EX-99.30 3 a21-16908_19ex99d30.htm EX-99.30

Exhibit 99.30

 

Execution Copy

 

 

LOAN AGREEMENT

 

 

Dated 9 July 2021 and effective as of 8 July 2021

 

Between

 

Fintech Investments Ltd.

 

as Lender

 

and

 

Aerodrome Infrastructure S.à r.l.

 

as Borrower

 

1

 

 

TABLE OF CONTENTS

 

 

Clause

 

 

Page

 

 

 

1

DEFINITIONS

4

2

CONSTRUCTION

5

3

THE LOAN

6

4

INTEREST

6

5

REPAYMENT AND PREPAYMENT

6

6

COVENANTS

7

7

EVENTS OF DEFAULT

7

8

EVIDENCE OF DEBT

8

9

NOTICES

8

10

DELIVERY

9

11

ENGLISH LANGUAGE

9

12

SURVIVAL

10

13

ASSIGNMENT

10

14

COSTS AND EXPENSES

10

15

LIABILITY AND INDEMNITY

10

16

SEVERABILITY

10

17

NO WAIVER

10

18

CONFIDENTIALITY

10

19

FURTHER ASSURANCES

11

20

ENTIRE AGREEMENT

11

21

AMENDMENT

11

22

EXECUTION

11

23

GOVERNING LAW

11

24

JURISDICTION

11

 

2

 

 

THIS INTEREST-BEARING LOAN AGREEMENT (the Agreement) is dated 9 July 2021 and effective as of 8 July 2021 and made between:

 

(1)                                          Fintech Investments Ltd., a limited company, validly incorporated under the laws of British Virgin Islands on 21st day of September 1989, with the Registrar of Corporate Affairs of the British Virgin Islands under the number n° 19565, with its registered office at P.O. 958, Pasea Estate Road Town, Tortola, British Virgin Islands (the Lender); and

 

(2)                                          Aerodrome Infrastructure S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 8, rue de la Grève, L-1643 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B251461 (the Borrower and together with the Lender, the Parties).

 

WHEREAS:

 

(A)                                        On July 9, 2021, the Borrower acquired 60,155,201 B shares (the Shares) representing the capital stock of Grupo Aeroportuario del Centro Norte, S.A.B. de C.V. (OMA) in the form of Series B shares and American Depositary Shares (ADSs), which were validly tendered in the Tender Offer (as defined herein), which was addressed to the shareholders of OMA and the holders of the ADSs and carried out simultaneously in the Mexican United States and the United States of America (the Tender Offer). The Borrower is acquiring the Shares at a price of Ps. 137 per share, resulting in a total acquisition price of Ps. 8,278,997,311.74 (the Settlement Price).  The Borrower intends to pay approximately 15% of the Settlement Price (i.e. USD 63,500,000.00) in cash, which amount shall be financed by a contribution to the Company’s 115 Account (the 115 Contribution) from the Aerodrome Shareholders (as defined herein) in proportion to their ownership interest in the Company, and will finance approximately 85% of the Settlement Price (i.e. USD 352,105,666.38) (such amount, the FIL Receivable), through a loan from the affiliated company Fintech Investments Ltd. The Company is owned by Bagual S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 10, rue Mathias Hardt, L-1717 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B219977 (Bagual), Expanse S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 12, Rue Jean-Engling, L-1466 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B240858 (Expanse), Grenadier S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 51, Boulevard Grande Duchesse Charlotte, L-1331, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B219909 (Grenadier), Harpoon S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 11-13, Boulevard de, Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B228590 (Harpoon) and Pequod S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 124, Boulevard de la Pétrusse, Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B219910 (Pequod, and together with Bagual, Expanse, Grenadier and Harpoon, the

 

3

 

Aerodrome Shareholders). In order to timely fund the Settlement Price in connection with the settlement of the Tender Offer, the Parties wish to make the Loan (as defined herein) on the date hereof.

 

(B)                                        The Parties now wish to set the terms and conditions governing their creditor’s (as far as the Lender is concerned) and debtor’s (as far as the Borrower is concerned) positions in connection with the FIL Receivable. These terms and conditions take the form of an interest-bearing loan in an aggregate principal amount of three hundred fifty-two million, one hundred five thousand, six hundred sixty-six and 38/100 United States dollars (USD 352,105,666.38) (the Loan) between the Lender and the Borrower evidenced under the Agreement.

 

(C)                                        The Lender and the Borrower now wish to evidence the terms of their agreement whereby the Lender lends the Loan and the Borrower agrees to borrow the Loan.

 

IT IS AGREED as follows:

 

1                                                  DEFINITIONS

 

1.1                                        In this Agreement, unless otherwise stated or the context requires otherwise:

 

Agreement

 

means this loan agreement, including recitals (A) to (C) above.

 

 

 

Applicable Rate

 

means six (6%) percent per annum.

 

 

 

Borrower Account

 

means the account opened in the name of the Borrower, as notified from time to time by the Borrower to the Lender.

 

 

 

Business Day

 

means a day (other than a Saturday or Sunday) on which banks are open for business in Luxembourg.

 

 

 

Effective Date

 

means the date of this Agreement.

 

 

 

Event of Default

 

means any of the events referred to in Clause 7.

 

 

 

Interest

 

means the interest payable and calculated in accordance with Clause 4.

 

 

 

Interest Period

 

shall have a meaning ascribed to it in Clause 4.3.

 

 

 

Interest Payment Date

 

shall have a meaning ascribed to it in Clause 4.3.

 

 

 

Lender Account

 

means the account opened in the name of the Lender, as notified from time to time by the Lender to the Borrower.

 

 

 

Loan

 

shall have a meaning ascribed to it in recital (C).

 

 

 

Luxembourg

 

means the Grand Duchy of Luxembourg.

 

 

 

Maturity Date

 

means 31st December 2031, or any such extended date as may be granted

 

4

 

 

 

by the Lender at its discretion and notified in writing to the Borrower.

 

 

 

Party

 

means a party to this Agreement.

 

 

 

Reorganisation Measures

 

means measures involving an intervention by the administrative or judicial authorities with a view to preserving or restoring a financial situation and which affect pre-existing rights of third parties, including measures involving a moratorium, suspension of payments (sursis de paiement), controlled management (gestion contrôlée), composition with creditors (concordat préventif de faillite), suspension of enforcement measures, reorganisation or reduction of claims, the appointment of a temporary administrator (administrateur provisoire) and any similar Luxembourg or foreign proceedings affecting the rights of creditors generally.

 

 

 

Winding-up Proceedings

 

means collective proceedings concerning the realisation of assets and distribution of the proceeds between the creditors or shareholders, which involve an intervention by the administrative or judicial authorities, including bankruptcy proceedings (faillite) and collective proceedings, which are terminated by composition or other analogous measures, whether or not they are founded on insolvency or are voluntary or compulsory, and any similar Luxembourg or foreign proceedings affecting the rights of creditors generally.

 

2                                                  CONSTRUCTION

 

2.1                                        Unless otherwise stated or the context requires otherwise, any references in this Agreement to:

 

(a)                       any document or agreement are references to that document or agreement as amended from time to time;

 

(b)                       an amendment includes a supplement, novation, restatement, or re-enactment and the word amend and its derivatives are construed accordingly;

 

(c)                        including is not construed restrictively, but means including but without limitation or without prejudice to the generality of the foregoing, and the word include and its derivatives are construed accordingly;

 

(d)                       a Party or any other person includes its successors, assignees, transferees or novated parties;

 

(e)                        a person means any individual, firm, company, corporation, government or state, or any association, trust, partnership or other entity;

 

(f)                         a provision of law is a reference to that provision as amended or re-enacted; and

 

(g)                        a time of day is a reference to Luxembourg CET.

 

2.2                                        English legal terms used in this Agreement should be interpreted in accordance with their Luxembourg legal equivalents.

 

5

 

2.3                                        No provision of this Agreement shall be interpreted against a Party solely on the grounds that the Party in question was responsible for the drafting of that provision.

 

2.4                                        Clause headings are for reference purposes only and references to Clauses are references to Clauses of this Agreement.

 

2.5                                        Words denoting the singular include the plural and vice versa, and words denoting either gender include the other.

 

3                                                  THE LOAN

 

The Lender makes the Loan available to the Borrower, subject to the terms and conditions of this Agreement.

 

4                                                  INTEREST

 

4.1                                        Rate

 

The Loan shall bear Interest at the Applicable Rate.

 

4.2                                        Calculation

 

Any interest accruing under this Agreement is calculated on the basis of the actual number of days elapsed and a year of 360 days.

 

4.3                                        Interest Period

 

Each interest period shall be six (6) months (the Interest Period). The first Interest Period shall start on the Effective Date and end on 31 December 2021.  Each following Interest Period shall start on 1 July or 1 January, as applicable, in any calendar year during the term of this Agreement, and interest shall be payable on 3 July or 3 January, as applicable with the last Interest Period ending on the Maturity Date (each such date, an Interest Payment Date). If an Interest Payment Date would fall on a date which is not a Business Day, that Interest Payment Date will instead fall on the next Business Day.

 

4.4                                        Payment

 

The Borrower shall pay accrued interest on the Loan semi-annually on each Interest Payment Date.

 

Any interest accrued and due each year may be either capitalised or paid to the Lender at each Interest Payment Date, at the choice of the Borrower. Any capitalisation of interest shall be subject to the provisions of article 1154 of the Luxembourg Civil Code, which allows compounding of matured interest provided that the relevant interest relates to interest accrued during a period of an entire year.

 

5                                                  REPAYMENT AND PREPAYMENT

 

5.1                                        The Loan, together with any outstanding accrued Interest and all other sums payable under this Agreement, must be repaid in full by the Borrower on the Maturity Date.

 

5.2                                        Notwithstanding the above, the Borrower shall be entitled at all times to pay the outstanding amount of the Loan in advance, together with any outstanding accrued Interest and all other sums payable

 

6

 

under this Agreement, either in whole or in part, without premium or penalty, after giving the Lender at least five (5) Business Days’ notice.

 

5.3                                        The Loan shall be denominated in United States dollars (USD) and shall be payable in whole or in part in United States dollars (USD) and/or Mexican Peso (MXN) at the discretion of the Borrower.  If the Loan is paid in whole or in part in Mexican Pesos (MXN), the applicable exchange rate shall the MXN/USD spot exchange rate as reported on Bloomberg FX Fixings (BFIX) on the relevant date.

 

5.4                                        All repayments by the Borrower under this Agreement shall be made to the Lender Account on the due date, in same-day funds in United States dollars (USD). If the Lender asks for a payment in a currency other than United States dollars (USD), the applicable exchange rate shall be that given by the bank handling the transaction and approved by the Lender, or as agreed between the Parties. For the avoidance of doubt, any repayment in a currency other than United States dollars (USD) will be done at the spot exchange rate as reported on Bloomberg FX Fixings (BFIX) on the relevant payment date, unless otherwise agreed between the Parties.

 

5.5                                        All sums payable by the Borrower under this Agreement, whether in principal or otherwise, shall be paid in full, without set-off or counterclaim or any deduction for, or on account of, any present or future income or other taxes, levies, duties or other charges whatsoever, except as required by law. If the Borrower is compelled by law to make any such deduction or withholding, the Borrower shall promptly pay the Lender the additional amount it would have received had there been no such deduction or withholding.

 

6                                                  COVENANTS

 

The Borrower covenants that as long as any sum remains payable under this Agreement, it will:

 

(a)                       promptly advise the Lender in writing on becoming aware of:

 

(i)                         any Event of Default or any event which may become an Event of Default;

 

(ii)                      any material adverse event which may prevent the Borrower from complying with any of its obligations under this Agreement; and

 

(b)                       supply the Lender, promptly on request, with such financial documentation as the Lender may require from time to time.

 

7                                                  EVENTS OF DEFAULT

 

7.1                                        Each of the events set out in this clause is an Event of Default:

 

(a)                       Non-payment

 

The Borrower does not pay on the due date any amount payable pursuant to this Agreement in the currency in which it is expressed to be payable and in the manner specified in this Agreement, unless payment is made within two (2) Business Days of that due date.

 

(b)                       Other Obligations

 

7

 

The Borrower fails to comply with any provision of this Agreement (other than Clause 7.1(a) (Non-payment)), unless that failure is remedied within five (5) Business Days following the Lender’s request to remedy it.

 

(c)                        Reorganisation Measures or Winding-up Proceedings

 

Reorganisation Measures or Winding-up Proceedings are undertaken in relation to the Borrower or its assets, or action is taken against the Borrower for fraudulent conveyancing (action paulienne).

 

(d)                       Creditors’ Process

 

Any attachment, expropriation, sequestration, distress, execution or encumbrance which affects any of the Borrower’s assets and is not discharged within fifteen (15) Business Days.

 

(e)                        Unlawfulness

 

It is or becomes unlawful for the Borrower or the Lender to perform any of their respective obligations under this Agreement.

 

(f)                         Material Adverse Change

 

Any material adverse change in the Borrower’s business, assets or financial situation which affects its ability to comply with any or all of its obligations under this Agreement.

 

7.2                                        If an Event of Default has occurred (and irrespective of whether or not it is continuing), the Lender may, by notice to the Borrower, declare that all or part of any amount outstanding under this Agreement is immediately due and payable.

 

8                                                  EVIDENCE OF DEBT

 

The Loan, together with any Interest accrued thereon, shall be evidenced by a Loan Account maintained by the Lender, which shall be prima facie evidence of the amount of the outstanding Loan and Interest accrued thereon. On request, the Lender will provide the Borrower with a copy of the Loan Account by letter, fax or email. The Borrower will inform the Lender of any error or omission within five (5) Business Days following receipt of the copy of the Loan Account.

 

9                                                  NOTICES

 

9.1                                        Any notice or other communication given in connection with this Agreement shall be in writing, and unless otherwise stated, may be made by fax or electronic or registered mail (charges prepaid), or delivered in person.

 

9.2                                        For any notice or other communication given in connection with this Agreement, the address, telephone number, fax number and electronic mail address of each Party (and the department or officer, if any, to whose attention the communication should be addressed) are those identified in this Clause, or any such substitute address, telephone number, fax number and electronic mail address (and department or officer) as either Party may notify to the other, giving not less than five (5) Business Days’ notice.

 

(a)                     Lender

 

8

 

Address:                                                    Pasea Estate, 1110 Road Town, Tortola, British Virgin Islands

 

Attention:                                            Mr. Khaled Rezaie

 

Tel:                                                                              +41 58 450 5240

 

Fax:                                                                          +41 58 450 5270

 

Email address:                   k.rezaie@kendris.com

 

(b)                  Borrower

 

Address:                                                    Registered office at 8, rue de la Grève, L-1643 Luxembourg

 

Attention:                                            Board of Managers

 

Tel:                                                                              +352 28 26 39 10

 

Email address:                   vpechon@keypartners.lu

 

10                                           DELIVERY

 

10.1                                 Any notice or other communication given in connection with this Agreement shall only be effective:

 

(a)                       if sent by fax, when received in legible form;

 

(b)                       if mailed, on receipt or five (5) Business Days after having been mailed, whichever occurs first;

 

(c)                        if sent by electronic mail, when actually received in readable form and confirmed by fax or ordinary mail; or

 

(d)                       if delivered by hand, on delivery

 

and if a particular department or officer is specified as part of the address details provided under Clause 9.2, if addressed to that department or officer.

 

10.2                                 Any notice or other communication received or delivered in accordance with this Clause after 4.00 p.m. on a Business Day, or on a day which is not a Business Day, shall be deemed to have been received or delivered at 10.00 a.m. on the next Business Day.

 

11                                           ENGLISH LANGUAGE

 

11.1                                 Any notices or other communications given in connection with this Agreement shall be in English.

 

11.2                                 All other documents provided in connection with this Agreement shall be:

 

(a)                       in English; or

 

(b)                       if not in English and if so required by the other Party (acting reasonably), accompanied by a certified English translation. In this case the English translation shall prevail, unless the document is a constitutional, statutory or other official document.

 

9

 

12                                           SURVIVAL

 

After the termination or expiry of this Agreement, each Party shall remain bound by the provisions of this Agreement, which are meant by their nature to remain applicable, including Clause 18 (Confidentiality), Clause 23 (Governing law) and Clause 24 (Jurisdiction).

 

13                                           ASSIGNMENT

 

Either Party may only assign, transfer or otherwise dispose of all or part of its rights and obligations under this Agreement, with the prior written approval of the other Party.

 

14                                           COSTS AND EXPENSES

 

The Borrower shall bear all costs, fees, duties and other amounts arising under this Agreement, including the fees and expenses of legal advisers and any VAT thereon, in particular, expenses regarding (i) the negotiation, preparation and execution of this Agreement; (ii) the enforcement or preservation of any rights under it; and (iii) all waivers, discharges, amendments and other documents in connection therewith.

 

15                                           LIABILITY AND INDEMNITY

 

The Borrower shall indemnify the Lender on request against all losses, liabilities, prejudice and expenses, incurred by the Lender as a result of any default by the Borrower in the performance of its obligations under this Agreement.

 

16                                           SEVERABILITY

 

16.1                                 The illegality, invalidity or unenforceability of any provision of this Agreement in any jurisdiction shall not affect the legality, validity or enforceability:

 

(a)                       in that jurisdiction, of any other provision of this Agreement; or

 

(b)                       in any other jurisdiction, of that or any other provision of this Agreement.

 

16.2                                 Any illegal, invalid or unenforceable provision shall be replaced by a new provision reflecting the intention of the Parties.

 

17                                           NO WAIVER

 

No failure or delay by the Lender to exercise any rights or remedies under this Agreement, shall operate as a waiver thereof, nor shall any single or partial exercise of any such rights or remedies preclude any other or future exercise thereof or the exercise of any other right or remedy.

 

18                                           CONFIDENTIALITY

 

18.1                                 Each Party shall (and procures that each of its affiliates shall), keep the contents of this Agreement secret and strictly confidential, and not disclose or divulge them to any person, or enable any person not a Party to this Agreement to become aware of its contents.

 

18.2                                 Notwithstanding Clause 18.1, a Party may disclose information:

 

(a)                       to an affiliate, if that affiliate becomes a Party to this Agreement;

 

10

 

(b)                       to a person intending to assume the rights and obligations of that Party in accordance with this Agreement;

 

(c)                        to its affiliates’ directors, officers, employees, agents and advisers, including accountants, legal counsel and other advisers (it being understood that the persons to whom such disclosure is made will be informed of the confidential nature of the information and instructed to keep it information confidential);

 

(d)                       at the request of any regulatory authority;

 

(e)                        at the request of any competent court or any laws or regulations; or

 

(f)                         in connection with the exercise of any remedies, the enforcement of any rights, or any suit, action or proceedings relating to this Agreement or any other related agreement.

 

provided that anyone who receives (a copy of) this Agreement grants a confidentiality undertaking which is satisfactory in form and substance to the other Party before any information is disclosed.

 

19                                           FURTHER ASSURANCES

 

Each Party shall do whatever the other Party deems necessary or desirable (at its sole discretion) in connection with this Agreement and the transactions contemplated thereby.

 

20                                           ENTIRE AGREEMENT

 

This Agreement contains the full, final and complete understanding between the Parties relating to its subject matter, and supersedes all prior negotiations, agreements, understandings or arrangements, whether written or oral.

 

21                                           AMENDMENT

 

This Agreement may only be amended in writing, duly signed by the authorised signatories of each Party.

 

22                                           EXECUTION

 

This Agreement may be executed on one or more originals of the same document, all of which taken together shall constitute one and the same agreement.

 

23                                           GOVERNING LAW

 

This Agreement shall be governed by and construed in accordance with Luxembourg law.

 

24                                           JURISDICTION

 

24.1                                 Any dispute arising out of or in connection with this Agreement, including a dispute regarding its existence, validity, interpretation, performance or termination (a Dispute), shall be subject to the exclusive jurisdiction of the courts of the City of Luxembourg.

 

24.2                                 Each Party agrees that the courts of the City of Luxembourg are the most appropriate and convenient courts to settle a Dispute, and that accordingly, neither Party will argue to the contrary.

 

11

 

{Remainder of page intentionally left blank - Signature page(s) follow(s)}

 

12

 

Signature Page of the Loan Agreement

 

LENDER

 

 

 

 

 

 

 

 

Fintech Investments Ltd.

 

 

 

 

 

 

 

 

/s/ Diretora Corporate Services S.A.

 

 

By: Diretora Corporate Services S.A.

 

 

Title: Director

 

 

 

 

 

 

 

 

/s/ Khaled Rezaie

 

 

By: Khaled Rezaie

 

 

Title: Director and Secretary

 

 

 

 

 

 

 

 

/s/ Daniela Duque Cardona

 

 

By: Daniela Duque Cardona

 

 

Title: Assistant Vice President

 

 

 

 

 

 

 

 

BORROWER

 

 

 

 

 

 

 

 

Aerodrome Infrastructure S.à r.l.

 

 

 

 

 

 

 

 

/s/ Khaled Rezaie

 

/s/ Jean-Christophe Dauphin

Mr. Khaled REZAIE

 

Mr. Jean-Christophe DAUPHIN

Class A Manager

 

Class B Manager

 

 

 

 

 

 

/s/ Valérie Pechon

 

/s/ Julio R. Rodriguez, JR.

Ms. Valérie PECHON

 

Mr. Julio R. RODRIGUEZ, JR.

Class B Manager

 

Class C Manager

 

[Aerodrome — Loan Agreement]