4) Space assignment of EDCADASSA | $ | 1,465,152.00 | ||
| 5) Jujuy Airport | $ | 17,066,902.00 | ||
| 6) Delay caused in the Taking of Possession in Salta | ||||
| 7) INTERBAIRES space occupation | $ | 1,055,681.00 | ||
| 8) Works in Iguazú Airport | $ | 410,000.00 | ||
| 9) VAT of Domestic TUA | $ | 5,694,000.00 | ||
| 10) Gross income over rates | $ | 49,345,252.85 | ||
| 11) Minimum Expected | $ | 3,714,464.00 |
1 REGUFA: General Regulations for Usage and Operation of the Airports that are part of the nacional Airport System
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| “2007 – Year Dedicated to Road Safety” |
Income Tax
| 5. | Methodology to determine the MUTUAL CLAIM balance |
We have used the following methodology to determine the amount differential for MUTUAL CLAIMS:
1) To each of those amounts, the following items were subtracted: a) payments made by the LICENSEE, b) amounts compensated by the ORSNA and c) claims made by the LICENSEE, which are added.
2) Each year’s balances, obtained as a result of the procedure exposed in 1), were adjusted by CER2 (CPI3 between 1998 and 2001), plus an annual 2% interest rate, with the purpose of taking those values to 2005.
3) To the obtained amount, according to the provisions of item 2), the claims that cannot be temporarily imputed were deducted.
| 6. | Application of the methodology to determine the MUTUAL CLAIM balance |
1)
| In thousands of AR $ | 1998 | 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 1998-05 | |||||||||||||||||||||||||||
| Accrued license fee pursuant to contract | 65.565 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 1.263.412 | |||||||||||||||||||||||||||
| a) Payments made by licensee | -41.385 | -92.858 | -121.161 | -5.000 | -11.000 | -58.080 | -72.388 | -36.701 | -438.572 | |||||||||||||||||||||||||||
| b) Compensations approved by the ORSNA | -24.180 | -11.671 | 0 | 0 | 0 | 0 | 0 | 0 | -35.851 | |||||||||||||||||||||||||||
| c) Added Licensee’s Claims | -517 | -1.021 | -6.264 | -22.885 | -41.993 | -30.152 | -28.565 | -23.606 | -155.003 | |||||||||||||||||||||||||||
| Balance | -517 | 65.571 | 43.696 | 143.236 | 118.128 | 82.889 | 70.168 | 110.815 | 633.985 | |||||||||||||||||||||||||||
2)
| In thousands of AR $ | 1998 | 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | ||||||||||||||||||||||||
| Balance | -517 | 65.571 | 43.696 | 143.236 | 118.128 | 82.889 | 70.168 | 110.815 | ||||||||||||||||||||||||
| Accumulated balance | -517 | 65.049 | 109.483 | 253.946 | 373.538 | 574.181 | 674.779 | 837.283 | ||||||||||||||||||||||||
| - Adjustment for CPI / CER | 0 | -000 | -000 | -0.000 | 109.079 | 18.927 | 37.980 | 92.322 | ||||||||||||||||||||||||
| - Adjustment for capitalized interest | -5 | 1.061 | 1.693 | 4.313 | 8.675 | 11.503 | 13.710 | 17.394 | ||||||||||||||||||||||||
| Accumulated balance after adjustment | -522 | 65.787 | 110.710 | 255.410 | 491.292 | 604.611 | 726.469 | 946.999 | ||||||||||||||||||||||||
| Accumulated balance in December 2005 after adjustments | 946.999 | |||||||||||||||||||||||||||||||
2 CER: Reference Stabilizing Ratio
3 IPC: Consumer Price Index
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| “2007 – Year Dedicated to Road Safety” |
3)
| Accumulated balance after adjustments as of 2005 | 946.999 | |||
| Licensee’s Claims added without temporal imputation | -97.837 | |||
| Mutual claims differential | 849.161 |
Based on the preceding methodology, the amount differential for MUTUAL CLAIMS, as of December 31st 2005, is $ 849.16 in favor of the LICENSOR.
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 | “2007 – Year Dedicated to Road Safety” |
MUTUAL CLAIMS
| In thousands of AR $ | 1998 | 1999 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 1998-2005 | |||||||||||||||||||||||||||
| Accrued license fee pursuant to contract | 65.565 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 171.121 | 1.263.412 | |||||||||||||||||||||||||||
| Payments made by the licensee | -41.385 | -92.858 | -121.161 | -5.000 | -11.000 | -58.080 | -72.388 | -36.701 | -438.572 | |||||||||||||||||||||||||||
| Compensations approved by the ORSNA | -24.180 | -11.671 | 0 | 0 | 0 | 0 | 0 | 0 | -35.851 | |||||||||||||||||||||||||||
| License fee status | 0 | 66.592 | 49.961 | 166.121 | 160.121 | 113.041 | 98.733 | 134.420 | 788.989 | |||||||||||||||||||||||||||
| Claims recognized by the ORSNA | -517 | -1.021 | -6.264 | -22.885 | -41.993 | -30.152 | -28.565 | -23.606 | -155.003 | |||||||||||||||||||||||||||
| Mutual claims balance | -517 | 65.571 | 43.696 | 143.236 | 118.128 | 82.889 | 70.168 | 110.815 | 633.985 | |||||||||||||||||||||||||||
| Accumulated balance | -517 | 65.049 | 109.483 | 253.946 | 373.538 | 574.181 | 674.779 | 837.283 | ||||||||||||||||||||||||||||
| - Adjustment for CP1/CER | 0 | -000 | -000 | -0.000 | 109.079 | 18.927 | 37.980 | 92.322 | ||||||||||||||||||||||||||||
| - Adjustment for capitalized interest | -5 | 1.061 | 1.693 | 4.313 | 8.675 | 11.503 | 13.710 | 17.394 | ||||||||||||||||||||||||||||
| Accumulated balance after adjustments | -522 | 65.787 | 110.710 | 255.410 | 491.292 | 604.611 | 726.469 | 946.999 | ||||||||||||||||||||||||||||
| Accumulated balance as of December 2005 after adjustments | 946.999 | |||||||||||||||||||||||||||||||||||
| Licensee's Claims added without temporal imputation | -97.837 | |||||||||||||||||||||||||||||||||||
| Diferential for MUTUAL CLAIMS | 849.161 | |||||||||||||||||||||||||||||||||||
| “2007 – Year Dedicated to Road Safety” |
SUB-APPENDIX VII-A
REPAYMENT MECHANISMS
| 1. | Introduction |
The status of the MUTUAL CLAIMS between the LICENSEE and the LICENSOR was determined taking into account the obligations undertaken by the LICENSOR and the LICENSEE
Based on the provisions of the “MUTUAL CLAIMS” Appendix, the amounts difference for MUTUAL CLAIMS gives a credit balance to the NATIONAL STATE of $ 849.16 million.
| 2. | Listing of payment mechanisms |
We have agreed that the aforementioned balance is to be cancelled by three mechanisms:
| · | Specific allocation of an amount equal to the 7% of the international aeronautical income (“Specific allocation”), which shall be used to cancel the 22.96% of the balance. |
| · | Issuance of Negotiable Obligations that can be converted into common shares, (“Negotiable Obligations”), which shall be used to cancel the 18.61% of the balance. |
| · | Issuance of Preferred shares, that can be redeemed and converted, (“Preferred Shares”), which shall be used to cancel the 58.43% of the balance. |
| 3. | Characteristics of payment mechanisms |
| 3.1. | Specific allocation |
| Ø | Amount: 195 million |
| Ø | % over balance: 22.96% |
| Ø | Interest rate: 2% a year |
| Ø | Interest repayment: on a monthly basis, based on the accrued interest. |
| Ø | Capital repayment: on a monthly basis, based on the available flow, after repayment of interests. |
| Ø | Estimated period for capital repayment: 2006 to 2013 (7 years and 8 months) |
| 3.2. | Negotiable obligations |
| Ø | Amount: 158 million |
| Ø | % over balance: 18.81% |
| Ø | Interest rate: 2% a year, to be capitalized up to the year 2013 |
| Ø | Interest repayment: on an annual basis, based on the accrued interest. |
| Ø | Capital repayment: on an annual basis, by means of constant amortizations, equivalent to a 16.67% of the original capital. |
| Ø | Period for capital repayment: 2014 to 2019 (6 years) |
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| “2007 – Year Dedicated to Road Safety” |
| Ø | Conversion: at nominal value for shares valued at public quotation price. |
| Ø | Conversion right: from the moment of issuance (year 2006). |
| 3.3. | Preferred shares |
| Ø | Amount: 496.16 million |
| Ø | % over balance: 58.43% |
| Ø | Dividends: 2% a year, paid in kind until 2019 and in cash afterwards. |
| Ø | Potential redemption period: 2020 ahead. |
| Ø | Conversion: at nominal value for shares valued at public quotation price. |
| 4. | Application of payment mechanisms |
The following charts expose the application of the aforementioned concepts, based on the figures included in the INCOME AND EXPENSES FINANCIAL PROJECTION.
| 4.1. | Specific allocation |
From the credit balance for the NATIONAL STATE of $ 849.16 million, we have assumed that 22.96% thereof, which amounts to $195 million, will be cancelled by this instrument.
| In thousands of AR $ | 2006 | 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | 2013 | ||||||||||||||||||||||||
| Internacional aeronautical income | 333.061 | 356.375 | 377.758 | 396.646 | 412.511 | 428.187 | 443.858 | 459.882 | ||||||||||||||||||||||||
| % tp be applied | 7,0 | % | 7,0 | % | 7,0 | % | 7,0 | % | 7,0 | % | 7,0 | % | 7,0 | % | 7,0 | % | ||||||||||||||||
| Xxxx applied to the repayment mechanism | 23.314 | 24.946 | 26.443 | 27.765 | 28.876 | 29.973 | 31.070 | 32.192 | ||||||||||||||||||||||||
| Paid Interests | 3.900 | 3.512 | 3.083 | 2.616 | 2.113 | 1.578 | 1.010 | 408 | ||||||||||||||||||||||||
| Paid capital | 19.414 | 21.435 | 23.360 | 25.149 | 26.763 | 28.396 | 30.060 | 20.423 | ||||||||||||||||||||||||
| Balance to be repaid | 175.586 | 154.151 | 130.791 | 105.642 | 78.879 | 50.483 | 20.423 | 0 | ||||||||||||||||||||||||
| 4.2. | Negotiable obligations |
From the credit balance for the NATIONAL STATE of $ 849.16 million, we have assumed that 18.61% thereof, which amounts to $158 million, will be cancelled by this instrument.
| In thousands of AR $ | 2013 | 2014 | 2015 | 2016 | 2017 | 2018 | 2019 | |||||||||||||||||||||
| % of capital to be amortized | 16,7 | % | 16,7 | % | 16,7 | % | 16,7 | % | 16,7 | % | 16,7 | % | ||||||||||||||||
| Paid interests | 3.702 | 3.085 | 2.468 | 1.851 | 1.234 | 617 | ||||||||||||||||||||||
| Paid capital | 30.854 | 30.854 | 30.854 | 30.854 | 30.854 | 30.854 | ||||||||||||||||||||||
| Balance to be repaid | 185.122 | 154.268 | 123.415 | 92.561 | 61.707 | 30.854 | 0 | |||||||||||||||||||||
The balance to be repaid by 2013 corresponds to the initial amount of AR $ 158 million, plus capitalized interests.
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| “2007 – Year Dedicated to Road Safety” |
| 4.3. | Preferred shares |
From the credit balance for the NATIONAL STATE of $ 849.16 million, we have assumed that 58.43% thereof, which amounts to $4996.16 million, will be cancelled by this instrument.
| In thousands of AR $ | 2019 | 2020 | 2021 | 2022 | 2023 | 2024 | 2025 | 2026 | 2027 | |||||||||||||||||||||||||||
| % of shares to be redeemed | 0 | % | 12,5 | % | 12,5 | % | 12,5 | % | 12,5 | % | 12,5 | % | 12,5 | % | 12,5 | % | 12,5 | % | ||||||||||||||||||
| Dividends | 13.093 | 11.457 | 9.820 | 8.183 | 6.547 | 4.910 | 3.273 | 1.637 | ||||||||||||||||||||||||||||
| Capital redemption | 81.834 | 81.834 | 81.834 | 81.834 | 81.834 | 81.834 | 81.834 | 81.834 | ||||||||||||||||||||||||||||
| Balance to be redeemed | 654.674 | 572.840 | 491.005 | 409.171 | 327.337 | 245.503 | 163.668 | 81.834 | 0 | |||||||||||||||||||||||||||
The balance to be redeemed by 2019 corresponds to the initial amount of AR $ 496. 16 million, plus capitalized interests.
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| “2007 – Year Dedicated to Road Safety” |
SUB-APPENDIX VII-B
NEGOTIABLE OBLIGATIONS THAT CAN BE CONVERTED INTO COMMON SHARES
(THE “CNO”)
Guidelines for Issuance
| (i) | Issuer: AEROPUERTOS ARGENTINA 2000 S.A. |
| (ii) | Currency: Argentinean Pesos |
| (iii) | Amount of issue: $ 158,000,000 (ONE HUNDRED AND FIFTY EIGHT MILLION PESOS) |
| (iv) | Nominal value: each CON shall have a nominal value of $1 (ONE PESO). |
| (v) | Price of subscription: 100 % of the nominal value. |
| (vi) | Manner: the CON shall be issued as book-entry shares and their registration shall be AEROPUERTOS ARGENTINA 2000 S.A.’s responsibility. |
| (vii) | Date of issue: within 60 (SIXTY) days after the approval of the MEMORANDUN OF AGREEMENT. |
| (viii) | Placing method: the CON shall be placed in a private manner to the NATIONAL STATE, that is to say, they shall not be included in the public offering system. |
| (ix) | Manner of Subscription: the NATIONAL STATE shall subscribe the CONs with credit balance in connection with MUTUAL CLAIMS, providing that such amount arises from the documents related to the license contract renegotiation between AEROPUERTOS ARGENTINA 2000 S.A. and the NATIONAL STATE. |
| (x) | Compensatory interests: the CONs shall accrue compensatory interests at an annual 2% rate, on the outstanding capital from the issue date. |
| (xi) | Interest capitalization: accrued compensating interests shall be capitalized each semester until the year 2013. |
| (xii) | Payment of interests: accrued interests shall be paid by semester, starting in the year 2014 until their conversion or redemption. |
| (xiii) | Interest in arrears: unpaid amounts shall accrue interests in arrears at an interest rate equal to 1.5 times the annual compensatory interest, for each day, from the due date until de total payment. Notwithstanding the aforementioned, non fulfillment of two consecutive periods shall enable the Holder to convert the unpaid capital and interest balances in common shares of the issuer. |
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| “2007 – Year Dedicated to Road Safety” |
| (xiv) | Capital cancellation: the CON capital shall be cancelled on an annual basis, from the year 2014 and up to the year 2019, by constant amortizations equivalent to a 16.67% of the original capital. |
| (xv) | Votes: each CON shall represent a vote. |
| (xvi) | Final due date: in the year 2019. |
| (xvii) | Redemption: The CONs can be totally or partially redeemed before their due date, for their nominal value plus the accrued interest. |
| (xviii) | Payments of CNO: the amounts obtained from the payment of CNOs shall be used to create a secondary Fund for the Trust for Strengthening the National Airport System. |
| (xix) | Indirect Control Means: at the moment of issuance, a definition of the financial technical relationships that permit the indirect control by the GRANTOR shall be taken into account. |
| (xx) | Conversion limit: the CON holders shall only have the right to convert CONs in AEROPUERTOS ARGENTINA 2000 S.A.’s common shares, up to the amount of common shares that represents the 15% of the corporate capital of AEROPUERTOS ARGENTINA 2000 S.A., with the exception of the conversion due to unpaid balances. |
| (xxi) | Calculation to make the conversion: the subscription price for AEROPUERTOS ARGENTINA 2000 S.A.’s differentiated common shares to be subscribed with the cancellation of CONs, shall be calculated based on the average quotation of AEROPUERTOS ARGENTINA 2000 S.A.’s common shares at the Buenos Aires Stock Exchange during the 5 (FIVE) stock exchange working days previous to the date of the conversion notice sent by the NATIONAL STATE to AEROPUERTOS ARGENTINA 2000 S.A. If at that time there is no share quotation, the common share price shall be determined by an acknowledged assessment firm appointed by the NATIONAL STATE at the expense of the LICENSEE. The CONs to be cancelled in the subscription shall be calculated at a nominal value plus the accrued interests up to the conversion notification date. No common share fractions shall be issued in the conversion; instead, an adjustment in cash shall be paid. |
| (xxii) | Special right of the conversion: at the moment the NATIONAL STATE makes the conversion option effective, no matter its origin, an agreement shall be signed with AA2000’s shareholders, to guarantee the intangible nature of its division in common shares arising from the conversion. |
| (xxiii) | Range: The CONs shall be negotiable obligations that can be converted into differentiated common shares issued by AEROPUERTOS ARGENTINA 2000 S.A. with a common guaranty over AEROPUERTOS ARGENTINA 2000 S.A.’s equity, and they shall have the same and proportional scoring as regards their payment right, as the other current and future, non-subordinated and not-guaranteed shares of AEROPUERTOS ARGENTINA 2000 S.A. The CONs shall be considered negotiable obligations, pursuant to Law N° 23.576 (Negotiable Obligations Law), with its amendments. Pursuant to article 29 of Law N° 23.576, if AEROPUERTOS ARGENTINA 2000 S.A. at any time does not make the corresponding payment for the CONs, the CON holder shall be entitled to bring enforcement proceedings to recover payment of such amounts. |
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| “2007 – Year Dedicated to Road Safety” |
| (xxiv) | Applicable Law: the CONs shall be ruled and construed by the Law of the Republic of Argentina. |
| (xxv) | Usual Clauses: the terms and issuance conditions of the CONs shall include standard clauses for this type of operations, in relation with assumptions of non-fulfillment, the issuer’s commitments, statements and guaranties, etc. |
| (xxvi) | Public Offering Transparency: The public offering to be made shall, in all moments, comply with, implement and abide by the principles, rights, obligations, duties and standards of Decree N° 677/01, Regime of the Public Offering Transparency. |
| (xxvii) | Option to Equate the Offer: Once the CON have been converted in common shares, and if the National State decides to transfer them, it shall give the holders of Class A, B and C shares of AEROPUERTOS ARGENTINA 2000 S.A. the option to acquire the shares for at least the same value as the received offer. When the aforementioned shareholders do not use the option or when there is no agreement upon the value of the shares, the National State shall deem the option rejected and will be free to proceed with the initial transfer process. |
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| “2007 – Year Dedicated to Road Safety” |
SUB-APPENDIX Vll-C
PREFERRED SHARES THAT CAN BE REDEEMED AND CONVERTED INTO
COMMON SHARES
Guidelines for Issuance
| (i) | Amount of issue: 496,161,413 (FOUR HUNDRED NINETY SIX MILLION, ONE HUNDRED AND SIXTY ONE THOUSAND, FOUR HUNDRED AND THIRTEEN) shares at $1 (ONE PESO) of nominal value. |
| (ii) | Date of issue: within 60 (SIXTY) days after the approval of the MEMORANDUN OF AGREEMENT. |
| (iii) | Price of subscription: 100% of the nominal value. |
| (iv) | Manner: preferred shares shall be book-entry shares (uncertificated shares). |
| (v) | Manner of Subscription: the NATIONAL STATE shall subscribe the preferred shares of AEROPUERTOS ARGENTINA 2000 S.A. with credit balance in connection with MUTUAL CLAIMS, providing that such amount arises from the documents related to the license contract renegotiation between AEROPUERTOS ARGENTINA 2000 S.A. and the NATIONAL STATE. |
| (vi) | Patrimonial Preference: the holders of preferred shares shall have the following patrimonial preference rights: |
| (a) | A single annual fixed dividend equivalent to a 2% of the nominal value of the preferred shares paid in preferred shares (payment in kind). If the holders of preferred shares do not receive the annual fixed dividend corresponding to a fiscal year in such a way, due to the fact that AEROPUERTOS ARGENTINA 2000 S.A. does not have net and earned profits to pay the aforementioned annual fixed dividend, the unpaid amount of such annual fixed dividend shall be paid in the subsequent fiscal years, provided that AEROPUERTOS ARGENTINA 2000 S.A. has enough net and earned profits to do so. That is to say, the annual fixed dividend shall be “cumulative”. |
| (b) | Payment preference in the liquidation rate. |
| (vii) | Right to vote: they do not have right to vote, except in the following circumstances, when they shall only have a vote per share: (i) total or partial capital repayment; (ii) for the time of delay in the receipt of the benefits that make up its preference; iii) in the other cases covered by Law 19.550. |
| (viii) | Voluntary redemption: AEROPUERTOS ARGENTINA 2000 S.A. can redeem the preferred shares at any time, from the date of issue, at their nominal value plus accrued interests up to the moment of redemption. |
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| “2007 – Year Dedicated to Road Safety” |
| (ix) | Funds from redemption: the amounts obtained from the redemption of preferred shares shall be used to create a secondary Fund for the Trust for Strengthening the National Airport System. |
| (x) | Conversion right: the NATIONAL STATE shall have the right to convert the preferred shares into common shares, only from the year 2020, at a maximum annual rate of 12.5% (TWELEVE POINT FIVE PERCENT) of the total initial amount of preferred shares held by the NATIONAL STATE. The conversion right shall be subject to the condition precedent that AEROPUERTOS ARGENTINA 2000 S.A. does not redeem the annual percentage established before, and the National State shall only be able to convert the number or preferred shares that XXXXXXXXXXX XXXXXXXXX 0000 X.X. has not redeemed each year, as of the year 2020. |
| (xi) | Calculation to make the conversion: the subscription price for AEROPUERTOS ARGENTINA 2000 S.A.’s common shares to be subscribed with the cancellation of the preferred shares, shall be calculated based on the average quotation of AEROPUERTOS ARGENTINA 2000 S.A.’s common shares at the Buenos Aires Stock Exchange during the 5 (FIVE) stock exchange working days previous to the date of the conversion notice sent by the NATIONAL STATE to AEROPUERTOS ARGENTINA 2000 S.A. If at that time there is no share quotation, the common share price shall be determined by an acknowledged assessment firm appointed by the NATIONAL STATE at the expense of the LICENSEE. No common share fraction shall be issued in the conversion: instead, a cash adjustment shall be paid if AEROPUERTOS ARGENTINA 2000 S.A. has net and earned profits. |
| (xii) | Applicable Law: the preferred shares shall be ruled and construed by the Law of the Republic of Argentina. |
| (xiii) | Rights of the NATIONAL STATE: the NATIONAL STATE shall have the following rights: |
| (a) | Appointment of a member of the Supervisory Committee. From the date it becomes a holder of preferred shares, the NATIONAL STATE can appoint a regular member of the supervisory committee of AEROPUERTOS ARGENTINA 2000 S.A. and a deputy member. |
| (b) | Appointment of a director. From the date it becomes a holder of preferred shares, the NATIONAL STATE can appoint a regular member of Board of Directors of AEROPUERTOS ARGENTINA 2000 S.A. and a deputy member. |
The number of directors cannot be more than 8 (EIGHT) members.
| (c) | Information right: The appointed director in representation of the NATIONAL STATE shall have access to the corporate, accounting and technical information, with permanent character. |
| (xiv) | Special right of the conversion: at the moment the NATIONAL STATE makes the conversion option effective, no matter ifs origin, an agreement shall be signed with AA2000’s shareholders, to guarantee the intangible nature of its division in common shares arising from the conversion. |
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| “2007 – Year Dedicated to Road Safety” |
| (xv) | Public Offering Transparency: The public offering to be made shall, in all moments, comply with, implement and abide by the principles, rights, obligations, duties and standards of Decree N° 677/01, Regime of the Public Offering Transparency. |
| (xvi) | Option to Equate the Purchase Offer: If the National State decides to transfer the preferred shares, it shall give the holders of Class A, B and C shares of AEROPUERTOS ARGENTINA 2000 S.A. the option to acquire the shares for at least the same value as the received offer. When the aforementioned shareholders do not use the option or when there is no agreement upon the value of the shares, the National State shall deem the option rejected and will be free to proceed with the initial transfer process. |
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