As filed with the Securities and Exchange Commission on October 2, 2013.

Registration No. 333-191258

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 2

to

FORM F-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

AVIANCA HOLDINGS S.A.

(Exact name of registrant as specified in its charter)

 

 

 

Republic of Panama   4512   Not Applicable
(State or other jurisdiction of
incorporation or organization)
  (Primary standard industrial
classification code number)
  (I.R.S. employer
identification number)

Aquilino de la Guardia Calle No. 8, Panama City,

Republic of Panama

(+507) 205-600

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Avianca Inc.

122 East 42nd Street, Suite 2525

New York, NY 10168

+1 (212) 399-0831

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

with copies to:

 

David L. Williams
Simpson Thacher & Bartlett LLP
425 Lexington Avenue

New York, New York 10017

 

John R. Vetterli
White & Case LLP
1155 Avenue of the Americas

New York, New York 10036

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, please check the following box.   ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

Title of each class of
securities to be registered
  Amount to  be
registered (1)
  Proposed maximum
aggregate offering
price (1)(2)
  Amount of
registration fee (4)

Preferred shares, par value $0.125 (3)

 

                 shares

  $100,000,000   $13,640

 

 

(1) Includes preferred shares that the underwriters may purchase solely to cover over-allotments, if any, and preferred shares that are to be offered outside the United States that may be resold in the United States in transactions requiring registration under the Securities Act. All or part of these preferred shares may be represented by American Depositary Shares, each of which represents                 of our preferred shares.
(2) Estimated solely for purposes of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act.
(3) American Depositary Shares evidenced by American Depositary Receipts issuable upon deposit of the preferred shares registered hereby will be registered under a separate registration statement on Form F-6. Each American Depositary Share represents                 preferred shares.
(4) Previously paid.

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment, which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


EXPLANATORY NOTE

This Amendment No. 2 to the Registration Statement on Form F-1 of Avianca Holdings S.A. is being filed solely to include exhibits to the Registration Statement. Accordingly, Part I, the form of prospectus, has been omitted from this filing.


PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

I TEM  6. I NDEMNIFICATION OF D IRECTORS AND O FFICERS

According to the Registrant’s articles of incorporation and so far as may be permitted by the law, every director or officer of the Registrant involved in a claim, process, lawsuit or procedure related to his current or former position as director or officer, shall be entitled to be indemnified by the Registrant against all reasonable expenses, losses, fines and costs, including attorney fees, effectively and necessarily incurred by him, as a result of his actions and duties as a director or officer of the Registrant; except in case of losses or responsibility derived from willful misconduct or gross negligence.

I TEM  7. R ECENT S ALES OF U NREGISTERED S ECURITIES

On May 10, 2011, the Registrant completed a public offering of 100 million shares of preferred stock, with a par value of $0.125 per share, in an offering led by Correvores Associados and exempt from registration under Regulation S under the Securities Act in an offering occurring outside the United States, for a total amount of COP 500,000 million (approximately $277 million), representing a price of COP 5,000 per share, In May 2011, Synergy and Kingsland converted 15,000,000 and 42,600,000 common shares, respectively, into preferred shares in connection with the initial public offering of our preferred shares in Colombia

On May 10, 2013, the Registrant issued and sold $300,000,000 aggregate principal amount of senior notes due 2020 in an offering underwritten by Citigroup Global Markets Inc. and J.P. Morgan Securities LLC and exempt from registration under Rule 144A and Regulation S under the Securities Act. The price to the public was 98.706% of par and the aggregate underwriting discount was $1,500,000. The proceeds from the offering were used to finance the purchase of aircraft and general corporate purposes.

I TEM  8. E XHIBITS

(a) The following documents are filed as part of this Registration Statement:

 

  1.1*   Underwriting Agreement, dated as of                     , 2013 between the Registrant and J.P. Morgan Securities LLC and Citigroup Global Markets Inc.
  3.1*   English translation of Certificate of Incorporation.
  3.2*   English translation of Pacto Social .
  4.1   Form of Deposit Agreement between the Registrant, The Bank of New York Mellon, as depositary, and the Owners and Holders from time to time of American Depositary Shares issued thereunder.
  4.2   Specimen of certificate of American Depositary Receipt (included in Exhibit 4.1).
  4.3**   Joint Action Agreement, dated as of September 11, 2013, among the Registrant, Synergy Aerospace Corp. and Kingsland Holding Limited.
  4.4   English Translation of Commercial Pledge Contract, dated September 6, 2012, among Citibank, N.A., Citibank, N.A., Sucursal Panama and Synergy Aerospace Corp.
  4.5**  

Amended and Restated Registration Rights Agreement, dated as of September 11, 2013, among the Registrant, Synergy Aerospace Corp. and Kingsland Holdings Limited.

  5.1   Opinion of Icaza, González-Ruiz & Alemán, Panamanian legal counsel of the Registrant, as to the legality of the preferred shares.
10.1   English translation of Irrevocable Administration Mercantile Trust Agreement, dated as of March 23, 2012, by and between Fiduciaria Bogotá S.A. and Avianca Holdings S.A. (formerly AviancaTaca Holding S.A.).
10.1.1   English translation of Temporary Bonus Plan adopted on March 6, 2012.

 

II-1


10.2  

English translation of Lease Agreement No. OP-DC-CA-T2-0060-12, dated October 17, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.

10.2.1  

English translation of Lease Agreement No. OP-DC-CA-T1-0028-12, dated October 29, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.

10.2.2   English translation of Lease Agreement No. OP-DC-CA-T2-0061-12, dated October 29, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.
10.3   English translation of Lease Agreement, dated as of July 30, 2004, between U.A.E. Aeronautica Civil and Aerovias Nacionales de Colombia S.A. Avianca.
10.3.1   English translation of Amendment No. 1 to Lease Agreement, dated as of December 12, 2005.
10.3.2   English translation of Amendment No. 2 to Lease Agreement, dated as of January 5, 2009.
10.3.3   English translation of Amendment No. 3 to Lease Agreement, dated as of November 7, 2012.
10.3.4   English translation of Amendment No. 4 to Lease Agreement, dated as of March 1, 2013.
10.4   English translation of Fuel Supply Contract, dated as of November 1, 2010, between Terpel S.A. and Aerovías del Continente Americano S.A. Avianca.
10.5†**   A320 Purchase Agreement, dated March 19, 1998, between Atlantic Aircraft Holding Limited and Airbus Industry relating to Airbus A320-Family.
10.5.1†*   Amendment No. 1 dated as of September 9, 1998 to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S. (as successor to Airbus Industry).
10.5.2†*   Amendment No. 2 dated as of December 28, 1999, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.3†*   Amendment No. 3 dated as of December 29, 1999, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.4†*   Amendment No. 4 dated as of February 15, 2000, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.5†*   Amendment No. 5 dated as of April 6, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.6†*   Amendment No. 6 dated as of April 9, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.7†*   Amendment No. 7 dated as of September 6, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.8†*   Amendment No. 8 dated as of August 29, 2002, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.9†*   Amendment No. 9 dated as of December 6, 2002, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.10†*   Amendment No. 10 dated as of October 30, 2003, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.11†*   Amendment No. 11 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.

 

II-2


10.5.12†*   Amendment No. 12 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.13†*   Amendment No. 13 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S
10.5.14†*   Amendment No. 14 dated as of February 18, 2006, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.15†*   Amendment No. 15 dated as of June 22, 2007, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.16†*   Amendment No. 16 dated as of November 22, 2007, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.17†*   Amendment No. 17 dated as of April 14, 2008, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.18†*   Amendment No. 18 dated as of January 30, 2009, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.19†*   Amendment No. 19 dated as of April 28, 2009, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.20†*   Amendment No. 20 dated as of February 10, 2010, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.21†*   Amendment No. 21 dated as of April 29, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.22†*   Amendment No. 22 dated as of August 26, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.23†*   Amendment No. 23 dated as of October 25, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.24†*   Amendment No. 24 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.25†*   Amendment No. 25 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.26†*   Amendment No. 26 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.27†*   Amendment No. 27 dated as of November 30, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.6†**   A320 Purchase Agreement, dated April 16, 2007, between Aerovías del Continente Americano S.A. Avianca and Airbus S.A.S. relating to Airbus A320-Family.
10.6.1†*   Amendment No. 1 dated as of June 16, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.2†*   Amendment No. 2 dated as of September 10, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.3†*   Amendment No. 3 dated as of November 27, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.4†*   Amendment No. 4 dated as of January 31, 2008, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.

 

II-3


10.6.5†*   Amendment No. 5 dated as of July 16, 2008, to the A320 Family Purchase Agreement dated as April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.6†*   Amendment No. 6 dated as of December 5, 2008, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.7†*   Amendment No. 7 dated as of July 6, 2009, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.8†*   Amendment No. 8 dated as of October 10, 2009, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.9†*   Amendment No. 9 dated as of March 12, 2010, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.10†*   Amendment No. 10 dated as of November 22, 2010, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.11†*   Amendment No. 11 dated as of August 26, 2011, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.12†*   Amendment No. 12 dated as of October 10, 2011, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.13†*   Amendment No. 13 dated as of June 13, 2012, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.7†*   Assignment, Assumption and Amendment Agreement dated as of May 18, 2012, entered into among Aerovías del Continente Americano S.A. Avianca, Synergy Aerospace Corp. and Airbus S.A.S. in respect of four (4) A330-200F of the thirteen (13) A330-200 and A330-200F under the Purchase Agreement dated September 5, 2011 (the A330-200F Purchase Agreement).
10.7.1†*   Amendment No. 1, dated as of August 16, 2012, to the A330-200F Purchase Agreement dated as of May 18, 2012, as amended and restated, between the Company and Airbus S.A.S.
10.8†**   A320 Family and A320 NEO Family Purchase Agreement dated as of December 27, 2011 between Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.) and Airbus S.A.S. relating to Airbus A320-Family and A320 NEO Family.
10.8.1†**   Amendment No. 1, dated as of February 28, 2013, to the A320 Family and A320 NEO Family Purchase Agreement dated as of December 27, 2011, between Avianca Holdings S.A. and Airbus S.A.S.
10.8.2†**   Assignment, Assumption and Amendment Agreement dated as of February 28, 2013, entered into among Aerovías del Continente Americano S.A. Avianca, Avianca Holdings S.A. and Airbus S.A.S. in respect of twenty six (26) A320 Family Aircraft and A320 NEO Family under the A320 Family and A320 NEO Family Purchase Agreement dated December 27, 2011.
10.8.3†**   Assignment, Assumption and Amendment Agreement dated as of February 28, 2013, entered into among Grupo Taca Holdings Limited, Avianca Holdings S.A. and Airbus S.A.S. in respect of twenty five (25) A320 Family and A320 NEO Family Aircraft under the A320 Family and A320 NEO Family Purchase Agreement dated December 27, 2011.
10.9†*   Purchase Agreement No. 3075, dated October 3, 2006, as amended and supplemented, between Aerovías del Continente Americano S.A. Avianca (The Company) and The Boeing Company, relating to the purchase and sale of ten (10) Boeing Model 787-859 aircraft.
10.9.1†*   Supplemental Agreement No. 1 dated as of March 28, 2007, to the Purchase Agreement No. 3075, dated October 3, 2006, as amended and supplemented, between the Company and The Boeing Company

 

II-4


10.9.2†*   Supplemental Agreement No. 2 dated as of March 28, 2007, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.9.3†*   Supplemental Agreement No. 3 dated as of September 26, 2012, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.9.4†*   Supplemental Agreement No. 4 dated as of January 11, 2013, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.10†*   Sale and Purchase Contract dated as of January 18, 2013, between Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.) and Avions de Transport Regional G.I.E. as amended and restated, relating to ATR 72-600 Aircraft.
10.11†**   Trent 700 General Terms Agreement, dated June 15, 2007, among Rolls Royce PLC, Rolls Royce Total Care Services Limited and Aerovías del Continente Americano S.A. Avianca.
10.11.1†**   Amendment No. 1 to General Terms Agreement, dated February 28, 2008.
10.11.2†**   Amendment No. 2 to General Terms Agreement, dated February 28, 2009.
10.11.3†**   Amendment No. 3 to General Terms Agreement, dated September 1, 2009.
10.11.4†**   Amendment No. 4 to General Terms Agreement, dated March 18, 2011.
10.12†**   General Terms Agreement 700 DEG 7308, dated June 1, 2012, between Rolls-Royce PLC, Rolls-Royce Total Care Services Limited and Aerovías del Continente Americano S.A. Avianca and Tampa Cargo S.A.
10.13†**   General Terms Agreement No. CFM-03-2007, dated as of March 29, 2007, between CFM International, Inc. and Aerovías del Continente Americano S.A. Avianca.
10.13.1†*   Amendment No. 1 to General Terms Agreement.
10.14†**   General Terms Agreement No. GE-1-1090789943, dated as of December 18, 2007, between General Electric Corporation, GE Engine Services and Atlantic Aircraft Holding, Ltd.
10.15†**   OnPoint Solutions Rate per Engine Flight Hour Engine Services Agreement, dated as of January 18, 2008, between GE Engine Services, Inc. and Aerovías del Continente Americano S.A. Avianca.
10.16†*  

Rate Per Flight Hour Agreement for CFM56-5B Engine Shop Maintenance Services, dated as of February 6, 2013, between CFM International, Inc. and Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.).

10.17†**   General Terms Agreement No. CFM-1-2887169891, dated as of February 6, 2013, between CFM International, Inc. and Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.)
10.18†**   Rate Per Flight Hour Agreement for LEAP 1-A Engine Shop Maintenance Services, dated as of February 6, 2013, between CFM International, Inc. and Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.).
10.19†**   Amended and Restated V2500 ® General Terms of Sale, dated as of December 18, 2008, between IAE International Aero Engines AG and Atlantic Aircraft Holdings Limited.
10.19.1†*   Amendment No. 1 to Amended and Restated V2500 ® General Terms of Sale, dated December 17, 2010.
10.19.2†**   Second Amended and Restated Side Letter, dated as of December 17, 2010.
10.20†**   Amended and Restated V2500-A5 Fleet Hour Agreement, dated as of December 18, 2008, between IAE International Aero Engines AG and Atlantic Aircraft Holdings Limited.

 

II-5


12.1   Computation of ratios of earnings.
21.1   Subsidiaries of the Registrant.
23.1**   Consent of Ernst & Young Audit S.A.S.
23.2   Consent of Icaza, González-Ruiz & Alemán, Panamanian legal counsel of the Registrant (included in Exhibit 5.1).
24.1**   Powers of Attorney (included in the signature pages in a previous filing of this registration statement).

 

* To be filed by amendment.
** Previously filed.
Portions of the exhibit omitted pursuant to a request for confidential treatment.

(b) Financial Statement Schedules

Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in our consolidated financial statements or notes thereto.

I TEM  9. U NDERTAKINGS

The undersigned Registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted against the Registrant by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The undersigned Registrant hereby also undertakes that:

 

1. For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement at the time it was declared effective.

 

2. For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-6


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Bogotá, Colombia, on October 2, 2013.

 

Avianca Holdings S.A.
By:   /s/ Fabio Villegas Ramírez
  Name: Fabio Villegas Ramírez
  Title:   Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on October 2, 2013 in the capacities indicated:

 

Name    Title

/s/ Fabio Villegas Ramírez

Fabio Villegas Ramírez

  

Chief Executive Officer

(Principal Executive Officer)

  

/s/ Gerardo Grajales López

Gerardo Grajales López

  

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

/s/ Milton Solano Barahona

Milton Solano Barahona

   Accounting Shared Services Vice President (Principal Accounting Officer)

*

Germán Efromovich

   Chairman of the Board of Directors

*

Roberto Kriete

   Director

*

José Efromovich

   Director

*

Alexander Bialer

   Director

*

Marco Baldocchi

   Director

*

Isaac Yanovich

   Director

*

Alvaro Jaramillo

   Director

 

II-7


Name    Title

*

Juan Guillermo Serna

   Director

*

Ramiro Valencia

   Director

*

Monica Aparicio

   Director

*

Oscar Darío Morales

   Director

 

*By:   /s/ Gerardo Grajales López
 

Gerardo Grajales López

Attorney-in-Fact

SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES

Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Avianca Holdings S.A., has signed this Registration Statement in New York, New York, on October 2, 2013.

 

Avianca Inc.

By:   /s/ Gerardo Grajales López
 

Gerardo Grajales López

Authorized Signatory

 

II-8


Exhibit Index

 

  4.1    Form of Deposit Agreement between the Registrant, The Bank of New York Mellon, as depositary, and the Owners and Holders from time to time of American Depositary Shares issued thereunder.
  4.2    Specimen of certificate of American Depositary Receipt (included in Exhibit 4.1).
  4.4    English Translation of Commercial Pledge Contract, dated September 6, 2012, among Citibank, N.A., Citibank, N.A., Sucursal Panama and Synergy Aerospace Corp.
  5.1    Opinion of Icaza, González-Ruiz & Alemán, Panamanian legal counsel of the Registrant, as to the legality of the preferred shares.
10.1    English translation of Irrevocable Administration Mercantile Trust Agreement, dated as of March 23, 2012, by and between Fiduciaria Bogotá S.A. and Avianca Holdings S.A. (formerly AviancaTaca Holding S.A.).
10.1.1    English translation of Temporary Bonus Plan adopted on March 6, 2012.
10.2   

English translation of Lease Agreement No. OP-DC-CA-T2-0060-12, dated October 17, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.

10.2.1   

English translation of Lease Agreement No. OP-DC-CA-T1-0028-12, dated October 29, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.

10.2.2    English translation of Lease Agreement No. OP-DC-CA-T2-0061-12, dated October 29, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.
10.3    English translation of Lease Agreement, dated as of July 30, 2004, between U.A.E. Aeronautica Civil and Aerovias Nacionales de Colombia S.A. Avianca.
10.3.1    English translation of Amendment No. 1 to Lease Agreement, dated as of December 12, 2005.
10.3.2    English translation of Amendment No. 2 to Lease Agreement, dated as of January 5, 2009.
10.3.3    English translation of Amendment No. 3 to Lease Agreement, dated as of November 7, 2012.
10.3.4    English translation of Amendment No. 4 to Lease Agreement, dated as of March 1, 2013.
10.4    English translation of Fuel Supply Contract, dated as of November 1, 2010, between Terpel S.A. and Aerovías del Continente Americano S.A. Avianca.
12.1    Computation of ratios of earnings.
21.1    Subsidiaries of the Registrant.
23.2    Consent of Icaza, González-Ruiz & Alemán, Panamanian legal counsel of the Registrant (included in Exhibit 5.1).

Exhibit 4.1

 

 

 

AVIANCA HOLDINGS S.A.

AND

THE BANK OF NEW YORK MELLON

As Depositary

AND

OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES

Deposit Agreement

Dated as of                     , 2013

 

 

 


DEPOSIT AGREEMENT

DEPOSIT AGREEMENT dated as of                     , 2013, among AVIANCA HOLDINGS S.A., a corporation ( sociedad anónima ) incorporated under the laws of the Republic of Panama (herein called the Company), THE BANK OF NEW YORK MELLON, a New York banking corporation (herein called the Depositary), and all Owners and Holders from time to time of American Depositary Shares issued hereunder.

WITNESSETH:

WHEREAS, the Company desires to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the Company from time to time with the Depositary or with the Custodian (as hereinafter defined) as agent of the Depositary for the purposes set forth in this Deposit Agreement, for the creation of American Depositary Shares representing the Shares so deposited and for the execution and delivery of American Depositary Receipts evidencing the American Depositary Shares; and

WHEREAS, the American Depositary Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement;

NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties hereto as follows:

ARTICLE 1. DEFINITIONS

The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement:

SECTION 1.1 American Depositary Shares.

The term “American Depositary Shares” shall mean the securities created under this Deposit Agreement representing rights with respect to the Deposited Securities. American Depositary Shares may be certificated securities evidenced by Receipts or uncertificated securities. The form of Receipt annexed as Exhibit A to this Deposit Agreement shall be the prospectus required under the Securities Act of 1933 for sales of both certificated and uncertificated American Depositary Shares. Except for those provisions of this Deposit Agreement that refer specifically to Receipts, all the provisions of this Deposit Agreement shall apply to both certificated and uncertificated American Depositary Shares. Each American Depositary Share shall represent the number of Shares specified in Exhibit A to this Deposit Agreement, until there shall occur a distribution upon Deposited Securities covered by Section 4.3 or a change in


Deposited Securities covered by Section 4.8 with respect to which additional American Depositary Shares are not delivered, and thereafter American Depositary Shares shall represent the amount of Shares or Deposited Securities specified in such Sections.

SECTION 1.2 Commission.

The term “Commission” shall mean the Securities and Exchange Commission of the United States or any successor governmental agency in the United States.

SECTION 1.3 Company.

The term “Company” shall mean Avianca Holdings S.A., a corporation ( sociedad anónima ) incorporated under the laws of the Republic of Panama, and its successors.

SECTION 1.4 Custodian.

The term “Custodian” shall mean the principal Bogotá office of Fiduciaria Bancolombia S.A., as agent of the Depositary for the purposes of this Deposit Agreement, and any other firm or corporation which may hereafter be appointed by the Depositary pursuant to the terms of Section 5.5, as substitute or additional custodian or custodians hereunder, as the context shall require and shall also mean all of them collectively.

SECTION 1.5 Deliver; Surrender.

(a) The term “deliver”, or its noun form, when used with respect to Shares or other Deposited Securities, shall mean (i) book-entry transfer of those Shares or other Deposited Securities to an account maintained by an institution authorized under applicable law to effect transfers of such securities designated by the person entitled to that delivery or (ii) physical transfer of certificates evidencing those Shares or other Deposited Securities registered in the name of, or duly endorsed or accompanied by proper instruments of transfer to, the person entitled to that delivery.

(b) The term “deliver”, or its noun form, when used with respect to American Depositary Shares, shall mean (i) book-entry transfer of American Depositary Shares to an account at DTC designated by the person entitled to such delivery, evidencing American Depositary Shares registered in the name requested by that person, (ii) registration of American Depositary Shares not evidenced by a Receipt on the books of the Depositary in the name requested by the person entitled to such delivery and mailing to that person of a statement confirming that registration or (iii) if requested by the person entitled to such delivery, delivery at the Corporate Trust Office of the Depositary to the person entitled to such delivery of one or more Receipts.

 

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(c) The term “surrender”, when used with respect to American Depositary Shares, shall mean (i) one or more book-entry transfers of American Depositary Shares to the DTC account of the Depositary, (ii) delivery to the Depositary at its Corporate Trust Office of an instruction to surrender American Depositary Shares not evidenced by a Receipt or (iii) surrender to the Depositary at its Corporate Trust Office of one or more Receipts evidencing American Depositary Shares.

SECTION 1.6 Deposit Agreement.

The term “Deposit Agreement” shall mean this Agreement, as the same may be amended from time to time in accordance with the provisions hereof.

SECTION 1.7 Depositary; Corporate Trust Office.

The term “Depositary” shall mean The Bank of New York Mellon, a New York banking corporation, and any successor as depositary hereunder. The term “Corporate Trust Office”, when used with respect to the Depositary, shall mean the office of the Depositary which at the date of this Deposit Agreement is 101 Barclay Street, New York, New York 10286.

SECTION 1.8 Deposited Securities.

The term “Deposited Securities” as of any time shall mean Shares at such time deposited or deemed to be deposited under this Deposit Agreement, including without limitation Shares that have not been successfully delivered upon surrender of American Depositary Shares, and any and all other securities, property and cash received by the Depositary or the Custodian in respect thereof and at such time held under this Deposit Agreement, subject as to cash to the provisions of Section 4.5.

SECTION 1.9 Dollars.

The term “Dollars” shall mean United States dollars.

SECTION 1.10 DTC.

The term “DTC” shall mean The Depository Trust Company or its successor.

SECTION 1.11 Foreign Registrar.

The term “Foreign Registrar” shall mean the entity that presently carries out the duties of registrar for the Shares or any successor as registrar for the Shares and any other agent of the Company for the transfer and registration of Shares, including without limitation any securities depository for the Shares.

SECTION 1.12 Holder.

 

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The term “Holder” shall mean any person holding a Receipt or a security entitlement or other interest in American Depositary Shares, whether for its own account or for the account of another person, but that is not the Owner of that Receipt or those American Depositary Shares.

SECTION 1.13 Owner.

The term “Owner” shall mean the person in whose name American Depositary Shares are registered on the books of the Depositary maintained for such purpose.

SECTION 1.14 Receipts.

The term “Receipts” shall mean the American Depositary Receipts issued hereunder evidencing certificated American Depositary Shares, as the same may be amended from time to time in accordance with the provisions hereof.

SECTION 1.15 Registrar.

The term “Registrar” shall mean any bank or trust company having an office in the Borough of Manhattan, The City of New York, that is appointed by the Depositary to register American Depositary Shares and transfers of American Depositary Shares as herein provided.

SECTION 1.16 Specified Shareholder Resolution.

The term “Specified Shareholder Resolution” shall mean a resolution of the general shareholders’ meeting ( Asamblea General de Accionistas ) of the Company with respect to (i) changes or amendments to the Company’s corporate documents that would result in an impairment of the rights of the holders of preferred shares ( acciones con dividendo preferencial y sin derecho a voto ) of the Company under the by-laws (Pacto Social) of the Company or (ii) the conversion of preferred shares of the Company into common shares of the Company.

SECTION 1.17 Restricted Securities.

The term “Restricted Securities” shall mean Shares, or American Depositary Shares representing Shares, that are acquired directly or indirectly from the Company or its affiliates (as defined in Rule 144 under the Securities Act of 1933) in a transaction or chain of transactions not involving any public offering, or that are subject to resale limitations under Regulation D under the Securities Act of 1933 or both, or which are held by an officer, director (or persons performing similar functions) or other affiliate of the Company, or that would require registration under the Securities Act of 1933 in connection with the offer and sale thereof in the United States, or that are subject

 

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to other restrictions on sale or deposit under the laws of the United States or the laws of the Republic of Colombia, or under a shareholder agreement or the articles of association or similar document of the Company.

SECTION 1.18 Securities Act of 1933.

The term “Securities Act of 1933” shall mean the United States Securities Act of 1933, as from time to time amended.

SECTION 1.19 Shares.

The term “Shares” shall mean preferred shares of the Company that are validly issued and outstanding and fully paid, nonassessable and that were not issued in violation of any pre-emptive or similar rights of the holders of outstanding securities of the Company; provided that, if there shall occur any change in nominal value, a split-up or consolidation or any other reclassification or, upon the occurrence of an event described in Section 4.8, an exchange or conversion in respect of the Shares of the Company, the term “Shares” shall thereafter also mean the successor securities resulting from such change in nominal value, split-up or consolidation or such other reclassification or such exchange or conversion.

ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES

SECTION 2.1 Form of Receipts; Registration and Transferability of American Depositary Shares.

Definitive Receipts shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt shall have been (i) executed by the Depositary by the manual signature of a duly authorized officer of the Depositary or (ii) executed by the facsimile signature of a duly authorized officer of the Depositary and countersigned by the manual signature of a duly authorized signatory of the Depositary or a Registrar. The Depositary shall maintain books on which (x) each Receipt so executed and delivered as hereinafter provided and the transfer of each such Receipt shall be registered and (y) all American Depositary Shares delivered as hereinafter provided and all registrations of transfer of American Depositary Shares shall be registered. A Receipt bearing the facsimile signature of a person that was at any time a proper officer of the Depositary shall, subject to the other provisions of this paragraph, bind the Depositary, notwithstanding that such person was not a proper officer of the Depositary on the date of issuance of that Receipt.

 

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The Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or modifications not inconsistent with the provisions of this Deposit Agreement as may be reasonably required by the Depositary or required to comply with any applicable law or regulations thereunder or with the rules and regulations of any securities exchange upon which American Depositary Shares may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date of issuance of the underlying Deposited Securities or otherwise.

American Depositary Shares evidenced by a Receipt, when properly endorsed or accompanied by proper instruments of transfer, shall be transferable as certificated registered securities under the laws of the State of New York. American Depositary Shares not evidenced by Receipts shall be transferable as uncertificated registered securities under the laws of the State of New York. The Depositary, notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes, and neither the Depositary nor the Company shall have any obligation or be subject to any liability under this Deposit Agreement to any Holder of American Depositary Shares unless that Holder is the Owner of those American Depositary Shares.

SECTION 2.2 Deposit of Shares.

Subject to the terms and conditions of this Deposit Agreement, Shares or evidence of rights to receive Shares may be deposited by delivery thereof to any Custodian hereunder, accompanied by any appropriate instruments or instructions for transfer, or endorsement, in form satisfactory to the Custodian, together with all such certifications as may be required by the Depositary or the Custodian in accordance with the provisions of this Deposit Agreement, and, if the Depositary requires, together with a written order directing the Depositary to deliver to, or upon the written order of, the person or persons stated in such order, the number of American Depositary Shares representing such deposit.

No Share shall be accepted for deposit unless accompanied by evidence reasonably satisfactory to the Depositary that any necessary approval has been granted by any governmental body in the Republic of Colombia that is then performing the function of the regulation of currency exchange. If reasonably required by the Depositary, Shares presented for deposit at any time, whether or not the transfer books of the Company or the Foreign Registrar, if applicable, are closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depositary, which will provide for the prompt transfer to the Custodian of any dividend, or right to subscribe for additional Shares or to receive other property which any person in whose name the Shares are or have been recorded may thereafter receive upon or in respect of such deposited Shares, or in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.

 

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The Depositary will refuse to accept Shares for deposit whenever it has received written notice from counsel for the Company that the deposit of such Shares would violate Colombian law or regulations.

At the request and risk and expense of any person proposing to deposit Shares, and for the account of such person, the Depositary may receive certificates for Shares to be deposited, together with the other instruments herein specified, for the purpose of forwarding such Share certificates to the Custodian for deposit hereunder.

Upon each delivery to a Custodian of a certificate or certificates for Shares to be deposited hereunder, together with the other documents specified above, such Custodian shall, as soon as transfer and recordation can be accomplished, present such certificate or certificates to the Company or the Foreign Registrar, if applicable, for transfer and recordation of the Shares being deposited in the name of the Depositary or its nominee or such Custodian or its nominee.

Deposited Securities shall be held by the Depositary or by a Custodian for the account and to the order of the Depositary or at such other place or places as the Depositary shall determine.

SECTION 2.3 Delivery of American Depositary Shares.

Upon receipt by any Custodian of any deposit pursuant to Section 2.2 hereunder, together with the other documents required as specified above, such Custodian shall notify the Depositary of such deposit and the person or persons to whom or upon whose written order American Depositary Shares are deliverable in respect thereof and the number of American Depositary Shares to be so delivered. Such notification shall be made by letter or, at the request, risk and expense of the person making the deposit, by facsimile transmission (and in addition, if the transfer books of the Company or the Foreign Registrar, if applicable, are open, the Depositary may in its sole discretion require a proper acknowledgment or other evidence from the Company or the Foreign Registrar that any Deposited Securities have been recorded upon the books of the Company or the Foreign Registrar, if applicable, in the name of the Depositary or its nominee or such Custodian or its nominee). Upon receiving such notice from such Custodian, or upon the receipt of Shares or evidence of the right to receive Shares by the Depositary, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall, without unreasonable delay, deliver, to or upon the order of the person or persons entitled thereto, the number of American Depositary Shares issuable in respect of that deposit, but only upon payment to the Depositary of the fees and expenses of the Depositary for the delivery of such American Depositary Shares as provided in Section 5.9, and of all taxes and governmental charges and fees payable in connection with such deposit and the transfer of the Deposited Securities.

 

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SECTION 2.4 Registration of Transfer of American Depositary Shares; Combination and Split-up of Receipts; Interchange of Certificated and Uncertificated American Depositary Shares.

The Depositary, subject to the terms and conditions of this Deposit Agreement, shall register transfers of American Depositary Shares on its transfer books from time to time, upon (i) in the case of certificated American Depositary Shares, surrender of the Receipt evidencing those American Depositary Shares, by the Owner in person or by a duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer or (ii) in the case of uncertificated American Depositary Shares, receipt from the Owner of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10), and, in either case, duly stamped as may be required by the laws of the State of New York and of the United States of America. Thereupon the Depositary shall deliver those American Depositary Shares to or upon the order of the person entitled thereto.

The Depositary, subject to the terms and conditions of this Deposit Agreement, shall, without unreasonable delay, upon surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of American Depositary Shares requested, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered.

The Depositary, upon surrender of certificated American Depositary Shares for the purpose of exchanging for uncertificated American Depositary Shares, shall cancel those certificated American Depositary Shares and send the Owner a statement confirming that the Owner is the owner of the same number of uncertificated American Depositary Shares. The Depositary, upon receipt of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10) from the Owner of uncertificated American Depositary Shares for the purpose of exchanging for certificated American Depositary Shares, shall cancel those uncertificated American Depositary Shares and deliver to the Owner the same number of certificated American Depositary Shares.

The Depositary may appoint one or more co-transfer agents for the purpose of effecting registration of transfers of American Depositary Shares and combinations and split-ups of Receipts at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Owners or persons entitled to American Depositary Shares and will be entitled to protection and indemnity to the same extent as the Depositary.

SECTION 2.5 Surrender of American Depositary Shares and Withdrawal of Deposited Securities.

 

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Upon surrender at the Corporate Trust Office of the Depositary of American Depositary Shares for the purpose of withdrawal of the Deposited Securities represented thereby, and upon payment of the fee of the Depositary for the surrender of American Depositary Shares as provided in Section 5.9 and payment of all taxes and governmental charges payable in connection with such surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of this Deposit Agreement, the Owner of those American Depositary Shares shall be entitled to delivery, to such Owner or as instructed, of the amount of Deposited Securities at the time represented by those American Depositary Shares. Such delivery shall be made, as hereinafter provided, without unreasonable delay.

A Receipt surrendered for such purposes may be required by the Depositary to be properly endorsed in blank or accompanied by proper instruments of transfer in blank. The Depositary may require the surrendering Owner to execute and deliver to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be delivered to or upon the written order of a person or persons designated in such order. Thereupon the Depositary shall, without unreasonable delay, direct the Custodian to deliver at the office of such Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and conditions of this Deposit Agreement, to or upon the written order of the person or persons designated in the order delivered to the Depositary as above provided, the amount of Deposited Securities represented by the surrendered American Depositary Shares, except that the Depositary may make delivery to such person or persons at the Corporate Trust Office of the Depositary of any dividends or distributions with respect to the Deposited Securities represented by those American Depositary Shares, or of any proceeds of sale of any dividends, distributions or rights, which may at the time be held by the Depositary.

At the request, risk and expense of any Owner so surrendering American Depositary Shares, and for the account of such Owner, the Depositary shall direct the Custodian to forward any cash or other property (other than rights) comprising, and forward a certificate or certificates, if applicable, and other proper documents of title for, the Deposited Securities represented by the surrendered American Depositary Shares to the Depositary for delivery at the Corporate Trust Office of the Depositary. Such direction shall be given by letter or, at the request, risk and expense of such Owner, by facsimile transmission.

SECTION 2.6 Limitations on Delivery, Transfer and Surrender of American Depositary Shares.

As a condition precedent to the delivery, registration of transfer or surrender of any American Depositary Shares or split-up or combination of any Receipt or withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar may require payment from the depositor of Shares or the presenter of the Receipt or instruction for registration of transfer or surrender of American Depositary Shares not

 

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evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees as herein provided, may require the production of proof reasonably satisfactory to it as to the identity and genuineness of any signature and may also require compliance with any regulations the Depositary may establish consistent with the provisions of this Deposit Agreement, including, without limitation, this Section 2.6.

The delivery of American Depositary Shares against deposit of Shares generally or against deposit of particular Shares may be suspended, or the transfer of American Depositary Shares in particular instances may be refused, or the registration of transfer of outstanding American Depositary Shares generally may be suspended, during any period when the transfer books of the Depositary are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of this Deposit Agreement, or for any other reason, subject to the provisions of the following sentence. Notwithstanding anything to the contrary in this Deposit Agreement, the surrender of outstanding American Depositary Shares and withdrawal of Deposited Securities may not be suspended subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the Foreign Registrar, if applicable, or the deposit of Shares in connection with voting at a shareholders’ meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the American Depositary Shares or to the withdrawal of the Deposited Securities. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under this Deposit Agreement any Shares which would be required to be registered under the provisions of the Securities Act of 1933 for public offer and sale in the United States unless a registration statement is in effect as to such Shares for such offer and sale.

SECTION 2.7 Lost Receipts, etc.

In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall deliver to the Owner the American Depositary Shares evidenced by that Receipt in uncertificated form or, if requested by the Owner, execute and deliver a new Receipt of like tenor in exchange and substitution for such mutilated Receipt, upon cancellation thereof, or in lieu of and in substitution for such destroyed, lost or stolen Receipt. Before the Depositary shall deliver American Depositary Shares in uncertificated form or execute and deliver a new Receipt, in substitution for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with the Depositary (i) a request for such execution and delivery before the Depositary has notice that the Receipt has been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other reasonable requirements imposed by the Depositary.

 

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SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.

All Receipts surrendered to the Depositary shall be cancelled by the Depositary. The Depositary is authorized to destroy Receipts so cancelled.

SECTION 2.9 Pre-Release of American Depositary Shares.

Notwithstanding Section 2.3 hereof, the Depositary may deliver American Depositary Shares prior to the receipt of Shares pursuant to Section 2.2 (a “Pre-Release”). The Depositary may, pursuant to Section 2.5, deliver Shares upon the surrender of American Depositary Shares that have been Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such American Depositary Shares have been Pre-Released. The Depositary may receive American Depositary Shares in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written representation from the person to whom American Depositary Shares or Shares are to be delivered, that such person, or its customer, owns the Shares or American Depositary Shares to be remitted, as the case may be, (b) at all times fully collateralized with cash or such other collateral as the Depositary deems appropriate, (c) terminable by the Depositary on not more than five (5) business days’ notice, and (d) subject to such further indemnities and credit regulations as the Depositary reasonably deems appropriate. The number of Shares represented by American Depositary Shares which are outstanding at any time as a result of Pre-Release will not normally exceed thirty percent (30%) of the Shares deposited hereunder; provided that the Depositary reserves the right to change or disregard such limit from time to time as it reasonably deems appropriate.

The Depositary may retain for its own account any compensation received by it in connection with the foregoing.

The Company shall have no liability to any Owner in connection with any Pre-Release.

SECTION 2.10 DTC Direct Registration System and Profile Modification System.

(a) Notwithstanding the provisions of Section 2.4, the parties acknowledge that the Direct Registration System (“DRS”) and Profile Modification System (“Profile”) shall apply to uncertificated American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant to which the Depositary may register the ownership of uncertificated American Depositary Shares, which ownership shall be evidenced by periodic statements issued by the Depositary to the Owners entitled thereto. Profile is a required feature of DRS which allows a DTC participant, claiming to act on behalf of an Owner of American Depositary Shares, to direct the Depositary to register a transfer of those American Depositary Shares to DTC or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC participant without receipt by the Depositary of prior authorization from the Owner to register such transfer.

 

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(b) In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties understand that the Depositary will not verify, determine or otherwise ascertain that the DTC participant which is claiming to be acting on behalf of an Owner in requesting a registration of transfer and delivery as described in subsection (a) has the actual authority to act on behalf of the Owner (notwithstanding any requirements under the Uniform Commercial Code). For the avoidance of doubt, the provisions of Sections 5.3 and 5.8 shall apply to the matters arising from the use of the DRS. The parties agree that the Depositary’s reliance on and compliance with instructions received by the Depositary through the DRS/Profile System and in accordance with this Deposit Agreement shall not constitute negligence or bad faith on the part of the Depositary.

ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES

SECTION 3.1 Filing Proofs, Certificates and Other Information.

Any person presenting Shares for deposit or any Owner or Holder may be required from time to time to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration of transfer of American Depositary Shares or the distribution of any dividend or sale or distribution of rights or of the proceeds thereof or the delivery of any Deposited Securities until such proof or other information is filed or such certificates are executed or such representations and warranties made.

SECTION 3.2 Liability of Owner for Taxes.

If any tax or other governmental charge shall become payable by the Custodian or the Depositary with respect to any American Depositary Shares or any Deposited Securities represented by any American Depositary Shares, such tax or other governmental charge shall be payable by the Owner of such American Depositary Shares to the Depositary. The Depositary may refuse to register any transfer of those American Depositary Shares or any withdrawal of Deposited Securities represented by those American Depositary Shares until such payment is made, and may withhold any dividends or other distributions, or may sell for the account of the Owner thereof any part or all of the Deposited Securities represented by those American Depositary Shares, and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge and the Owner of such American Depositary Shares shall remain liable for any deficiency.

 

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SECTION 3.3 Warranties on Deposit of Shares.

Every person depositing Shares under this Deposit Agreement shall be deemed thereby to represent and warrant that such Shares and each certificate therefor, if applicable, are validly issued, fully paid, nonassessable and free of any preemptive rights of the holders of outstanding Shares and that the person making such deposit is duly authorized so to do. Every such person shall also be deemed to represent that the deposit of such Shares and the sale of American Depositary Shares representing such Shares by that person are not restricted under the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares and delivery of American Depositary Shares.

SECTION 3.4 Disclosure of Interests.

Notwithstanding any other provision of this Deposit Agreement, each Owner and Holder agrees to comply with requests from the Company pursuant to applicable law, the rules and requirements of any stock exchange on which the American Depositary Shares are, or will be, registered, traded or listed, the rules and requirements of any clearing system through which transactions in the American Depositary Shares may be settled or the by-laws (Pacto Social) of the Company to provide information, inter alia, as to the capacity in which such Owner or Holder owns American Depositary Shares (and Shares as the case may be) and regarding the identity of any other person(s) interested in such American Depositary Shares (and Shares, as the case may be) and the nature of such interest and various other matters, whether or not they are Owners or Holders at the time of such request. The Depositary agrees to use its reasonable efforts to forward, upon the written request of the Company and at the expense of the Company, any such written request from the Company to the Owners and to forward, as promptly as practicable, to the Company any responses to such requests received by the Depositary.

ARTICLE 4. THE DEPOSITED SECURITIES

SECTION 4.1 Cash Distributions.

Whenever the Depositary shall receive any cash dividend or other cash distribution on any Deposited Securities, the Depositary shall, as promptly as practicable, subject to the provisions of Section 4.5, convert such dividend or distribution into Dollars and shall distribute the amount thus received (net of the fees and expenses of the Depositary as provided in Section 5.9) to the Owners entitled thereto, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively; provided that in the event that the Custodian or the Depositary shall be

 

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required by applicable law to withhold and does withhold from such cash dividend or such other cash distribution an amount on account of taxes or other governmental charges, the amount distributed to the Owner of the American Depositary Shares representing such Deposited Securities shall be reduced accordingly. The Depositary shall distribute only such amount, however, as can be distributed without attributing to any Owner a fraction of one cent. Any such fractional amounts shall be rounded to the nearest whole cent and so distributed to Owners entitled thereto. The Company or its agent will remit to the appropriate governmental agency in the Republic of Colombia all amounts withheld and owing to such agency. The Depositary will, as promptly as practicable, forward to the Company or its agent such information from its records as the Company may reasonably request to enable the Company or its agent to file necessary reports with governmental agencies.

SECTION 4.2 Distributions Other Than Cash, Shares or Rights.

Subject to the provisions of Sections 4.11 and 5.9, whenever the Depositary shall receive any distribution other than a distribution described in Section 4.1, 4.3 or 4.4, the Depositary shall, after consultation with the Company to the extent practicable, as promptly as practicable, cause the securities or property received by it to be distributed to the Owners entitled thereto, after deduction or upon payment of any fees and expenses of the Depositary or any taxes or other governmental charges required by applicable law, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively, in any manner that the Depositary, after consultation with the Company, may reasonably deem equitable and practicable for accomplishing such distribution; provided that if in the reasonable opinion of the Depositary such distribution cannot be made proportionately among the Owners entitled thereto, or if for any other reason (including, but not limited to, any requirement under applicable law that the Company or the Depositary withhold an amount on account of taxes or other governmental charges or that such securities must be registered under the Securities Act of 1933 in order to be distributed to Owners or Holders) the Depositary reasonably deems such distribution not to be feasible, the Depositary may, after consultation with the Company to the extent practicable, adopt such method as it may reasonably deem equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the securities or property thus received, or any part thereof, and the net proceeds of any such sale (net of the fees and expenses of the Depositary as provided in Section 5.9) shall be distributed by the Depositary to the Owners entitled thereto, all in the manner and subject to the conditions described in Section 4.1. The Depositary may withhold any distribution of securities under this Section 4.2 if it has not received reasonably satisfactory assurances from the Company that the distribution does not require registration under the Securities Act of 1933. The Depositary may sell, by public or private sale, an amount of securities or other property it would otherwise distribute under this Section 4.2 that is sufficient to pay its fees and expenses in respect of that distribution.

 

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SECTION 4.3 Distributions in Shares.

If any distribution upon any Deposited Securities consists of a dividend in, or free distribution of, Shares, the Depositary may, and shall if the Company so requests in writing, deliver to the Owners entitled thereto, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively, an aggregate number of American Depositary Shares representing the amount of Shares received as such dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and the issuance of American Depositary Shares, including the withholding of any tax or other governmental charge required by applicable law as provided in Section 4.11 and after deduction or upon payment of the fees and expenses of the Depositary as provided in Section 5.9 (and the Depositary may sell, by public or private sale, an amount of the Shares received sufficient to pay its fees and expenses in respect of that distribution). The Depositary may withhold any such delivery of American Depositary Shares if it has not received reasonably satisfactory assurances from the Company that such distribution does not require registration under the Securities Act of 1933. In lieu of delivering fractional American Depositary Shares in any such case, the Depositary shall sell the amount of Shares represented by the aggregate of such fractions and distribute the net proceeds, all in the manner and subject to the conditions described in Section 4.1. If additional American Depositary Shares are not so delivered, each American Depositary Share shall thenceforth also represent the additional Shares distributed upon the Deposited Securities represented thereby.

SECTION 4.4 Rights.

In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary, after consultation with the Company, shall have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason, the Depositary may not either make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary reasonably determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it reasonably deems appropriate.

In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner hereunder, the

 

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Depositary will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law.

If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.2 and shall, pursuant to Section 2.3, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Section, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws.

If the Depositary reasonably determines, after consultation with the Company to the extent practicable, that it is not lawful and feasible to make such rights available to all or certain Owners, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has reasonably determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.9 and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of this Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise.

The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided that nothing in this Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments for which there has been no such registration under the Securities Act of 1933, the

 

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Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration.

The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.

SECTION 4.5 Conversion of Foreign Currency.

Whenever the Depositary or the Custodian shall receive foreign currency, by way of dividends or other distributions or the net proceeds from the sale of securities, property or rights, and if at the time of the receipt thereof the foreign currency so received can in the judgment of the Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the United States, the Depositary shall, as promptly as practicable, convert or cause to be converted by sale or in any other manner that it may determine such foreign currency into Dollars, and such Dollars shall be distributed to the Owners entitled thereto or, if the Depositary shall have distributed any warrants or other instruments which entitle the holders thereof to such Dollars, then to the holders of such warrants and/or instruments upon surrender thereof for cancellation. Such distribution may be made upon an averaged or other reasonable basis without regard to any distinctions among Owners on account of exchange restrictions, the date of delivery of any American Depositary Shares or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary as provided in Section 5.9.

If such conversion or distribution can be effected only with the approval or license of any government or agency thereof, the Depositary shall, without unreasonable delay, file such application for approval or license, if any, as it may deem desirable.

If at any time the Depositary shall determine that in its judgment any foreign currency received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars transferable to the United States, or if any approval or license of any government or agency thereof which is required for such conversion is denied or in the opinion of the Depositary is not obtainable, or if any such approval or license is not obtained within a reasonable period as determined by the Depositary, the Depositary may distribute the foreign currency (or an appropriate document evidencing the right to receive such foreign currency) received by the Depositary to, or in its discretion may hold such foreign currency uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled to receive the same.

If any such conversion of foreign currency, in whole or in part, cannot be effected for distribution to some of the Owners entitled thereto, the Depositary may in its reasonable discretion make such conversion and distribution in Dollars to the extent permissible to the Owners entitled thereto and may distribute the balance of the foreign currency received by the Depositary to, or hold such balance uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled thereto.

 

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SECTION 4.6 Fixing of Record Date.

Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or whenever rights shall be issued with respect to the Deposited Securities, or whenever the Depositary shall receive notice of any meeting of holders of Shares or other Deposited Securities, or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each American Depositary Share, or whenever the Depositary shall find it necessary or convenient, the Depositary shall fix a record date (a) for the determination of the Owners who shall be (i) entitled to receive such dividend, distribution or rights or the net proceeds of the sale thereof, (ii) entitled to give instructions for the exercise of voting rights at any such meeting or (iii) responsible for any fee or charge assessed by the Depositary pursuant to this Deposit Agreement, or (b) on or after which each American Depositary Share will represent the changed number of Shares. Subject to the provisions of Sections 4.1 through 4.5 and to the other terms and conditions of this Deposit Agreement, the Owners on such record date shall be entitled, as the case may be, to receive the amount distributable by the Depositary with respect to such dividend or other distribution or such rights or the net proceeds of sale thereof in proportion to the number of American Depositary Shares held by them respectively and to give voting instructions and to act in respect of any other such matter.

SECTION 4.7 Voting of Deposited Securities.

Upon receipt of notice from the Company of any shareholders’ meeting at which holders of Shares or other Deposited Securities will have the right to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, mail to the Owners a notice, the form of which notice shall be previously provided to the Company for its review, comment and approval, which approval shall not be unreasonably withheld or delayed, and which shall contain (a) such information as is contained in such notice of meeting received by the Depositary from the Company, (b) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Colombian law and the Company’s by-laws (Pacto Social) or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the amount of Shares or other Deposited Securities represented by their respective American Depositary Shares and (c) a statement as to the manner in which such instructions may be given including an express indication that such instructions will be deemed given, in accordance with the second paragraph of this Section 4.7, if no instruction is received, to the Depositary to vote the Shares or other Deposited Securities represented by such American Depositary Shares (or to cause the Shares or other Deposited Securities represented by such American Depositary Shares to be voted) as provided therein. Upon the written request

 

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of an Owner of American Depositary Shares on such record date, received on or before the date established by the Depositary for such purpose, the Depositary shall, in so far as practicable, vote or cause to be voted the amount of Shares or other Deposited Securities represented by those American Depositary Shares in accordance with such Owner’s instructions or deemed instructions set forth in such request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the Shares or other Deposited Securities, other than in accordance with such instructions or deemed instructions.

If the Depositary does not receive voting instructions from an Owner with respect to the Shares or other Deposited Securities represented by such Owner’s American Depositary Shares by the date established by the Depository as the final date for receiving such instructions, each such Owner will be deemed to have authorized and instructed the Depositary to vote the Shares or other Deposited Securities represented by such American Depositary Shares (or to cause the Shares or other Deposited Securities represented by such American Depositary Shares to be voted) as follows: (i) solely with respect to Specified Shareholder Resolutions, the Depositary shall vote in the same manner as the majority of all votes actually cast at such shareholders’ meeting by all holders of preferred shares (including, for the purposes of determination of the majority of votes, votes casted by the Depositary in accordance with written instructions provided by Holders of ADSs), and (ii) with respect other shareholders’ meeting resolutions and decisions, in the same manner as a majority of all votes actually cast at such shareholders’ meeting by all shareholders of the Company entitled to vote at such meeting; in each case, the Depositary shall vote the Shares or other Deposited Securities represented by such American Depositary Shares (or shall cause the Shares or other Deposited Securities represented by such American Depositary Shares to be voted) at such meeting in such manner; provided that in each case the Shares or other Deposited Securities represented by such American Depositary Shares shall in any event be counted for the purpose of satisfying applicable quorum requirements unless a majority of the members of the Company’s board of directors determines otherwise.

There can be no assurance that Owners generally or any Owner in particular will receive the notice described in the preceding paragraph sufficiently prior to the instruction cutoff date to ensure that the Depositary will vote the Shares or Deposited Securities in accordance with the provisions set forth in the preceding paragraphs.

In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Deposited Securities, if the Company will request the Depositary to act under this Section 4.7, the Company shall give the Depositary notice of any such meeting and details concerning the matters to be voted upon not less than 30 days prior to the meeting date.

Upon the written request of the Company, the Depositary shall retain all records relating to the voting of the Deposited Securities pursuant to this Section 4.7.

SECTION 4.8 Changes Affecting Deposited Securities.

 

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Upon any change in nominal value, change in par value, split-up, consolidation or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger or consolidation or sale of assets affecting the Company or to which it is a party, or upon the redemption or cancellation by the Company of the Deposited Securities, any securities, cash or property which shall be received by the Depositary or a Custodian in exchange for, in conversion of, in lieu of or in respect of Deposited Securities, shall be treated as new Deposited Securities under this Deposit Agreement, and American Depositary Shares shall thenceforth represent, in addition to the existing Deposited Securities, the right to receive the new Deposited Securities so received, unless additional American Depositary Shares are delivered pursuant to the following sentence. In any such case the Depositary may deliver additional American Depositary Shares as in the case of a dividend in Shares, or call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such new Deposited Securities.

SECTION 4.9 Reports.

The Depositary shall make available for inspection by Owners at its Corporate Trust Office any reports and communications, including any proxy solicitation material, received from the Company which are both (a) received by the Depositary as the holder of the Deposited Securities and (b) made generally available to the holders of such Deposited Securities by the Company. The Depositary shall also, upon written request by the Company, send to the Owners copies of such reports when furnished by the Company pursuant to Section 5.6. Any such reports and communications, including any such proxy soliciting material, furnished to the Depositary by the Company shall be furnished in English, to the extent such materials are required to be translated into English pursuant to any regulations of the Commission.

SECTION 4.10 Lists of Owners.

Promptly upon request by the Company, the Depositary shall, at the expense of the Company, furnish to it a list, as of a recent date, of the names, addresses and holdings of American Depositary Shares by all persons in whose names American Depositary Shares are registered on the books of the Depositary.

SECTION 4.11 Withholding.

In the event that the Depositary determines in its reasonable judgment that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge under applicable law which the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary reasonably deems necessary and practicable to pay such taxes or charges and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Owners entitled thereto in proportion to the number of American Depositary Shares held by them respectively.

 

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ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY

SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.

Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall maintain in the Borough of Manhattan, The City of New York, facilities for the execution and delivery, registration, registration of transfers and surrender of American Depositary Shares in accordance with the provisions of this Deposit Agreement.

The Depositary shall keep books, at its Corporate Trust Office, for the registration of American Depositary Shares and transfers of American Depositary Shares which at all reasonable times shall be open for inspection by the Owners; provided that such inspection shall not be for the purpose of communicating with Owners in the interest of a business or object other than the business of the Company or a matter related to this Deposit Agreement or the American Depositary Shares.

The Company shall have the right to inspect transfer and registration records of the Depositary relating to the American Depositary Shares at any reasonable time. Upon reasonable request, copies of any such and records shall be provided to Company at Company’s expense.

The Depositary may close the transfer books, at any time or from time to time, when deemed reasonably expedient by it in connection with the performance of its duties hereunder or at the reasonable request of the Company.

If any American Depositary Shares are listed on one or more stock exchanges in the United States, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registry of such American Depositary Shares in accordance with any requirements of such exchange or exchanges.

SECTION 5.2 Prevention or Delay in Performance by the Depositary or the Company.

Neither the Depositary nor the Company nor any of their respective directors, officers, employees, agents or affiliates shall incur any liability to any Owner or Holder (i) if by reason of any provision of any present or future law or regulation of the United States or any other country, or of any governmental or regulatory authority or stock exchange, or by reason of any provision, present or future, of the by-laws ( Pacto Social ) or similar document of the Company, or by reason of any provision of any

 

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securities issued or distributed by the Company, or any offering or distribution thereof, or by reason of any act of God or war or terrorism or other circumstances beyond its control, the Depositary or the Company shall be prevented, delayed or forbidden from, or be subject to any civil or criminal penalty on account of, doing or performing any act or thing which by the terms of this Deposit Agreement or the Deposited Securities it is provided shall be done or performed, (ii) by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which by the terms of this Deposit Agreement it is provided shall or may be done or performed, (iii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement, (iv) for the inability of any Owner or Holder to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of this Deposit Agreement, made available to Owners or Holders, or (v) for any special, consequential or punitive damages for any breach of the terms of this Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.1, 4.2 or 4.3, or an offering or distribution pursuant to Section 4.4, or for any other reason, such distribution or offering may not be made available to Owners, and the Depositary may not dispose of such distribution or offering on behalf of such Owners and make the net proceeds available to such Owners, then the Depositary shall not make such distribution or offering, and shall allow any rights, if applicable, to lapse.

SECTION 5.3 Obligations of the Depositary, the Custodian and the Company.

Neither the Company nor any of its directors, officers, employees, agents or affiliates assumes no obligation nor shall any of them be subject to any liability under this Deposit Agreement to any Owner or Holder, except that the Company agrees to perform its obligations specifically set forth in this Deposit Agreement without negligence or bad faith.

Neither the Depositary nor any of its directors, officers, employees, agents or affiliates assumes no obligation nor shall any of them be subject to any liability under this Deposit Agreement to any Owner or Holder (including, without limitation, liability with respect to the validity or worth of the Deposited Securities), except that the Depositary agrees to perform its obligations specifically set forth in this Deposit Agreement without negligence or bad faith.

Neither the Depositary nor the Company nor any of their respective directors, officers, employees, agents or affiliates shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the American Depositary Shares on behalf of any Owner or Holder or any other person.

Neither the Depositary nor the Company nor any of their respective directors, officers, employees, agents or affiliates shall be liable for any action or non-action by any of them in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or any other person believed by any of them in good faith to be competent to give such advice or information.

 

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The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary; provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.

The Depositary shall not be liable for the acts or omissions of any securities depository, clearing agency or settlement system in connection with or arising out of book-entry settlement of Deposited Securities or otherwise.

The Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of any such vote; provided that any such action or non-action is in good faith.

No disclaimer of liability under the Securities Act of 1933 is intended by any provision of this Deposit Agreement.

SECTION 5.4 Resignation and Removal of the Depositary.

The Depositary may at any time resign as Depositary hereunder by written notice of its election to do so delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.

The Depositary may at any time be removed by the Company by 60 days prior written notice of such removal, to become effective upon the later of (i) the 60th day after delivery of the notice to the Depositary and (ii) the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.

In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its reasonable efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City of New York or in any other place permitted by applicable law and stock exchange rules. Every successor depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor; but such predecessor, nevertheless, upon payment of all sums due it and on the written request of the Company shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver

 

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all right, title and interest in the Deposited Securities to such successor and shall deliver to such successor a list of the Owners of all outstanding American Depositary Shares. Any such successor depositary shall promptly mail notice of its appointment to the Owners.

Any corporation into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.

SECTION 5.5 The Custodians.

The Custodian shall be subject at all times and in all respects to the directions of the Depositary and shall be responsible solely to it. Any Custodian may resign and be discharged from its duties hereunder by notice of such resignation delivered to the Depositary at least 30 days prior to the date on which such resignation is to become effective. The Depositary will inform the Company of such resignation promptly upon receipt of such notice from the Custodian. If upon such resignation there shall be no Custodian acting hereunder, the Depositary shall, promptly after receiving such notice, appoint a substitute custodian or custodians, each of which shall thereafter be a Custodian hereunder. The Depositary in its discretion may appoint a substitute or additional custodian or custodians, each of which shall thereafter be one of the Custodians hereunder. Upon demand of the Depositary any Custodian shall deliver such of the Deposited Securities held by it as are requested of it to any other Custodian or such substitute or additional custodian or custodians. Each such substitute or additional custodian shall deliver to the Depositary, forthwith upon its appointment, an acceptance of such appointment satisfactory in form and substance to the Depositary.

Upon the appointment of any successor depositary hereunder, each Custodian then acting hereunder shall forthwith become, without any further act or writing, the agent hereunder of such successor depositary and the appointment of such successor depositary shall in no way impair the authority of each Custodian hereunder; but the successor depositary so appointed shall, nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all such instruments as may be proper to give to such Custodian full and complete power and authority as agent hereunder of such successor depositary.

SECTION 5.6 Notices and Reports.

On or before the first date on which the Company gives notice, by publication or otherwise, of any general shareholders’ meeting at which holders of Shares or other Deposited Securities are entitled to vote, or of any such adjourned meeting, or of the taking of any action in respect of any cash or other distributions or the offering of any rights, the Company agrees to transmit to the Depositary and the Custodian a copy of the notice thereof in the form given or to be given to holders of Shares or other Deposited Securities.

 

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The Company will arrange for the translation into English, if not already in English, to the extent required pursuant to any regulations of the Commission, and the prompt transmittal by the Company to the Depositary and the Custodian of such notices and any other reports and communications which are made generally available by the Company to holders of its Shares. If requested in writing by the Company, the Depositary will arrange for the mailing, at the Company’s expense, of copies of such notices, reports and communications to all Owners. The Company will timely provide the Depositary with the quantity of such notices, reports, and communications, as requested by the Depositary from time to time, in order for the Depositary to effect such mailings.

SECTION 5.7 Distribution of Additional Shares, Rights, etc.

If the Company or any affiliate of the Company determines to make any issuance or distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities convertible into Shares, or (4) rights to subscribe for such securities (each a “Distribution”), the Company shall notify the Depositary in writing in English as promptly as practicable and in any event before the Distribution starts and, if reasonably requested in writing by the Depositary, the Company shall promptly furnish to the Depositary a written opinion from U.S. counsel for the Company that is reasonably satisfactory to the Depositary, stating whether or not the Distribution requires registration under the Securities Act of 1933. If, in the opinion of that counsel, the Distribution requires registration under the Securities Act of 1933, that counsel shall furnish to the Depositary a written opinion as to whether or not there is a registration statement under the Securities Act of 1933 in effect that will cover that Distribution.

The Company agrees with the Depositary that neither the Company nor any company controlled by, controlling or under common control with the Company will at any time deposit any Shares, either originally issued or previously issued and reacquired by the Company or any such affiliate, unless a Registration Statement is in effect as to such Shares under the Securities Act of 1933 or the Company delivers to the Depositary an opinion of United States counsel, satisfactory to the Depositary, to the effect that, upon deposit, those Shares will be eligible for public resale in the United States without further registration under the Securities Act of 1933. Notwithstanding anything to the contrary herein, nothing in this Deposit Agreement shall be deemed to obligate the Company to file any registration statement in respect of any proposed transactions.

SECTION 5.8 Indemnification.

The Company agrees to indemnify the Depositary, its directors, employees, agents and affiliates and any Custodian against, and hold each of them harmless from, any liability or expense (including, but not limited to, any fees and expenses incurred in seeking, enforcing or collecting that indemnity and the reasonable fees and expenses of counsel) that may arise out of or in connection with (a) any

 

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registration with the Commission of American Depositary Shares or any offer or sale of American Depositary Shares or Deposited Securities except to the extent the liability or expense arises out of information relating to the Depositary or the Custodian furnished in writing to the Company by the Depositary expressly for use in any registration statement, proxy statement, prospectus or offering memorandum (or private placement memorandum) relating to the Shares (it being understood that the Depositary has not furnished any information of that kind), or (b) acts performed or omitted, pursuant to the provisions of or in connection with this Deposit Agreement and the American Depositary Shares, as the same may be amended, modified or supplemented from time to time, (i) by either the Depositary or a Custodian or their respective directors, officers, employees, agents and affiliates, except for any liability or expense arising out of the negligence or bad faith of either of them, or (ii) by the Company or any of its directors, employees, agents and affiliates.

The Depositary agrees to indemnify the Company, its directors, employees, agents and affiliates and hold them harmless from any liability or expense (including, but not limited to any fees and expenses incurred in seeking, enforcing or collecting such indemnity and the reasonable fees and expenses of counsel) which may arise out of acts performed or omitted by the Depositary or its Custodian or their respective directors, employees, agents and affiliates due to their negligence or bad faith.

SECTION 5.9 Charges of Depositary.

The Company shall be responsible to pay the fees and out-of-pocket expenses of the Depositary and those of any Registrar only in accordance with agreements in writing, if any, entered into between the Depositary and the Company from time to time.

The following charges shall be incurred by any party depositing or withdrawing Shares or by any party surrendering American Depositary Shares or to whom American Depositary Shares are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the American Depositary Shares or Deposited Securities or a delivery of American Depositary Shares pursuant to Section 4.3), or by Owners, as applicable: (1) applicable taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares generally on the Share register of the Company or Foreign Registrar and applicable to transfers of Shares to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile transmission expenses as are expressly provided in this Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the delivery of American Depositary Shares pursuant to Section 2.3, 4.3 or 4.4 and the surrender of American Depositary Shares pursuant to Section 2.5 or 6.2, (6) a

 

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fee payable by the Owners of $.05 or less per American Depositary Share (or portion thereof) for any cash distribution made pursuant to this Deposit Agreement, including, but not limited to Sections 4.1 through 4.4 hereof, (7) a fee payable by the Owners for the distribution of securities pursuant to Section 4.2, such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities (for purposes of this clause 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Owners, (8) in addition to any fee charged under clause 6, a fee of $.05 or less per American Depositary Share (or portion thereof) per annum for depositary services, which will be payable as provided in clause 9 below, and (9) any other charges payable by the Depositary, any of the Depositary’s agents, including the Custodian, or the agents of the Depositary’s agents in connection with the servicing of Shares or other Deposited Securities (which charges shall be assessed against Owners as of the date or dates set by the Depositary in accordance with Section 4.6 and shall be payable at the sole discretion of the Depositary by billing such Owners for such charge or by deducting such charges from one or more cash dividends or other cash distributions).

The Depositary may collect any of its fees by deduction from any cash distribution payable to Owners that are obligated to pay those fees.

The Depositary, subject to Section 2.9 hereof, may own and deal in any class of securities of the Company and its affiliates and in American Depositary Shares.

SECTION 5.10 Retention of Depositary Documents.

The Depositary is authorized to destroy those documents, records, bills and other data compiled during the term of this Deposit Agreement at the times permitted by the laws or regulations governing the Depositary unless the Company requests that such papers be retained for a longer period or turned over to the Company or to a successor depositary.

SECTION 5.11 Exclusivity.

The Company agrees not to appoint any other depositary for issuance of American or global depositary shares or receipts so long as The Bank of New York Mellon is acting as Depositary hereunder.

SECTION 5.12 List of Restricted Securities Owners.

From time to time, the Company shall provide to the Depositary a list setting forth, to the actual knowledge of the Company, those persons or entities who beneficially own Restricted Securities and the Company shall update that list on a regular basis. The Company agrees to advise in writing each of the persons or entities so listed that such Restricted Securities are ineligible for deposit hereunder. The Depositary may rely on such a list or update but shall not be liable for any action or omission made in reliance thereon.

 

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ARTICLE 6. AMENDMENT AND TERMINATION

SECTION 6.1 Amendment.

The form of the Receipts and any provisions of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the consent of Owners or Holders in any respect which they may deem necessary or desirable. Any amendment which shall impose or increase any fees or charges (other than taxes and other governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or which shall otherwise prejudice any substantial existing right of Owners, shall, however, not become effective as to outstanding American Depositary Shares until the expiration of 30 days after notice of such amendment shall have been given to the Owners of outstanding American Depositary Shares. Every Owner and Holder, at the time any amendment so becomes effective, shall be deemed, by continuing to hold such American Depositary Shares or any interest therein, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Owner to surrender American Depositary Shares and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law.

SECTION 6.2 Termination.

The Company may at any time terminate this Deposit Agreement by instructing the Depositary to mail a notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date included in such notice. The Depositary may likewise terminate this Deposit Agreement if at any time 60 days shall have expired after the Depositary delivered to the Company a written resignation notice and if a successor depositary shall not have been appointed and accepted its appointment as provided in Section 5.4; in such case the Depositary shall mail a notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date. On and after the date of termination, each Owner of American Depositary Shares will, upon (a) surrender of such American Depositary Shares, (b) payment of the fee of the Depositary for the surrender of American Depositary Shares referred to in Section 2.5, and (c) payment of any applicable taxes or governmental charges, be entitled to delivery, to such Owner or upon such Owner’s order, of the amount of Deposited Securities represented by those American Depositary Shares. If any American Depositary Shares shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the registration of transfers of American Depositary Shares, shall suspend the distribution of dividends to the Owners thereof, and shall not give any further notices or perform any

 

- 28 -


further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities, shall sell rights and other property as provided in this Deposit Agreement, and shall continue to deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, upon surrender of American Depositary Shares (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of this Deposit Agreement, and any applicable taxes or governmental charges).

At any time after the expiration of four months from the date of termination, the Depositary may sell the Deposited Securities then held under this Deposit Agreement and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it hereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of American Depositary Shares that have not theretofore been surrendered, such Owners thereupon becoming general creditors of the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be discharged from all obligations under this Deposit Agreement, except to account for such net proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of this Deposit Agreement, and any applicable taxes or governmental charges). Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary under Sections 5.8 and 5.9.

ARTICLE 7. MISCELLANEOUS

SECTION 7.1 Counterparts.

This Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of such counterparts shall constitute one and the same instrument. Copies of this Deposit Agreement shall be filed with the Depositary and the Custodians and shall be open to inspection by any Owner or Holder during business hours.

SECTION 7.2 No Third Party Beneficiaries.

This Deposit Agreement is for the exclusive benefit of the parties hereto and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person.

SECTION 7.3 Severability.

 

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In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.

SECTION 7.4 Owners and Holders as Parties; Binding Effect.

The Owners and Holders from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of American Depositary Shares or any interest therein.

SECTION 7.5 Notices.

Any and all notices to be given to the Company shall be deemed to have been duly given if personally delivered or sent by mail, or facsimile transmission confirmed by letter, addressed to Avenida Calle 26, #59-15, Bogotá, Republic of Colombia, Attention: Chief Financial Officer or any other place to which the Company may have transferred its principal office with notice to the Depositary.

Any and all notices to be given to the Depositary shall be deemed to have been duly given if in English and personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter, addressed to The Bank of New York Mellon, 101 Barclay Street, New York, New York 10286, Attention: American Depositary Receipt Administration, or any other place to which the Depositary may have transferred its Corporate Trust Office with notice to the Company.

Any and all notices to be given to any Owner shall be deemed to have been duly given if personally delivered or sent by mail or cable, telex or facsimile transmission confirmed by letter, addressed to such Owner at the address of such Owner as it appears on the transfer books for American Depositary Shares of the Depositary, or, if such Owner shall have filed with the Depositary a written request that notices intended for such Owner be mailed to some other address, at the address designated in such request.

Delivery of a notice sent by mail or cable, telex or facsimile transmission shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a post-office letter box. The Depositary or the Company may, however, act upon any cable, telex or facsimile transmission received by it, notwithstanding that such cable, telex or facsimile transmission shall not subsequently be confirmed by letter as aforesaid.

SECTION 7.6 Submission to Jurisdiction; Appointment of Agent for Service of Process; Jury Trial Waiver.

 

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The Company hereby (i) irrevocably designates and appoints Avianca Inc., located at 122 East 42nd Street, Suite 2525, New York, New York 10168, as the Company’s authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Deposit Agreement, (ii) consents and submits to the jurisdiction of any state or federal court in the State of New York in which any such suit or proceeding may be instituted, and (iii) agrees that service of process upon said authorized agent shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding. The Company agrees to deliver, upon the execution and delivery of this Deposit Agreement, a written acceptance by such agent of its appointment as such agent. The Company further agrees to take any and all action, including the filing of any and all such documents and instruments, as may be necessary to continue such designation and appointment in full force and effect for so long as any American Depositary Shares or Receipts remain outstanding or this Deposit Agreement remains in force. In the event the Company fails to continue such designation and appointment in full force and effect, the Company hereby waives personal service of process upon it and consents that, to the extent permitted by law, any such service of process may be made by internationally recognized overnight courier, return receipt requested, directed to the Company at its address last specified for notices hereunder.

EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THIS DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

SECTION 7.7 Waiver of Immunities.

To the extent that the Company or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under

 

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or arising out of or in connection with the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Deposit Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.

SECTION 7.8 Governing Law.

This Deposit Agreement and the Receipts shall be interpreted and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by the laws of the State of New York, except with respect to its authorization and execution by the Company, which shall be governed by the laws of the Republic of Panama.

 

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IN WITNESS WHEREOF, AVIANCA HOLDINGS S.A. and THE BANK OF NEW YORK MELLON have duly executed this Deposit Agreement as of the day and year first set forth above and all Owners and Holders shall become parties hereto upon acceptance by them of American Depositary Shares or any interest therein.

 

AVIANCA HOLDINGS S.A.
By:  

 

   Name:
   Title:

THE BANK OF NEW YORK MELLON,

   as Depositary

By:  

 

   Name:
   Title:

 

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EXHIBIT A

AMERICAN DEPOSITARY SHARES

(Each American Depositary Share represents

eight (8) deposited Shares)

THE BANK OF NEW YORK MELLON

AMERICAN DEPOSITARY RECEIPT

FOR PREFERRED SHARES, OF

AVIANCA HOLDINGS S.A.

(INCORPORATED UNDER THE LAWS OF THE REPUBLIC OF PANAMA)

The Bank of New York Mellon, as depositary (hereinafter called the “Depositary”), hereby certifies that                                         , or registered assigns IS THE OWNER OF                             

AMERICAN DEPOSITARY SHARES

representing deposited preferred shares (herein called “Shares”) of Avianca Holdings S.A., a corporation ( sociedad anónima ) incorporated under the laws of the Republic of Panama (herein called the “Company”). At the date hereof, each American Depositary Share represents eight (8) Shares deposited or subject to deposit under the Deposit Agreement (as such term is hereinafter defined) at the principal Bogotá office of Fiduciaria Bancolombia S.A. (herein called the “Custodian”). The Depositary’s Corporate Trust Office is located at a different address than its principal executive office. Its Corporate Trust Office is located at 101 Barclay Street, New York, N.Y. 10286, and its principal executive office is located at One Wall Street, New York, N.Y. 10286.

THE DEPOSITARY’S CORPORATE TRUST OFFICE ADDRESS IS

101 BARCLAY STREET, NEW YORK, N.Y. 10286


1. THE DEPOSIT AGREEMENT .

This American Depositary Receipt is one of an issue (herein called “Receipts”), all issued and to be issued upon the terms and conditions set forth in the deposit agreement, dated as of                     , 2013 (herein called the “Deposit Agreement”), by and among the Company, the Depositary, and all Owners and Holders from time to time of American Depositary Shares issued thereunder, each of whom by accepting American Depositary Shares agrees to become a party thereto and become bound by all the terms and conditions thereof. The Deposit Agreement sets forth the rights of Owners and Holders and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other securities, property and cash from time to time received in respect of such Shares and held thereunder (such Shares, securities, property, and cash are herein called “Deposited Securities”). Copies of the Deposit Agreement are on file at the Depositary’s Corporate Trust Office in New York City and at the office of the Custodian.

The statements made on the face and reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of the Deposit Agreement (which shall prevail in the case of any inconsistency with any provisions of this Receipt), to which reference is hereby made. Capitalized terms defined in the Deposit Agreement and not defined herein shall have the meanings set forth in the Deposit Agreement.

 

2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES .

Upon surrender at the Corporate Trust Office of the Depositary of American Depositary Shares, and upon payment of the fee of the Depositary provided in this Receipt, and subject to the terms and conditions of the Deposit Agreement, the Owner of those American Depositary Shares is entitled to delivery, to such Owner or as instructed, of the amount of Deposited Securities at the time represented by those American Depositary Shares. Delivery of such Deposited Securities may be made by the delivery of (a) certificates or account transfer in the name of the Owner hereof or as ordered by such Owner, with proper endorsement or accompanied by proper instruments or instructions of transfer and (b) any other securities, property and cash to which such Owner is then entitled in respect of this Receipt. Such delivery will be made at the option of the Owner hereof, either at the office of the Custodian or at the Corporate Trust Office of the Depositary; provided that the forwarding of certificates for Shares or other Deposited Securities for such delivery at the Corporate Trust Office of the Depositary shall be at the risk and expense of the Owner hereof.

 

3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS .

Transfers of American Depositary Shares may be registered on the books of the Depositary by the Owner in person or by a duly authorized attorney, upon surrender of those American Depositary Shares properly endorsed for transfer or accompanied by

 

A-2


proper instruments of transfer, in the case of a Receipt, or pursuant to a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10 of the Deposit Agreement), in the case of uncertificated American Depositary Shares, and funds sufficient to pay any applicable transfer taxes and the expenses of the Depositary and upon compliance with such regulations, if any, as the Depositary may establish for such purpose. This Receipt may be split into other such Receipts, or may be combined with other such Receipts into one Receipt, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered. The Depositary, upon surrender of certificated American Depositary Shares for the purpose of exchanging for uncertificated American Depositary Shares, shall cancel those certificated American Depositary Shares and send the Owner a statement confirming that the Owner is the Owner of uncertificated American Depositary Shares. The Depositary, upon receipt of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10 of the Deposit Agreement) from the Owner of uncertificated American Depositary Shares for the purpose of exchanging for certificated American Depositary Shares, shall cancel those uncertificated American Depositary Shares and deliver to the Owner the same number of certificated American Depositary Shares. As a condition precedent to the delivery, registration of transfer, or surrender of any American Depositary Shares or split-up or combination of any Receipt or withdrawal of any Deposited Securities, the Depositary, the Custodian, or Registrar may require payment from the depositor of the Shares or the presenter of the Receipt or instruction for registration of transfer or surrender of American Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees as provided in the Deposit Agreement, may require the production of proof satisfactory to it as to the identity and genuineness of any signature and may also require compliance with any regulations the Depositary may establish consistent with the provisions of the Deposit Agreement.

The delivery of American Depositary Shares against deposit of Shares generally or against deposit of particular Shares may be suspended, or the transfer of American Depositary Shares in particular instances may be refused, or the registration of transfer of outstanding American Depositary Shares generally may be suspended, during any period when the transfer books of the Depositary are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of the Deposit Agreement, or for any other reason, subject to the provisions of the following sentence. Notwithstanding anything to the contrary in the Deposit Agreement or this Receipt, the surrender of outstanding American Depositary Shares and withdrawal of Deposited Securities may not be suspended subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the Foreign Registrar, if applicable, or the deposit of Shares in connection with voting at a shareholders’ meeting, or the payment of dividends, (ii) the payment of

 

A-3


fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the American Depositary Shares or to the withdrawal of the Deposited Securities. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under the Deposit Agreement any Shares which would be required to be registered under the provisions of the Securities Act of 1933, unless a registration statement is in effect as to such Shares or such Shares are exempt from registration thereunder.

 

4. LIABILITY OF OWNER FOR TAXES .

If any applicable tax or other governmental charge shall become payable with respect to any American Depositary Shares or any Deposited Securities represented by any American Depositary Shares, such tax or other governmental charge shall be payable by the Owner to the Depositary. The Depositary may refuse to register any transfer of those American Depositary Shares or any withdrawal of Deposited Securities represented by those American Depositary Shares until such payment is made, and may withhold any dividends or other distributions, or may sell for the account of the Owner any part or all of the Deposited Securities represented by those American Depositary Shares, and may apply such dividends or other distributions or the proceeds of any such sale in payment of such tax or other governmental charge and the Owner shall remain liable for any deficiency.

 

5. WARRANTIES ON DEPOSIT OF SHARES .

Every person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant, that such Shares and each certificate therefor, if applicable, are validly issued, fully paid, nonassessable and free of any preemptive rights of the holders of outstanding Shares and that the person making such deposit is duly authorized to do so. Every such person shall also be deemed to represent that the deposit of such Shares and the sale of American Depositary Shares representing such Shares by that person are not restricted under the Securities Act of 1933. Such representations and warranties shall survive the deposit of Shares and delivery of American Depositary Shares.

 

6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION .

Any person presenting Shares for deposit or any Owner or Holder may be required from time to time to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration of transfer of any American Depositary Shares or the distribution of any dividend or sale or distribution of rights or of the proceeds thereof or the delivery of any Deposited Securities until such proof or other information is filed or such certificates are

 

A-4


executed or such representations and warranties made. No Share shall be accepted for deposit unless accompanied by evidence reasonably satisfactory to the Depositary that any necessary approval has been granted by any governmental body in the Republic of Colombia that is then performing the function of the regulation of currency exchange.

 

7. CHARGES OF DEPOSITARY .

The Company shall be responsible to pay the fees and out-of-pocket expenses of the Depositary and those of any Registrar only in accordance with agreements in writing, if any, entered into between the Depositary and the Company from time to time.

The following charges shall be incurred by any party depositing or withdrawing Shares or by any party surrendering American Depositary Shares or to whom American Depositary Shares are issued (including, without limitation, issuance pursuant to a stock dividend or stock split declared by the Company or an exchange of stock regarding the American Depositary Shares or Deposited Securities or a delivery of American Depositary Shares pursuant to Section 4.3 of the Deposit Agreement), or by Owners, as applicable: (1) applicable taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares generally on the Share register of the Company or Foreign Registrar and applicable to transfers of Shares to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals under the terms of the Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as are expressly provided in the Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.5 of the Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the delivery of American Depositary Shares pursuant to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and the surrender of American Depositary Shares pursuant to Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee payable by the Owners of $.05 or less per American Depositary Share (or portion thereof) for any cash distribution made pursuant to the Deposit Agreement, including, but not limited to Sections 4.1 through 4.4 of the Deposit Agreement, (7) a fee payable by the Owners for the distribution of securities pursuant to Section 4.2 of the Deposit Agreement, such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities (for purposes of this clause 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Owners, (8) in addition to any fee charged under clause 6, a fee of $.05 or less per American Depositary Share (or portion thereof) per annum for depositary services, which will be payable as provided in clause 9 below, and (9) any other charges payable by the Depositary, any of the Depositary’s agents, including the Custodian, or the agents of the Depositary’s agents in connection with the servicing of Shares or other Deposited Securities (which charges shall be assessed against Owners as of the date or dates set by the Depositary in accordance with Section 4.6 of the Deposit Agreement and shall be payable at the sole discretion of the Depositary by billing such Owners for such charges or by deducting such charge from one or more cash dividends or other cash distributions).

 

A-5


The Depositary may collect any of its fees by deduction from any cash distribution payable to Owners that are obligated to pay those fees.

The Depositary, subject to Article 8 hereof, may own and deal in any class of securities of the Company and its affiliates and in American Depositary Shares.

From time to time, the Depositary may make payments to the Company to reimburse and / or share revenue from the fees collected from Owners, or waive fees and expenses for services provided, generally relating to costs and expenses arising out of establishment and maintenance of the American Depositary Shares program. In performing its duties under the Deposit Agreement, the Depositary may use brokers, dealers or other service providers that are affiliates of the Depositary and that may earn or share fees and commissions.

 

8. PRE-RELEASE OF RECEIPTS .

Notwithstanding Section 2.3 of the Deposit Agreement, the Depositary may deliver American Depositary Shares prior to the receipt of Shares pursuant to Section 2.2 of the Deposit Agreement (a “Pre-Release”). The Depositary may, pursuant to Section 2.5 of the Deposit Agreement, deliver Shares upon the surrender of American Depositary Shares that have been Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such American Depositary Shares have been Pre-Released. The Depositary may receive American Depositary Shares in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written representation from the person to whom American Depositary Shares or Shares are to be delivered, that such person, or its customer, owns the Shares or American Depositary Shares to be remitted, as the case may be, (b) at all times fully collateralized with cash or such other collateral as the Depositary deems appropriate, (c) terminable by the Depositary on not more than five (5) business days’ notice, and (d) subject to such further indemnities and credit regulations as the Depositary reasonably deems appropriate. The number of American Depositary Shares which are outstanding at any time as a result of Pre-Release will not normally exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement; provided that the Depositary reserves the right to change or disregard such limit from time to time as it reasonably deems appropriate.

The Depositary may retain for its own account any compensation received by it in connection with the foregoing.

The Company shall have no liability to any Owner in connection with any Pre-Release.

 

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9. TITLE TO RECEIPTS .

It is a condition of this Receipt and every successive Owner and Holder of this Receipt by accepting or holding the same consents and agrees that when properly endorsed or accompanied by proper instruments of transfer, shall be transferable as certificated registered securities under the laws of the State of New York. American Depositary Shares not evidenced by Receipts shall be transferable as uncertificated registered securities under the laws of the State of New York. The Depositary, notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in the Deposit Agreement and for all other purposes, and neither the Depositary nor the Company shall have any obligation or be subject to any liability under the Deposit Agreement to any Holder of American Depositary Shares unless that Holder is the Owner of those American Depositary Shares.

 

10. VALIDITY OF RECEIPT .

This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt shall have been (i) executed by the Depositary by the manual signature of a duly authorized officer of the Depositary or (ii) executed by the facsimile signature of a duly authorized officer of the Depositary and countersigned by the manual signature of a duly authorized signatory of the Depositary or a Registrar.

 

11. REPORTS; INSPECTION OF TRANSFER BOOKS .

The Company is subject to the periodic reporting requirements of the Securities Exchange Act of 1934 and, accordingly, files certain reports with the Securities and Exchange Commission. Those reports will be available for inspection and copying through the Commission’s EDGAR system or at public reference facilities maintained by the Commission in Washington, D.C.

The Depositary will make available for inspection by Owners at its Corporate Trust Office any reports, notices and other communications, including any proxy soliciting material, received from the Company which are both (a) received by the Depositary as the holder of the Deposited Securities and (b) made generally available to the holders of such Deposited Securities by the Company. The Depositary will also, upon written request by the Company, send to Owners copies of such reports when furnished by the Company pursuant to the Deposit Agreement. Any such reports and communications, including any such proxy soliciting material, furnished to the Depositary by the Company shall be furnished in English to the extent such materials are required to be translated into English pursuant to any regulations of the Commission.

 

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The Depositary will keep books, at its Corporate Trust Office, for the registration of American Depositary Shares and transfers of American Depositary Shares which at all reasonable times shall be open for inspection by the Owners and the Company; provided that such inspection shall not be for the purpose of communicating with Owners in the interest of a business or object other than the business of the Company or a matter related to the Deposit Agreement or the American Depositary Shares.

 

12. DIVIDENDS AND DISTRIBUTIONS .

Whenever the Depositary receives any cash dividend or other cash distribution on any Deposited Securities, the Depositary will, if at the time of receipt thereof any amounts received in a foreign currency can in the judgment of the Depositary be converted on a reasonable basis into United States dollars transferable to the United States, and subject to the Deposit Agreement, as promptly as practicable, convert such dividend or distribution into dollars and will distribute the amount thus received (net of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit Agreement) to the Owners entitled thereto; provided that in the event that the Custodian or the Depositary is required by applicable law to withhold and does withhold from any cash dividend or other cash distribution in respect of any Deposited Securities an amount on account of taxes or other governmental charges, the amount distributed to the Owners of the American Depositary Shares representing such Deposited Securities shall be reduced accordingly.

Subject to the provisions of Section 4.11 and 5.9 of the Deposit Agreement, whenever the Depositary receives any distribution other than a distribution described in Section 4.1, 4.3 or 4.4 of the Deposit Agreement, the Depositary will, after consultation with the Company to the extent practicable, as promptly as practicable, cause the securities or property received by it to be distributed to the Owners entitled thereto, in any manner that the Depositary may reasonably deem equitable and practicable for accomplishing such distribution; provided that if in the reasonable opinion of the Depositary such distribution cannot be made proportionately among the Owners of Receipts entitled thereto, or if for any other reason the Depositary deems such distribution not to be feasible, the Depositary may, after consultation with the Company to the extent practicable, adopt such method as it may reasonably deem equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the securities or property thus received, or any part thereof, and the net proceeds of any such sale (net of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit Agreement) will be distributed by the Depositary to the Owners of Receipts entitled thereto all in the manner and subject to the conditions described in Section 4.1 of the Deposit Agreement. The Depositary may withhold any distribution of securities under Section 4.2 of the Deposit Agreement if it has not received reasonably satisfactory assurances from the Company that the distribution does not require registration under the Securities Act of 1933. The Depositary may sell, by public or private sale, an amount of securities or other property it would otherwise distribute under this Article that is sufficient to pay its fees and expenses in respect of that distribution.

 

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If any distribution consists of a dividend in, or free distribution of, Shares, the Depositary may, and shall if the Company so requests in writing, deliver to the Owners entitled thereto, an aggregate number of American Depositary Shares representing the amount of Shares received as such dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and the issuance of American Depositary Shares, including the withholding of any tax or other governmental charge required by applicable law as provided in Section 4.11 of the Deposit Agreement and after deduction or upon payment of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit Agreement (and the Depositary may sell, by public or private sale, an amount of Shares received sufficient to pay its fees and expenses in respect of that distribution). In lieu of delivering fractional American Depositary Shares in any such case, the Depositary will sell the amount of Shares represented by the aggregate of such fractions and distribute the net proceeds, all in the manner and subject to the conditions described in Section 4.1of the Deposit Agreement. If additional American Depositary Shares are not so delivered, each American Depositary Share shall thenceforth also represent the additional Shares distributed upon the Deposited Securities represented thereby.

In the event that the Depositary reasonably determines that any distribution in property (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge which the Depositary is obligated to withhold, the Depositary may by public or private sale dispose of all or a portion of such property (including Shares and rights to subscribe therefor) in such amounts and in such manner as the Depositary reasonably deems necessary and practicable to pay any such taxes or charges, and the Depositary shall distribute the net proceeds of any such sale after deduction of such taxes or charges to the Owners of Receipts entitled thereto.

 

13. RIGHTS .

In the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe for additional Shares or any rights of any other nature, the Depositary shall, after consultation with the Company, have discretion as to the procedure to be followed in making such rights available to any Owners or in disposing of such rights on behalf of any Owners and making the net proceeds available to such Owners or, if by the terms of such rights offering or for any other reason, the Depositary may not either make such rights available to any Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of the offering of any rights the Depositary reasonably determines in its discretion that it is lawful and feasible to make such rights available to all or certain Owners but not to other Owners, the Depositary may distribute to any Owner to whom it determines the distribution to be lawful and feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or other instruments therefor in such form as it reasonably deems appropriate.

 

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In circumstances in which rights would otherwise not be distributed, if an Owner requests the distribution of warrants or other instruments in order to exercise the rights allocable to the American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will make such rights available to such Owner upon written notice from the Company to the Depositary that (a) the Company has elected in its sole discretion to permit such rights to be exercised and (b) such Owner has executed such documents as the Company has determined in its sole discretion are reasonably required under applicable law.

If the Depositary has distributed warrants or other instruments for rights to all or certain Owners, then upon instruction from such an Owner pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon payment by such Owner to the Depositary for the account of such Owner of an amount equal to the purchase price of the Shares to be received upon the exercise of the rights, and upon payment of the fees and expenses of the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf of such Owner, exercise the rights and purchase the Shares, and the Company shall cause the Shares so purchased to be delivered to the Depositary on behalf of such Owner. As agent for such Owner, the Depositary will cause the Shares so purchased to be deposited pursuant to Section 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the Deposit Agreement, deliver American Depositary Shares to such Owner. In the case of a distribution pursuant to the second paragraph of this Article 13, such deposit shall be made, and depositary shares shall be delivered, under depositary arrangements which provide for issuance of depositary shares subject to the appropriate restrictions on sale, deposit, cancellation, and transfer under applicable United States laws.

If the Depositary reasonably determines, after consultation with the Company to the extent practicable, that it is not lawful and feasible to make such rights available to all or certain Owners, it may sell the rights, warrants or other instruments in proportion to the number of American Depositary Shares held by the Owners to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the fees and expenses of the Depositary as provided in Section 5.9 of the Deposit Agreement and all taxes and governmental charges payable in connection with such rights and subject to the terms and conditions of the Deposit Agreement) for the account of such Owners otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise.

The Depositary will not offer rights to Owners unless both the rights and the securities to which such rights relate are either exempt from registration under the

 

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Securities Act of 1933 with respect to a distribution to all Owners or are registered under the provisions of such Act; provided that nothing in the Deposit Agreement shall create any obligation on the part of the Company to file a registration statement with respect to such rights or underlying securities or to endeavor to have such a registration statement declared effective. If an Owner requests the distribution of warrants or other instruments, notwithstanding that there has been no such registration under the Securities Act of 1933, the Depositary shall not effect such distribution unless it has received an opinion from recognized counsel in the United States for the Company upon which the Depositary may rely that such distribution to such Owner is exempt from such registration.

The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make such rights available to Owners in general or any Owner in particular.

 

14. CONVERSION OF FOREIGN CURRENCY .

Whenever the Depositary or the Custodian shall receive foreign currency, by way of dividends or other distributions or the net proceeds from the sale of securities, property or rights, and if at the time of the receipt thereof the foreign currency so received can in the judgment of the Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the United States, the Depositary shall, as promptly as practicable, convert or cause to be converted by sale or in any other manner that it may determine, such foreign currency into Dollars, and such Dollars shall be distributed to the Owners entitled thereto or, if the Depositary shall have distributed any warrants or other instruments which entitle the holders thereof to such Dollars, then to the holders of such warrants and/or instruments upon surrender thereof for cancellation. Such distribution may be made upon an averaged or other reasonable basis without regard to any distinctions among Owners on account of exchange restrictions, the date of delivery of any American Depositary Shares or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary as provided in Section 5.9 of the Deposit Agreement.

If such conversion or distribution can be effected only with the approval or license of any government or agency thereof, the Depositary shall, without unreasonable delay, file such application for approval or license, if any, as may be required.

If at any time the Depositary shall determine that in its judgment any foreign currency received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars transferable to the United States, or if any approval or license of any government or agency thereof which is required for such conversion is denied or in the opinion of the Depositary is not obtainable, or if any such approval or license is not obtained within a reasonable period as determined by the Depositary, the Depositary may distribute the foreign currency (or an appropriate document evidencing the right to receive such foreign currency) received by the Depositary to, or in its discretion may hold such foreign currency uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled to receive the same.

 

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If any such conversion of foreign currency, in whole or in part, cannot be effected for distribution to some of the Owners entitled thereto, the Depositary may in its reasonable discretion make such conversion and distribution in Dollars to the extent permissible to the Owners entitled thereto and may distribute the balance of the foreign currency received by the Depositary to, or hold such balance uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled thereto.

 

15. RECORD DATES .

Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or whenever rights shall be issued with respect to the Deposited Securities, or whenever the Depositary shall receive notice of any meeting of holders of Shares or other Deposited Securities, or whenever for any reason the Depositary causes a change in the number of Shares that are represented by each American Depositary Share, or whenever the Depositary shall find it necessary or convenient, the Depositary shall fix a record date (a) for the determination of the Owners who shall be (i) entitled to receive such dividend, distribution or rights or the net proceeds of the sale thereof, (ii) entitled to give instructions for the exercise of voting rights at any such meeting or (iii) responsible for any fee assessed by the Depositary pursuant to the Deposit Agreement, or (b) on or after which each American Depositary Share will represent the changed number of Shares, subject to the provisions of the Deposit Agreement.

 

16. VOTING OF DEPOSITED SECURITIES .

Upon receipt of notice from the Company of any general shareholders’ meeting at which holders of Shares or other Deposited Securities will have the right to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, mail to the Owners of Receipts a notice, the form of which notice shall be previously provided to the Company for its review, comment and approval, which approval shall not be unreasonably withheld or delayed, and which shall contain (a) such information as is contained in such notice of meeting received by the Depositary from the Company, (b) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Colombian law and the Company’s by-laws ( Pacto Social ) or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights, if any, pertaining to the amount of Shares or other Deposited Securities represented by their respective American Depositary Shares and (c) a statement as to the manner in which such instructions may be given including an express indication that such instructions will be deemed given, in accordance with the second paragraph of this Article 16, if no instruction is received, to the Depositary to vote the Shares or other Deposited Securities represented by such American Depositary Shares (or to cause the Shares or other Deposited Securities

 

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represented by such American Depositary Shares to be voted) in the same manner as a majority of all votes actually cast at such shareholders’ meeting by all shareholders of the Company entitled to vote at such meeting. Upon the written request of an Owner of American Depositary Shares on such record date, received on or before the date established by the Depositary for such purpose, the Depositary shall, in so far as practicable, vote or cause to be voted the amount of Shares or other Deposited Securities represented by those American Depositary Shares in accordance with such Owner’s instructions or deemed instructions set forth in such request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the Shares or other Deposited Securities, other than in accordance with such instructions or deemed instructions.

If the Depositary does not receive voting instructions from an Owner with respect to the Shares or other Deposited Securities represented by such Owner’s American Depositary Shares by the date established by the Depository as the final date for receiving such instructions, each such Owner will be deemed to have authorized and instructed the Depositary to vote the Shares or other Deposited Securities represented by such American Depositary Shares (or to cause the Shares or other Deposited Securities represented by such American Depositary Shares to be voted) as follows: (i) solely with respect to Specified Shareholder Resolutions, the Depositary shall vote in the same manner as the majority of all votes actually cast at such shareholders’ meeting by all holders of preferred shares (including, for the purposes of determination of the majority of votes, votes casted by the Depositary in accordance with written instructions provided by Holders of ADSs), and (ii) with respect other shareholders’ meeting resolutions and decisions, in the same manner as a majority of all votes actually cast at such shareholders’ meeting by all shareholders of the Company entitled to vote at such meeting; in each case, the Depositary shall vote the Shares or other Deposited Securities represented by such American Depositary Shares (or shall cause the Shares or other Deposited Securities represented by such American Depositary Shares to be voted) at such meeting in such manner; provided that in each case the Shares or other Deposited Securities represented by such American Depositary Shares shall in any event be counted for the purpose of satisfying applicable quorum requirements unless a majority of the members of the Company’s board of directors determines otherwise.

There can be no assurance that Owners generally or any Owner in particular will receive the notice described in the preceding paragraph sufficiently prior to the instruction cutoff date to ensure that the Depositary will vote the Shares or Deposited Securities in accordance with the provisions set forth in the preceding paragraphs.

In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Deposited Securities, if the Company will request the Depositary to act under Section 4.7 of the Deposit Agreement, the Company shall give the Depositary notice of any such meeting and details concerning the matters to be voted upon not less than 30 days prior to the meeting date.

 

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17. CHANGES AFFECTING DEPOSITED SECURITIES .

Upon any change in nominal value, change in par value, split-up, consolidation, or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization, merger or consolidation, or sale of assets affecting the Company or to which it is a party, or upon the redemption or cancellation by the Company of the Deposited Securities, any securities, cash or property which shall be received by the Depositary or a Custodian in exchange for, in conversion of, in lieu of or in respect of Deposited Securities shall be treated as new Deposited Securities under the Deposit Agreement, and American Depositary Shares shall thenceforth represent, in addition to the existing Deposited Securities, the right to receive the new Deposited Securities so received, unless additional Receipts are delivered pursuant to the following sentence. In any such case the Depositary may deliver additional American Depositary Shares as in the case of a dividend in Shares, or call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing such new Deposited Securities.

 

18. LIABILITY OF THE COMPANY AND DEPOSITARY .

Neither the Depositary nor the Company nor any of their respective directors, officers, employees, agents or affiliates shall incur any liability to any Owner or Holder, (i) if by reason of any provision of any present or future law or regulation of the United States or any other country, or of any governmental or regulatory authority, or by reason of any provision, present or future, of the by-laws ( Pacto Social ) or any similar document of the Company, or by reason of any provision of any securities issued or distributed by the Company, or any offering or distribution thereof, or by reason of any act of God or war or terrorism or other circumstances beyond its control, the Depositary or the Company shall be prevented, delayed or forbidden from or be subject to any civil or criminal penalty on account of doing or performing any act or thing which by the terms of the Deposit Agreement or Deposited Securities it is provided shall be done or performed, (ii) by reason of any non-performance or delay, caused as aforesaid, in the performance of any act or thing which by the terms of the Deposit Agreement it is provided shall or may be done or performed, (iii) by reason of any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement, (iv) for the inability of any Owner or Holder to benefit from any distribution, offering, right or other benefit which is made available to holders of Deposited Securities but is not, under the terms of the Deposit Agreement, made available to Owners or Holders, or (v) for any special, consequential or punitive damages for any breach of the terms of the Deposit Agreement. Where, by the terms of a distribution pursuant to Section 4.1, 4.2 or 4.3 of the Deposit Agreement, or an offering or distribution pursuant to Section 4.4 of the Deposit Agreement, such distribution or offering may not be made available to Owners of Receipts, and the Depositary may not dispose of such distribution or offering on behalf of such Owners and make the net proceeds available to such Owners, then the Depositary shall not make such distribution or offering, and shall allow any rights, if applicable, to lapse.

 

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Neither the Company nor the Depositary nor any of their respective directors, officers, employees, agents or affiliates assumes any obligation or shall be subject to any liability under the Deposit Agreement to Owners or Holders, except that they agree to perform their obligations specifically set forth in the Deposit Agreement without negligence or bad faith. The Depositary shall not be subject to any liability with respect to the validity or worth of the Deposited Securities.

Neither the Depositary nor the Company nor any of their respective directors, officers, employees, agents or affiliates shall be under any obligation to appear in, prosecute or defend any action, suit, or other proceeding in respect of any Deposited Securities or in respect of the American Depositary Shares, on behalf of any Owner or Holder or other person. Neither the Depositary nor the Company nor any of their respective directors, officers, employees, agents or affiliates shall be liable for any action or non-action by any of them in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or Holder, or any other person believed by it in good faith to be competent to give such advice or information.

The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with a matter arising wholly after the removal or resignation of the Depositary; provided that in connection with the issue out of which such potential liability arises, the Depositary performed its obligations without negligence or bad faith while it acted as Depositary. The Depositary shall not be liable for the acts or omissions of any securities depository, clearing agency or settlement system in connection with or arising out of book-entry settlement of Deposited Securities or otherwise. The Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities or for the manner in which any such vote is cast or the effect of any such vote; provided that any such action or non-action is in good faith.

No disclaimer of liability under the Securities Act of 1933 is intended by any provision of the Deposit Agreement.

 

19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN .

The Depositary may at any time resign as Depositary under the Deposit Agreement by written notice of its election to do so delivered to the Company, such resignation to take effect upon the earlier of (i) the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement or (ii) termination of the Deposit Agreement by the Depositary pursuant to Section 6.2 of the Deposit Agreement. The Depositary may at any time be removed by the Company by 60 days prior written notice of such removal, to become effective upon the later of (i) the 60th day after delivery of the notice to the Depositary and (ii) the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. The Depositary in its discretion may appoint a substitute or additional custodian or custodians.

 

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20. AMENDMENT .

The form of the Receipts and any provisions of the Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the consent of Owners or Holders in any respect which they may deem necessary or desirable. Any amendment which shall impose or increase any fees or charges (other than taxes and other governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or which shall otherwise prejudice any substantial existing right of Owners, shall, however, not become effective as to outstanding American Depositary Shares until the expiration of 30 days after notice of such amendment shall have been given to the Owners of outstanding American Depositary Shares. Every Owner and Holder of American Depositary Shares, at the time any amendment so becomes effective, shall be deemed, by continuing to hold such American Depositary Shares or any interest therein, to consent and agree to such amendment and to be bound by the Deposit Agreement as amended thereby. In no event shall any amendment impair the right of the Owner to surrender American Depositary Shares and receive therefor the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law.

 

21. TERMINATION OF DEPOSIT AGREEMENT .

The Company may terminate the Deposit Agreement by instructing the Depositary to mail notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date included in such notice. The Depositary may likewise terminate the Deposit Agreement, if at any time 60 days shall have expired after the Depositary delivered to the Company a written resignation notice and if a successor depositary shall not have been appointed and accepted its appointment as provided in the Deposit Agreement; in such case the Depositary shall mail a notice of termination to the Owners of all American Depositary Shares then outstanding at least 30 days prior to the termination date. On and after the date of termination, each Owner of American Depositary Shares will, upon (a) surrender of such American Depositary Shares, (b) payment of the fee of the Depositary for the surrender of American Depositary Shares referred to in Section 2.5, and (c) payment of any applicable taxes or governmental charges, be entitled to delivery, to such Owner or upon such Owner’s order, of the amount of Deposited Securities represented by those American Depositary Shares. If any American Depositary Shares shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue the registration of transfers of American Depositary Shares, shall suspend the distribution of dividends to the Owners thereof, and shall not give any further notices or perform any further acts under the Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions pertaining to Deposited Securities, shall sell

 

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rights and other property as provided in the Deposit Agreement, and shall continue to deliver Deposited Securities, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of any rights or other property, upon surrender of American Depositary Shares (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of the Deposit Agreement, and any applicable taxes or governmental charges). At any time after the expiration of four months from the date of termination, the Depositary may sell the Deposited Securities then held under the Deposit Agreement and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it thereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of American Depositary Shares that have not theretofore been surrendered, such Owners thereupon becoming general creditors of the Depositary with respect to such net proceeds. After making such sale, the Depositary shall be discharged from all obligations under the Deposit Agreement, except to account for such net proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of the Deposit Agreement, and any applicable taxes or governmental charges). Upon the termination of the Deposit Agreement, the Company shall be discharged from all obligations under the Deposit Agreement except for its obligations to the Depositary with respect to indemnification, charges, and expenses.

 

22. DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM .

(a) Notwithstanding the provisions of Section 2.4 of the Deposit Agreement, the parties acknowledge that the Direct Registration System (“DRS”) and Profile Modification System (“Profile”) shall apply to uncertificated American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant to which the Depositary may register the ownership of uncertificated American Depositary Shares, which ownership shall be evidenced by periodic statements issued by the Depositary to the Owners entitled thereto. Profile is a required feature of DRS which allows a DTC participant, claiming to act on behalf of an Owner, to direct the Depositary to register a transfer of those American Depositary Shares to DTC or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC participant without receipt by the Depositary of prior authorization from the Owner to register such transfer.

(b) In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties understand that the Depositary will not verify, determine or otherwise ascertain that the DTC participant which is claiming to be acting on behalf of an Owner in requesting registration of transfer and delivery described in subsection (a) has the actual authority to act on behalf of the Owner (notwithstanding

 

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any requirements under the Uniform Commercial Code). For the avoidance of doubt, the provisions of Sections 5.3 and 5.8 of the Deposit Agreement shall apply to the matters arising from the use of the DRS. The parties agree that the Depositary’s reliance on and compliance with instructions received by the Depositary through the DRS/Profile System and in accordance with the Deposit Agreement, shall not constitute negligence or bad faith on the part of the Depositary.

 

23. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF IMMUNITIES .

In the Deposit Agreement, the Company has (i) appointed Avianca Inc., located at 122 East 42nd Street, Suite 2525, New York, New York 10168, as the Company’s authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Agreement, (ii) consented and submitted to the jurisdiction of any state or federal court in the State of New York in which any such suit or proceeding may be instituted, and (iii) agreed that service of process upon said authorized agent shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding.

EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND HOLDER) THEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

To the extent that the Company or any of its properties, assets or revenues may have or hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Shares or Deposited Securities, the American Depositary Shares, the Receipts or the Deposit Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.

 

A-18


24. DISCLOSURE OF INTERESTS .

Notwithstanding any other provision of the Deposit Agreement, each Owner and Holder agrees to comply with requests from the Company pursuant to applicable law the rules and requirements of any stock exchange on which the American Depositary Shares are, or will be, registered, traded or listed, the rules and requirements of any clearing system through which transactions in the American Depositary Shares may be settled or the by-laws ( Pacto Social ) of the Company to provide information, inter alia, as to the capacity in which such Owner or Holder owns American Depositary Shares (and Shares as the case may be) and regarding the identity of any other person(s) interested in such American Depositary Shares (and Shares, as the case may be) and the nature of such interest and various other matters, whether or not they are Owners or Holders at the time of such request. The Depositary agrees to use its reasonable efforts to forward, upon the written request of the Company and at the expense of the Company, any such written request from the Company to the Owners and to forward, as promptly as practicable, to the Company any responses to such requests received by the Depositary.

 

A-19

Exhibit 4.4

VERSION FOR SIGNATURES

COMMERCIAL PLEDGE AGREEMENT

By and between the undersigned, to wit:

 

(A) SYNERGY AEROSPACE CORP., a corporation organized and incorporated according to the laws of the Republic of Panama, duly filed under number 506629, document 858101 of the Commercial Section of the Public Registry, represented in this act by Mr. Carlos Armando Bryden Gonzalez, male, Panamanian, of legal age, married, domiciled in Panama City, identified with citizenship card No. 8-235-2072 and Passport No. 1603911 issued by the Republic of Panama, acting in the capacity of Director and duly authorized as appears in the Board of Director and Shareholders Meetings Minutes, dated September 4, 2012, hereinafter the PLEDGING GUARANTOR ;

 

(B) CITIBANK, N.A., corporation incorporated according to the laws of the United States of America, acting in the capacity of Administrative Agent for the Secured Parties ( as indicated in the Margin Loan Agreement, defined below ), duly represented in this act by Mr. Herman Hirsch, male, American, of legal age, banker, domiciled in the city of New York, acting in the capacity of Authorized Representative, hereinafter the PLEDGEE ; and

 

(C) CITIBANK, N.A., PANAMA BRANCH, a corporation incorporated according to the laws of the United States of America, duly registered with the Panamanian Public Registry as a foreign corporation under file number 404, reel 238, image 3 of the Microfilms Section (Commercial) of the Public Registry, duly represented in this act by Mr. RICARDO FERNANDEZ, male, Panamanian, of legal age, married, banker, domiciled in Panama City, identified with citizenship card No. 4-102-1002, acting in the capacity of Attorney-in-fact, as stipulated in the General Power of Attorney granted by Public Deed No. 5308 dated June 13, 1991, issued by Notary Office No.5 of the Circuit of Panama, registered under file 404, reel 32922, image 53, on July 25, 1991, hereinafter the COLLATERAL AGENT , who acts as the local agent for the PLEDGEE in this Pledge Contract, according to the provisions stipulated in this Contract,

Hereby state that a Pledge Share Agreement has been entered into, hereinafter the “CONTRACT”, according to the following statements and subject to the following clauses:

RECORDS AND STATEMENTS BY THE PARTIES

(1) Records:

 

  a) SYNERGY SHIPYARD INC., a corporation incorporated according to the laws of the Republic of Panama, registered under file No. 694926, document 1744006 of the Commercial Section of the Public Registry, signed a Margin Loan Agreement (as defined in the Margin Loan Agreement) on September 6, 2012, in the capacity of BORROWER, with the PLEDGEE;

 

  b) The PLEDGING GUARANTOR is currently an organization attached to the Borrower, therefore it is in the interest of the PLEDGING GUARANTOR, to fully and promptly comply with all obligations by the Borrower towards the PLEDGEE, according to the Margin Loan Agreement;

 

  c)

The PLEDGING GUARANTOR is the sole and absolute owner of the five hundred twenty one million ordinary shares, authorized, issued, in circulation and paid in full to AVIANCATACA


  HOLDING, S.A., (“AVIANCATACA”) as evidenced by (i)  a series of Share Certificates owned by SYNERGY AEROSPACE CORP., (ii)  as well as a Certificate of Ownership of the Shares issued by the Secretary of AVIANCATACA, attached to this Contract as Annex I, and which is considered an inseparable part of the Contract.

 

  d) By virtue of the above, it is the intention of the PLEDGING GUARANTOR to grant a pledge of up to fifty million ordinary AVIANCATACA shares, of which thirty-six million nine hundred eighty thousand eight hundred eighty one (36,980,881) ordinary shares (the SHARES) will be pledged as security in favor of the PLEDGEE through this Contract, according to the Margin Loan Agreement, and subject to the restrictions stipulated in the AVIANCATACA Shareholders Agreement signed on March, 16, 2011 and amended on May 6, 2011.

 

  e) The parties have agreed that these Shares will be placed in a trust account for their administration, safe-keeping and sale, and as an alternate source of payment in case of default by the Borrower, under the irrevocable instructions given for the different scenarios regarding payment of the obligations guaranteed under the Irrevocable Trust Account Agreement for the Administration and Custody of Common Shares, (the “Irrevocable Trust Account Agreement for the Administration and Custody of Common Shares”), signed between CITITRUST COLOMBIA, S.A. (the Trustee), the PLEDGING GUARANTOR (acting as Guarantor) and the PLEDGEE (as the Beneficiary), a copy of which is attached to this Contract as Annex IV, and which is considered an inseparable part of the Contract.

(2) Statements:

The PLEDGING GUARANTOR states and guarantees the following to the PLEDGEE:

 

  (a) AVIANCATACA, the corporation that issues the pledged shared, is a public limited company, duly incorporated and existing according to the laws of the Republic of Panama, and has the corporate capacity required to perform its business in the manner in which it does so today;

 

  (b) That, as of the date of this Contract, the PLEDGING GUARANTOR is a public limited company, validly existing and organized according to the laws of the Republic of Panama, and has obtained all the required authorizations, according to the corresponding legislation, in order to perform its business in the manner in which it does so today;

 

  (c) That the Shares were validly issued, have been paid in full and released by AVIANCATACA, and are free of any taxes and restrictions, with the exception of the provisions stipulated in this Contract;

 

  (d) That the signing and compliance of this Contract, has been duly authorized by all the required corporate acts and do not constitute non-compliance under: (i)  its Articles of Incorporation; (ii)  any law, decree or regulation, or applicable legal provision, or (iii)  any important contract of which this Contact is a part;

 

  (e) That it is the sole and absolute owner of the Shares, which represent four point zero one per cent (4.01%) of the AVIANCATACA shares (both common and preferential) issued and in circulation;

 

  (f) This Contract has been duly signed and awarded by the corresponding authorized representative, and is considered valid and enforceable according to its terms and conditions.

 

  (g) That there is no need for consent, approval, license, authorization or validation by a court, administrative agency, commission or other government or public organizations of the Republic of Panama (or any of its States and subdivisions) regarding the execution and compliance of this Contract;


  (h) That all laws, decrees, regulations, resolutions or applicable legal provisions in or of the Republic of Panama have been complied with;

 

  (i) That this Contract has been duly signed and awarded by the corresponding authorized representatives of the PLEDGING GUARANTOR, and the obligations for which it is responsible, by virtue of this Contract are legally valid and enforceable, according to its terms and conditions;

 

  (j) Neither the signing nor the awarding of this Contract, nor the compliance of the obligations arising from this Contract, nor the execution of the transactions included therein (i)  go against the Articles of Incorporation or By-laws of the PLEDGING GUARANTOR or the organizations that issue the pledged shares or the shareholder agreements in which the aforementioned or its shareholders are participants; (ii)  go against a significant law, right or resolution, sentence or administrative or legal order applicable to the PLEDGING GUARANTOR or any of the organizations that issue the pledged shares, (iii)  constitutes non-compliance of a significant promissory note, contract, or agreement in which the PLEDGING GUARANTOR or any of the organizations issuing the pledged shares is a party, or gives a third party the right to terminate said promissory note, contract, or significant agreement, or declare the early expiration date of the term stipulated for said significant promissory note, contract, or agreement, or (iv)  entails the termination, suspension, cancellation or loss of a significant right, permit, license, authorization, registry, concession or franchise of the PLEDGING GUARANTOR or any of the organizations that issue the pledged shares.

 

  (k) That signing this Contract under the laws of the Republic of Panama, and the fact that it is subject to the courts of this country does not violate its Articles of Association or the Laws of the Republic of Panama in any way.

(3) Property Title of the Pledged Shares: The PLEDGING GUARANTOR specifically represents and warrants that it is the sole and absolute owner of the Shares, which are duly authorized, issued, in circulation and paid in full to AVIANCATACA, represented in Share Certificate No. twenty-two (22) in the amount of fifty million (50,000,000) common shares on behalf of SYNERGY AEROSPACE CORP., and which are not, nor will they be affected by any tax, promise, right or restriction of any nature, other that the pledge subject to this Contract and to the restrictions of the Shareholders Agreement of AVIANCATACA HOLDING, S.A. signed on March, 16, 2011 and amended on May 6, 2011.

CLAUSES:

FIRST : (Constitution and Object of the Pledge) Herein, the PLEDGING GUARANTOR constitutes a commercial pledge in favor of the PLEDGEE regarding the Shares, which will be taxed under this Contract and any of its amendment, in order to guarantee payment of current and/or future outstanding amounts by the Borrower to the PLEDGEE, by reason of the Margin Loan Agreement. Likewise, any additional shares awarded by the PLEDGING GUARANTOR to the PLEDGEE as guarantee for the secured obligations (defined below) or their corresponding increase will be subject to the commercial pledge herein.

The Parties agree that any current or future appended or accessory right regarding the Shares, including, without limitation (i)  the right to vote, (ii)  the right to stock dividends, (iii)  the right to liquidation proceeds in case of dissolution or liquidation, (iv)  the right to Shares in the event of a merger, incorporation or split,


and, (v)  any other right regarding the Shares, will remain the property of the PLEDGING GUARANTOR, however the rights must be exercised with the consent of the PLEDGEE, and will be considered suspended in the Event of Default (as defined in the Margin Loan Agreement).

SECOND: (Pledge-Secured Obligations) The pledge is constituted in order to guarantee full and prompt compliance with any and all current and future obligations incurred in by the Borrower in favor of the PLEDGEE, including, capital, commissions, charges, penalties, expenses and interests generated until the capital is paid in full, according to the terms and conditions stipulated in the Margin Loan Agreement, as well as any judicial and extrajudicial collection fees, legal costs and fees, and any other expense in which the PLEDGEE or the Pledge Trustee incur for its preservation, hereinafter the “Secured Obligations”.

THIRD: (Custodian) The parties agree to appoint Cititrust Colombia S.A., as custodian and trustee for the pledged Shares, in virtue of the Irrevocable Trust Account Agreement for the Administration and Custody of Common Shares regarding the AVIANCATACA HOLDING S.A. Common Shares, underwritten on September 6, 2012 between the PLEDGING GUARANTOR, as Guarantor and the PLEDGEE as the Beneficiary, and Cititrust Colombia S.A. as the Trust Company, of which Armanda Mago Vicentelli (hereinafter, the “Trustee”) is its legal representative. The Trustee accepts the appointment as custodian of the pledged shares, when the Common Share Trust Account Agreement is signed, and which is considered an inseparable part of the Contract.

In order to execute the Commercial Pledge subject to this Contract, the PLEDGING GUARANTOR will directly deliver the Shares to the Trustee in benefit of the PLEDGEE. Once the Shares are delivered to the Trustee by the PLEDGING GUARANTOR, the Trustee will notify the PLEDGEE of the delivery, in writing on the format attached in ANNEX III of this Contract, and which is considered an inseparable part of the Contract.

The PLEDGING GUARANTOR states that it has notified the Board of Directors of AVIANCATACA HOLDING, S.A. in writing, requesting the registration of the pledge in favor of the PLEDGEE in the Share Registry of the company, and that this has in effect occurred. As evidence of the registration of the pledge in the AVIANCATACA HOLDING S.A. Share Registry, a certificate issued by the Secretary of the organization and delivered to the COLLATERAL AGENT is attached in ANNEX II of this Contract, and which is considered an inseparable part of the Contract.

The Trustee is authorized to incur in any expense or take any action deemed necessary for the protection, preservation, administration, collection and insurance of the pledged Shares, according to the Common Share Trust Account Agreement.

Only the PLEDGEE may notify the PLEDGING GUARANTOR and the Trustee of any Event of Default regarding the Secured Obligations, in which case the Trustee will act according to the irrevocable instructions stipulated in the Common Share Trust Account Agreement. Both the PLEDGING GUARANTOR and the COLLATERAL AGENT must be notified in the case of any Event of Default regarding the Secured Obligations, for information purposes.

FOURTH: (Enforcement of the Pledge) In case of default on any of the Secured Obligations of this Pledge, including those agreed herein, the parties agree to a special transfer method, in virtue of which the PLEDGING GUARANTOR has issued precise instructions included in the Common Share Trust Account Agreement. The parties agree to the sales procedure stipulated therein for effects of transferring the pledged shares subject to this Contract.


In case of default, the PLEDGEE will notify the PLEDGING GUARANTOR and the Trustee in writing, in virtue of which the instructions given by the PLEDGING GUARANTOR to the Trustee must be followed.

FIFTH: (Affirmative and Negative Covenants) The PLEDGING GUARANTOR agrees to (i)  keep up with all obligations, including taxes, fees and employer contributions, during the term of the Contract. The PLEDGEE reserves the right to request proof of payment at any moment; (ii)  maintain its legal existence, therefore the legal existence of the company will in no way be significantly altered, by way of dissolution, liquidation, merger or consolidation.

The PLEDGING GUARANTOR agrees to present a Legal Concept by a suitable lawyer in the Republic of Panama, within a reasonable period of time after signing this Contract, confirming the statements and guarantees presented by the PLEDGING GUARANTOR in the Statement section of this Contract, and that the pledge subject to the Contract is duly constituted. This concept must be delivered to the PLEDGEE by the COLLATERAL AGENT in the format attached in ANNEX V and which is considered an inseparable part of the Contract.

SIXTH: (Notices) All notifications from the parties, unless otherwise stipulated, must be delivered in writing and delivered in person or by certified mail, courier or fax to the corresponding address:

To the PLEDGING GUARANTOR :

 

Attention:      Raúl Campos
Company:      SynergyAerospace
Position:      Corp. Treasurer
Address:     

Rua Professora Heloisa Carneiro, 21,

Sao Paulo-SP, Cep. 04630-050, Brazil

E-mail:      raul.campos@synergygroup.com
Tel:      +55 11 3797-5005
Fax:      +55 11 3797-5063

To the PLEDGEE:

 

Attention:    Dustin Sheppard:    dustin.c.sheppard@citi.com
     Bradley Diener:    bradley.diener@citi.com
     Hermán Hirsch:    herman.hirsch@citi.com
Company:      Citibank, N.A.   
Address:   

  Corporate Equity Derivatives

  390 Greenwich Street, 3 rd floor

  New York, NY 10013

Telephone:      +1 212-723-5757   
Telecopy:      +1 347-853-7278   

With copy to:

Melissa Alwang, Esq.

Latham &Watkins LLP

885 Third Avenue


New York, NY 10022

Telephone: +1 212-906-1706

Telecopy: +1 212-751-4864

Email: melissa.alwang@lw.com

To the COLLATERAL AGENT:

 

Attention:    Jorge Almengor
Company:    Citibank N.A. Sucursal Panamá
Position:    Resident Vice President
Address:    Torre de las Américas, Torre B, Floor 14
E-mail:    jorge.almengor@citi.com
Tel:    +507.210.5903
Fax:    +507.210.5948

In the event of a change of address, the parties must notify the others of the change, which will only be effective from the date of notice.

It is understood and agreed that in case of notification by certified mail, a five (5) day period will be given from the time the notice is delivered to the post office. The receipt issued by the post office will suffice as proof of delivery.

SEVENTH: (Validity and Termination of the Pledge) It is understood that the present pledge guarantee is constituted for the period of time during which any debit balance exist in favor of the PLEDGEE, by reason of the Secured Obligations according to this Contract, even when amended, extended, refinanced, amended and restored, or when grace periods are granted. Consequently, the commercial pledge herein, will not be terminated by any act or omission by the PLEDGEE; nor by reason of amendment, reform, extension or any other type of change and variation to the terms, clauses or conditions of the secured obligations by the PLEDGEE, and the PLEDGING GUARANTOR accepts said amendments in advance.

Notwithstanding the above, this Pledge Agreement will terminate and must be promptly cancelled:

 

  a. On the date that all Secured Guarantees have been satisfied, and this fact is certified in writing by the PLEDGEE, or its agent; subject to the conditions and procedures stipulated in the Common Share Trust Account Agreement.

 

  b. At the request of the PLEDGEE and the PLEDGING GUARANTOR, stated in conjunction, in writing, at any time during the term of the Pledge.

 

  c. After the date in which a Default Event of the Secured Obligations occurs, precisely at the moment in which the Shares are converted to Preferential Shares, according to the provisions and procedures stipulated in the Common Share Trust Account Agreement.

 

6


In the event that the pledge is terminated due to full payment of the Secured obligations, the pledged Shares will be returned to the PLEDGING GUARANTOR, according to the provisions stipulated in the Common Share Trust Account Agreement.

EIGHTH: (Partial Compliance of Obligations) In the event that the PLEDGEE does not request exact compliance of the agreed obligations, this does not imply, nor will it be considered an amendment to the terms of this Contract, or as the acceptance of non-compliance, or as a waiver of the contractual or legal rights to which the PLEDGEE is entitled, and shall not prevent the PLEDGEE from requesting full compliance of the obligations agreed, or exercising its full rights. Consequently, any delay or omission by the PLEDGEE regarding the sale of the Shares or the exercise of any other right is not considered a waiver of rights by the PLEDGEE and does not affect the actions that correspond at any given time.

NINTH: (Transfer) The PLEDGING GUARANTOR may not transfer its position in the Contract, or its economic rights, or any other rights arising therein, or its obligations, without the written consent of the PLEDGEE.

TENTH: (Waiver of Domicile) The PLEDGING GUARANTOR hereby expressly waives, his domicile, the right to objection, to any of the notices that may correspond, whether for non-acceptance or default, and the procedures subject to executive proceedings if it was decided this is the procedure to follow.

ELEVEN: (Validity of the Clauses): The parties understand and agree that should any of the provisions stipulated in this contract be deemed invalid according to the laws of the Republic of Panama, this invalidity will not render the entire contract invalid, rather it will be interpreted as if it did not include the provision or provisions declared invalid, and the rights and obligations of the parties will be interpreted in a manner according to the law.

TWELFTH: (Expenses) The PLEDGING GUARANTOR will be responsible for all expenses arising from this Contract, including the sale of pledged goods, notary seals and duties.

THIRTEENTH: (Applicable Legislations and Court Jurisdiction): This Contract will be governed by the laws of the Republic of Panama, and any dispute arising therein will be clarified by a competent court in the Republic of Panama.

FOURTEENTH: (Indemnity) The PLEDGING GUARANTOR agrees to hold the PLEDGEE, the COLLATERAL AGENT and all related personnel harmless at all times, as well as each of its executives, directors, agents, employees and controlling persons (the “Indemnified Party”) regarding any loss or damages (including, without limitation, any reasonable legal fees and expenses) that jointly or severally may be suffered, exercised or conceded against any Indemnified Party, as a result or in relation to (i)  any investigation, lawsuit, process or preparation for the defense in a lawsuit, as a result of or in relation to the rendering of services stipulated in this Contract, with the exception of a final and irrevocable sentence issued by a competent court declaring said claim, damage, loss, liability or expense has resulted from gross negligence or fraud by the Indemnified Party; (ii)  non-compliance of the obligations subject to this Contract, by the PLEDGING GUARANTOR, or (iii)  whenever any of the records or guarantees granted by the PLEDGING GUARANTOR in this Contract result in falsehood or inaccuracy. The PLEDGEE and/or the COLLATERAL AGENT will communicate any action, claim or written procedure which may result in an indemnity, to the PLEDGING GUARANTOR, according to the terms stipulated above.

 

7


FIFTEENTH: (Receiving Copy) The Parties certify that they know and accept each and every one of the clauses and conditions stipulated in this Contract, and agree to their full compliance. Likewise, they certify that they have received to their satisfaction a copy of this Contract.

[SPACE INTENTIONALLY LEFT BLANK]

[SIGNATURE PAGES FOLLOW]

 

8


IN WITNESS WHEREOF, the Contract is signed in the city of Sao Paulo, Brazil on the sixth (6) of September, 2012, in three counterparts with the same content and effect.

The PLEDGEE,

/s/ Ricardo Fernandez

 

Citibank N.A.

Name: Ricardo Fernandez

Position: General Counsel


IN WITNESS WHEREOF, the Contract is signed in the city of Panama on the sixth (6) of September, 2012, in three counterparts with the same content and effect.

 

The PLEDGING GUARANTOR
/s/ Carlos Armando Bryden González

Synergy Aerospace Corp.

Name: Carlos Armando Bryden González Position: Director

Passport: 1603911


IN WITNESS WHEREOF, the Contract is signed in the city of Panama, on the sixth (6) of September, 2012, in three counterparts with the same content and effect.

 

The COLLATERAL AGENT
/s/ Ricardo Fernandez

Citibank, N.A., Panama Branch

Name: Ricardo Fernandez

Position: General Attorney—in fact

Citizenship Card: 4-102-1002


ANNEX I

CERTIFICATE OF OWNERSHIP OF THE SHARES

The underwritten Secretary of AVIANCATACA HOLDING S.A:, a public limited company, incorporated according to the laws of the Republic of Panama (the “Company”) duly authorized for this act, hereby certifies that on September 6, 2012, Synergy Aerospace Corp., appears as the sole and absolute owner of 521.000.000 common shares of this corporation, which represents 57.8% of the total company shares issued and in circulation, and which have been duly paid in full and released.

In addition, it certifies that in this regard, a pledge of thirty nine million two hundred thousand shares is registered, represented by Share Certificates: No.             and No.             .

IN WITNESS WHEREOF, this document is signed on the 6 of September, 2012.

AVIANCATACA HOLDING, S.A.

Name:

Position: Director and Secretary

[NOTARIAL CERTIFICATE AND APOSTILLE]


ANNEX II

CERTIFICATE OF REGISTRATION OF PLEDGED SHARES

The underwritten Secretary of AVIANCATACA HOLDING, S.A., a public limited company incorporated according to the laws of the Republic of Panama (the “Company”) duly authorized to issue this certificate, hereby certifies that the pledge constituted regarding the shares owned by Synergy Aerospace Corp, on thirty six million nine hundred eighty thousand eight hundred eighty one common shares, signed on September 6, 2012, in favor of Citibank N.A. (the “Pledge Agreement”) has been duly registered in the Share Registry of the Company.

A copy of the section of the Company Share Registry in which the constitution of the pledge mentioned above appears, duly certified by a Public Notary is attached to this certificate.

IN WITNESS WHEREOF, this document is signed on the 6 of September, 2012.

Name:

Secretary:

[NOTARIAL CERTIFICATE AND APOSTILLE]


ANNEX III

COMMUNICATION OF DELIVERY OF SHARES

To the attention of,

Citibank N.A.

We hereby certify that we have received from the PLEDGING GUARANTOR (Synergy Aerospace Corp.) the Common Shares pledged according to the provisions stipulated in the IRREVOCABLE TRUST ACCOUNT AGREEMENT FOR THE ADMINISTRATION AND CUSTODY OF COMMON SHARES ENTERED INTO BY SYNERGY AEROSPACE CORP. CITITRUST COLOMBIA S.A. AND CITIBANK N.A. , and signed on September 6, 2012.

Sincerely,

CITITRUST COLOMBIA S.A.

Name:

Position:


ANNEX IV

COPY OF THE IRREVOCABLE TRUST ACCOUNT AGREEMENT FOR THE

ADMINISTRATION AND CUSTODY OF COMMON SHARES ENTERED INTO BY

SYNERGY AEROSPACE CORP. CITITRUST COLOMBIA S.A. AND CITIBANK N.A.,

AND SIGNED ON SEPTEMBER 6, 2012


ANNEX V

LEGAL CONCEPT

 

16

Exhibit 5.1

October 2, 2013

Avianca Holdings S.A.

Aquilino de la Guardia

Calle No. 8, Panama City,

Republic of Panama

Re:         Legal opinion regarding the validity of shares issued by Avianca Holdings S.A.

Ladies and Gentlemen:

We have acted as special Panama counsel to Avianca Holdings S.A. (the “ Company ”), a corporation organized under the laws of Panama, in connection with the proposed offer and sale by the Company and certain selling shareholders (the “Selling Shareholders”) of American Depositary Shares, each comprised of preferred shares, for value $0.125 per share, of the Company (the “Preferred Shares”), in accordance with the Underwriting Agreement (the “Underwriting Agreement”) to be entered into among the Company; the Selling Shareholders ; and the several underwriters represented by JP Morgan Securities LLC and Citigroup Global Markets Inc., and under the Registration Statement on Form F-1 (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission, pursuant to the United States Securities Act of 1933, as amended.

We have examined and relied on originals or copies, certified or otherwise identified to our satisfaction of the Articles of Incorporation of the Company, as amended and/or restated as of the date hereof, such other statutes, records, certificates, agreements, documents and other instruments as we have deemed necessary or appropriate for purposes of the opinion hereafter expressed. As to various questions of the fact material to the opinion hereinafter expressed, we have relied, and to the extent we have deemed necessary or appropriate, without independent check or verification of their accuracy, on the representations and warranties of the Company contained in the records, certificates, agreements, instruments, documents and other instruments furnished or made available to us by the Company or the officers or other representatives of the Company. In making the foregoing examinations, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all


documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photo static copies thereof, and the authenticity of the originals of such latter documents.

On the basis of and subject to the foregoing, we are of the opinion that the Preferred Shares (i) to be sold by the Selling Shareholders are duly and validly authorized, legally issued, fully paid and non-assessable and (ii) to be sold by the Company are duly and validly authorized, and when issued and sold pursuant to the Underwriting Agreement against payment of consideration set forth therein, will be legally issued, fully paid and non-assessable.

We hereby consent to the filing of this opinion as Exhibit 5.1 of the Registration Statement and to the reference to use under the headings “Income Tax Consequences,” “Validity of Securities” and “Enforcement of Judgments” in the Prospectus that forms a part of the Registration Statement.

The opinions expressed herein are limited to the laws of Panama and we express no opinion as to the effect on the matters covered of the laws of any other jurisdiction. No member of this firm is an officer or director of the Company.

Sincerely,

ICAZA, GONZALEZ-RUIZ & ALEMAN

/s/ Alvaro A. Alemán H.

Alvaro A. Alemán H.

Exhibit 10.1

Fiduciaria Bogotá

Irrevocable Administration Mercantile Trust Agreement

by and between Fiduciaria Bogotá S.A. and AviancaTaca Holding S.A.

The undersigned, ELISA MURGAS DE MORENO, a Colombian citizen, of legal age, identified by Colombian Citizen Card No. 41.614.534 issued in Bogotá D.C., acting in her capacity as Legal Representative of the company AviancaTaca Holding S.A., a company legally incorporated in panama, duly authorized by the Board of Directors, all of which is accredited through the Panama Public Registry Certificate and the corresponding minutes attached as Annex 1 hereto, hereinafter and for the purposes hereof the TRUSTOR or AviancaTaca, on the one hand; and ANA ISABEL CUERVO ZULUAGA, of legal age, identified by Colombian Citizen Card No. 30.295.441 issued in Manizales, acting in her capacity as Legal Representative of FIDUCIARIA BOGOTÁ S.A., a financial service corporation legally incorporated through public deed No. 3,178 dated September 30, 1991, granted at Notary Public Office 11 of the Bogota Circuit, with principal business address in the city of Bogotá D.C., with an operation permit granted by the Banking Superintendence (currently the Financial Superintendence) through Resolution No. 3,615 dated October 4, 1991, which is accredited through the Certificate of Incorporation and Legal Incumbency issued by the Financial Superintendence attached as Annex 2 hereto, hereinafter and for the purposes hereof the TRUSTEE, on the other hand; enter into this irrevocable administration mercantile trust agreement that will be ruled by the clauses below and otherwise by the effective Colombian legal rules and regulations applicable to this matter,

WITNESSETH

 

  1. Whereas, the TRUSTOR is devoted, among others, to establish, process, and carry out the businesses of an investor throughout the world; to act as a holding company for the shares of companies devoted to passenger and cargo air transportation activities, and/or maintenance and training related to air transportation activities and/or courier services, including to agree upon, enter into, perform, and carry out all kinds of agreements.

 

  2. Whereas, the TRUSTOR, along with the OPERATING COMPANIES defined herein, have adopted an INCENTIVE PLAN for the benefit of certain directors who hold administrative positions of the TRUSTOR and the OPERATING COMPANIES, which incentive plan is associated with the behavior of the price of preferential stock issued by the TRUSTOR, which stock is negotiated in the stock negotiation system administered by Bolsa de Valores de Colombia S.A.

 

  3. Whereas, through the INCENTIVE PLAN, the TRUSTOR, regarding the persons who act as members of its Board of Directors, and the OPERATING COMPANIES acting as direct employers or through companies that act as employers regarding the other beneficiary directors, will grant monetary bonuses consisting of extraordinary fees or bonuses additional to the salary, as applicable to the Chief Executive Officer, the Executive Vice Presidents, the Area Vice Presidents, the Secretary General, the Division Directors, and the AviancaTaca Holding S.A. Board of Directors members, contracted at February 29, 2012, who will be (the INITIAL BENEFICIARIES), and to certain directors contracted after said date who will be the additional beneficiaries (the ADDITIONAL BENEFICIARIES, and together the Initial Beneficiaries and the Additional Beneficiaries will be the PLAN BENEFICIARIES).

 

  4. Whereas, the TRUSTOR, and each of the OPERATING COMPANIES have entered into Service Provision Agreements through which the TRUSTOR and the OPERATING COMPANIES have agreed upon creating a support mechanism for the INCENTIVE PLAN by the TRUSTOR constituting an autonomous trust through which certain operating aspects of the INCENTIVE PLAN are implemented.

 

  5. Whereas, in order to efficiently develop the INCENTIVE PLAN referred to above and as a support mechanism therefor, the TRUSTOR has decided to enter into this IRREVOCABLE ADMINISTRATION MERCANTILE TRUST, upon the terms below.


CHAPTER 1.     DEFINITIONS

1.01 DEFINITIONS. For the purposes hereof, the words or terms stated below will have the meaning set forth herein.

 

  a) ASSOCIATED CREDITOR(S) means (mean) the corporate person(s) who, by instruction of the TRUSTOR, grants (grant) credits in favor of the AUTONOMOUS TRUST.

 

  b) PREFERENTIAL STOCK means the outstanding preferred dividend stock not entitled to vote issued by AviancaTaca and negotiated in the Colombian Stock Exchange.

 

  c) BONUSES mean the monetary bonuses represented in an amount of money equal to the difference (if it is a positive number) between (i) the PREFERENTIAL STOCK average quote value during the 30 calendar days before each of the REDEMPTION DATES for the BONUSES, and (ii) the PREFERENTIAL STOCK underwriting price (that is to say COP 5,000), amount which, at the time of its payment, will be subject to the application of tax withholdings, if any, pursuant to the tax regulation applicable to each PLAN BENEFICIARY.

 

  d) INVESTMENT COMMITTEE means the AUTONOMOUS TRUST investment, government committee made up of three (3) independents experts, which must meet the requirements provided for in section 8.01 hereof.

 

  e) CREDIT means the credits granted by the ASSOCIATED CREDITORS to the AUTONOMOUS TRUST.

 

  f) DATES OF DRAFT mean the dates on which the PLAN BENEFICIARIES actually receive the BONUSES pursuant to the instructions given by the PLAN RESPONSIBLE PARTIES to the TRUSTEE, in accordance with the provisions in section 9.03 hereof.

 

  g) TRUSTEE means FIDUCIARIA BOGOTÁ S.A., identified in the opening paragraph hereof, whose corporate purpose allows entering into and performing trust transactions.

 

  h) TRUSTOR means AviancaTaca Holding S.A.

 

  i) AUTHORIZED INVESTMENTS has the meaning stated in CHAPTER 8 hereof.

 

  j) OPERATING MANUAL means the document signed by the TRUSTOR and the TRUSTEE, which regulates the procedural aspects that may arise upon performance hereof not previously provided for herein. The manual is part hereof.

 

  k) BYLAWS mean the corporate bylaws of the TRUSTOR.

 

  l) AUTONOMOUS TRUST means the set of goods associated with the purpose hereof. For purposes hereof, the autonomous trust will be called FIDUBOGOTA – PLAN DE INCENTIVOS AVIANCATACA.

 

  m) REDEMPTION PERIOD has the meaning stated in section 9.01 hereof.

 

  n) INCENTIVE PLAN OR PLAN means the incentive plan implemented by the TRUSTOR and the OPERATING COMPANIES to acknowledge the BONUSES to the PLAN BENEFICIARIES pursuant to the terms and conditions approved by the TRUSTOR’s Board of Directors.

 

  o) PLAN RESPONSIBLE PARTIES mean, considered on an individual basis and without being jointly responsible among them, the TRUSTOR and each of the OPERATING COMPANIES and which are identified as the parties responsible for payment of the PLAN in Annex 3 hereto. For tax purposes, the PLAN RESPONSIBLE PARTIES will be the BENEFICIARIES of the AUTONOMOUS TRUST.

 

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  p) RESOURCES mean the total amounts of money resulting from (i) the TRUSTOR’s contributions, (ii) the credits obtained by the AUTONOMOUS TRUST, (iii) the existing investments, and (iv) the return thereof, as well as the other resources that later become part of the AUTONOMOUS TRUST at any title.

 

  q) AVAILABLE RESOURCES mean the resources that make up the AUTONOMOUS TRUST after paying (i) the trust fee and the AUTONOMOUS TRUST costs, expenses, and taxes and (ii) the debt service corresponding to interest in favor of the AUTONOMOUS TRUST ASSOCIATED CREDITORS.

 

  r) OPERATING COMPANIES mean, for the purposes hereof, together, Aerovías del Continente Americano S.A. Avianca and Tampa Cargo S.A., companies incorporated and existing pursuant to the laws of the Republic of Colombia; Transamerican Airlines S.A., a company incorporated and existing pursuant to the laws of the Republic of Peru; Taca International Airlines S.A., a company incorporated and existing pursuant to the laws of the Republic of El Salvador; Aerolíneas Galápagos S.A. Aerogal, a company incorporated and existing pursuant to the laws of the Republic of Ecuador; and Líneas Aéreas Costarricenses LACSA S.A., a company incorporated and existing under the laws of the Republic of Costa Rica, acting directly as employers; and the companies Taca Costa Rica S.A., a company incorporated and existing pursuant to the laws of the Republic of Costa Rica and Technical (sic) & Training Services S.A. de S. V., a company incorporated and existing under the laws of the Republic of El Salvador, acting as employers of certain directors who are beneficiaries of the plan. Within 30 days of the date of signature hereof, each of the OPERATING COMPANIES in its capacity as TRUST BENEFICIARY must sign a document accepting their rights and obligations derived herefrom.

 

  s) PLAN TERM means nine (9) years as of Mach 15, 2012, which is the date of initiation of the INCENTIVE PLAN, or until the date determined by the TRUSTOR and the OPERATING COMPANIES.

1.02 INTERPRETATION. For the purposes hereof, Clause titles are included for reference and convenience but they do not limit, define or describe in any manner the scope and intent hereof. The terms that express singular also include the plural and vice versa, provided that the context so requires. The terms not expressly defined herein must be understood in the common, usual sense they have in the corresponding technical language or in the natural, obvious sense pursuant to the general use thereof. The terms in days not expressly specified, will be understood as business days.

CHAPTER 2.     REPRESENTATIONS BY THE PARTIES

2.01 The parties jointly represent that the essential, substantial aspects hereof have been freely and widely discussed and deliberated on conditions that are equal and equivalent for each of them.

2.02 The TRUSTOR represents that:

 

  a) It is a corporation duly incorporated pursuant to the laws of the Republic of Panama, and validly existing.

 

  b) It has the corporate power and ability to enter into and execute this Agreement and to comply with all of the terms set forth herein, and the Agreement does not breach the law or its BYLAWS.

 

  c) No authorization, approval, presentation, registration or any other action from any government authority is required or demanded, which must be obtained before executing and performing this Agreement, for the effectiveness, exceptionability or demandability hereof.

 

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  d) It enters into this Agreement in good faith and with no purpose to defraud any third party as a result thereof.

 

  e) By virtue hereof, neither the TRUSTOR nor the OPERATING COMPANIES or the PLAN BENEFICIARIES acquire or will acquire in the future PREFERENTIAL STOCK insofar as (i) the payments to which they are entitled hereunder cannot be made in PREFERENTIAL STOCK, but only in cash and (ii) they are not actual beneficiaries of the PREFERENTIAL STOCK that the AUTONOMOUS TRUST may have as (1) they cannot direct or orient the vote thereof as the INVESTMENT COMMITTEE is solely responsible therefor and (2) they are not the holders of the economic rights of the potential PREFERENTIAL STOCK that the AUTONOMOUS TRUST may have.

 

  f) By virtue hereof, neither the TRUSTOR nor the BENEFICIARY or the PLAN RESPONSIBLE PARTIES are not actual beneficiaries of the PREFERENTIAL STOCK as: (i) they do not have the power to make decisions or to direct or orient the vote thereof and (ii) they do not have the power to dispose of or to direct the disposal of or the lien on the PREFERENTIAL STOCK as the independent INVESTMENT COMMITTEE is solely responsible therefor.

 

  g) It enters into this Irrevocable Administration Mercantile Trust Agreement for the TRUSTEE to receive and administer the RESOURCES to serve as a support mechanism for the incentive plan on the terms hereof.

 

  h) On the date of constitution of the AUTONOMOUS TRUST, it is solvent and the contribution made by signing this Agreement is lawfully made in good faith regarding possible creditors existing before entering into this Agreement.

 

  i) The goods delivered in trust do not, directly or indirectly, come from activities determined as unlawful pursuant to Colombian law 190/95, law 793/02, and law 747/02, and to the other rules that modify, supplement or add the same; neither have said goods been used by the TRUSTOR, its partners or shareholders as means or instruments required to perform such type of conduct.

 

  j) To the best of its knowledge there is no pending or threatened litigation, investigation, legal action or proceeding, including environmental claims by or before judicial, administrative or arbitration authorities or government entities (i) seeking to restrict or prohibit carrying out the transactions proper to the purpose hereof, (ii) imposing any substantial limitation on, or resulting in a considerable delay on, the TRUSTOR’s ability to carry out the agreement or (iii) intending to affect the legal nature, effectiveness or demandability of any obligation herein. Likewise, to the best of its knowledge, there is no pending or threatened litigation, investigation, legal action or proceeding by judicial, administrative or arbitration authorities or government entities regarding the activities carried out as a result hereof.

 

  k) It is the owner of, or is licensed to use, the whole intellectual property required to perform its business as it currently does. To the best of its knowledge, no substantial claim by any person has been filed or is pending, which objects or questions the use, validity or effectiveness of the intellectual property; and to date the TRUSTOR has no knowledge of the existence of any valid grounds for a claim to that effect. The TRUSTOR’s use of the intellectual property does not substantially violate the rights of any person regarding the activities to be carried out as a result hereof.

 

  l) It is complying with all of the contracts, obligations, agreements and other documents binding on it or its assets, except when the omission to do so, whether individually or jointly, does not reasonably generate a materially adverse effect. To date, no default has occurred or is continuing, which reasonably generates a materially adverse effect regarding the activities to be developed as a result hereof.

 

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  m) There are no pending tax obligations to its (sic) regarding the execution hereof, and to the best of its knowledge, no requirements have been filed regarding taxes, fares, contributions or any other tax burden related to the execution hereof.

 

  n) On the date on which this agreement is entered into, the resources transferred hereby have not been transferred to any third parties other than the AUTONOMOUS TRUST and said resources are not seized, pledged or are subject to any other type of lien or limitation, and the TRUSTOR will ensure that in no case will said resources have any outstanding encumbrances.

 

  o) It will notify the TRUSTEE of any transaction aimed at carrying out any merger, spin-off, acquisition, consolidation, dissolution and liquidation that terminate its corporate existence during the execution hereof, in order to agree with the TRUSTEE on the continuity or settlement hereof.

 

  p) Its contractual instructions are and will be framed within the principle of transparency of the securities market.

2.03 The TRUSTEE represents that:

 

  a) It is a corporation duly incorporated pursuant to the laws of the Republic of Colombia, validly existing and is active.

 

  b) It is a trust company subject to inspection and surveillance by the Financial Superintendence, authorized and with a valid license to provide the services described herein.

 

  c) It has the corporate authority and power to own and operate its assets and properties and to carry out business as it currently does.

 

  d) It has the corporate power and ability to enter into and execute this Agreement and to comply with all of the terms set forth herein.

 

  e) No authorization, approval, presentation, registration or any other action from any government authority is required or demanded (i) which has not been obtained for the due execution and performance hereof, or (ii) which must be obtained before executing and performing this Agreement, for the effectiveness, exceptionability or demandability hereof against the Trustee.

 

  f) The execution hereof and the performance of the obligations contained herein do not contravene any legal or statutory provision of the Trustee.

 

  g) The RESOURCES are not part of the general pledge of the Trustee’s creditors and the transfer thereof to the AUTONOMOUS TRUST does not entitle the Trustee to any property right over said resources.

 

  h) This Agreement is valid, legal, and binding on the Trustee and it is exceptionable and demandable pursuant to the terms hereof.

CHAPTER 3.     NATURE OF THE AGREEMENT

3.01 NATURE OF THE AGREEMENT. This IRREVOCABLE ADMINISTRATION MERCANTILE TRUST AGREEMENT is a private law agreement governed by the rules of the Commerce Code and the Financial System Organic Statute (1993 Decree 663); therefore, the RESOURCES constitute an independent autonomous trust separate from the equity of the parties hereto, which is exclusively aimed at the purposes hereof.

3.02 Provided that demandable, outstanding payment obligations exist in favor of the ASSOCIATED CREDITORS under the CREDIT, this agreement is irrevocable in such a manner that the TRUSTOR cannot modify the destination of the RESOURCES. After the obligations of the AUTONOMOUS TRUST under the CREDIT(S) have been met, this agreement will be revocable in such a manner that the TRUSTOR will be able to modify the destination of the RESOURCES.

 

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CHAPTER 4.     PURPOSE

4.01 PURPOSE. The purpose of this agreement will be to serve as a support mechanism for the INCENTIVE PLAN for the draft of the BONUSES in favor of the PLAN BENEFICIARIES, on the terms set forth herein.

PARAGRAPH. In order to carry out the purpose hereof, the activities below must be carried out without prejudice to the provisions herein.

 

  a) The TRUSTOR must transfer, in the way of a mercantile trust, the amount of One Million Colombian Pesos legal currency (COP 1,000,000).

 

  b) The TRUSTEE, as the representative of the AUTONOMOUS TRUST, must (i) receive the amounts of money coming from the CREDITS acquired by the AUTONOMOUS TRUST, (ii) administer the RESOURCES, (iii) invest the administered RESOURCES on the terms set forth in the INCENTIVE PLAN and pursuant to the instructions given by the INVESTMENT COMMITTEE, (iv) honor the debt service for the CREDITS acquired by the AUTONOMOUS TRUST, (v) make disbursements through drafts to the PLAN RESPONSIBLE PARTIES, to third parties as directed by the PLAN RESPONSIBLE PARTIES or to the PLAN BENEFICIARIES on the DATES OF DRAFT, and (vi) settle the existing investments upon termination of the agreement in order to refund the liquid resources to the PLAN RESPONSIBLE PARTIES in the proportions stated in section 13.03.

CHAPTER 5.     CONSTITUTION OF THE AUTONOMOUS TRUST

5.01 TRANSFER. The TRUSTOR transfers to the TRUSTEE, in the way of an irrevocable mercantile trust, the amount of One Million Colombian Pesos legal currency (COP 1,000,000), amount which will be administered in a savings account and/or current account of the TRUSTEE’s parent company opened under the name of the AUTONOMOUS TRUST.

PARAGRAPH ONE. Regarding the above-mentioned Million Colombian Pesos, the TRUSTOR will be responsible for the foreign exchange registration of the direct investment in Colombia and will hold the TRUSTEE harmless regarding exchange and tax aspects in connection with the direct investment.

5.02 AUTONOMOUS TRUST. For all legal purposes, the RESOURCES will make up the autonomous trust called FIDEICOMISO FIDUBOGOTA – PLAN DE INCENTIVOS AVIANCA TACA which will be used for the purpose contemplated herein and will be kept separate from the other assets of the TRUSTEE and from those belonging to other autonomous equities.

PARAGRAPH ONE. The assets that make up the AUTONOMOUS TRUST are not part of the general guarantee for the TRUSTEE’s creditors and will only be used for the transactions contemplated by the purpose hereof pursuant to the provisions in the Colombian Commerce Code Articles 1227 and 1233. Therefore, the obligations acquired while performing the purpose hereof and carrying out the instructions hereof are exclusively covered by the assets of this autonomous trust in such a manner that the creditors of said obligations cannot seek to garnish the assets associated with other autonomous equities being administered by the TRUSTEE or the assets belonging to the TRUSTEE’s equity; likewise, the creditors of such other autonomous equities and the TRUSTEE cannot seek to garnish the assets of this AUTONOMOUS TRUST.

CHAPTER 6.     THE PARTIES

6.01 THE TRUSTOR is AviancaTaca Holding S.A.

6.02 THE TRUSTEE is FIDUCIARIA BOGOTÁ S.A.

 

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6.03 BENEFICIARIES are the PLAN RESPONSIBLE PARTIES.

For the corresponding tax purposes, the AUTONOMOUS TRUST beneficiaries will be the PLAN RESPONSIBLE PARTIES.

CHAPTER 7.     RIGHTS AND OBLIGATIONS OF THE PARTIES

7.01 TRUSTOR’S RIGHTS. The TRUSTOR is entitled to:

 

  a) Demand that the TRUSTEE meets its contractual, legal obligations pursuant to the terms provided for herein and set forth by Law.

 

  b) Demand that the TRUSTEE renders accounts and submits reports on the terms and within the deadlines provided for herein pursuant to the legislation in force.

 

  c) Demand that the TRUSTEE keeps a separate accounting for handling the RESOURCES.

 

  d) Demand that, upon termination hereof due to contractual or legal causes, the TRUSTEE proceeds to settle the AUTONOMOUS TRUST and to refund the assets that make up the AUTONOMOUS TRUST on the date of settlement pursuant to the terms hereof.

 

  e) The other rights set forth herein and by Law.

7.02 TRUSTOR’S OBLIGATIONS. The TRUSTOR is bound to:

 

  a) Transfer in the way of a mercantile trust the amount of One Million Colombian Pesos legal currency (COP 1,000,000).

 

  b) Submit to the TRUSTEE the settlement of the redemption value for the BONUSES for each PLAN BENEFICIARY pursuant to the values determined by the PLAN RESPONSIBLE PARTIES.

 

  c) Within ten (10) days of each partial or total CREDIT disbursement, provide the TRUSTEE with the dates on which quarterly payments for CREDIT interest must be made.

 

  d) Notify the TRUSTEE of any restatement or modification to the CREDIT terms previously approved by the ASSOCIATED CREDITOR.

 

  e) Send the TRUSTEE the instructions for drafts to third parties on the terms set forth herein.

 

  f) Within the calendar month following execution hereof, send the TRUSTEE the surplus distribution percentages upon settlement of the AUTONOMOUS TRUST.

 

  g) Regarding eventual judicial or extrajudicial contingencies, ensure that the contributions made have no outstanding encumbrances by virtue hereof. This TRUSTOR’s obligation exists regarding the TRUSTEE.

 

  h) Timely notify the TRUSTEE of any suit or administrative proceeding that comes to its knowledge, which may affect the rights and assets of the AUTONOMOUS TRUST.

 

  i) Within five (5) business days, notify the TRUSTEE in writing every time it modifies or changes data related to its address, domicile, telephone numbers, fax numbers, corporate name, legal representation, and any other modification to the information reported upon execution hereof, based on the provisions in 1996 External Circular 081 issued by the Financial Superintendence and others clarifying, modifying or adding to the same.

 

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  j) Direct the TRUSTEE in all cases requested by the TRUSTEE in writing.

 

  k) Provide the technical, administrative support required for meeting its obligations.

 

  l) Pay the trust fee referred to in section 9.2 and the expenses stated in section 9.1 in clause 9 hereof or to whom it designates.

 

  m) Select the three (3) independent experts that will make up the INVESTMENT COMMITTEE and provide the TRUSTEE with the candidates’ resumes and affidavits.

 

  n) Give directions regarding the drafts or refunds binding on the AUTONOMOUS TRUST.

 

  o) Identify the Initial Beneficiaries in Annex 3, including their names, positions and employers (that is to say, the PLAN RESPONSIBLE PARTIES), which Annex will be delivered to the TRUSTEE on or before June 30, 2012. The Additional Beneficiaries will be provided for in the Plan Regulation prepared by the TRUSTOR’s Human Talent and Bonus Committee and approved by its Boards of Directors. The TRUSTOR must periodically report the Additional Beneficiaries to the TRUSTEE.

 

  p) Meet the other obligations designated by law or hereby.

7.03 TRUSTEE’S OBLIGATIONS. The TRUSTEE is bound to:

 

  a) Diligently carry out the steps required to perform the purpose hereof pursuant to the provisions herein and the instructions given by the TRUSTEE.

 

  b) Report the average quote value mentioned in section 1.01 (c) on the business day before the REDEMPTION DATES, report which will be made up by the TRUSTEE based on the average of the closing price for the PREFERENTIAL STOCK daily published by the Colombian Stock Exchange for the 30 days prior to each REDEMPTION DATE for the BONUSES.

 

  c) In its capacity as representative of the AUTONOMOUS TRUST, sign the credit agreement(s) and the corresponding promissory notes by virtue of which the ASSOCIATED CREDITORS will grant loans to the AUTONOMOUS TRUST for carrying out the activities that are the purpose hereof.

 

  d) Receive the AUTONOMOUS TRUST income from the RESOURCES.

 

  e) Invest the RESOURCES in the AUTHORIZED INVESTMENTS following the instructions by the INVESTMENT COMMITTEE.

 

  f) Acquire the securities as directed by the INVESTMENT COMMITTEE made up of independent experts.

 

  g) Make the payments for the debt service of the obligations in favor of the ASSOCIATED CREDITORS.

 

  h) Make the drafts ordered by the PLAN RESPONSIBLE PARTIES for Incentives for which the PLAN RESPONSIBLE PARTIES are responsible, whether they are in the Colombian legal currency or in a foreign currency, on the terms and conditions set forth herein.

 

  i) According to the instructions given by the PLAN RESPONSIBLE PARTIES, perform the exchange formalities required to make the disbursements through drafts to the PLAN RESPONSIBLE PARTIES or to the PLAN BENEFICIARIES whenever such drafts are made in a foreign currency on the DATES OF DRAFT.

 

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  j) Upon contract termination, settle the RESOURCES to refund the liquid surplus of the AUTONOMOUS TRUST to the PLAN RESPONSIBLE PARTIES in their capacity as beneficiaries of the AUTONOMOUS TRUST.

 

  k) In the event that there are insufficient funds to take care of the Costs and Expenses discussed in CHAPTER 11 hereof, require that the TRUSTOR, within ten (10) calendar days of the requirement, transfers, or causes a third party to transfer, to the AUTONOMOUS TRUST the resources needed to meet the draft obligations and/or payment obligations of the AUTONOMOUS TRUST.

 

  l) Keep the assets of the AUTONOMOUS TRUST separate from its own and from those corresponding to other trust businesses.

 

  m) Bring actions or propose legal exceptions inherent to its capacity as owner trustee regarding the RESOURCES, as soon as it is informed by the TRUSTOR of the facts that cause such demand for action. It is understood that bringing such actions or proposing such exceptions is subject to the information that the TRUSTOR provides and which makes such action or exception necessary. Therefore, the TRUSTOR is responsible for the prejudices that may be caused by any omission in providing the information.

 

  n) Ask the TRUSTOR for instructions whenever supervening events or contingencies may appear during contract performance, which hinder compliance with its contractual obligations. Whenever the TRUSTEE employs this faculty, all of the obligations related to the consulted matter will be in suspense until the date on which there is a response by the TRUSTOR, and the TRUSTEE will not in any way be responsible.

 

  o) Ask the Colombian Financial Superintendence for instructions whenever it has well-founded doubts regarding the nature and scope of its obligations or whenever it must, as the circumstances so require, deviate from the authorizations contained herein or from the instructions given by the TRUSTOR during performance hereof. Whenever the TRUSTEE employs this faculty, all of the obligations related to the consulted matter will be in suspense until the date on which there is a response by the Financial Superintendence, and the TRUSTEE will not in any way be responsible.

 

  p) Keep the accounting for this business separate pursuant to the legal provisions that regulate the matter.

 

  q) Submit a monthly report to the TRUSTOR which contains the income, drafts, and payments made by the AUTONOMOUS TRUST.

 

  r) Render proven accounts of its management every six (6) months, which must be submitted to the TRUSTOR within fifteen (15) business days of the corresponding cut-off date pursuant to the provisions in 1996 External Circular 007 issued by the Financial Superintendence. If the TRUSTEE does not receive any objection regarding the submitted account rendering within ten (10) business days of receipt by the TRUSTOR, the account rendering will be deemed to have been approved. The TRUSTEE may submit the account rendering using electronic means sending it to the TRUSTOR’s electronic mail address stated herein.

 

  s) Submit the final account rendering of its management upon termination of the Agreement.

 

  t) Charge the fee to which it is entitled.

 

  u) Within the first ten (10) business days of the month, submit the invoice for the trust fee discounted from the RESOURCES.

 

  v) Prepare reports on a monthly basis or whenever the TRUSTOR so requests.

 

  w) Ratify that the INVESTMENT COMMITTEE members meet the requirements.

 

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  x) During the term hereof, the TRUSTEE is bound to make all settlements, withholdings, presentations and payments to the corresponding tax agencies for Withholdings at the Source accrued on the payments or payments into account made for meeting the obligations acquired by virtue hereof, pursuant to the rules and regulations in force.

At the end of each taxable year, the TRUSTEE will settle the profit obtained by the AUTONOMOUS TRUST during the corresponding period in favor of each BENEFICIARY, following the rules set forth in the Tax Statute for the taxpayers who keep the accounting using the accrual accounting.

The TRUSTEE will make the withholdings at the source on the values paid or paid into account which can constitute tax income for the AUTONOMOUS TRUST BENEFICIARIES, at the corresponding rates according to the nature of the corresponding income pursuant to effective provisions. It is expressly understood that the TRUSTEE is only bound to make the corresponding withholdings at the source pursuant to Colombian tax regulations, taking into account the nature and conditions of the BENEFICIARIES of the corresponding payments or payments into account and the nature of the income received by the AUTONOMOUS TRUST.

Likewise, the TRUSTEE will make the withholdings at the source on the values paid or paid into account which can constitute tax income for the AUTONOMOUS TRUST creditors, at the corresponding rates according to the nature of the corresponding income pursuant to effective provisions. It is expressly understood that the TRUSTEE is only bound to make the corresponding withholdings at the source pursuant to Colombian tax regulations, taking into account the nature and conditions of the creditors of the corresponding payments or payments into account and the nature of the income received thereby.

The TRUSTEE must not make any withholdings at the source on the drafts ordered by the PLAN RESPONSIBLE PARTIES made by the AUTONOMOUS TRUST for the payment of the BONUSES, as such drafts will constitute an account payable in favor of the AUTONOMOUS TRUST, which will be compensated at the end of each year using the AUTONOMOUS TRUST profits, if any.

The PLAN RESPONSIBLE PARTIES must make the withholdings at the source on the PLAN BENEFICIARIES for taxes and contributions to social security regarding the BONUSES, and must declare and certify such withholdings, all pursuant to the applicable legislation in each jurisdiction where the PLAN RESPONSIBLE PARTIES are located.

 

  y) Regarding the AUTONOMOUS TRUST, the TRUSTEE is bound to meet the formal obligations stated in the legal regulations for withholding agents. The TRUSTEE is responsible for the sanctions derived from noncompliance with the formal obligations of the AUTONOMOUS TRUST, as well as for the sanction for correction, inaccuracy, arithmetic correction, and any other sanction related to such statements.

To be charged to the RESOURCES, the TRUSTEE must take care of the payment of taxes on sales and withholdings at the source generated as a result of the AUTONOMOUS TRUST transactions, as well as for the corresponding interest in arrears.

 

  z) Meet the other obligations required to perform the contractual purpose set forth.

PARAGRAPH. The TRUSTEE will not be held responsible for the fluctuations, devaluations, drops in the investment values, return reduction, modification or loss of financial privileges due to causes beyond its control or which it did not know on a timely basis, provided that the instructions given by the INVESTMENT COMMITTEE had been timely followed.

7.04 TRUSTEE’S RESPONSIBILITY. Except for the obligation of the TRUSTEE to make the transfers, investments, drafts, and payments provided for herein as long as the RESOURCES exist, the responsibility acquired by the TRUSTEE is related to means not to results. The TRUSTEE will be liable for ordinary negligence during its

 

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management. In addition, the TRUSTEE will only be responsible for the receipt of and the draft or payment using the RESOURCES; therefore, it is not bound to bear any financing derived herefrom using its own resources and it will not be responsible for the TRUSTOR’s obligations or for any noncompliance resulting from any defect in the delivery of the resources required to make the drafts or payments, which may occur during performance of the agreement.

PARAGRAPH ONE. The TRUSTEE is bound to diligently carry out all of the activities required to timely perform the purpose hereof and it will not be responsible for Acts of Gods, force majeure, a fact by a third party or the violation of legal or contractual duties by the TRUSTOR.

PARAGRAPH TWO. The TRUSTEE receives and administers the RESOURCES; however, as a result of such fact, it does not bear any obligation or responsibility to the ASSOCIATED CREDITOR, the BENEFICIARIES or the OPERATING COMPANIES, except on the terms and conditions provided for herein.

PARAGRAPH THREE. The TRUSTEE is not responsible for any viability of the financing structure submitted by the TRUSTOR to the ASSOCIATED CREDITORS. Therefore, the approval of the corresponding credit transaction exclusively depends on the study made by the ASSOCIATED CREDITORS.

PARAGRAPH FOUR. The TRUSTEE is not liable to the ASSOCIATED CREDITORS in the event that there are no sufficient RESOURCES in the AUTONOMOUS TRUST, which prevent paying the CREDIT debt service, for which the OPERATING COMPANIES are joint guarantors proportional to their share of the total amount of the BONUSES granted to the PLAN BENEFICIARIES.

PARAGRAPH FIVE. For CREDIT approval, the ASSOCIATED CREDITORS made the study and assessed the TRUSTOR’s qualities; therefore, the TRUSTEE is not liable as during the pre-contractual stage it warned about all of the risks regarding the study of the client.

PARAGRAPH SIX. The TRUSTEE’s responsibility regarding drafts or payments that must be made to persons abroad is related to results, provided that the TRUSTOR or the corresponding PLAN RESPONSIBLE PARTY correctly directs the TRUSTEE regarding such drafts or payments.

CHAPTER 8.     INVESTMENT COMMITTEE

8.01 The AUTONOMOUS TRUST will count on a committee made up of three independent experts of the TRUSTOR, who will be selected by the TRUSTOR.

8.02 The requirements to be INVESTMENT COMMITTEE members are as follows:

 

  a) They must be independent from the TRUSTOR. For such purpose, the independence of the INVESTMENT COMMITTEE member will be assessed by applying the criteria in 2005 Law 964 Article 44 Paragraph 2 regarding the TRUSTOR and its associates, that is to say, in no case will the expert be:

 

  i. An employee or director of the TRUSTOR or any of its affiliates, subsidiaries or controlling parties, including persons who held such capacity during the year immediately prior to the designation, except that it is related to the reelection of an independent person.

 

  ii. A shareholder who, directly or by virtue hereof, directs, orients or controls the majority of the voting rights of the entity or who determines the majority composition of the administration, direction or control organisms thereof.

 

  iii. A partner or employee of the associations or partnerships that provide advisory or consultancy services to the TRUSTOR or to the companies that belong to the same economic group as the TRUSTOR, whenever the income for such item represent for them twenty percent (20%) or more of their operating income.

 

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  iv. An employee or director of a foundation, association or partnership that receives significant donations from the TRUSTOR.

 

  v. Significant donations are those that represent more than twenty percent (20%) of the total donations received by the corresponding institution.

 

  vi. An administrator of an entity when a legal representative of the TRUSTOR participates in its board of directors.

 

  vii. A person who receives from the TRUSTOR any remuneration other than fees as a board of director member, auditing committee member or member of any other committee created by the board of directors.

 

  b) They must be of legal age.

 

  c) They must enjoy a good moral and social reputation and goodwill.

 

  d) They must not have been subject to cancelation in the National Securities Market Professional Registry due to an enforceable decision by the securities market supervising authority, or have been removed from a position in a financial institution or a securities institution due to an enforceable decision by the financial system or the securities system supervising authority, or have been convicted either through a willful misconduct or unpremeditated criminal offense through an enforceable judgment, or have been sanctioned with a final expulsion penalty imposed by a self-regulation organization, or have been sanctioned, during the two (2) years before the election, with a final suspension imposed by a self-regulation organization, the banking supervision authority or the securities market supervision authority.

 

  e) They must have a work experience and/or independent professional exercise of minimum five (5) years in the securities market or the financial area, or have held top management positions in public agencies with duties related to the financial system or the public securities market or in companies whose assets are not less than one hundred thousand (100,000) effective legal monthly minimum salaries in Colombia at the time they start holding the corresponding position.

 

  f) They must not be public agency officials or directors who have been legally assigned regulation or supervision duties regarding the public securities market, including persons who have acted in such capacity during the year immediately before such designation.

 

  g) They must not have a conflict of interest with the TRUSTOR or its associates. For such purpose, it will be understood that a conflict of interest exists whenever there is a situation that in the opinion of each Committee member, to the best of his/her knowledge and in good faith, affects his/her independence and, as a result, the member notifies the TRUSTEE for it to elect another independent member to replace him/her.

The INVESTMENT COMMITTEE will determine the investment and disinvestment strategy for the AUTONOMOUS TRUST RESOURCES taking into account the provisions in the INCENTIVE PLAN approved by the TRUSTOR’s Board of Directors and will direct the TRUSTEE to make the AUTHORIZED INVESTMENTS according to market conditions. To comply with the instructions given by the INVESTMENT COMMITTEE, the TRUSTEE will follow the rules set forth in the General Regulation of the Colombian Stock Exchange, will adopt measures so that such compliance does not affect the normal course of the market, and its acts will be framed within the principle of transparency of the securities market and within the market conditions.

8.03 The INVESTMENT COMMITTEE may direct the TRUSTEE to invest in the following non-speculative AUTHORIZED INVESTMENTS:

 

  a) Investments in PREFERENTIAL STOCK;

 

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  b) Using the liquidity surpluses, temporary investments in demand deposits with Colombian financial institutions rated AAA;

 

  c) The INVESTMENT COMMITTEE may expressly authorize that the RESOURCES are handled in demand deposits in the TRUSTEE’s parent company and subsidiaries, among others;

 

  d) Maximum investment percentages:

 

  i. The AUTONOMOUS TRUST may invest up to 100% of the RESOURCES in PREFERENTIAL STOCK.

 

  ii. The AUTONOMOUS TRUST may invest up to 100% of the RESOURCES in investments on demand.

8.04 Upon exercising the political rights that may correspond to the PREFERENTIAL STOCK pursuant to the TRUSTOR’s BYLAWS, the INVESTMENT COMMITTEE:

 

  a) Must refrain from using the privileged information for its own benefit or that of a third party or from disclosing such information to third parties;

 

  b) May only refrain from voting in those cases in which there are situations that generate conflicts of interest or when it has not been able to obtain sufficient information to vote on a determined issue.

8.05 The INVESTMENT COMMITTEE will send disbursement requests to the ASSOCIATED CREDITORS pursuant to (i) the needs originated by the investment decisions and by compliance with the redemption conditions for the BONUSES, and (ii) the costs and expenses that correspond to the AUTONOMOUS TRUST.

8.06 Taking into consideration the number of BONUSES whose redemption and payment is effectively requested by the PLAN BENEFICIARIES on each REDEMPTION DATE as well as the other costs and expenses of the AUTONOMOUS TRUST, the INVESTMENT COMMITTEE may decide to settle the investments made in the market. The settlement will be proportional to the BONUSES redeemed on each REDEMPTION DATE.

CHAPTER 9.     INCENTIVE PLAN

9.01 PLAN TERM. The plan will have a term of nine years as detailed below.

 

  a) On each of the four accreditation dates that will occur on March 15 of the years 2013, 2014, 2015, and 2016 respectively (the “ACCREDITATION DATES”), the PLAN BENEFICIARIES will be accredited a percentage equal to 25% of the total BONUSES granted to each of the PLAN BENEFICIARIES pursuant to the provisions in the INCENTIVE PLAN (the “ACCREDITATION”). The ACCREDITATION will be subject to the terms and conditions set forth in the INCENTIVE PLAN.

 

  b) During a period of five years as of each ACCREDITATION DATE (the “REDEMPTION PERIODS”), the PLAN BENEFICIARIES will be able to redeem the BONUSES that they have accredited on the corresponding ACCREDITATION DATE.

 

  c) The ACCREDITATION DATES and the REDEMPTION PERIODS are summarized in the table below.

 

ACCREDITATION DATES

  ACCREDITATION
PERCENTAGE
 

REDEMPTION PERIOD

First Accreditation Date : March 15, 2013

  25%*   From March 16, 2013 , until March 15, 2018

Second Accreditation Date : March 15, 2014

  25%   From March 16, 2014 , until March 15, 2019

Third Accreditation Date : March 15, 2015

  25%   From March 16, 2015 , until March 15, 2020

Fourth Accreditation Date : March 15, 2016

  25%   From March 16, 2016 , until March 15, 2021

 

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9.02 REDEMPTION DATES. During the REDEMPTION PERIOD and after obtaining the corresponding ACCREDITATION, the PLAN BENEFICIARIES may redeem the BONUSES that correspond to each ACCREDITATION PERIOD, as well as those that they had received on PREVIOUS ACCREDITATION DATES which are still within the REDEMPTION PERIOD, pursuant to the terms set forth in the INCENTIVE PLAN.

The REDEMPTION DATES are individual as requested by each PLAN BENEFICIARY and will be different from the DATES OF DRAFT. As a result, the drafts will be made pursuant to the instructions of the corresponding PLAN RESPONSIBLE PARTY.

9.03 During the period from each REDEMPTION DATE to the corresponding DATE OF DRAFT, the corresponding PLAN RESPONSIBLE PARTY will direct the TRUSTEE, with a copy to the INVESTMENT COMMITTEE, to make the drafts of the BONUSES under any of the following modalities:

 

  a) Charged to the AUTONOMOUS TRUST RESOURCES, make the draft that correspond to the BONUSES to the account stated by the corresponding PLAN RESPONSIBLE PARTY; or

 

  b) On the date stated by the corresponding PLAN RESPONSIBLE PARTY and charged to the AUTONOMOUS TRUST RESOURCES and on the account of the corresponding PLAN RESPONSIBLE PARTY, make the draft that correspond to the BONUSES directly in favor of the corresponding PLAN RESPONSIBLE PARTY (PARTIES), which must at any rate be made within the calendar month following request by the PLAN RESPONSIBLE PARTY.

9.04 Under any of the aforementioned modalities, the PLAN RESPONSIBLE PARTIES will be subject to the limitations below.

 

  a) Each PLAN RESPONSIBLE PARTY may only direct the TRUSTEE to make the corresponding draft for the total redemptions that occur on each REDEMPTION DATE for the PLAN BENEFICIARIES corresponding to that PLAN RESPONSIBLE PARTY as stated in Annex 3.

 

  b) Each PLAN RESPONSIBLE PARTY that is bound to make payments under the INCENTIVE PLAN as a result of the redemptions made by the PLAN BENEFICIARIES corresponding to such PLAN RESPONSIBLE PARTY pursuant to the provisions in Annex 3, must pay, on each DATE OF DRAFT, such BONUSES using the AUTONOMOUS TRUST AVAILABLE RESOURCES that correspond to minimum 25% of the total payment of the BONUS.

9.05 In the case of modality 9.03(a) above, the PLAN RESPONSIBLE PARTIES must use the directed draft for the sole purpose of paying the BONUSES to the PLAN BENEFICIARIES.

CHAPTER 10.     PROCEDURE FOR PAYMENTS

To perform the execution stage that is the purpose hereof, the TRUSTEE will follow the procedure below.

10.01 Using the AUTONOMOUS TRUST RESOURCES, the TRUSTEE must make the drafts described herein in the following order of precedence:

 

  a) Trust fee, costs, expenses, and taxes of the AUTONOMOUS TRUST;

 

  b) The debt service that corresponds to interest in favor of the ASSOCIATED CREDITORS of the AUTONOMOUS TRUST;

 

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  c) The disbursement related to the INCENTIVE PLAN pursuant to the directions given by the PLAN RESPONSIBLE PARTY;

 

  d) The debt service that corresponds to principal in favor of the ASSOCIATED CREDITORS of the AUTONOMOUS TRUST; and

 

  e) The refund, to the PLAN RESPONSIBLE PARTIES, of the RESOURCES from the contributions and returns of the AUTONOMOUS TRUST upon settlement thereof in the proportion set forth in section 13.03.

The RESOURCES existing in the AUTONOMOUS TRUST after paying the obligations stated in letters (a) and (b) above, will make up the AVAILABLE RESOURCES.

PARAGRAPH ONE. Taking into account that, as a result of the directions given by the PLAN RESPONSIBLE PARTIES, disbursements for Incentives for which the PLAN RESPONSIBLE PARTIES are responsible will be made through drafts to the PLAN RESPONSIBLE PARTIES or to the PLAN BENEFICIARIES, as applicable, in Colombian Pesos or in a foreign currency, based on 2000 Resolution 8 Article 79 Paragraph 7 issued by the Colombian Central Bank Board of Directors, this AUTONOMOUS TRUST is empowered to make such drafts in foreign currencies pursuant to the instructions given by the PLAN RESPONSIBLE PARTIES.

10.02 Receipt of Draft Orders. The TRUSTEE will receive the corresponding disbursement and/or refund orders in the form provided by the TRUSTEE, with the corresponding supports, pursuant to the model set forth by the TRUSTEE. After the TRUSTEE has received the disbursement and/or refund authorization, it will proceed to verify:

 

  a) a) The TRUSTOR’s or RESPONSIBLE PARTIES’ authorizations and supports. The TRUSTEE will verify the authenticity of the order issued by the TRUSTOR or the corresponding PLAN RESPONSIBLE PARTY, as applicable. The TRUSTEE will verify the registered signatures, among others.

 

  b) b) The data in the disbursement and/or refund order. The data included in the disbursement and/or refund order will be verified, such as:

 

  i. Name of the draft beneficiary;

 

  ii. Identification of the draft beneficiary;

 

  iii. Concept;

 

  iv. Amount of the disbursement and/or refund;

 

  v. Form of disbursement and/or refund.

Likewise, the TRUSTEE will verify that the order matches the supports attached hereto. The draft requests must be duly supported.

 

  c) The existence of the RESOURCES. The TRUSTEE will proceed to verify the existence of the RESOURCES to make the ordered disbursements and/or refunds. In the event that there are no RESOURCES to make the ordered disbursements and/or refunds, such ordered disbursements and/or refunds will not be made and the TRUSTEE will report such fact to the TRUSTOR. If there are RESOURCES to make the requested disbursements and/or refunds and the disbursement and/or refund orders are correct, the procedure is followed; otherwise, the orders will be returned to the TRUSTOR for the corresponding correction.

PARAGRAPH ONE. The TRUSTEE will not make drafts on uncashed checks or overdrafts, that is to say, it will only make drafts on the available funds. As a result, in the event that the moneys needed to cover a draft are provided through the deposit of checks, such deposits must be made minimum three (3) business days before the day on which the TRUSTEE must make the corresponding draft.

 

15


PARAGRAPH TWO. The TRUSTEE will not receive draft orders, supports, authorizations or similar documents sent by fax.

PARAGRAPH THREE. The TRUSTEE will not be liable for prejudices derived from erroneous draft or payment orders issued by the TRUSTOR.

PARAGRAPH FOUR. Whenever upon administering the RESOURCES the TRUSTEE must convert RESOURCES denominated in Colombian Pesos into Dollars, or from Dollars into Colombian Pesos, it must quote the exchange rate with minimum three exchange market brokers and will close the transaction with the broker that offers the best exchange rate. It is understood and agreed by the parties that the TRUSTOR will be responsible for any resource shortage that may occur as a result of the exchange difference in the monetization and dollarization of the RESOURCES.

CHAPTER 11.     COSTS AND EXPENSES

11.01 The TRUSTOR will be responsible for all of the costs and expenses required to comply with the purpose hereof and those generated as a result of its preparation, execution, performance, and dissolution or liquidation, whether contractual or legal, as well as the TRUSTEE’s remuneration. As of now, the TRUSTOR authorizes the TRUSTEE to discount such costs and expenses directly from the RESOURCES.

The expenses below will be discounted from the AUTONOMOUS TRUST resources in the following order of precedence:

 

  a) The trust fee discounted on a monthly basis;

 

  b) The fees, expenses, and commissions to be incurred in for the execution hereof, whenever the circumstances so require, including the fees for the services of the INVESTMENT COMMITTEE members and the fees associated with the deposit of securities for the custody of the portfolio, as well as the other costs and expenses generated by the transactions to purchase securities.

 

  c) The banking expenses, taxes or similar expenses generated during execution and performance hereof, such as the Lien on Financial Transactions.

 

  d) The impositions (taxes, rates and contributions of any territorial or administrative nature) and other expenses originated as a result of the entering into, execution, termination, and liquidation hereof or of the acts and agreements in which the autonomous trust must be involved, pursuant to law or to the agreements binding on it.

 

  e) The fees for the protection of the RESOURCES, as well as the expenses that must be incurred in due to judicial proceedings in which the TRUSTEE must participate for the defense of the RESOURCES.

 

  f) The premiums corresponding to insurances that must be incurred in due to judicial proceedings in which the TRUSTEE must participate for the defense of the RESOURCES.

 

  g) The value of fines or penalties that may occur to be charged to the AUTONOMOUS TRUST as a result of performance hereof.

 

  h) The fiscal auditing fees when a fiscal auditor’s opinion on the AUTONOMOUS TRUST financial statements is required as requested by the TRUSTOR, the Colombian Financial Superintendence or any administrative or judicial agency.

 

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  i) The costs for preparing reports other than those provided for herein, which must be defined by the TRUSTOR and the TRUSTEE before preparing the corresponding report.

 

  j) The expenses caused by the dissolution or liquidation of the AUTONOMOUS TRUST.

 

  k) All direct or indirect expenses required to perform the purpose hereof.

PARAGRAPH ONE. The TRUSTEE will not make payments derived herefrom using its own resources.

PARAGRAPH TWO. In the event that the AUTONOMOUS TRUST does not have resources to cover the items included in this number, they will be directly paid by the TRUSTOR, who will pay the TRUSTEE with the sole summary evidence thereof, within five (5) business days of presentation of the invoice by the TRUSTEE at the registered address. The amounts derived from such items and those related to the TRUSTEE’s remuneration will bear interest in arrears at the highest commercial rate permitted by law. Notwithstanding the above, in the events where the expense is foreseeable, the TRUSTEE will request the resources to the TRUSTOR five (5) days in advance.

PARAGRAPH THREE. The certificate signed by the TRUSTEE’s Legal Representative and the Fiscal Auditor, which states the amounts owed by the TRUSTOR, will be enforceable to obtain payment thereof.

11.02 TRUST FEE. As remuneration for its management, the TRUSTEE will receive the following fee:

 

  a) For structuring the agreement: A fee of THREE MILLION COLOMBIAN PESOS LEGAL CURRENCY (COP 3,000,000) payable upon execution hereof.

 

  b) For administrating the AUTONOMOUS PATRIMONY: An annually effective monthly commission of 0.40% of the monthly average balance of the RESOURCES, which will never exceed Two Hundred and Fifty Million Colombian Pesos (COP 250,000,000) a year. This commission includes the making of up to One Hundred and Twenty (120) payments during the month (including payments to the ASSOCIATED CREDITORS and excluding payments made for costs or expenses of the AUTONOMOUS TRUST), which will be made through wire transfer. For each payment or disbursement additional to the first One Hundred and Twenty (120) payments, an additional amount of Twenty-two Thousand Colombian Pesos (COP 22,000) will be charged, which will be readjusted annually based on the Consumer Price Index (IPC is the Colombian acronym).

 

  c) During the liquidation period hereof, and up to three (3) months, only a monthly fixed commission will be charged equal to one (1) effective legal monthly minimum salary.

PARAGRAPH ONE. The trust fee referred to in b) above will be accounted for, settled, and charged on a monthly basis during the term hereof (excluding the settlement period thereof) and will be directly discounted from the administered resources within the first five (5) days of each month.

PARAGRAPH TWO. This fee does not include VAT, for which the TRUSTOR will be responsible.

CHAPTER 12.     TERM AND TERMINATION

12.01 TERM. This agreement will have a term equal to the INCENTIVE PLAN term added to the time required to liquidate the AUTONOMOUS TRUST, which will not exceed a period of three months. Notwithstanding the above, if after the INCENTIVE PLAN term is finished not all of the obligations owed to the ASSOCIATED CREDITOR have been paid, which are paid using the RESOURCES, THE AUTONOMOUS TRUST must pay the corresponding amount during liquidation.

12.02 GROUNDS FOR TERMINATION. The agreement will terminate as a result of:

 

  a) The occurrence of any of the grounds provided for in the Commerce Code Article 1240.

 

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  b) The resignation of the TRUSTEE due to the occurrence of the grounds provided for in the Commerce Code Article 1232.

 

  c) The removal of the TRUSTEE due to the occurrence of any of the grounds provided for in the Commerce Code Article 1239.

 

  d) Default of the TRUSTOR’s obligations provided for in section 7.02(a) hereof.

 

  e) Termination of the INCENTIVE PLAN.

 

  f) Through an agreement between the TRUSTOR and the ASSOCIATED CREDITORS.

 

  g) Through a unilateral decision by the TRUSTEE, upon previous authorization of the ASSOCIATED CREDITOR, in the following cases:

 

  i. Default of the TRUSTOR’s obligation to update the information contemplated in section 18.01 hereof after the end of a cure period of 30 days as of the expiration of such obligation.

 

  ii. When the RESOURCES are insufficient, thus limiting payment of the trust fee for a period of two (2) consecutive months.

 

  iii. The TRUSTOR is included in the control lists of local or foreign authorities related to asset laundering or terrorism financing, such as the OFAC or the United Nations lists and/or due to the initiation of an asset forfeiture proceeding against it due to the same causes.

 

  iv. Whenever the instructions related to the AUTHORIZED INVESTMENTS affect the normal course of the market.

CHAPTER 13.     SETTLEMENT OF THE AGREEMENT

13.01 After termination hereof based on any of the grounds provided for in section 12.02 above, the TRUSTEE will aim its management exclusively at carrying out acts directly related to the settlement of the AUTONOMOUS TRUST, including the liquidation of the AUTHORIZED INVESTMENTS in the market.

13.02 The settlement of the AUTONOMOUS TRUST will require payment of the existing obligations of the AUTONOMOUS TRUST in the order of precedence stated in number 10.01. The payments of trust fee, costs, expenses, and taxes of the AUTONOMOUS TRUST will be made following the order of precedence below.

 

  a) Payment of the amount of money owed to the TRUSTEE for fees;

 

  b) Payment of the administration expenses;

 

  c) Payment of the expenses for impositions (taxes, rates, and contributions of any territorial or administrative nature); and

 

  d) The other direct and indirect expenses incurred in.

13.03 After all of the obligations have been paid or provisions have been made to pay them, the surpluses will belong to the PLAN RESPONSIBLE PARTIES, if any, upon termination of the agreement, in the proportion set forth in Annex 3 hereto.

PARAGRAPH ONE. Pursuant to External Circular 007 of 1996 issued by the Financial Superintendence, the TRUSTEE must present a final account rendering. If no comments are made within fifteen (15) business days of delivery or within ten (10) business days of submitting the requested explanations, it will be understood as approved and the settlement will be satisfactorily terminated and, as a result, the contractual link created hereby.

 

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PARAGRAPH TWO. All of the outstanding expenses of the AUTONOMOUS TRUST upon settlement hereof will be automatically borne by the TRUSTOR or its guarantors, if any, who will be the debtor regarding such obligations. The TRUSTOR accepts such circumstance by signing this agreement.

PARAGRAPH THREE. If upon terminating the settlement for any reason the TRUSTOR is responsible for any amount of money in favor of the TRUSTEE, the TRUSTOR is clearly and expressly bound to pay it to the TRUSTEE within five (5) business days of presenting the corresponding invoice.

PARAGRAPH FOUR. THE TRUSTOR CANNOT BE LOCATED. In the event that upon settlement hereof the TRUSTOR cannot be located to deliver the economic resources existing in the AUTONOMOUS TRUST, the TRUSTEE will initiate a judicial process of payment through a deposit, provided that there are sufficient resources in the AUTONOMOUS TRUST which enable covering the process fees and expenses. If not, the TRUSTEE will deposit the resources existing in the AUTONOMOUS TRUST in any of the Open Collective Portfolios administered by the TRUSTEE on behalf of the TRUSTOR. At any rate, the TRUSTEE will not be liable for the results of the measures adopted regarding the impossibility of locating the TRUSTOR on the terms set forth herein.

CHAPTER 14.     THE AGREEMENT IS IRREVOCABLE

14.01 IRREVOCABLE NATURE. This agreement cannot be early terminated by request of the TRUSTOR, but with the previous written authorization of the ASSOCIATED CREDITOR(S) as long as obligations originated in the CREDIT AGREEMENT(S) exist.

PARAGRAPH. In the event that the TRUSTOR, upon previous written authorization of the ASSOCIATED CREDITOR, wishes to terminate this agreement not based on any grounds for termination, it must pay as an indemnity in favor of the TRUSTEE an amount equal to three (3) months of trust fee. To calculate such fee, the balance for the month immediately prior to termination will be taken as the average monthly balance of the RESOURCES.

CHAPTER 15.     NOTICES AND CONTRACTUAL DOMICILE

15.01 NOTICES. The parties will effectively receive any type of notice or communication sent to:

 

  a) 1. THE TRUSTOR:

Address: Avenida El Dorado No. 59-15

Telephone number: 5877707

City: Bogotá

e-mail: maria.escallon@aviancataca.com

 

  b) 2. THE TRUSTEE:

Address: Calle 67 No. 7-35

Telephone number: 3485400

City: Bogotá

15.02 13.2 (sic) DOMICILE. In order to meet the obligations related hereto, the parties establish their domicile in the city of Bogotá D.C.

CHAPTER 16.     ASSIGNMENT OF THE AGREEMENT

16.01 After execution hereof, the agreement may be assigned upon written authorization by each of the parties. In the event that it is assigned to another trust company, by instruction of the TRUSTOR, the TRUSTEE must be indemnified with an amount equal to three (3) months of trust fee. To calculate such fee, the balance for the month immediately prior to termination will be taken as the average monthly balance of the RESOURCES.

 

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CHAPTER 17.     AUTHORIZATIONS

17.01 CONSULTATION WITH AND REPORT TO CIFIN. The TRUSTOR authorizes the TRUSTEE or whoever represents its rights or in the future acts in the capacity as TRUSTOR to report, process, request or disclose all of the information regarding its behavior as clients of the entity to Central de Información Financiera (CIFIN) (Financial Information Bureau) which is administered by Asociación Bancaria y de Entidades Financieras de Colombia (Colombian Financial Institutions and Banking Association) or to any other agency that handles or administer databases for the same purpose. The above entails that the compliance or noncompliance with its obligations will be reflected in the aforementioned databases that record all of the data regarding its current and previous behavior related to the financial sector and, in general, compliance with its obligations.

For all purposes, the TRUSTOR is aware of and expressly accepts that the reports are made and the deadlines take place pursuant to the regulations regarding the matter included in the CIFIN Regulation and pursuant to the legal rules that regulate the matter. Likewise, the TRUSTOR states that it is aware of and accepts that the consequence of this authorization will be the consultation and inclusion of its financial data in CIFIN and other agencies that handle this type of information. Therefore, the financial sector entities affiliated to such agencies will know its current and previous behavior related to the compliance or noncompliance with its financial obligations.

17.02 AUTHORIZATIONS. Without the express prior written consent of the TRUSTOR, consent which is not deemed as given by virtue of the execution hereof, the TRUSTEE may:

 

  a) Store, process, use, obtain or compile information or commercial data related to the TRUSTOR, which it provides or to which the TRUSTEE has access by virtue hereof;

 

  b) Consult, obtain, share, provide, exchange, and in general send and receive, by any means, the information of commercial data contained in the filing cabinets, files, databases or similar means that the TRUSTEE, with its parent company, its subordinates, its parent company subordinates (affiliates), any information operator or any company in which the TRUSTEE either has a capital share or not and vice versa, as long as such operations are related to the compliance with the TRUSTEE’s obligations hereunder;

 

  c) Consult, exchange or share with, or to report or provide to, any information operator, any financial sector or manufacturing sector agency, the parent company, the TRUSTEE’s affiliates and subordinates, the information regarding the beginning, modification or expiration of real or contingent obligations of the TRUSTOR; information regarding noncompliance with such obligations; any news regarding the obligations borne by the TRUSTOR to the TRUSTEE or any of its domestic or foreign subordinates, any financial sector or manufacturing sector agency; and, in general, regarding its indebtedness and credit behavior regarding the TRUSTEE and/or third parties, for the purpose, among others, of including its name and identification document in the records of debtors in default or debtors having a negative reference, its indebtedness, the transactions and/or effective obligations, as well as those it acquires or agrees in the future with the TRUSTEE and any of its subordinates. The above authorization empowers the TRUSTEE not only to report, process, and disclose the information to the information operators, but also to request and consult information regarding the commercial relations of the TRUSTOR with third parties, the manufacturing sector, and the financial sector as to compliance with its obligations, agreements, payment habits, etc...and for the reported information to be distributed by the information operator. This authorization includes previous, current, and future information regarding the management and status of, and compliance with, obligations, agreements, and services with the manufacturing sector, the financial sector, and any other third party;

 

  d) Keep the aforementioned reports for the time set forth by law, the Colombian Constitutional Court judgments and/or the regulations of each of the information operators;

 

  e) Debit from the AUTONOMOUS TRUST RESOURCES, if any, any amount that the TRUSTOR may owe the TRUSTEE on any account and of any nature, including, but not limited to, principal, current interest and or interest in arrears, commissions, exchange differences, price differences, exchange risk, derived items, fees, insurances, valuations, taxes, and any other expense generated regarding or as a result of any transaction, agreement, relation or any service provided by the TRUSTEE; and

 

20


  f) Allocate payments first to expenses and commissions, then to interest in arrears and current interest, and finally to the principal of the corresponding obligation.

CHAPTER 18.     INFORMATION UPDATE

18.01 The TRUSTOR is bound to update, minimum once a year, the information required by the TRUSTEE in order to meet the provisions required to comply with the rules related to Sistema de Prevención de Lavado de Activos (SIPLA) (System for the Prevention of Asset Laundering), demanded by the Financial Superintendence.

CHAPTER 19.     MODIFICATION OF THE AGREEMENT

19.01 MODIFICATION OF THE AGREEMENT. This agreement may be modified by mutual agreement of the TRUSTOR and the TRUSTEE. However, such modifications will require prior approval by the ASSOCIATED CREDITOR whenever they alter the rights of the latter or whenever such modification is intended at including a new ASSOCIATED CREDITOR.

CHAPTER 20.     CONFLICTS OF INTEREST

20.01 The execution hereof does not generate any conflict of interest situation on the terms of number 9, article 146, of the Financial System Organic Statute, pursuant to the assessment previously made by the TRUSTEE to that respect. In the event that, during the performance hereof, situations that generate conflicts of interest appear, the TRUSTEE will disclose such situations and regulate them in the proper manner.

CHAPTER 21.     RISK MANAGEMENT

21.01 Before the execution hereof, the TRUSTEE has identified, established, measured, and controlled the risks associated with this trust business pursuant to the policies and procedures set forth by Fiduciaria Bogotá S.A. for the different types of businesses. Likewise, during the term hereof, the TRUSTEE will permanently monitor such risks.

CHAPTER 22.     APPLICABLE LAW

22.01 Regarding the aspects not provided for heretofore, this agreement will be governed by Colombian Law as applicable.

CHAPTER 23.     CONFLICT SETTLEMENT

23.01 DIRECT SETTLEMENT. In the event that any controversies may arise between the parties as a result hereof, they will be settled through a direct arrangement. For such purpose, the parties will have ten (10) calendar days as of the date on which one of them notifies the other in writing to that effect, which term can be extended by mutual agreement.

23.02 ARBITRATION COURT. Except for the collection actions that are subject to the ordinary jurisdiction, the controversies related hereto as well as to the agreement execution, performance, interpretation, progress, termination or settlement, which cannot be settled through a direct arrangement between the parties pursuant to the provisions above, will be settled by an Arbitration Court.

The Arbitration Court will be governed by the provisions in Colombian regulations, taking into account the following rules:

 

  a)

The Court will be made up of one (1) arbitrator if the suit is for an amount equal to or lower than one thousand (1,000) effective legal monthly minimum salaries or of three (3) arbitrators if the suit exceeds such amount. The arbitrator(s) will be designated by mutual agreement between the Parties and, in the

 

21


  event they cannot reach an agreement within ten (10) business days after the name(s) has (have) been proposed by one of the parties, the arbitrator(s) will be designated by Centro de Arbitraje y Conciliación del Autorregulador del Mercado de Valores AMV — MARCO pursuant to its regulation, and will meet at the facilities proposed by MARCO for such purpose in the city of Bogotá D.C.

 

  b) The Court will decide according to law.

 

  c) The internal Court organization will be subject to the rules of the above mentioned Centro de Arbitraje y Conciliación del Autorregulador del Mercado de Valores AMV — MARCO.

CHAPTER 24.     EXECUTION AND EFFECTIVENESS

24.01 EXECUTION AND EFFECTIVENESS. This agreement will be executed and effective as of the date of signature hereof.

The remainder of the page is intentionally left blank. The signature pages follow .

 

22


In witness whereof, two (2) identical copies are signed on                     ,     , 2012

 

The TRUSTEE       The TRUSTOR

/s/ Ana Isabel Cuervo

     

/s/ Elisa Murgas

ANA ISABEL CUERVO       ELISA ESTHER MURGAS de MORENO
Legal Representative       Legal Representative
FIDUCIARIA BOGOTÁ S.A.       AVIANCATACA HOLDING S.A.


ANNEX 1. PANAMA PUBLIC REGISTRY CERTIFICATE

AND EXCERPT OF THE MINUTES OF THE TRUSTOR


ANNEX 2. TRUSTEE’S CERTIFICATE OF

INCORPORATION AND LEGAL INCUMBENCY


ANNEX 3. INITIAL BENEFICIARIES AND PLAN RESPONSIBLE PARTIES AND

DISTRIBUTION PERCENTAGES UPON SETTLEMENT OF THE TRUST

A) INITIAL BENEFICIARIES AND PLAN RESPONSIBLE PARTIES

 

PLAN

RESPONSIBLE

PARTY

  NAME OF THE  PLAN
BENEFICIARY
  POSITION   BONUSES GRANTED BY
VIRTUE HEREOF
[ ]   [ ]   [ ]   [ ]
[ ]   [ ]   [ ]   [ ]
[ ]   [ ]   [ ]   [ ]
[ ]   [ ]   [ ]   [ ]
[ ]   [ ]   [ ]   [ ]
[ ]   [ ]   [ ]   [ ]

B) DISTRIBUTION PERCENTAGES UPON SETTLEMENT OF THE TRUST

 

PLAN RESPONSIBLE PARTIES

  PERCENTAGE

AVIANCATACA HOLDING S.A.

  [ ]%

AEROVÍAS DEL CONTINENTE AMERICANO – AVIANCA S.A.

  [ ]%

LÍNEAS AÉREAS COSTARRICENCES S.A.

  [ ]%

TACA INTERNATIONAL AIRLINES S.A.

  [ ]%

TAMPA CARGO S.A.

  [ ]%

AEROLÍNEAS GALÁPAGOS S.A. – AEROGAL

  [ ]%

TRANS AMERICAN AIRLINES S.A.

  [ ]%

TACA COSTA RICA S.A.

  [ ]%

TECHNICAL & TRAINING SERVICES S.A. DE S.V.

  [ ]%


ANNEX 4. ACCEPTANCE BY THE OPERATING COMPANIES OF THE IRREVOCABLE

ADMINISTRATION MERCANTILE TRUST AGREEMENT ENTERED INTO BY AND BETWEEN

FIDUCIARIA BOGOTÁ S.A. AND AVIANCATACA HOLDING S.A.

Exhibit 10.1.1

 

AviancaTaca  

Temporary Bonus Plan Associated

with the Behavior of the AviancaTaca

Holding Preferential Stock

  

Adopted on March 6th,

2012

     Rev: 00

 

1. General Purpose

To regulate the terms and conditions for the temporary Bonus plan associated with the behavior of the AviancaTaca Holding S.A. preferential stock, hereinafter the Plan.

This plan will have a term of 4 years to accredit the Bonus Units as of March 15, 2012, date of initiation of the plan, and a term of 5 years for the redemption of the accreditation percentages in the manner provided for herein.

 

2. Plan Beneficiaries

The Plan Beneficiaries are the AviancaTaca Holding S.A. Board of Director members and the persons who act as CEO, Chief Operating Officer (COO), Chief Financial Officer (CFO), and Secretary General for the company in addition to the area vice presidents and division directors who perform administrative duties for the integrated operation of AviancaTaca.

AviancaTaca Holding S.A., along with the operating companies who act as employers of the persons who hold administrative positions in Aerovías del Continente Americano S.A. Avianca, Taca International Airlines S.A., Transamerican Airlines S.A., Tampa Cargo S.A., Líneas Aéreas Costarricenses S.A. Lacsa, and Aerolíneas Galápagos S.A. Aerogal, together the Operating Companies, will allocate the benefits in favor of the associated persons at February 29, 2012, called the Initial Beneficiaries, who must be registered in the Plan pursuant to the procedures set forth herein, and in favor of certain directors who become associated after such date, called the Additional Beneficiaries.

 

3. Areas Responsible for the Implementation

The Human Talent Vice President’s Office, through the Performance and Executive Compensation Manager’s Office, will be responsible for ensuring the application hereof, including, for such purpose, the persons associated as AviancaTaca Holding S.A. Board of Director members although the same have no work relationship with any of the companies.

On behalf of AviancaTaca Holding S.A. and the Operating Companies, the Treasury Vice President’s Office will be responsible for coordinating the management regarding the operation of the Autonomous Trust created for administration of the Plan.

 

4. Purpose of the Bonus Plan

The Plan is aimed at encouraging the performance level of the AviancaTaca Holding S.A. Board of Directors members and of the executive staff, up to the division director level, in order to align their performance with the results expected by the shareholders.


This purpose reflects the philosophy of the organization regarding the alignment of the incentives with the business performance by generating commitments to improve the company results that have an impact on the share value.

 

5. Description of the Plan

 

  5.1 Allocation of the Bonus Units

Holding S.A. preferential stock for each of the Redemption Periods taking into account the acknowledgement of their capacity as beneficiaries for each period. The allocation of the Bonus units will be made according to the percentages described in Annex 1 hereto. The Human Talent Vice President’s Office will make the accreditation to the Plan beneficiaries it determines pursuant to the requirements of applicability and eligibility, on the accreditation dates and in the percentages described in section 5.3 hereof.

 

  5.2 Redemption Value of the Bonus Units

The value of each Bonus unit will result from calculating the difference between the average quote value for the AviancaTaca Holding S.A. preferential stock reported by the Colombian Stock Exchange during the 30 calendar days before each of the Bonus Redemption Dates and the underwriting price for the AviancaTaca Holding S.A. share (COP 5,000), provided that the result is a positive number; that is to say, that the quote average value for the share reported by the Stock Exchange is greater than COP 5,000.

 

  5.3 Accreditation Periods and Percentages and Redemption Periods

The accreditation periods and percentages and the redemption periods will be as follows:

 

Annual Accreditation Periods

and Accreditation Dates

  Accreditation
Percentage
 

Redemption Period

Accreditation Date for the   First   Year:  March 15, 2013

  25%*   From  March 16, 2013  through  March 15, 2018

Accreditation Date for the  Second Year:  March 15, 2014

  25%   From March 16, 2014 through March 15, 2019

Accreditation Date for the Third Year: March 15, 2015

  25%   From March 16, 2015 through March 15, 2020

Accreditation Date for the   Fourth Year:  March 15, 2016

  25%   From March 16, 2016 through March 15, 2021

 

  * The 25% starts to be accredited on March 15, 2013, the date of the first anniversary.

 

  5.4 Form of Redemption for the Bonuses

Within the Redemption Period and after obtaining the corresponding accreditation, the Plan Beneficiaries may redeem the Bonuses corresponding to each Accreditation Period as well as those received on previous Accreditation Dates still within the corresponding Redemption Period.


The Plan Beneficiaries must redeem the Bonuses of the corresponding Redemption Period following the rules below.

 

  On each Redemption Date, the Plan Beneficiaries must only redeem 50% or 100% of the Bonus to which they are entitled on each Redemption Period.

 

  In the event that the corresponding Plan Beneficiary redeems 50% of the Bonus to which it is entitled on each Redemption Period, it may redeem the other 50% of the Bonus to which it is entitled, provided that it does so within the corresponding Redemption Period and may simultaneously redeem Bonuses from another Redemption Period, provided that the corresponding Redemption Periods are effective.

 

6. Applicability and Eligibility Requirements as Plan Beneficiaries

 

  6.1.1 Applicability

The Plan will be applicable to the persons identified as Plan Beneficiaries by the Human Talent Vice President’s Office to whom it offers the Plan and who meet the registration requirements.

The executives who, at the time the Plan initiates, have been notified of their retirement from the company and/or have a retirement plan in execution cannot be part of the incentive plan.

This program applies only to the executives who have carried out the formalities to be registered with the Executive Performance and Compensation Manager’s Office. In the event that the program has been offered, payment will not proceed if such registration process has not been made.

 

  6.1.2 Movement in the Administration Positions during the Term of the Plan

 

  6.1.2.1 Promotion from Manager to Director. The bonus units will be given proportional to the time the person holds the position as Director by applying the approved accreditation table.

 

  6.1.2.2 Promotion from Director to Vice President. The bonus units will be given proportional to the time the person held the position as Director and the time the person holds the position as Vice President by applying the approved accreditation table.

 

  6.1.2.3 The bonus units for the promotions for positions that did not exist when the Plan is implemented will be taken from the provision for future allocations.

 

  6.1.2.4 A Director Becomes Manager. The executive will be entitled to redeem the bonuses related to the Director position, which were accredited while performing as such, according to the accreditation dates and within the corresponding redemption period.


  6.1.2.5 A Vice President Becomes Director. The executive will be entitled to redeem the bonuses related to the Vice President position, which were accredited while performing as such, according to the accreditation dates and within the corresponding redemption period, and will be entitled to receive the bonuses proportionally to the time the person performs as Director by applying the approved accreditation table.

 

  6.1.3 New Hiring

The company will set aside 10% of the total Bonuses established herein for future allocations. Such bonuses will be given proportional to the time the position is held, taking into account the allocation for a similar position and as of the date on which the position is registered under the plan and only for the bonuses pending to be accredited as of the time in which the additional beneficiary capacity is acknowledged. That is to say, new beneficiaries will not have access to the accredited redemptions at the time of registration in the plan unless the work contract states otherwise.

 

  6.1.4 Temporary Absences of the Executives due to Maternity Leave or Sick Leave

The executive who is temporarily absent due to maternity leave or sick leave will continue being entitled to accreditation and benefit redemption during the time of such absence.

 

  6.1.5 Temporary Absences due to Paid Leaves and Unpaid Leaves over 180 days

The executive who is temporarily absent with or without payment for over 180 days will be out of the program during absence. When the person returns, he/she will be reactivated and the bonus will be accredited proportional to the time worked upon return, according to the accreditation table.

 

  6.1.6 Regarding the Permanent Retirement of Executives

 

  6.1.6.1 Termination due to the Voluntary Resignation of the Beneficiary or by Mutual Agreement between the Beneficiary and the Company or by Unilateral Decision by the Company due to Just Cause that is not a Serious Fault

The executive who resigns or whose contract is terminated by mutual agreement between the employee and the company or by unilateral decision by the company due to just cause that is not a serious fault:

 

    Will be entitled to the bonuses accredited up to the time of his/her retirement;

 

    Must redeem the bonuses accredited on the date of contract termination.


  6.1.6.2 Termination by mutual agreement or by unilateral decision by the company due to a serious fault

The executive whose contract is terminated by mutual agreement between the employee and the company or by unilateral decision by the company due to just cause that is a serious fault will lose all of his/her bonus accreditation and redemption rights hereunder pending accreditation or redemption.

In the event that there is a serious fault that is notified to the plan beneficiary and the plan beneficiary resigns before the company makes any decision, the beneficiary will also lose all of the bonus accreditation and redemption rights hereunder pending accreditation or redemption.

 

  6.1.6.3 Removal due to Retirement

The executive who retires while working for the company is entitled to:

 

    The bonus accredited until the date of retirement.

The executive must redeem the accredited bonus on the date of contract termination.

 

  6.1.6.4 Permanent Disability

The executive who is permanently disabled based on proven medical causes is entitled to:

 

    The bonus accredited until the date of the permanent disability.

The executive must redeem the accredited bonuses on the date of contract termination.

 

  6.1.6.5 Decease

Regarding executives who die while being hired by the company, their heirs will be entitled to:

 

    The bonuses accredited until the date on which the executive dies. They may redeem them during the plan term maximum 90 days after the date on which the corresponding proceeding for settling the estate ends.

 

  6.1.6.6 Retirement of the Board of Director Members

If a Board of Directors member registered under the plan retires from the Board of Directors, he/she:

 

    Will be entitled to the bonuses accredited until the date of retirement.

 

    Must redeem the accredited bonus on the date on which his/her capacity as Board member terminates.


6. (sic) Logistics to Request the Redemption of the Bonus Units

The executive who is a plan beneficiary may request the redemption of his/her bonus units that have been accredited to him/her within the redemption periods defined in number 5.3. For such purpose:

 

    The executive must complete the “Bonus Unit Redemption Request” form stating the number of bonus units he/she wants to redeem.

 

    Once the bonus units have been settled, the payroll liquidation area will include the news according to the payroll calendar defined for each company and each country. The company can pay the whole or a part through the Trustee if it deems convenient.

 

    The company determines in which country it is to pay such bonus pursuant to the executive’s work contract. In the event that work contracts co-exist, the company will only pay the bonus under one of the contracts at its discretion.

 

    The settled, paid amount will be subject to the corresponding tax management regarding each board member and each executive according to the country of residence and the company that employs the person and/or pays the benefit.

 

    The executive who is a plan beneficiary will be responsible for meeting the applicable tax regulations according to the country of residence and/or his/her nationality.

 

    To redeem the bonuses of the AviancaTaca Holding S.A. Board of Directors members, the Human Talent Vice President’s Office will define the procedure and applicable forms and will notify the Beneficiaries and the Trustee on a timely basis.

 

    The breakdown to handle the plan, forms, and other elements will be included in the “Instructions for the Beneficiary of the Temporary Bonus Plan Associated with the Behavior of the AviancaTaca Holding Preferential Stock” that will be published and delivered to each of the executives that benefit from the temporary incentive plan related to the shares.

 

7. Additional Considerations

AviancaTaca Holding S.A. and the Operating Companies can modify the Plan during its term and with future effect as of the date on which such modifications become effective. Likewise, they will agree upon the relevant changes to the Trust Agreement entered into to administer the plan and will proceed to notify such changes to the beneficiaries thereof.


Annex 1

Allocation of the Bonus Units

Regarding the total 18,026,158 Bonus units available to be allocated, such allocation will be carried out among the Beneficiaries pursuant to the following groups and allocation percentages:

 

Beneficiaries

   Percentage  

Board of Directors Members (11 Members)

     5.00

Chief Executive Officer (1)

     4.30

Chief Operating Officer (1)

     20.3

Chief Financial Officer (1)

     2.03

Area Vice Presidents and Secretary General (21)

     20.94

Division Directors (101)

     55.70

Provision for Future Allocations

     10.00

Total

     100.00

The number of Bonus units corresponding to each Beneficiary will be determined by the Human Talent Vice President’s Office.

Exhibit 10.2

LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

TABLE OF CONTENTS

 

1. INTERPRETATION AND DEFINITIONS

     3   

1.01. Interpretation

     3   

1.02 Definitions

     3   

2. WHEREAS

     4   

3. PURPOSE

     5   

3.01. Purpose

     5   

3.02. Term

     5   

3.03. Consideration

     5   

3.0.4. Invoicing

     5   

3.05. Method of payment

     5   

3.06. Non exclusivity

     5   

3.7. Modification of the height over the Premises

     6   

4.01. The Premises

     6   

4.02. Use

     6   

4.03. Receiving Possession / Condition of the Premises

     6   

4.04. Improvements

     7   

5. PRELIMINARY STAGE

     7   

5.01. Term

     7   

5.02. Obligations of the TENANT relating to the Preliminary Stage

     7   

5.03. Obligations of OPAIN relating to the Preliminary Stage

     7   

5.04. Conditions to sign the Certification of Commencement of Adaptation Works

     8   

6. ADAPTATION STAGE

     8   

6.01. Term

     8   

6.02. Obligations of the TENANT relating to the Adaptation Stage

     8   

6.03. Obligations of OPAIN relating to the Adaptation Stage

     9   

6.04. Conditions to sign the Certification of Commencement of Commercial Exploitation

     9   

7. COMMERCIAL EXPLOITATION STAGE

     9   

7.01. Term

     9   

7.02. Obligations of the TENANT relating to the Commercial Exploitation Stage

     9   

7.03. Repairs and Improvements

     10   

8. OBLIGATIONS OF THE PARTIES APPLICABLE TO ALL STAGES OF THE AGREEMENT

     10   

8.01. Obligations of the TENANT

     10   

 

1


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

8.02. Obligations of the TENANT relating to the Environmental Regulations

     12   

8.03. Obligations of OPAIN

     12   

8.04. Indemnity

     12   

9. SPECIAL PROVISIONS

     13   

9.01. Utilities

     13   

9.02. Civil Non-Contractual Liability Policy

     13   

9.03. Lease Assignment

     14   

9.04. Goodwill

     14   

9.05. Risks of the TENANT

     14   

9.06. Conformity with the Procurement Transparency Protocol of OPAIN

     14   

9.07. Termination of the Contract by Just Cause in favor of OPAIN

     14   

9.08. Termination of the Contract by the TENANT

     14   

9.09. Unilateral Termination of the Contract by the TENANT

     15   

9.10. Notice and Effects of the Termination of the Contract

     15   

9.11. Non-monetary sanctions

     15   

9.13. Contract Settlement

     15   

9.14. Default Interests

     15   

10. TERMINATION BY MUTUAL AGREEMENT

     16   

10.01. Premises Restitution

     16   

11. LEASED AREAS RESTITUTION

     16   

11.01. Premises Restitution

     16   

12. MISCELLANEOUS

     16   

12.01. Inspection

     16   

12.02. Liability

     16   

12.03. Relation between the Parties

     17   

12.04. Identification of the TENANT’S staff

     17   

12.05. Confidentiality

     17   

12.06. Settlement of Disputes

     18   

12.07. Taxes

     18   

12.08. Entire Contract

     18   

12.09. Amendments

     18   

12.10. Domicile

     18   

12.11. Governing Law

     18   

12.12. Notices

     19   

12.13. Expenses

     19   

12.14. Counterparts

     19   

 

2


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

LEASE CONTRACT ENTERED INTO OCTOBER 29 2012, BETWEEN OPAIN S.A. AND AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

This lease Contract (as amended or supplemented from time to time by mutual agreement between the parties, including its annexes, the “Contract”) is concluded on 17 October 2012 by and between (i) Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“ OPAIN ”); and (iii)  AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), collectively referred to as “ The Parties ”.

1. INTERPRETATION AND DEFINITIONS

1.01. Interpretation: For the purposes of this Contract, unless otherwise expressly stated, the terms in capitals herein used shall have the meaning granted to those terms in Clause 1.02 stated below. Technical and scientific words that are not expressly defined in this Contract shall have the correspondent meaning according to their respective technic or science area and the rest of the words shall be understood in their natural an obvious sense, according to their general use. Titles in the respective Clauses are included for reference and convenience purposes but in no way limit, define or describe the scope of this Contract and are not considered part of it.

1.02 Definitions: The following definitions are established for the purposes of this Contract, which shall have the meaning stated below, whether used in singular or plural:

Certification of Commencement of Adaptation Works ”: Document to be signed by the Parties following the model of Annex 1.

Certification of Commencement of Commercial Exploitation : Document to be signed by the Parties following the model of Annex 2.

Certification of Satisfactory Receipt of the Works ”: Document to be signed by the Parties following the model of Annex 3.

Certification of Conclusion ”: Document to be signed by the Parties at the time of the Contract settlement. “ AEROCIVIL ”: The Special Administrative Unit of the Civilian Aeronautics of the Republic of Colombia.

AIRPORT ”: Eldorado International Airport of Bogota D.C.

Granted Area ”: Areas handed over to OPAIN to manage, operate, make commercial use, keep in good condition, retrofit and expand under this Lease Contract.

TENANT ”: It refers to the meaning provided in the heading of this Contract.

Governmental Authorities ”: (i) Any State or Republic, including, without limitation, Aerocivil, authorities or organizations belonging to any branch of the public power or any entity that does not belongs to them but are part of the State or Republic or who are performing activities granted by the State or Republic (including the Central Bank), administrative subdivision of said State or Republic (such as Ministries, Administrative Departments, Superintendence, Districts and Municipalities, among others) and any entity, with or without legal capacity, that is a decentralized administrative entity, by services or collaboration, of any order, that has authority to issue laws, decrees, resolutions, ordinances, rulings, judicial decrees, arbitration awards, or, in general, mandatory enforcement decisions, provided the Party to whom it is imposed is legally bound to the proceedings, as a party or as a third part; and (ii) any other public entity with authority to enforce such laws, decrees, resolutions, ordinances.,.

 

3


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

Consideration ”: It refers to the meaning provided in Clause 3.03 of this Contract.

Contract ”: It refers to the meaning provided in the heading of this Contract.

Business day ”: Any day of the week that is not Friday, Sunday or a public holyday in Colombia.

Preliminary Stage ”: The stage of performance of the Contract according to Clause 5.

Adaptations Stage ”: The stage of undertaking the adaptation works of the Contract according to Clause 6.

Commercial Exploitation Stage ”: The stage of performance of the Contract according to Clause 7.

Trust ”: The FIDECOMISO OPAIN S.A – FIDUCIARIA BANCOLOMBIA S.A. trust or the trust replacing it.

“Premises”: The space defined in Clause 4.01 of the Contract.

CPI ”: The Consumer Price Index that represents their variation in Colombia, issued bye the National Administrative Department of Statistics – DANE (or the governmental authority acting as such).

Applicable Law ”: The laws, decrees, resolutions, ordinances and administrative acts applicable to the parties or, in general, the mandatory regulation.

Month ”: Each one of the twelve periods, between 28 and 31 days, the year is divided by. Said periods are: January, February, March, April, May, June, July, August, September, October, November and December.

OPAIN ”: It refers to the meaning provided in the heading in this Contract.

Parties ”: It refers to the meaning provided in the heading in this Contract.

Permits ”: The authorizations, related to the TENANT, issued by OPAIN to commence the works required during the adaptations stage.

OPAIN Plan ”: The current maintenance, operation and safety plans developed by OPAIN for the Airport, available from OPAIN upon request.

Policy ”: It refers to the meaning provided in Clauses 9.02 and 9.03.

Space Possessor Adaptation / Remodeling and Maintenance Procedure ”: The document contained in Annex 6, which defines the rules and parameters for the physical adaptations of the property.

2. WHEREAS,

2.01.1 OPAIN and AEROCIVIL signed the Concession Contract No. 6000169OK of 2006 by which the administration, operation, commercial exploitation, maintenance, retrofitting and expansion of the Airport were granted to OPAIN .

2.01.2 OPAIN holds the tenancy of the Granted Area under a concession title. Because of this Contract the mere tenancy of the property is handed over the TENANT for its use, keeping AEROCIVL all the rights derived from its ownership.

2.01.3 The Premises, whose tenancy OPAIN hands over to the TENANT , is part of the Granted Area.

 

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3. PURPOSE

3.01. Purpose: By means of this agreement, OPAIN , on the date of the Certification of Commencement of Commercial Exploitation, shall hand over the tenancy of the Premises to the TENANT for the duration set forth in Clause 3.02, so the TENANT gives the Premises the use provided in Clause 4.02, prior fulfillment of the activities of the Preliminary and Adaptation Stages.

OPAIN shall provisionally hand over the Premises during the adaptations period, so it can be prepared it for its commercial destination, through a Certification of Commencement of Adaptation Works. The property shall be physically handed over to the TENANT as appears on the Certification of Commencement of Commercial Exploitation, signed by the Legal Representative Agents of each Party.

3.02. Term: The term of the Contract shall be of five (5) years. When this Term expires the contract shall be renewed automatically and successively, without prior consent or notification from the Parties, until the Estimate Term of the Concession Contract expires. The term of begins from the date of the actual and effective hand over of the Premises as stated in the Certification of Commencement of Commercial Exploitation.

There shall be no restitution of the Premises if AEROCIVIL decides on the cession of this Contract, as per the provisions of Clause 72.2.3 of the Concession Contract.

In the event OPAIN requests the Premises invoking Paragraph two (2) or three (3), Article 518 of the Commercial Code, or in the event of an order issued by a competent authority, the provisions of Clause 10.01 shall apply.

3.03. Consideration : The TENANT is bound to unconditionally pay to OPAIN the following amount (the “ Consideration ”), from the date on the Certification of Commencement of Commercial Exploitation, for the Tenancy of the Premises:

Three hundred and ninety six million eight hundred six thousand pesos ($396.806.000) plus VAT per month for 1984,03 M2 and Eleven million five hundred thirty six thousand pesos ($11.536.000) plus VAT per month for 16.48 M2, for a grand total of 2000.51m2 and the full price of this Contract of Four hundred eight million three hundred forty two thousand pesos ($408.342.000) plus VAT per month.

The monthly installment shall readjust with the accrued CPI between January 1 and December 31 of the immediately preceding year, on the day of observance each date on the Certification of Commencement of Commercial Exploitation.

The agreed readjustment in this clause shall be the only one applicable to the Consideration, even in the event of extension or renewal of the Contract.

3.0.4. Invoicing: The Trust shall prepare the invoice and shall send it to the TENANT within the firs five (5) days of each month, said invoice that shall comply with the current tax regulations.

3.05. Method of payment : The TENANT is bound to pay the monthly cost within ten days following the receipt of the invoice issued by the Trust.

3.06. Non exclusivity: This Contract does not imply exclusivity in favor or the TENANT to develop its commercial activities. Therefore, OPAIN may lease other areas that are part of the Granted Area to whom it deems necessary to carry out the purpose of the Concession Contract, even if said third parties carry out the same activities as the TENANT and compete with the latter. OPAIN does not guarantee the TENANT minimal income for carrying out its activities in the Premises.

 

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3.7. Modification of the height over the Premises: OPAIN may change the height of the areas located over the leased premises with no restrains, provided it does not modify the height conditions present at the moment of the hand over of the Premises, as detailed in Annex 4.

In the event OPAIN decides to perform the works described in this Clause, it shall guarantee the calm, peaceful and interrupted enjoyment of the tenancy of the Premises in order to keep its use unaltered.

The Parties state, accept and understand that the works to be carried out in the upper floor of the leased area shall not be understood or interpreted as the works mentioned in articles 518 and 520 of the Code of Commerce.

Shall any disturbance arise, the TENANT shall inform in writing to OPAIN , who shall immediately stop the works and repair any damaged caused on the Premises.

It shall be understood that there is a disturbance when OPAIN performs any work that interrupts the calm, peaceful and uninterrupted enjoyment of the tenancy of the Premises.

The TENANT reserves the right to prevent access to the premises of staff, equipment or materials, or any other tool used for the development of the works in the present clause without prejudice to other actions that the law provides.

Beforehand, OPAIN renounces to any use, passing or transit easement rights, and/or any other right that implies the interruption or disturbance, temporary or permanent, of the use of the Premises by the TENANT . Likewise, in no event OPAIN shall make use of the utilities available in the Premises while performing works, or after these are concluded.

If the disturbance extends for more than 30 days, the procedure established in Clause 20 (Mutual Agreement Termination Clause) shall be followed.

4. THE PREMISES

4.01. The Premises: Is the defined and delimited area in Annex 4, which shall be handed over to the TENANT to use according to the provisions en Clause 4.02 below. The Premises handed over by OPAIN under leasehold title shall not have less than the two meters of height as described in the plans attached as Annex 4.

4.02. Use: The Premises shall be used by the TENANT , solely and exclusively to provide the service of VIP Room to the users and passengers of the Airport, and may perform related activities, including marketing, advertising and retail by its commercial partners, provided that these activities don’t imply subletting the Premises, and no other used shall be given to it without prior and written consent of OPAIN . The TENANT is bound to name AVIANCA its business establishment operating in the Premises. In any event, the TENANT may complement its denomination with the one of the global alliance it belongs to. In the event such need arises, the TENANT must inform this to OPAIN .

4.03. Receiving Possession / Condition of the Premises: The TENANT, at the moment of signing the Certification of Commencement of Commercial Exploitation, shall declare, as appropriate, that (i) pursuant to the Contract and the Certification of Commencement of Adaptation Works, it has received the Premises in good condition, completed structure, as established in sub-paragraph 10 (VIP Rooms) of Paragraph 1.2 (Arrivals Level) of Chapter 1 (General Provisions) of Section 1.5 (General Finish Plan for the New Building of the Passenger Terminal) of

 

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Appendix E of the Concession Contract, the Premises Design and Technical Hand Over Specifications established in Annex 5 and in accordance with the Certification of Commencement of Commercial Exploitation, which is considered part of this document, that establishes, in addition, the Premise’s inventory; (ii) that it is bound to take care of, preserve and maintain the Premises; and, (iii) that it shall return the Premises to OPAIN in the same condition described in the Certification of Commencement of Adaptation Work, except for the damage caused by the passage of time, improvement works that can be removed, and its legitimate use. The damages to the Premises caused by abuses or carelessness from the TENANT during its tenancy, shall be charged to him. Notwithstanding the provisions of this clause, the TENANT is bound to make wear and tear repairs and thus keep the Premises in the same condition as it received it, according to the Certification of Commencement of Adaptation Works, except for those that may result due to day-to-day use.

4.04. Improvements: The TENANT acknowledges all adaptations carried out in the Premises that have a fixed and permanent character, whatever their nature and value, shall be property of AEROCIVIL, thus, the TENANT shall not receive any reimbursement or compensation for said adaptations, whether declaratory or compensatory. Notwithstanding the foregoing, the TENANT may remove adaptations in order to leave the Premises in the same condition as it received it, according to the Certification of Commencement of Adaptation Works, I, except for those that may result due to day-to-day use. Furthermore, the adaptations consisting of equipment installation and other goods that can be removed from the Premises without causing it damage, shall be taken by by the TENANT at its own expense upon termination of this Contract.

5. PRELIMINARY STAGE

5.01. Term: The Preliminary Stage shall last from the date of signing of this Contract until the date on the Certification of Commencement of Adaptation Works.

5.02. Obligations of the TENANT relating to the Preliminary Stage: During the Preliminary Stage the TENANT is bound to:

5.02.1. Constitute the Policy and hand it over OPAIN within the 30 calendar days after signing the Contract;

5.02.2. Hand over the design, adaptation and works plan for the Premises following OPAIN’S instructions, within 30 calendar days after signing the Contract, and perform the adjustments suggested by OPAIN in a timely manner.

5.02.3. Apply before OPAIN for the Permit, according to the applicable conditions established in Annex 6.

5.03. Obligations of OPAIN relating to the Preliminary Stage: During the Preliminary Stage OPAIN is bound to:

5.03.1. Check the design, adaptation and works plan for the Premises and works schedule provided by the TENANT , within 15 calendar days after having received them, (i) approve if they agree with them; r (ii) request the adjustments deemed necessary. In the event that OPAIN requests an adjustment or clarifications, the TENANT shall give an answer within five (5) calendar days and OPAIN shall have an additional term of five (5) calendar days to make a pronouncement on the matter. The design, adaptation and works plan and schedule shall be considered as approved if OPAIN fails to make a pronouncement within the terms aforementioned.

5.03.2. Allow the TENANT to access the Premises, so the TENANT can elaborate the plans and assess the physical and structural particularities of the Premises in order to execute the Adaptation Stage.

 

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5.03.3. Grant the Permit to the TENANT , according to the applicable conditions established in Annex 6.

5.04. Conditions for the signing ofthe Certification of Commencement of Adaptation Works : The Parties shall sign the Certification of Commencement of Adaptation Works only if the following requirements are met:

5.04.1. The Policy has been constituted in a satisfactory manner for OPAIN ;

5.04.2 . The design, adaptation and works plans have been approved by OPAIN;

5.04.3. The TENANT has the necessary Permits to start the adaptation works in the Premises.

5.04.4. The Premises is in suitable conditions to start the adaptation;

6. Adaptation Stage

6.01. Term: The Adaptation Stage shall last from the date on the Certification of Commencement of Adaptation Works until the date on the Certification of Commencement of Commercial Exploitation.

6.02. Obligations of the TENANT relating to the Adaptation Stage: During the Adaptation Stage the TENANT is bound to:

6.02.1. Carry out the adaptation works in a coordinated manner with OPAIN.

6.02.2 . Install in the Premises the Voice & Data Systems available in the Airport, according to the operational needs of the Premises. This installation shall only be performed pursuant to the procedures and guidelines established by OPAIN . In any event, OPAIN , directly or indirectly, shall guarantee the existence of the telecommunication services through OPAIN’S Network and Telecommunication Services Provider (ESP) of its preference.

6.02.3. Comply with the Adaptation / Remodeling and Maintenance Procedure for Space Possessors, according to the provisions in Annex 6, by which the guidelines on physical adaptations of the Premises are set forth, which must conserve uniformity with the image and architectural identity displayed in the Airport.

6.02.4. Carry out the adaptation works within the period agreed by the Parties in the approved works timetable, which in no event shall exceed 90 calendar days, counted from the date of the Certification of Commencement of Adaptation Works.

6.02.5. Allow the programmed visits and inspections in the leased property resulting from the verification process of the Retrofitting and Expansion Works that Aerocivil and the Concession Contract Auditor will perform.

6.02.6 . Carry out the connections to the utilities available in the Premises;

6.02.7 . Pay for the utilities available in the Premises, payment that shall be carried out to the company providing the service.

6.02.8 . Examine any request from OPAIN regarding the withdrawal of the TENANT staff and/or any of the subcontractors performing the works, with prior delivery of a communication describing the reasonable causes leading to believe the said personnel might affect the Airport´s safety, or might compromise OPAIN’S liability under the Concession Contract, annexing supporting proofs for such claims. In any event, by signing this Contract the TENANT accepts that in any moment and once the aforementioned situation is notified, OPAIN may prevent such personnel from entering the area where the works are being performed without any liability for the TENANT , who renounces to file any claim against OPAIN regarding such events;

 

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6.02.9. Accept the regulations established in OPAIN’S Plans for the undertaking of the works, one of which is that all personnel designated to execute this Contract shall comply with the security regulations set forth by OPAIN . Also, the TENANT must comply with the Airport Security regulations, including those relating to entering the facilities and identification bearing;

6.02.10. Undertake, at his own risk and expense, one hundred percent (100%) of the total investment in the Premises that allows for the performance of the Contract; and,

6.03. Obligations of OPAIN relating to the Adaptation Stage: During the Adaptation Stage OPAIN is bound to:

6.03.1. Perform the provisional hand over for adaptations of the Premises regarding to the conditions established jointly by the Parties by agreement.

6.03.2. Cooperate with the TENANT during the adaptation works the TENANT will carry out, timely providing all the information the TENANT requires performing the purpose of this Contract.

6.03.4. Make Premise utilities available (energy, water and sewage) and inform the TENANT about said utilities.

6.03.5. Inspect the adaptation works and, within 15 calendar days after being notified of their finalization by the TENANT , (i) approve the works if OPAIN is satisfied, which shall stated in the Certification of Satisfactory Receipt of the Works; or (ii) demand the adjustments deemed necessary by OPAIN . In the event OPAIN requests adjustment or clarification, the TENANT shall provide an answer within the next ten (10) calendar days and OPAIN shall have an additional term of 5 days to approve them or request further adjustments. The adaptation works shall be deemed as approved if OPAIN does not make any statements during the aforementioned term

6.04. Conditions for the signing of the Certification of Commencement of Commercial Exploitation: The Parties shall sign the Certification of Commencement of Commercial Exploitation only if the following requirements are met:

6.04.1. OPAIN has approved the adaptation works of the Premises, tacitly or expressly;

6.04.2. OPAIN has informed the TENANT the Passenger Terminal Building is ready for a comprehensive start of operations; and

6.04.3. The TENANT begins the commercial use of the Premises for passenger assistance.

7. COMMERCIAL EXPLOITATION STAGE

7.01. Term: The Commercial Exploitation Stage shall last from the date stated in the Certification of Commencement of the Exploitation Stage until the date on the Certification of Termination of the Contract.

7.02 . Obligations of the TENANT relating to the Commercial Exploitation Stage: During the Commercial Exploitation Stage the TENANT is bound to:

7.02.1 . Deliver the present VIP Room one (1) week after signing the Certification of Commencing Commercial Exploitation.

7.02.2. Pay OPAIN the Consideration under the conditions and amount established in this Contract;

 

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7.02.3. Keep the Premises in an adequate condition, as received by the TENANT , according to the Certification of Commencement of Commercial Exploitation;

7.02.4. Operate the Premises in order to perform the use, for which this Contract is signed, 7 days a week, in the hours established by the TENANT according to his timetables.

7.02.5. Display the price of the products that are sold in the Premises in order to make them visible to the passengers at all times.

7.02.6 . Attempt to ensure that the TENANT’S staff assisting the passengers has basic knowledge of the English language; and

7.02.7 . Make sure a fixed-point supervisor appointed by the TENANT is available in order to timely resolve any inconvenience or complain that may arise from the passengers.

7.03. Repairs and Improvements : OPAIN shall carry out only the repairs directly related to the structural elements of the Premises, produced by the passage of time, construction flaws, force majeure or acts of nature, so the TENANT is bound to carry out at his own risk and expenses the rest of the repairs, including those considered wear and tear.

The TENANT shall perform useful and voluntary improvements in the Premises, with prior written consent of OPAIN . In any event, the TENANT shall be responsible for any damage inflicted to third parties, provided there is gross negligence or willful misconduct by the TENANT , e. The aforementioned consent does not apply to the regular maintenance of the property.

8. OBLIGATIONS OF THE PARTIES APPLICABLE TO ALL STAGES OF THE AGREEMENT

8.01. Obligations of the TENANT : The following are the general obligations of the TENANT :

8.01.1 Use the Premises in accordance with the provisions set forth in this Contract;

8.01.02 . Comply with OPAIN’S Plans;

8.01.3. Pay to OPAIN the Consideration established in Clause 3.03;

8.01.4. Pay all utilities invoices and/or fares of the Premises, caused since the Certification of Commencement of Adaptation Works;

8.01.5. Refrain from using the Premises to hide people; deposit arms, explosives or terrorist group’s money; therefore, it is expressly and strictly prohibited to use the Premises to the ends established in section b) of the paragraph of Article 38, Decree 180, 1998, and Article 34, Law 30, 1986. Likewise, the TENANT shall not use the Premises to produce, store and sell drugs and hallucinatory substances such as marihuana, hashish, cocaine and other related, or any other illicit activity; in any event the TENANT is no responsible for third parties’ acts that for this specific case, shall be all people different to the staff of the TENANT .

8.01.6. Keep the Policies referred to in Clause 9.02 of this Contract in force for the complete duration of this lease agreement.

8.01.7. Observe and strictly comply with the written instructions provided by OPAIN , inherent with the performance of this lease agreement, and in accordance with the Airport’s operation and aeronautic operation.

 

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8.01.8. Accept responsibility before OPAIN and third parties for all damages and harm the TENANT or any person under his supervision or care cause to people or property because of gross negligence or willful misconduct, carelessness or ignorance of the safety regulations established in the applicable laws and OPAIN’S Plans;

8.01.9. Free and relieve OPAIN from liability as established in Clause 8.04;

8.01.10. Accept responsibility for all expenses and expenditures caused during the performance of the TENANT’S activities, including those relating to any accident attributable to it.

8.01.11. Take all measures required to take care of any accident that happens while performing its activities and prevent the occurrence of new accidents. Furthermore, the TENANT is bound to adopt the applicable preventive and correcting measures in order to avoid the accident to occur again, or to prevent the damage to extend or worsen the situation;

8.01.12. Notify OPAIN immediately about any misappropriation, disturbance, encumbrance, loss of tenure, imposition of easement rights that any person attempts on the Premises, wear and/or flaw in the Premises that OPAIN must repair;

8.01.13. Refrain from introducing in the Premises or the Granted Area inflammable substances, explosives, pollutants, hallucinogen substances, or any other element that might threaten the integrity and security of the Airport or its users. Without prejudice of the foregoing, OPAIN may grant express authorization to introduce these substances, in the event the activity of the TENANT requires it;

8.01.14. Address the complaints and claims received through OPAIN, relating to the condition of the Premises or to flaws in the quality of the service provided by the TENANT . The TENANT must resolve these complaints and claims within the next 10 workdays after notification from OPAIN .

8.01.15. Comply with the Airport’s solid waste management rules, according to the Environmental Plan.

8.01.16. Ensure that the TENANT , its stockholders or people part of the economic group (if it exists) it belongs to, (i) are not part of the executive list of the OFAC (Office of Foreign Assets Control of the Department of Treasury of the United States of America), (ii) have not been condemned for crimes against property, money laundering and/or illicit enrichment, and (iii) expired ownership has been declared upon their properties in accordance to the Applicable Law;

8.01.17. Assess the recommendations provided by all entities regulating International Civil Aviation, and allow the development of the campaigns to inform passengers about these recommendations.

8.01.18. Refrain from granting access to personnel to other areas different to the leased ones, without bearing the identification that authorize them to transit these areas.

8.01.19. Comply with the Airfields Regulations and the dispositions established in the Local Airport Safety Plan;

8.01.20. Refrain from exhibiting external advertisements in the Premises, excluding the Establishment Sign, which must be approved by OPAIN within 5 business days, counted from the receipt of the request from the TENANT .

8.01.21 . Refrain from using the name, brands or logos of OPAIN associated to the Airport, unless it appears in written consent from OPAIN .

 

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8.01.22. Refrain from performing any action or omission that, because of its nature, might represent or cause a security threat in the Premises, the Airport or to the air operation;

8.01.23 . Deliver and/or pay to the Trust the amount stated by this Contract, according to the instructions of OPAIN and/or the Trust; and

8.01.24. Fulfill the rest of the obligations derived from this Contract and the Applicable Law.

8.02. Obligations of the TENANT relating to Environmental Regulations . The TENANT shall always fulfill the applicable provisions of the Environmental Plan, as well as the obligations below, and shall take all the necessary measures to protect the environment;

8.02.1. Prepare any document necessary to comply with the Environmental License (as per the definition established in the Concession Contract), where applicable;

8.02.2. Notify OPAIN immediately regarding any breach relating the Environmental Regulation, as well as any claim alleged by the environmental control and monitoring agencies, or any contractual breach relating to the fulfillment and performance of the obligations derived from the Environmental Obligations; and

8.02.3 . Comply with the corrective plans pointed out by OPAIN , AEROCIVIL and/or the control and monitoring agencies, regarding the breaches or threats that may arise, associated with the Environmental Regulations.

8.03. Obligations of OPAIN : The following are the general obligations of OPAIN :

8.03.1. Hand over the tenancy of the Premises to the TENANT , under leasehold title, from the date stated in the Certification of Commencement of Commercial Exploitation.

8.03.2. Allow access to the Premises to the TENANT’S staff duly identified with the identity card issued by OPAIN , in accordance to the instructions provided by OPAIN .

8.03.3. Free and relieve the TENANT from liability as established in Clause 8.04;

8.03.4. Fulfill the rest of the obligations derived from this Contract and the Applicable Law.

8.04. Indemnity : Each Party shall Free and relieve the other Party and its subsidiaries, affiliates, headquarters and their respective stockholders, executives, employees, agents, successors, assignees, trusts or any other party, against all liabilities, damages, demands and claims caused to properties, lives, or personal integrity of a Party, its employees, agents or subcontractors, or any third party, directly or indirectly arising from incidents, actions or omissions of one of the Parties, its employees, agents, subcontractors, during the performance of this Contract.

8.04.1. Each Party will immediately inform of any claim or action that is instituted against any of the Parties Party relating to this Contract, as soon as they are aware of it. In this event, the Party shall provide all the necessary collaboration and provide any document or information it has that might be considered as useful

8.04.02 . The indemnity obligation established in this Clause shall outlast the termination of this Contract and shall have effect for a term of 5 years after the date of termination of this Contract.

 

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9. SPECIAL PROVISIONS :

9.01. Utilities : During the validity of this Contract, the TENANT commits to fulfill the payment of all invoices and/or fare of the utilities of the Premises generated since the date stated by the Certification of Commencement of Adaptation Works.

9.01.1. OPAIN reserves the right to request that the TENANT hand over the invoices as evidence of payment of the utilities.

9.01.2. The claims relating to the proper provision or invoicing of the aforementioned utilities, shall be directly settled by the TENANT before the respective service provider.

9.01.3. If as a result of non-timely payment of the utilities the respective company suspends, removes the electric power service or telephone line services, the TENANT be responsible for the payment, at its own expense, of the related interests as well as reconnection expenses.

9.01.4 . This Contract, along with the invoices paid by OPAIN, constitutes an enforcement order to judicially collect from the TENANT and its guarantors, the utilities the TENANT refrained from paying.

9.02. Civil Non-Contractual Liability Policy : The TENANT commits to procure a Civil Non-Contractual Liability Policy (the “Policy”) with a legally established Colombian insurance company, which is deemed as acceptable by OPAIN, with the following conditions:

Taker: THE TENANT

Policy Holders : OPAIN S.A. NIT 900.105.860-4, FIDUCIARIA OPAIN S.A.-FIDUCIARIA BANCOLOMBIA, NIT 830.054.539-0, and the TENANT.

Beneficiaries : Damaged Third Parties.

Protection and Validity : The validity of this protection shall be annual.

Insured Value: The Policy shall have an insured value equivalent to one hundred million Pesos ($60.000.000). The contracted coverture shall be full (100%) basic protection (land, labor and operations) per event, plus the annual accrued, medical expenses 10% per event and 20% for the annual accrued, contractors and subcontractors to full extend (100%), own and third parties’ vehicles 10% per event and 30% validity, employer 25% per event and 50% for the annual accrued. All protections have a deductible charge of 10% of the loss value that the TENANT shall assume, minimum 5 Monthly Legal Wages. The aforementioned insured value shall be increased in a proportion equivalent to the IPC decreed by DANE for the immediately precedent year.

9.02.1. The issuing of the Policy does not exempt the TENANT of its obligation of indemnifying OPAIN for all the damages arising from the unfulfillment of this Contract.

9.02.2. The TENANT shall replace the Policy when its value is affected for whatever reason. Said replacement shall be performed within the next 10 calendar days after using the initial insured value for the occurrence of an incident. In the event the Policy is called upon, the TENANT shall pay the deductible. The Policy is an accessory and shall be taken without prejudice of all obligations derived from the same.

9.02.3. The Policy is an accessory to this Contract and shall be taken without prejudice of all obligations derived from it.

 

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9.03. Lease Assignment: It shall be governed in accordance with the provisions of article 523, Code of Commerce,

9.04. Goodwill : The TENANT expressly waives the right to demand any amount corresponding to “commercial premiums”, “Goodwill” or any denomination used in the market, that indicates an improvement of the Premises as a lease unit at the termination of this Contract. Therefore, the TENANT waives any right to demand OPAIN or AEROCIVIL any amount for that reason during the validity of the Contract, or in case the relocation of the Premises is necessary at any time of the performance of the Contract and/or its termination.

9.05. Risks of the TENANT : The TENANT takes over the risks derived from the performance of the Contract, particularly those relating to changes in the passenger flow, sales percentage and operative and management changes that take place in the Airport due to the Concession Contract. Thus, the TENANT exempts OPAIN from any responsibility relating these matters, as OPAIN does not guarantees nor takes over any obligation before the TENANT to ensure passenger flux, percentage of sales percentage or the non-occurrence of operative and management changes in the Airport.

9.06. Conformity with the Procurement Transparency Protocol of OPAIN: OPAIN expresses that its actions derived from the performance of this Contract follow objectivity and transparency principles, in accordance to OPAIN’S by-laws, the applicable law and the Procurement Transparency Protocol (the “Protocol”) adopted by OPAIN’S Board of Directors, and enforced by all of its employees, stockholders and managers.

9.07. Termination of the Contract by Just Cause in favor of OPAIN: OPAIN shall have the right to terminate the Contract before the term, due to any of the following causes:

9.07.1 . Breach of the economic obligations taken on by the TENANT for more than 10 consecutive days. In this event, OPAIN must request the TENANT to make up for the failure in a reasonable term. If the TENANT does not fulfill its obligations, OPAIN may terminate the Contract within the next ten (10) calendar days.

9.07.2. Imposition of one or several fines on OPAIN by AEROCIVIL or any other authority or person, caused by facts attributable to the TENANT ;

9.07.3 The TENANT enters into liquidation o closing of operations phase;

9.07.4. By Order of a Governmental Authority;

9.07.5 . Falsity in the documents or information provided by the TENANT , or in the Policy;

9.07.6. Other causes foreseen in the Applicable Law, the Concession Contract, and the Contract.

9.08. Termination of the Contract by the TENANT: The TENANT shall have the right to terminate the Contract before the term, due to any of the following causes:

9.08.1. Default on the obligations of OPAIN for more than 10 consecutive days.

9.08.2. Dissolution and/or liquidation of OPAIN ;

9.08.3. By Order of a Governmental Authority;

9.08.4. Falsity in the documents or information provided by the OPAIN ; and

 

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LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

9.08.5. Other causes foreseen in the Applicable Law, the Concession Contract, and this Contract.

9.09. Unilateral Termination of the Contract by the TENANT: The TENANT shall have the right to terminate the contract unilaterally and in advance by giving six a 6 months prior notice to OPAIN , provided that the TENANT pays OPAIN , as a compensation, the amount equivalent of 3 months worth of the Consideration, calculated taking into account the average of the last 3 billed months.

9.10. Notice and Effects of the Termination of the Contract : In order for contract termination to be effective on the grounds of Clause 9.08, 9.09 and 9.10, the Party requesting termination on the Contract shall send written notification exposing the reasons for said termination. In the event of Contract termination because of the causes established in Clauses 9.08, 9.09 and 9.10, the TENANT shall return the property in the same conditions as it received it, in accordance with the provisions of this Contract and the Applicable Law, within the 30 calendar days after the judicial or extra-judicial restitution request.

9.10.1 . The TENANT shall pay all due amounts to OPAIN , including the Penalty Clause and the Consideration installments, as well as all utilities bills caused from the date on the Certification of Commencement Adaptation Works until the termination of the Contract date, within the next thirty (30) days after the termination of the Contract date.

9.11. Non-monetary sanctions : In the event of failure of any of the obligations of the TENANT established in paragraph 8.01.1, 8.01.3, 8.01.8, 8.01.19, 8.01.20, 8.01.23, 8.01.25 of the Contract persisting for more than 10 calendar days, without prejudice of other agreed sanctions in this CONTRACT or established in the Applicable Law, prior the admonition established in Clause 9.08.1, OPAIN shall have the right to: (i) terminate the Contract; (ii) revoke all access permits granted to the TENANT , its employees and subcontractors; and (iii) inform the users and/or security authorities of the Airport that the TENANT is no longer authorized to use the Premises nor enter the restricted areas of the Airport.

9.12. Penalty Clause : In the event of failure to comply with the obligations of the TENANT set forth in paragraphs 8.01.1, 8.01.24, 8.02.4 of this Contract, except for the monetary obligations such as the monthly monetary Consideration established in this Contract, the TENANT shall pay OPAIN , as a Penalty Clause, an amount corresponding to one (1) year of installments, once the TENANT is required to comply with its obligations and the term established in clause 9.08.1 has expired without solving the failure. Payment of the penal clause does not exempt the Parties from fulfilling the obligations derived from this Contract.

9.13. Contract Settlement: The Termination Document must be signed in order to proceed with the final verification of accounts relating to the present Contract and subsequent final settlement.

9.13.1. The final verification of accounts relating to the present Contract shall be carried out in a term that is no longer than 15 calendar days calculated from the termination notice date send by the Party requesting the Contract termination, or from the expiration date of this Contract

9.13.2. In order to sign the Termination Document, the Parties shall settle the certain, particular and demandable benefits due to each other, which shall appear in said document.

9.14. Default Interests: In the event any of the Parties fail to comply with any of its obligations consisting of paying an amount of money under this Contract, the breaching Party shall recognize and pay the other default interest calculated at the highest current legal rate.

 

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LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

10. TERMINATION BY MUTUAL AGREEMENT:

10.01. Premises Restitution: The Parties may concur on the termination of the Contract before the agreed term in the event OPAIN requires the whole or a portion the Premises, in order to carry out works to fulfill the Concession Contract. This kind of Termination shall be applicable provided that, along with the procedure described below, the aforementioned works have such a character that prevent the complete and permanent normal use of the leased area, and that the works make the TENANT to permanently stop using the leased area. In addition to this, the Parties acknowledge beforehand that this clause shall not be applicable in the event of works that don’t demand returning the property, without prejudice of the provisions of paragraph 3.07, Clause 3 of this Agreement. In order to implement this form of termination, the procedure below shall be followed:

(i) OPAIN shall inform the TENANT about the necessity of taking back the Premises and shall propose a substitute area in the Airport, which shall be appropriate for the TENANT’S operation.

(ii) The TENANT shall inform OPAIN if the proposed area complies with reasonable purpose and operational conditions to move its operation. Said conditions shall be the same or better than those offered in the Premises.

(iii) If the TENANT does not accept the offered area to move its operation, OPAIN shall offer the TENANT another area that complies with the minimum requirements requested by the TENANT , if such area existed.

(iv) Only if OPAIN and the TENANT concur on a satisfactory area for the TENANT , the Parties shall sign a new lease contract that maintains equivalent conditions to the agreed in this Contract regarding duration and price. Regarding price, the Parties shall agree that it will only be required from the day the TENANT begins exploitation in the new area, so no compensation will be caused or paid during the time it takes the TENANT to adapt the new area.

11. RESTITUTION OF LEASED AREAS

11.01. Premises Restitution : When this Contract is terminated for any cause, the TENANT shall hand over the Premises to OPAIN , personally o to whom OPAIN authorizes to receive it, according to the Certification of Commencement of Adaptations Works, without prejudice of the provisions of Clause 4.034 regarding improvements, which shall be property of AEROCIVIL, committing itself to present the fully paid utility invoices. Concerning the utilities pending for revision, the TENANT guarantees its payment through proportional provision equivalent to the average of the preceding year, according to the respective invoices.

12. MISCELLANEOUS

12.01. Inspection ; OPAIN , directly or through the person it appoints, at any time and when it deems convenient, shall have the right to inspect the way the TENANT is performing the Contract and shall request information and the correcting measures OPAIN deems necessary, unless the information is considered confidential by the TENANT . OPAIN shall give prior notice of two (2) calendar days before the inspections, which shall not interfere with the commercial activities of the TENANT or present inconvenience to its customers and employees. The TENANT understands and accepts that the exercise of this faculty by OPAIN does not imply exoneration of the responsibility of the TENANT respecting its obligations established in this Contract .

12.02. Liability: The TENANT is liable before OPAIN and third parties for the damages to people and property that the personal under its surveillance might directly cause resulting from the deployment of its activities and, in general, the use and exploitation of the Premises, related to the development of its activities.

 

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LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

OPAIN does not take any liability for the damages or harm the TENANT might suffer because of causes attributable to third parties.

12.03. Relation among the Parties : Both the TENANT and OPAIN are independent contractors and no provision from this Agreement shall be interpreted in a sense that creates a corporation, joint venture, principal and agent relationship, nor constitutes a commercial agency. Under no circumstances OPAIN shall act as agent or representative of the TENANT .

There is no employment relationship between OPAIN and the TENANT’S employees. The TENANT acts independently, as the verified employer of its staff, with technical and administrative autonomy, thus, there is no employment relationship or subordination with OPAIN; therefore the TENANT is responsible for all the expenses of hiring workers and subcontractors, as well as payment of wages, transportation, travel allowances, any kind of social benefits, or any other compensation that according to employment law, employment contracts, deals and collective labor agreements said workers and subcontractors have or might have the right to.

12.4. Identification of the TENANT’S staff : The TENANT shall process and obtain the identity card or sticker that identifies its employees or subcontractors as part its staff, following the identity card issue procedures established by OPAIN . To this effect, the TENANT shall provide OPAIN the list of employees and subcontractors requiring access to the restricted areas, with at lest 5 business days beforehand. Once the respective employee or subcontractor ceases operations, the TENANT shall return to OPAIN the identity card and credentials obtained for every employee or subcontractor, and OPAIN shall suspend the respective access to the restricted areas.

12.5. Confidentiality : The Parties shall maintain in absolute confidentiality all documents or information received from the other Party during the performance of this Contract, and therefore shall not disclose said information without prior written consent from the other Party, except for judicial decision, during the term of the Contract and the 5 subsequent years after its termination. Confidentiality shall not apply to the following events: (i) when at a latter time the information becomes available to the general public for a reason different to the failure to comply with the Confidentiality obligation of this clause; (ii) when the information was already known by the receptor and they may demonstrate this by documents or other proofs showing this; (iii) when the information is known by the receptor due to causes outside the control of the Parties; (iv) when the information is prepared by or in behalf of the disclosing Party without involving confidential information of the other Party; (v) when the information is revealed by request of a competent governmental authority or applicable law disposition; and (vi) when OPAIN requires the statistical and commercial information provided by the TENANT relating to the activity carried out by the TENANT and authorized by virtue of this Contract, in order to process and disclose its own data and statistics about the different commercial areas of the Airport. Opain guarantees the information it may use is related to the normal operation of the industry the TENANT belongs to, and shall not wrongfully disclose privileged or reserved information, those relating to its financial statements and/or its income level.

Without prejudice of the aforementioned provision, the TENANT may share, with ought previous consent, the existence of this Contract or the information it contains or any other additional information obtained due to its signing or during its validity, with any of the companies the TENANT controls or those which act as its controllers or those that are under joint control of any of them, including the executives, directors, legal and financial counsels, underwriters, and/or insurers of each of them.

 

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LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

12.06. Settlement of Disputes : : In the event of a dispute between the Parties under this Agreement and/or its annexes during its deployment or performance, the Parties agree on the following settlement procedures:

1. Direct Negotiation:

The Parties shall resort to direct-settlement procedures, for which any of them may give written notice to the other about the existence of a dispute, and the other shall respond in written in a term of ten (10) business days, expressing its position about the dispute and a brief presentation of the alleged reasons.

The Parties shall meet up through their legal representatives or whom they appoint, to try to resolve the dispute, within a term of fifteen (15) business days after the date of dispatch of the communication.

All negotiations between the Parties shall be confidential, thus all information disclosed by a Party to the other in the course of negotiations may not be used as evidence in court or arbitration proceedings, unless said information was already public or could be accessed directly by the other Party.

If the Parties can’t directly resolve the dispute by the end of a thirty (30) business days period, counted from the date of the initial communication, the provisions established on the following paragraph shall apply:

2. Arbitration: If the Parties couldn’t settle the dispute in the previous stage, any of them shall submit the dispute to the Arbitration and Conciliation Center of the Chamber of Commerce of Bogota for binding arbitration, and appoint by agreement of the Parties three (3) arbitrators from the “A” list of eligible arbitrators, in a period of five (5) days. If such appointment is not possible the arbitrators shall be appointed by the Arbitration and Conciliation Center of the Chamber of Commerce of Bogota to the request of any of the Parties. The decision shall be based on Law.

The appointed arbitrators shall inform the Parties, within the next five (5) working days following their notice, if they accept or reject the appointment. If they remain silent it shall be understood that they do not accept. If an arbitrator does not accept, renounces, dies or becomes disabled, he shall be replaced by the same means used to his appointment.

The arbitral tribunal shall rule on the controversy based on Law, and the defeated Party shall pay the cost of the arbitration.

12.07. Taxes: Each Party shall be responsible for any direct or indirect tax or cost, national, local or municipal which is attributable to it in connection with the performance, fulfillment or authentication of this Contract. Each Party shall be responsible of complying with all applicable tax regulations because of its activity.

12.08. Entire Contract and prevalecence : This Contract, including its Annexes, set forth the entire agreement between the Parties as to the subject matter hereof, and supersedes all prior agreements concerning the same matter.

12.09. Amendments : All amendments, additions and clarifications to this Contract shall be valid only if they are in written form and duly signed by the legal representatives of the Parties.

12.10. Domicile : For all legal purposes the contractual domicile is the city of Bogota D.C.

12.11. Governing Law : Colombian Law shall govern the performance, interpretation, enforcement and dispute resolutions connected with this Contract.

 

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LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

12.12. Notices : Except in the case that there has been a different agreement in the present contract, all notices or communications required or allowed by under this Contract shall be made in written form, personally delivered and/or send by fax machine and/or electronic mail to the following addresses:

 

In the case of the TENANT:
To the attention of:        -Legal Representative.
Address:    Av. El Dorado Cll. 26 No. 59-15, Bogota D.C., Colombia
Telephone:    +571 5877700 ext. 2552
Fax:    +571 5877700 ext. 2552
Email:    notificaciones@avianca.com
In case of OPAIN:   
To the attention of:    -General Manager
Address:    Calle 26 No. 103-09, Edificio Cisa, Bogotá D.C., Colombia
Telephone:    +571 4397070
Fax    +571 4135104
Email:    jpulido@eldorado.aero

Communications shall be deemed as delivered: (i) the next business day following its remission, if it is a personal delivery; (ii) the third business day following its mailing, if the remissions were made by registered mail or a similar source with acknowledge of receipt; (iii) the next business day, if it was send by fax or email, provided the sending machine produces receipt confirmation or that there are reasonable proofs to demonstrate the message has been received.

12.13. Expenses: The expenses resulting from the performance of this Contract shall be borne by the TENANT .

12.14. Counterparts: This Contract is simultaneously signed in counterparts on 17 October 2012, each of which shall be deemed to be an original.

 

Signed for and on behalf of

OPAIN

  

Signed for and on behalf of

The TENANT

(Illegible signature)    (Illegible Signature)
JUAN ALBERTO PULIDO ARANGO    FAVIO VILLEGAS RAMIREZ
General Manager    Legal Representative
OPAIN    AEROVÍAS DEL CONTINENTE
   AMERICANO S.A. AVIANCA

 

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LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 1

Certification Of Commencement Of Adaptation Works

We, the undersigned: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Adaptation Works of the Lease Contract No. OP-DC-CA-T2-0060-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: In accordance to Clause 5.04 of the Contract the prior conditions required were established for the signing of the Certification of Commencement of Adaptation Works set forth in order to begin the Adaptation Stage given that the Parties have met the prior conditions to give way to this Stage of the Contract.

SECOND: The Parties, with the intention to begin the Stage of Adaptation Works,

AGREE AS FOLLOWS

FIRST : Through this Certification of Commencement of Adaptation Works, OPAIN grants access to the TENANT to the Premises from October 22, 2012, in order to begin the necessary works in the Premises, in accordance with the provisions set forth in Chapter 6 of the Contract.

SECOND: Through Annex 1 of this Certification of Commencement of Adaptation Works, the inventory of the conditions of the Premises on the date of endorsement of this Certification is duly signed.

THIRD: Starting October 22, 2012 the TENANT shall begin with the performance of the Stage of Adaptation Works following the provisions of Chapter 6 of the Contract.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., December 19, 2012.

 

Grantor    Grantee
(Illegible signature)    (Illegible Signature)
JUAN ALBERTO PULIDO ARANGO    ELISA MURGAS DE MORENO
General Manager    Legal Representative
OPAIN    AEROVÍAS DEL CONTINENTE
   AMERICANO S.A. AVIANCA

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

Good afternoon,

On 21 February 2013, the observations made to AVIANCA’S VIP Room on February 14, 2013 were considered for a second time. Participants on behalf of OPAIN consisted of members from the Development Department, the Maintenance Department, the HSEQ Department, the Firefighting Department and Commercial Management.

The following observations were made according to the joint revision carried out with AVIANCA:

 

   

The “as built” plans, Maintenance Plans, and Retie Certification are all pending delivery from the Maintenance Department is pending to

 

   

Check jointly with OPAIN and CCND the rail of the emergency exit of the Diamond Room (it will be check).

 

   

The black-out and an element to prevent objects from falling in the Diamond Zone storage area are pending installation from the Development Department is pending.

 

   

The pipes over the air conditioning are approved with the condition that they may be moved at the moment OPAIN request so.

 

   

The cold rooms issue is pending installation and general revision by the Fire Department and the Maintenance Department.

 

   

A smoke detector must be installed in the cold room.

 

   

The glass window in the interior façade presents movement; it needs to be fixed to prevent so.

 

   

The handicap support rails are not installed in all of the AVIANCA’S VIP Room bathrooms according to the revision made by the Department of Development.

 

   

A sprinkler is missing in the handicap bathroom.

 

   

A sprinkler should be retired from the showering zone of the Diamond Zone.

 

   

Install the ventilation grille in the broom room of the Diamond Zone. The Tenant committed itself to this.

 

   

The perimeter glass behind the volumes on the sides of the Diamond Area is incomplete. The Tenant committed itself to this.

 

   

The rail on the staircase has not been installed, and the staircase in not illuminated.

 

   

In the East side of the Diamond Room the butt of the border of the metallic plate is missing.

 

   

The access to the counter shall be extended (OPAIN is going to check on the matter.)

 

   

The extinguishers are pending location.

 

   

There is no evacuation route, which shall be provided in order to begin with its functioning.

 

   

The directory of the lighting circuit board and electric outlets is pending update, according to the Maintenance Department concept on the Diamond Room.

 

   

Locate a 3700 grs. extinguisher in the outdoor area and a smoke detector in the indoor area of the technical room of the Diamond Room.

 

   

Give complete coverage to the pipeline in the reception of the Gold Zone.

 

   

Installation of the stretcher and firs-aid kit is missing in the indicated places.

 

   

In the family room, the service door should read: “No exit/No salida”.

 

   

The Maintenance Department informs that the cables in the measure box are short-circuiting.

 

   

The butts of the cables of the measure system in the main room are missing. The materials located in the technical rooms shall be removed.

 

   

The assistance rails in all the handicap bathrooms are missing, including in the showers.

 

   

The metallic perimeter butt against the plate is missing.

 

   

The evacuation signs in the general room are missing.

 

   

The alarm activator (Emergency Manual Station) shall be locate where is visible from all angles.

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

   

The work zone signs (2 emergency doors) and evacuation route are missing.

 

   

The bridge’s lintel and cover are still installed out of the approved designs. The aesthetic impact of this element shall de determined in order to decide how should the Tenant proceed on this matter.

 

   

The firefighter network in the room shall be connected to the Airport’s network, in a term no longer than eight days counted from the date on the Partial Certification of Satisfactory Receipt of the Works.

 

   

The smoke detectors must be installed and connected to the Airport’s system in a term no longer than 30 days counted from the date on the Partial Certification of Satisfactory Receipt of the Works.

 

   

The firefighter network, the detection system and the location of extinguishers, stretchers and first-aid kits shall be registered in a plan, which shall be delivered on February 25 2013.

Given the aforementioned, the Maintenance, HSE, Development, Firefighting and Commercial Departments decide that the partial satisfactory handover of the works in the VIP Room it is not feasible. However, Avianca shall comply with the term established in the Certifications of Satisfactory Receipt of the partial works and complete the observations presented in this document.

Greetings,

Shirley Orrego

Interim Commercial Manager

OPAIN S.A.

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 2

Certification Of Commencement Of Commercial Exploitation

We, the undersigned: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Commercial Exploitation of the Lease Contract No. OP-DC-CA-T2-0060-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: Clause 6.04 of the Contract set forth the preliminary conditions required to sign the Certification of Commencement of Commercial Exploitation, in order to begin with the Stage of Commercial Exploitation.

SECOND: The Parties express that they have willingly agreed on beginning the Stage of Commercial Exploitation along with the corresponding obligations to said stage, starting February 25, 2013.

The Parties, with the intention to begin the Stage of Commercial Exploitation, the Parties

AGREE AS FOLLOWS

FIRST : Provided the signage by the Parties of the Partial Certification of Satisfactory Receipt of the Works on February 22 2013, and the fulfillment of other conditions to endorse the Certification of Commencement of Commercial Exploitation, the Parties state that at the time of signature of this document an inspection walk around of the premises has been carried out, finding that the works comply with the provisions of Annex 5 of the contract and the Certification of Partial Satisfactory Receipt of the Works, therefore OPAIN hands over, and the TENANT receives, the Premises, in order to start the Stage of Commercial Exploitation beginning February 25 4 2013.

SECOND: With the signing of this Certification of Commencement of Commercial Exploitation the Parties formalize the performance of the Stage of Commercial Exploitation, beginning February 25 2013.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., 13 March 2013.

 

Delivers,    Receives,
(Illegible signature)    (Illegible Signature)
JUAN ALBERTO PULIDO ARANGO    ELISA MURGAS DE MORENO
General Manager    Legal Representative
OPAIN    AEROVÍAS DEL CONTINENTE
   AMERICANO S.A. AVIANCA

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 2

Ginna Pauline Cortes Agudelo

 

From:    LUIS FERNANDO GONZALEZ CAMERANO ( luis.gonzalez@aviancatca.com )
Send:    Thursday, 21 February 2013, 8:41 pm.
To:    Ginna Pauline Cortes Agudelo; Shirley Patricia Orrego Zapata; Alberto Andres Moros Bayona; Juan Guillermo Palacio Ortega
CC:    RAUL ACEVEDO GAMARRA; ELVIRA CIVETTA DIAZ; CESAR ANDRES ACOSTA REY; IVAN DARIO ORTIZ CHAPARRO; Juan Camilo Ochoa, Nicolás Días; JUAN NICOLAS MORALES SUAREZ
Subject:    VIP room contingency Plan

Importance: High

Good evening, according to what was agreed upon during this afternoons delivery and taking into account the difficulties with the fire detection matters, due to the lack of timely response and elements provided by the authorized firm, Johnson Controls, we are presenting the contingency plan for the receipt of the areas while the RDI system demanded by Opain is definitely installed.

CONTINGENCY PLAN FOR AVIANCA’S VIP EDR ROOM

DETECTION:

 

  1. Provisional portable detectors will be installed en the areas lacking of these devices, in order to guarantee a timely warning sign in case of threat of fire, while the Johnson Controls finishes the RDI works.

 

  2. Emergency staff (equipped with Avantel devices and emergency numbers provided by Opain) will permanently be present in the area in order to guarantee compliance with the safety protocols in case a threat should arise.

EXTINCTION

 

  1. Avianca carried out the installation of the network according to the approved designs, however, we have not been able to connect to the main network, waiting for authorization from OPAIN.

 

  2. Additional clean agent extinguishers will be installed to those already delivered in the premises, while the final connection to the RCI is feasible.

Taking into account that the priority is guaranteeing safety for the people, these actions will be ready on Sunday, February 24, and shall be verified by OPAIN’S staff. We think the RDI will be completed in 30 days from the date on commencement of works, according to the timetable established by Johnson Controls or beforehand if it is possible.

Kind regards,

luis.gonzalez@aviancataca.com

Avianca

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 3

Partial Certification Of Satisfactory Receipt of the Works

We, the undersigned: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Commercial Exploitation of the Lease Contract No. OP-DC-CA-T2-0060-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: In accordance with the Adaptation Works Stage established in Chapter 6 of the Contract, the TENANT partially handed over the works as stated in Annex 1 of this Partial Certification Of Satisfactory Receipt of the Works.

SECOND: The partial performance of the Works by the TENANT fulfills the designs and specifications of the project approved by OPAIN .

THIRD : Copy of the record plans and their Autocad file version is attached to this Partial Certification Of Satisfactory Receipt of the Works.

FOURTH : In compliance of Clause 6.03.4 of the Contract, OPAIN carried out the inspection of the adaptation Works, and these were partially approved, as appears in Annex 1 of this Partial Certification Of Satisfactory Receipt of the Works.

FIFTH : The TENANT shall conclude the works in a definitive manner, as stated by the observations of Annex 2 of this Partial Certification Of Satisfactory Receipt of the Works

The Parties, according to the aforementioned,

AGREE AS FOLLOWS

FIRST : The adaptation Works corresponding to the Stage of Adaptation Works of the Contract and the record plans or “as built” plans have been in part satisfactorily received by OPAIN, according to the provision and requirements of the Contract, and in the manner established in Annex 1 of this Partial Certification Of Satisfactory Receipt of the Works.

SECOND: The TENANT is bound to definitely complete the observations and missing elements established by Annex 2 of this Partial Certification Of Satisfactory Receipt of the Works, no later than 4 p.m., March 25, 2013

PARAGRAPH 1 : In the event the TENANT breaches the preceding Second Agreement, OPAIN shall immediately terminate the Contract, additionally producing the effects provided by the applicable law and the contractual provisions, such as fines, penal clause and non-monetary sanctions.

THIRD : Provided the TENANT fulfills with the preceding Second Agreement, the parties shall sign the Definitive Certification Of Satisfactory Receipt of the Works not later than March 25, 2013.

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., 13 March 2013.

 

Delivers,    Receives,
/s/ JUAN ALBERTO PULIDO ARANGO    /s/ ELISA MURGAS DE MORENO
JUAN ALBERTO PULIDO ARANGO    ELISA MURGAS DE MORENO
General Manager    Legal Representative
OPAIN    AEROVÍAS DEL CONTINENTE
   AMERICANO S.A. AVIANCA

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 4

The Premises

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 5

Design and Technical Specifications of the Premises Handover/Delivery

 

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 6

Adaptation/Remodeling Procedure and Space Holder Maintenance

 

 


LEASE CONTRACT No. OP-DC-CA-T2-0060-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 7

Procurement Transparency Protocol

 

Exhibit 10.2.1

LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

LEASE AGREEMENT DATED OCTOBER 29, 2012, BETWEEN OPAIN S.A.

AND AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

TABLE OF CONTENTS

 

1. INTERPRETATION AND DEFINITIONS

     3   

1.01. Interpretation

     3   

1.02 Definitions

     3   

2. WHEREAS

     4   

3. PURPOSE

     5   

3.01. Purpose

     5   

3.02. Term

     5   

3.03. Consideration

     5   

3.0.4. Invoicing

     5   

3.05. Method of payment

     5   

3.06. Non exclusivity

     5   

4. THE PREMISES

     6   

4.01. The Premises

     6   

4.02. Use

     6   

4.03. Receiving Possession / Condition of the Premises

     6   

4.04. Improvements

     6   

5. PRELIMINARY STAGE

     6   

5.01. Term

     6   

5.02. Obligations of the TENANT relating to the Preliminary Stage

     6   

5.03. Obligations of OPAIN relating to the Preliminary Stage

     7   

5.04. Conditions to sign the Certification of Commencement of Adaptation Works

     7   

6. Adaptation Stage

     7   

6.01. Term

     7   

6.02. Obligations of the TENANT relating to the Adaptation Stage

     7   

6.03. Obligations of OPAIN relating to the Adaptation Stage

     8   

6.04. Conditions to sign the Certification of Commencement of Commercial Exploitation

     8   

7. COMMERCIAL EXPLOITATION STAGE

     9   

7.01. Term

     9   

7.02. Obligations of the TENANT relating to the Commercial Exploitation Stage

     9   

7.03. Repairs and Improvements

     9   

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

8. OBLIGATIONS OF THE PARTIES APPLICABLE TO ALL STAGES OF THE AGREEMENT

     9   

8.01. Obligations of the TENANT

     9   

8.02. Obligations of the TENANT relating to the Environmental Regulations

     11   

8.03. Obligations of OPAIN

     11   

8.04. Indemnity

     12   

9. SPECIAL PROVISIONS

     12   

9.01. Utilities

     12   

9.02. Civil Non-Contractual Liability Policy

     12   

9.03. Compliance Policy

     13   

9.04. Lease Assignment

     13   

9.06. Risks of the TENANT

     13   

9.07. Conformity with the Procurement Transparency Protocol of OPAIN

  

10. UNFULFILLMENT AND TERMINATION GROUNDS

  

10.1. Termination of the Contract by OPAIN

  

10.02. Termination of the Contract by the TENANT

  

10.03. Effects of the Termination of the Contract

  

10.04. Non-monetary sanctions

  

10.05. Penalty Clause

  

10.06 Contract Settlement

  

10.07 Moratorium interests

  

10.08 Termination By Mutual Agreement

  

11. LEASED AREAS RESTITUTION

     16   

11.01. Premises Restitution

     16   

11.02. Premises Exchange

  

12. MISCELLANEOUS

     16   

12.01. Inspection

     16   

12.02. Liability

     16   

12.03. Relation between the Parties

     16   

12.4. Identification of the TENANT’S staff

     17   

12.5. Confidentiality

     17   

12.06. Settlement of Disputes

     17   

12.07. Taxes

     18   

12.08. Entire Contract

     18   

12.09. Amendments

     18   

12.10. Domicile

     18   

12.11. Governing Law

     18   

12.12. Notices

     18   

12.13. Expenses

     19   

12.14. Counterparts

     19   

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

LEASE CONTRACT ENTERED INTO OCTOBER 29 2012, BETWEEN OPAIN S.A. AND AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

This lease Contract (as amended or supplemented from time to time by mutual agreement between the parties, including its annexes, the “Contract”) is entered into on 29 October 2012 by and between (i) Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“ OPAIN ”); and (ii)  AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), collectively referred to as “ The Parties ”.

1. INTERPRETATION AND DEFINITIONS

1.01. Interpretation: For the purposes of this Contract, unless otherwise expressly stated, the terms in capitals herein used shall have the meaning granted to those terms in Clause 1.02 stated below. Technical and scientific words that are not expressly defined in this Contract shall have the correspondent meaning according to their respective technic or science area and the rest of the words shall be understood in their natural an obvious sense, according to their general use. Titles in the respective Clauses are included for reference and convenience purposes but in no way limit, define or describe the scope of this Contract and are not considered part of it.

1.02 Definitions: The following definitions are established for the purposes of this Contract, which shall have the meaning stated below, whether used in singular or plural:

Certification of Commencement of Adaptation Works ”: Document to be signed by the Parties following the model of Annex 1.

Certification of Commencement of Commercial Exploitation : Document to be signed by the Parties following the model of Annex 2.

Certification of Satisfactory Receipt of the Works ”: Document to be signed by the Parties following the model of Annex 3.

Certification of Conclusion ”: Document to be signed by the Parties at the time of the Contract settlement. “ AEROCIVIL ”: The Special Administrative Unit of the Civilian Aeronautics of the Republic of Colombia.

AIRPORT ”: Eldorado International Airport of Bogota D.C.

Granted Area ”: Areas handed over to OPAIN to manage, operate, make commercial use, keep in good condition, retrofit and expand under this Lease Contract.

TENANT ”: It refers to the meaning provided in the heading of this Contract.

Governmental Authorities ”: (i) Any State or Republic, including, without limitation, Aerocivil, authorities or organizations belonging to any branch of the public power or any entity that does not belongs to them but are part of the State or Republic or who are performing activities granted by the State or Republic (including the Central Bank), administrative subdivision of said State or Republic (such as Ministries, Administrative Departments, Superintendence, Districts and Municipalities, among others) and any entity, with or without legal capacity, that is a decentralized administrative entity, by services or collaboration, of any order, that has authority to issue laws, decrees, resolutions, ordinances, rulings, judicial decrees, arbitration awards, or, in general, mandatory enforcement decisions, provided the Party to whom it is imposed is legally bound to the proceedings, as a party or as a third part; and (ii) any other public entity with authority to enforce such laws, decrees, resolutions, ordinances.,.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

Consideration ”: It refers to the meaning provided in Clause 3.03 of this Contract.

Contract ”: It refers to the meaning provided in the heading of this Contract.

Business day ”: Any day of the week that is not Friday, Sunday or a public holyday in Colombia.

Preliminary Stage ”: The stage of performance of the Contract according to Clause 5.

Adaptations Stage ”: The stage of undertaking the adaptation works of the Contract according to Clause 6.

Commercial Exploitation Stage ”: The stage of performance of the Contract according to Clause 7.

Trust ”: The FIDECOMISO OPAIN S.A – FIDUCIARIA BANCOLOMBIA S.A. trust or the trust replacing it.

Premises ”: The space defined in Clause 4.01 of the Contract.

CPI ”: The Consumer Price Index that represents their variation in Colombia, issued bye the National Administrative Department of Statistics – DANE (or the governmental authority acting as such).

Applicable Law ”: The laws, decrees, resolutions, ordinances and administrative acts applicable to the parties or, in general, the mandatory regulation.

Month ”: Each one of the twelve periods, between 28 and 31 days, the year is divided by. Said periods are: January, February, March, April, May, June, July, August, September, October, November and December.

OPAIN ”: It refers to the meaning provided in the heading in this Contract.

Parties ”: It refers to the meaning provided in the heading in this Contract.

Permits ”: The authorizations, related to the TENANT, issued by OPAIN to commence the works required during the adaptations stage.

OPAIN Plan ”: The current maintenance, operation and safety plans developed by OPAIN for the Airport, available from OPAIN upon request.

Policy ”: It refers to the meaning provided in Clauses 9.02 and 9.03.

Space Possessor Adaptation / Remodeling and Maintenance Procedure ”: The document contained in Annex 6, which defines the rules and parameters for the physical adaptations of the property.

2. WHEREAS,

2.01.1 OPAIN and AEROCIVIL signed the Concession Contract by which the administration, operation, commercial exploitation, maintenance, retrofitting and expansion of the Airport were granted to OPAIN .

2.01.2 OPAIN holds the tenancy of the Granted Area under a concession title. Because of this Contract the mere tenancy of the Property is handed over to the TENANT for its use, keeping AEROCIVL all the rights derived from its ownership.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

2.01.3 The Premises, whose tenancy OPAIN hands over to the TENANT , is part of the Granted Area.

2.01.4 In accordance with the provisions set forth in the Concession Contract, OPAIN is entitled to the commercial exploitation of the Airport arising from the performance of agreements or legal transactions that might create any kind of consideration, including, among others, this Contract.

3. PURPOSE

3.01. Purpose: By means of this agreement, OPAIN , on the date of the Certification of Commencement of Commercial Exploitation, shall hand over the tenancy of the Premises to the TENANT for the duration set forth in Clause 3.02, so the TENANT gives the Premises the use provided in Clause 4.02, prior fulfillment of the activities of the Preliminary and Adaptation Stages.

OPAIN shall provisionally hand over the Premises during the adaptations period, so it can be prepared it for its commercial destination, through a Certification of Commencement of Adaptation Works. The property shall be physically handed over to the TENANT as appears on the Certification of Commencement of Commercial Exploitation, signed by the Legal Representative Agents of each Party.

3.02. Term: The Contract shall apply from its date of signing until the due date of Month No. 23 counted from the date on the Certification of Commencement of Commercial Exploitation. This Term shall extend automatically, in a successive manner, and the Parties shall not invoke the expiration of the term to end the Contract.

In the event that OPAIN requests the Premises invoking Paragraph two (2) or three (3), Article 518 of the Commercial Code, or in the event of an order issued by a competent authority, the provisions of Clause 10.01 shall apply.

3.03. Consideration : The TENANT is bound to unconditionally pay to OPAIN the following amount (the “ Consideration ”), starting from the date on the Certification of Commencement of Commercial Exploitation, for the Tenancy of the Premises:

3.03.1 . $61,172.854.00 plus VAT for 1187.2 M2. This amount shall be readjusted every accomplished year counted from the date on the Certification of Commencement of Commercial Exploitation, with the accrued CPI between January 1 and December 31 of the immediately preceding year. The agreed readjustment in this clause shall be the only one applicable to the Consideration, even in the event of extension or renewal of the Contract.

3.0.4. Invoicing: In order to issue the invoices one shall proceed as follows:

The amount of the consideration shall be invoiced monthly in an advanced month manner.

3.05. Method of payment : The TENANT is bound to pay the Consideration as follows:

The amount of the consideration shall be paid within 5 days of receipt of the invoice issued by the Trust.

3.06. Non exclusivity: This Contract does not imply exclusivity in favor or the TENANT to develop its commercial activities. Therefore, OPAIN may lease other areas that are part of the Granted Area to whom it deems necessary to carry out the purpose of the Concession Contract, even if said third parties carry out the same activities as the TENANT and compete with the latter. OPAIN does not guarantee the TENANT minimal income for carrying out its activities in the Premises.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

4. THE PREMISES

4.01. The Premises: Is the defined and delimited area presented in Annex 4, which shall be handed over to the TENANT to use according to the provisions en Clause 4.02 below:

4 .02. Use: The Premises shall be used by the TENANT , solely and exclusively as an essential area for the TENANT’S back office for its passenger check-in counter, as established in Appendix F, Paragraph 7.1.1 of the Concession Contract No. 6000169 OK, and shall not have a different use without prior and written consent from OPAIN . The TENANT is bound to name its business establishment operating in the Premises as AVIANCA . If the business establishment requires changing its denomination, the TENANT must inform OPAIN before hand, and shall such request proceed, it must be stated in written form.

4.03. Receive / Condition of the Premises: The TENANT declares (i) pursuant to the Contract and the Certification of Commencement of Adaptation Works, it shall receive the Premises in an adequate state, completed structure, as established in Paragraph 12, Section 1.5, Appendix F of the Concession Contract, in the Premises Hand-over Design and Technical Specifications established in Annex 5 , and in accordance with the Certification of Commencement of Commercial Exploitation, which is considered part of this document, that establishes, in addition, the Premise’s inventory; (ii) that it is bound to take care of, preserve and maintain the Premises; and, (iii) that it shall return the Premises to OPAIN in the same condition described in the Certification of Commencement of Adaptation Work, except for the damage caused by the passage of time, improvement works that can be removed, and its legitimate use. The damages to the Premises caused by abuses or carelessness from the TENANT during its tenancy, shall be charged to him. Notwithstanding the provisions of this clause, the TENANT is bound to make wear and tear repairs and thus keep the Premises in the same condition as it received it, according to the Certification of Commencement of Adaptation Works, except for those that may result due to day to day use.

4.04. Improvements: The TENANT acknowledges all adaptations carried out in the Premises that have a fixed and permanent character, whatever their nature and value, shall be property of AEROCIVIL, thus, the TENANT shall not receive any reimbursement or compensation for said adaptations, whether declaratory or compensatory. Notwithstanding the foregoing, the TENANT may remove adaptations in order to leave the Premises in the same condition as it received it, according to the Certification of Commencement of Adaptation Works, I, except for those that may result deu to day to day use. Furthermore, the adaptations consisting of equipment installation and other goods that can be removed from the Premises without causing it damage, shall be taken by by the TENANT at its own expense upon termination of this Contract.

5. PRELIMINARY STAGE

5.01. Term: The Preliminary Stage shall last from the date of signing of this Contract until the date on the Certification of Commencement of Adaptation Works.

5.02. Obligations of the TENANT relating to the Preliminary Stage: During the Preliminary Stage the TENANT is bound to:

5.02.1. Constitute the Policy and hand it over to OPAIN within the 30 calendar days after signing the Contract;

5.02.2. Hand over the design, adaptation and works plan for the Premises following OPAIN’S instructions, within 30 calendar days after signing the Contract, and perform the adjustments suggested by OPAIN in a timely manner.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

5.02.3. Apply before OPAIN for the Permit, according to the applicable conditions established in Annex 6.

5.03. Obligations of OPAIN relating to the Preliminary Stage: During the Preliminary Stage OPAIN is bound to:

5.03.1. Check the design, adaptation and works plan for the Premises and works schedule provided by the TENANT , within 15 calendar days after having received them, (i) approve if they agree with them; r (ii) request the adjustments deemed necessary. In the event that OPAIN requests an adjustment or clarifications, the TENANT shall give an answer within five (5) calendar days and OPAIN shall have an additional term of five (5) calendar days to make a pronouncement on the matter. The design, adaptation and works plan and schedule shall be considered as approved if OPAIN fails to make a pronouncement within the terms aforementioned.

5.03.2. Allow the TENANT to access the Premises, so the TENANT can elaborate the plans and assess the physical and structural particularities of the Premises in order to execute the Adaptation Stage.

5.03.3. Grant the Permit to the TENANT , according to the applicable conditions established in Annex 6.

5.04. Conditions for the signing of the Certification of Commencement of Adaptation Works : The Parties shall sign the Certification of Commencement of Adaptation Works only if the following requirements are met:

5.04.1. The Policy has been constituted in a satisfactory manner for OPAIN;

5.04.2 . The design, adaptation and works plans have been approved by OPAIN;

5.04.3. The TENANT has the necessary Permits to start the adaptation works in the Premises.

5.04.4. The Premises are in suitable conditions to start the adaptation;

6. Adaptation Stage

6.01. Term: The Adaptation Stage shall last from the date on the Certification of Commencement of Adaptation Works until the date on the Certification of Commencement of Commercial Exploitation.

6.02. Obligations of the TENANT relating to the Adaptation Stage: During the Adaptation Stage the TENANT is bound to:

6.02.1. Carry out the adaptation works in a coordinated manner with OPAIN.

6.02.2 . Install in the Premises the Voice & Data Systems available in the Airport, according to the operational needs of the Premises. This installation shall only be performed pursuant to the procedures and guidelines established by OPAIN . In any event, OPAIN , directly or indirectly, shall guarantee the existence of the telecommunication services through OPAIN’S Network and Telecommunication Services Provider (ESP) of its preference.

6.02.3. Comply with the Adaptation / Remodeling and Maintenance Procedure for Space Possessors, according to the provisions in Annex 6, by which the guidelines on physical adaptations of the Premises are set forth, which must conserve uniformity with the image and architectural identity displayed in the Airport.

6.02.4. Carry out the adaptation works in a maximum period of forty-five (45) calendar days, counted from the Certification of Commencement of Adaptation Works.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

6.02.5. Allow for programmed visits and inspections in the leased property resulting from the verification process of the Retrofitting and Expansion Works that Aerocivil and the Concession Contract Auditor will perform.

;

6.02.6 . Carry out the connections to the utilities available in the Premises;

6.02.7 . Pay for the utilities available in the Premises, payment that shall be carried out to the company providing the service.

6.02.8 . Examine any request from OPAIN regarding the withdrawal of the TENANT staff and/or any of the subcontractors performing the works, with prior delivery of a communication describing the reasonable causes leading to believe the said personnel might affect the Airport´s safety, or might compromise OPAIN’S liability under the Concession Contract, annexing supporting proofs for such claims. In any event, by signing this Contract the TENANT accepts that in any moment and once the aforementioned situation is notified, OPAIN may prevent such personnel from entering the area where the works are being performed without any liability for the TENANT , who renounces to file any claim against OPAIN regarding such events;

6.02.9. Accept the regulations established in OPAIN’S Plans for the undertaking of the works, one of which is that all personnel designated to execute this Contract shall comply with the security regulations set forth by OPAIN . Also, the TENANT must comply with the Airport Security regulations, including those relating to entering the facilities and identification bearing;

6.02.10. Undertake, at his own risk and expense, one hundred percent (100%) of the total investment in the Premises that allows for the performance of the Contract; and,

6.03. Obligations of OPAIN relating to the Adaptation Stage: During the Adaptation Stage OPAIN is bound to:

6.03.1. Perform the provisional hand over for adaptations of the Premises regarding to the conditions established jointly by the Parties by agreement.

6.03.2. Cooperate with the TENANT during the adaptation works the TENANT will carry out, timely providing all the information the TENANT requires to perform under the purpose of this Contract.

6.03.4. Inform the TENANT about the utilities that will be available in the PREMISES and the authorized providers in the Airport; and

6.03.5. Inspect the adaptation works and, within 15 calendar days after being notified of their finalization by the TENANT , (i) approve the works if OPAIN is satisfied, which shall stated in the Certification of Satisfactory Receipt of the Works; or (ii) demand the adjustments deemed necessary by OPAIN . In the event OPAIN requests adjustment or clarification, the TENANT shall provide an answer within the next ten (10) calendar days and OPAIN shall have an additional term of 5 days to approve them or request further adjustments. The adaptation works shall be deemed as approved if OPAIN does not make any statements during the aforementioned term.

6.04. Conditions for the signing of the Certification of Commencement of Commercial Exploitation: The Parties shall sign the Certification of Commencement of Commercial Exploitation only if the following requirements are met:

6.04.1. OPAIN has approved the adaptation works of the Premises, tacitly or expressly;

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

6.04.2. OPAIN has informed the TENANT the Passenger Terminal is ready for a comprehensive start of operations; and

6.04.3. The TENANT begins the commercial use of the Premises for passenger assistance.

7. COMMERCIAL EXPLOITATION STAGE

7.01. Term: The Commercial Exploitation Stage shall last from the date stated in the Certification of Commencement of the Exploitation Stage until the date on the Certification of Termination of the Contract.

7.02 . Obligations of the TENANT relating to the Commercial Exploitation Stage: During the Commercial Exploitation Stage the TENANT is bound to:

7.02.1 . Deliver de Back office areas.

7.02.2. Pay OPAIN the Consideration under the conditions and amount established in this Contract;

7.02.3. Keep the Premises in an adequate condition, as received by the TENANT , according to the Certification of Commencement of Commercial Exploitation;

7.02.4. Operate the Premises in order to perform the use, for which this Contract is signed, 7 days a week, in the hours established by the TENANT according to his timetables.

7.02.5. Attempt to make sure the TENANT’S staff assisting the passengers has basic knowledge of the English language; and

7.02.6 . Make sure a fixed-point supervisor appointed by the TENANT is available in order to timely resolve any inconvenience or complain that may arise from the passengers.

7.03. Repairs and Improvements : OPAIN shall carry out only the repairs directly related to the structural elements of the Premises, produced by the passage of time, construction flaws, force majeure or acts of nature, so the TENANT is bound to carry out at his own risk and expenses the rest of the repairs, including those considered wear and tear.

The TENANT shall perform useful and voluntary improvements in the Premises, with prior written consent of OPAIN . In any event, the TENANT shall be responsible for any damage inflicted to third parties, provided there is gross negligence or willful misconduct by the TENANT , e. The aforementioned consent does not apply to the regular maintenance of the property.

8. OBLIGATIONS OF THE PARTIES APPLICABLE TO ALL STAGES OF THE AGREEMENT

8.01. Obligations of the TENANT : The following are the general obligations of the TENANT :

8.01.1 Use the Premises in accordance with the provisions set forth in this Contract;

8.01.02 . Comply with OPAIN’S Plans;

8.01.3. Pay to OPAIN the Consideration established in Clause 3.03;

8.01.4. Keep the Permits in full force, at any time.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

8.01.5. Pay OPAIN the Regulated Income at the TENANT’S charge (as defined in the Concession Contract) directly related to this agreement, in a complete and timely way, pursuing Resolution 05496, 2005, issued by AEROCIVIL, and amended by Resolution 2013, 2006.

8.01.6. Pay all utilities invoices and/or fares of the Premises, caused since the Certification of Commencement of Adaptation Works;

8.01.7. Refrain from using the Premises to hide people; deposit arms, explosives or terrorist group’s money; therefore, it is expressly and strictly prohibited to use the Premises to the ends established in section b) of the paragraph of Article 38, Decree 180, 1998, and Article 34, Law 30, 1986. Likewise, the TENANT shall not use the Premises to produce, store and sell drugs and hallucinatory substances such as marihuana, hashish, cocaine and other related, or any other illicit activity; in any event the TENANT is no responsible for third parties’ acts that for this specific case, shall be all people different to the staff of the TENANT .

8.01.8. Keep in force the Policies that Clauses 9.02 and 9.03 of this Contract refers to, for the complete duration of this lease agreement.

8.01.9. Observe and strictly comply the written instructions provided by OPAIN , inherent with the performance of this lease agreement.

8.01.10. Accept responsibility before OPAIN and third parties for all damages and harm the TENANT or any person under his supervision or care cause to people or property because of gross negligence or willful misconduct, carelessness or ignorance of the safety regulations established in the applicable laws and OPAIN’S Plans;

8.01.11 Free and relieve OPAIN from liability as established in Clause 8.04;

8.01.12. Accept responsibility for all expenses and expenditures caused during the performance of the TENANT’S activities, including those relating to any accident attributable to it.

8.01.13. Take all measures required to take care of any accident that may occur while performing its activities and prevent the occurrence of new accidents. Furthermore, the TENANT is bound to adopt the applicable preventive and corrective measures in order to avoid that the accident occur again, or to prevent the damage to extend or worsen the situation;

8.01.14. Notify OPAIN immediately about any misappropriation, disturbance, encumbrance, loss of tenure, imposition of easement rights that any person attempts on the Premises, wear and/or flaw in the Premises that OPAIN must repair;

8.01.15. Refrain from introducing in the Premises or the Granted Area inflammable substances, explosives, pollutants, hallucinogen substances, or any other element that might threaten the integrity and security of the Airport or its users. Without prejudice of the foregoing, OPAIN may grant express authorization to introduce these substances, in the event the activity of the TENANT requires it;

8.01.16. Address the complaints and claims received through OPAIN, relating to the condition of the Premises or to flaws in the quality of the service provided by the TENANT . The TENANT must resolve these complaints and claims within the next 10 workdays after notification from OPAIN .

8.01.17. Comply with the Airport’s solid waste management rules, according to the Environmental Plan.

 

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8.01.18. Ensure that the TENANT , its stockholders or people part of the economic group (if it exists) it belongs to, (i) are not part of the executive list of the OFAC (Office of Foreign Assets Control of the Department of Treasury of the United States of America), (ii) have not been condemned for crimes against property, money laundering and/or illicit enrichment, and (iii) expired ownership has been declared upon their properties in accordance to the Applicable Law;

8.01.19. Assess the recommendations provided by all entities regulating International Civil Aviation, and allow the development of the campaigns to inform passengers about these recommendations.

8.01.20. Refrain from granting access to personnel to other areas different to the leased ones, without bearing the identification that authorizes them to transit these areas.

8.01.21 . Comply with the Airfields Regulations and the dispositions established in the Local Airport Safety Plan;

8.01.22. Refrain from exhibiting external advertisements in the Premises, excluding the Establishment Sign, which must be approved by OPAIN within 5 business days, counted from the receipt of the request from the TENANT .

8.01.23 . Refrain from using the name, brands or logos of OPAIN associated to the Airport, unless there is written consent from OPAIN .

8.01.24. Refrain from performing any action or omission that, because of its nature, might represent or cause a security threat in the Premises, the Airport or to the air operation;

8.01.25 . Deliver and/or pay to the Trust the amount stated by this Contract, according to the instructions of OPAIN and/or the Trust; and

8.01.26 . Fulfill the rest of the obligations derived from this Contract and the Applicable Law.

8.02. Obligations of the TENANT relating to Environmental Regulations . The TENANT shall always fulfill the applicable provisions of the Environmental Plan, as well as the obligations below, and shall take all the necessary measures to protect the environment;

8.02.1. Prepare any document necessary to comply with the Environmental License (as per the definition established in the Concession Contract), where applicable;

8.02.2. Notify OPAIN immediately regarding any breach relating the Environmental Regulation, as well as any claim alleged by the environmental control and monitoring agencies, or any contractual breach relating to the fulfillment and performance of the obligations derived from the Environmental Obligations; and

8.02.3 . Comply with the corrective plans pointed out by OPAIN , AEROCIVIL and/or the control and monitoring agencies, regarding the breaches or threats that may arise, associated with the Environmental Regulations.

8.03. Obligations of OPAIN : The following are the general obligations of OPAIN :

8.03.1. Hand over the tenancy of the Premises to the TENANT , under leasehold title, from the date stated in the Certification of Commencement of Commercial Exploitation.

 

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8.03.2. Allow the access to the Premises to the TENANT’S staff duly identified with the identity card issued by OPAIN , in accordance to the instructions provided by OPAIN .

8.03.3. Free and relieve the TENANT from liability as established in Clause 8.04;

8.03.4. Fulfill the rest of the obligations derived from this Contract and the Applicable Law.

8.04. Indemnity : Each Party shall Free and relieve the other Party and its subsidiaries, affiliates, headquarters and their respective stockholders, executives, employees, agents, successors, assignees, trusts or any other party, against all liabilities, damages, demands and claims caused to properties, lives, or personal integrity of a Party, its employees, agents or subcontractors, or any third party, directly or indirectly arising from incidents, actions or omissions of one of the Parties, its employees, agents, subcontractors, during the performance of this Contract.

8.04.1. Each Party will immediately inform of any claim or action that is instituted against any of the Parties Party relating to this Contract, as soon as they are aware of it. In this event, the Party shall provide all the necessary collaboration and provide any document or information it has that might be considered as useful.

8.04.02 . The indemnity obligation established in this Clause shall outlast the termination of this Contract and shall have effect for a term of 5 years after the date of termination of this Contract.

9. SPECIAL PROVISIONS :

9.01. Utilities : During the validity of this Contract, the TENANT commits to fulfill the payment of all invoices and/or fare of the utilities of the Premises generated since the date stated by the Certification of Commencement of Adaptation Works.

9.01.1. OPAIN reserves the right to request that the TENANT hand over the invoices as evidence of payment of the utilities.

9.01.2. The claims relating to the proper provision or invoicing of the aforementioned utilities, shall be directly settled by the TENANT before the respective service provider.

9.01.3. If as a result of non-timely payment of the utilities the respective company suspends, removes the electric power service or telephone line services, the TENANT be responsible for the payment, at its own expense, of the related interests as well as reconnection expenses.

9.01.4 . This Contract, along with the invoices paid by OPAIN, constitutes an enforcement order to judicially collect from the TENANT and its guarantors; the utilities the TENANT refrained from paying.

9.02. Civil Non-Contractual Liability Policy : The TENANT commits to procure a Civil Non-Contractual Liability Policy (the “Policy”) with a legally established Colombian insurance company, which is deemed as acceptable by OPAIN, with the following conditions:

Taker: THE TENANT

Policy Holders : OPAIN S.A. NIT 900.105.860-4, FIDUCIARIA OPAIN S.A.-FIDUCIARIA BANCOLOMBIA, NIT 830.054.539-0, and the TENANT.

Beneficiaries : Damaged Third Parties.

Protection and Validity : The validity of this protection shall be annual.

 

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Insured Value: The Policy shall have an insured value equivalent to Sixty Million Pesos ($60.000.000). The contracted coverture shall be full (100%) basic protection (land, labor and operations) per event, plus the annual accrued, medical expenses 10% per event and 20% for the annual accrued, contractors and subcontractors to full extend (100%), own and third parties’ vehicles 10% per event and 30% validity, employer 25% per event and 50% for the annual accrued. All protections have a deductible charge of 10% of the loss value that the TENANT shall assume, minimum 5 Monthly Legal Wages.

9.02.1. The issuing of the Policy does not exempt the TENANT of its obligation of indemnifying OPAIN for all the damages arising from the unfulfillment of this Contract.

9.02.2. The TENANT shall replace the Policy when its value is affected for whatever reason. Said replacement shall be performed within the next 10 calendar days after using the initial insured value for the occurrence of an incident. In the event the Policy is called upon, the TENANT shall pay the deductible. The Policy is an accessory and shall be taken without prejudice of all obligations derived from the same

9.03. Compliance Policy : A policy to ensure the compliance of the obligations derived from the signing of this Contract, including, but not limited to, those related to payments on its charge, with the following characteristics:

Taker and Secured Person : The TENANT.

Beneficiaries: OPAIN S.A. NIT 900.105.860-4, FIDUCIARIA OPAIN S.A.-FIDUCIARIA BANCOLOMBIA, NIT 830.054.539-0.

Protection and Validity: The validity of this protection shall be annual.

OBSERVANCE : Observance of all obligations taken by the TENANT while entering the corresponding Contract, for an amount equivalent to thirty percent (30%) of the annual value of the Contract, which is the result of multiplying the Consideration by twelve.

The validity of this protection shall be annual. In any event, this policy shall be valid throughout the performing term of the agreement plus four (4) months.

9.04. Lease Assignment: It shall be governed in accordance with the provisions of article 23, Code of Commerce, Goodwill : The TENANT expressly waives the right to demand any amount corresponding to “commercial premiums”, “Goodwill” or any denomination used in the market, that indicates an improvement of the Premises as a lease unit at the termination of this Contract. Therefore, the TENANT waives any right to demand OPAIN or AEROCIVIL any amount for that reason during the validity of the Contract, or in case the relocation of the Premises is necessary at any time of the performance of the Contract and/or its termination.

9.06. Risks of the TENANT : The TENANT takes on the risks derived from the performance of the Contract, particularly those relating to changes in the passenger flow, sales percentage and operative and management changes that take place in the Airport due to the Concession Contract. Thus, the TENANT exempts OPAIN from any responsibility relating these matters, as OPAIN does not guarantee nor taken on any obligation before the TENANT to ensure passenger flux, percentage of sales percentage or the non-occurrence of operative and management changes in the Airport.

9.07. Conformity with the Procurement Transparency Protocol of OPAIN: OPAIN expresses that its actions derived from the performance of this Contract follow objectivity and transparency principles, in accordance to OPAIN’S by-laws, the applicable law and the Procurement Transparency Protocol (the “Protocol”) adopted by OPAIN’S Board of Directors, and enforced by all of its employees, stockholders and managers.

 

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9.08. Termination of the Contract by Just Cause in favor of OPAIN: OPAIN shall have the right to terminate the Contract before the term, due to any of the following causes:

9.08.1 . Breach of the economic obligations taken on by the TENANT for more than 10 consecutive days. In this event, OPAIN must request the TENANT to make up for the failure in a reasonable term. If the TENANT does not fulfill its obligations, OPAIN may terminate the Contract within the next ten (10) calendar days.

9.08.2. Imposition of one or several fines on OPAIN by AEROCIVIL or any other authority or person, caused by facts attributable to the TENANT ;

9.08.3 The TENANT enters into liquidation o closing of operations phase;

9.08.4. By order of a Governmental Authority;

9.08.5 . Falsity in the documents or information provided by the TENANT , or in the Policy;

9.08.6. Other causes foreseen in the Applicable Law, the Concession Contract, and the Contract.

9.09. Termination of the Contract by the TENANT:

The TENANT shall have the right to terminate the Contract before the term, due to any of the following causes:

9.09.1. Default on the obligations of OPAIN for more than 10 consecutive days.

9.09.2. Dissolution and/or liquidation of OPAIN ;

9.09.3. By order of a Governmental Authority;

9.09.4. Falsity in the documents or information provided by the OPAIN ; and

9.09.5. Other causes foreseen in the Applicable Law, the Concession Contract, and this Contract.

9.10. Unilateral Termination of the Contract by the TENANT: The TENANT shall have the right to terminate the contract unilaterally and in advance by giving six a 6 months prior notice to OPAIN , provided that the TENANT pays OPAIN , as a compensation, the amount equivalent of 3 months worth of the Consideration, calculated taking into account the average of the last 3 billed months.

9.11. Notice and Effects of the Termination of the Contract : In order for contract termination to be effective on the grounds of Clause 9.08, 9.09 and 9.10, the Party requesting termination on the Contract shall send written notification exposing the reasons for said termination. In the event of Contract termination because of the causes established in Clauses 9.08, 9.09 and 9.10, the TENANT shall return the property in the same conditions as it received it, in accordance with the provisions of this Contract and the Applicable Law, within the 30 calendar days after the judicial or extra-judicial restitution request and the following effects shall come into force:

The;

 

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9.11.1 . The TENANT shall pay all due amounts to OPAIN , including the Penalty Clause and the Consideration installments, as well as all utilities bills caused from the date on the Certification of Commencement Adaptation Works until the termination of the Contract date, within the next thirty (30) days after the termination of the Contract date.

9.12. Non-monetary sanctions : In the event of failure of any of the obligations of the TENANT established in paragraph 8.01.1, 8.01.3, 8.01.8, 8.01.19, 8.01.20, 8.01.23, 8.01.25 of the Contract persisting for more than 10 calendar days, without prejudice of other agreed sanctions in this CONTRACT or established in the Applicable Law, prior the admonition established in Clause 9.08.1, OPAIN shall have the right to: (i) terminate the Contract; (ii) revoke all access permits granted to the TENANT , its employees and subcontractors; and (iii) inform the users and/or security authorities of the Airport that the TENANT is no longer authorized to use the Premises nor enter the restricted areas of the Airport.

9.13 Penalty Clause : In the event of failure to comply with the obligations of the TENANT set forth in paragraphs 8.01.1, 8.01.24, 8.02.4 of this Contract, except for the monetary obligations such as the monthly monetary Consideration established in this Contract, the TENANT shall pay OPAIN , as a Penalty Clause, an amount corresponding to one (1) year of installments, once the TENANT is required to comply with its obligations and the term established in clause 9.08.1 has expired without solving the failure. Payment of the penal clause does not exempt the Parties from fulfilling the obligations derived from this Contract.

9.14. Contract Settlement: The Termination Document must be signed in order to proceed with the final verification of accounts relating to the present Contract and subsequent final settlement.

9.14.1. The final verification of accounts relating to the present Contract shall be carried out in a term that is no longer than 15 calendar days calculated from the termination notice date send by the Party requesting the Contract termination, or from the expiration date of this Contract.

9.14.2. In order to sign the Termination Document, the Parties shall settle the certain, particular and demandable benefits due to each other, which shall appear in said document.

9.15. Default Interests: In the event any of the Parties fail to comply with any of its obligations consisting of paying an amount of money under this Contract, the breaching Party shall recognize and pay the other default interest calculated at the highest current legal rate.

10. TERMINATION BY MUTUAL AGREEMENT:

10.01. The Parties may concur on the termination of the Contract before the agreed term in the event OPAIN requires the whole or a portion the Premises, in order to carry out works to fulfill the Concession Contract. This kind of Termination shall be applicable provided that, along with the procedure described below, the aforementioned works have such a character that prevent the complete and permanent normal use of the leased area, and that the works make the TENANT to permanently stop using the leased area. In addition to this, the Parties acknowledge beforehand that this clause shall not be applicable in the event of works that don’t demand returning the property, without prejudice of the provisions of paragraph 3.07, Clause 3 of this Agreement. In order to implement this form of termination, the procedure below shall be followed:

(i) OPAIN shall inform the TENANT about the necessity of taking back the Premises and shall propose a substitute area in the Airport, which shall be appropriate for the TENANT’S operation.

 

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(ii) The TENANT shall inform OPAIN if the proposed area complies with reasonable purpose and operational conditions to move its operation. Said conditions shall be the same or better than those offered in the Premises.

(iii) If the TENANT does not accept the offered area to move its operation, OPAIN shall offer the TENANT another area that complies with the minimum requirements requested by the TENANT , if such area existed.

(iv) Only if OPAIN and the TENANT concur on a satisfactory area for the TENANT , the Parties shall sign a new lease contract that maintains equivalent conditions to the agreed in this Contract regarding duration and price. Regarding price, the Parties shall agree that it will only be required from the day the TENANT begins exploitation in the new area, so no compensation will be caused or paid during the time it takes the TENANT to adapt the new area.

11. RESTITUTION OF LEASED AREAS

11.01. Premises Restitution : When this Contract is terminated for any cause, the TENANT shall hand over the Premises to OPAIN , personally o to whom OPAIN authorizes to receive it, according to the Certification of Commencement of Adaptations Works, without prejudice of the provisions of Clause 4.034 regarding improvements, which shall be property of AEROCIVIL, committing itself to present the fully paid utility invoices. Concerning the utilities pending for revision, the TENANT guarantees its payment through proportional provision equivalent to the average of the preceding year, according to the respective invoices.

12. MISCELLANEOUS

12.01. Inspection ; OPAIN , directly or through the person it appoints, at any time and when it deems convenient, shall have the right to inspect the way the TENANT is performing the Contract and shall request information and the correcting measures OPAIN deems necessary, unless the information is considered confidential by the TENANT . OPAIN shall give prior notice of two (2) calendar days before the inspections, which shall not interfere with the commercial activities of the TENANT or present inconvenience to its customers and employees. The TENANT understands and accepts that the exercise of this faculty by OPAIN does not imply exoneration of the responsibility of the TENANT respecting its obligations established in this Contract .

12.02. Liability: The TENANT is liable before OPAIN and third parties for the damages to people and property that the personal under its surveillance might directly cause resulting from the deployment of its activities and, in general, the use and exploitation of the Premises, related to the development of its activities.

OPAIN does not take on any responsibility for the damages or harm the TENANT might suffer because of causes attributable to third parties.

12.03. Relation among the Parties : Both the TENANT and OPAIN are independent contractors and no provision from this Agreement shall be interpreted in a sense that creates a corporation, joint venture, principal and agent relationship, nor constitutes a commercial agency. Under no circumstances OPAIN shall act as agent or representative of the TENANT .

There is no employment relationship between OPAIN and the TENANT’S employees. The TENANT acts independently, as the verified employer of its staff, with technical and administrative autonomy, thus, there is no employment relationship or subordination with OPAIN; therefore the TENANT is responsible for all the expenses of hiring workers and subcontractors, as well as payment of wages, transportation, travel allowances, any kind of social benefits, or any other compensation that according to employment law, employment contracts, deals and collective labor agreements said workers and subcontractors have or might have the right to.

 

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12.4. Identification of the TENANT’S staff : The TENANT shall process and obtain the identity card or sticker that identifies its employees or subcontractors as part its staff, following the identity card issue procedures established by OPAIN . To this effect, the TENANT shall provide OPAIN the list of employees and subcontractors requiring access to the restricted areas, with at lest 5 business days beforehand. Once the respective employee or subcontractor ceases operations, the TENANT shall return to OPAIN the identity card and credentials obtained for every employee or subcontractor, and OPAIN shall suspend the respective access to the restricted areas.

12.5. Confidentiality : The Parties shall maintain in absolute confidentiality all documents or information received from the other Party during the performance of this Contract, and therefore shall not disclose said information without prior written consent from the other Party, except for judicial decision, during the term of the Contract and the 5 subsequent years after its termination. Confidentiality shall not apply to the following events: (i) when at a latter time the information becomes available to the general public for a reason different to the failure to comply with the Confidentiality obligation of this clause; (ii) when the information was already known by the receptor and they may demonstrate this by documents or other proofs showing this; (iii) when the information is known by the receptor due to causes outside the control of the Parties; (iv) when the information is prepared by or in behalf of the disclosing Party without involving confidential information of the other Party; (v) when the information is revealed by request of a competent governmental authority or applicable law disposition; and (vi) when OPAIN requires the statistical and commercial information provided by the TENANT relating to the activity carried out by the TENANT and authorized by virtue of this Contract, in order to process and disclose its own data and statistics about the different commercial areas of the Airport. Opain guarantees the information it may use is related to the normal operation of the industry the TENANT belongs to, and shall not wrongfully disclose privileged or reserved information, those relating to its financial statements and/or its income level.

Without prejudice of the aforementioned provision, the TENANT may share, with ought previous consent, the existence of this Contract or the information it contains or any other additional information obtained due to its signing or during its validity, with any of the companies the TENANT controls or those which act as its controllers or those that are under joint control of any of them, including the executives, directors, legal and financial counsels, underwriters, and/or insurers of each of them.

12.06. Settlement of Disputes : In the event of a dispute between the Parties under this Agreement and/or its annexes during its deployment or performance, the Parties agree on the following settlement procedures:

1. Direct Negotiation:

The Parties shall resort to direct-settlement procedures, for which any of them may give written notice to the other about the existence of a dispute, and the other shall respond in written in a term of ten (10) business days, expressing its position about the dispute and a brief presentation of the alleged reasons.

The Parties shall meet up through their legal representatives or whom they appoint, to try to resolve the dispute, within a term of fifteen (15) business days after the date of dispatch of the communication.

All negotiations between the Parties shall be confidential, thus all information disclosed by a Party to the other in the course of negotiations may not be used as evidence in court or arbitration proceedings, unless said information was already public or could be accessed directly by the other Party.

 

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If the Parties can’t directly resolve the dispute by the end of a thirty (30) business days period, counted from the date of the initial communication, the provisions established on the following paragraph shall apply:

2. Arbitration: If the Parties couldn’t settle the dispute in the previous stage, any of them shall submit the dispute to the Arbitration and Conciliation Center of the Chamber of Commerce of Bogota for binding arbitration, and appoint by agreement of the Parties three (3) arbitrators from the “A” list of eligible arbitrators, in a period of five (5) days. If such appointment is not possible the arbitrators shall be appointed by the Arbitration and Conciliation Center of the Chamber of Commerce of Bogota to the request of any of the Parties. The decision shall be based on Law.

The appointed arbitrators shall inform the Parties, within the next five (5) working days following their notice, if they accept or reject the appointment. If they remain silent it shall be understood that they do not accept. If an arbitrator does not accept, renounces, dies or becomes disabled, he shall be replaced by the same means used to his appointment.

The arbitral tribunal shall rule on the controversy based on Law, and the defeated Party shall pay the cost of the arbitration.

12.07. Taxes: Each Party shall be responsible for any direct or indirect tax or cost, national, local or municipal which is attributable to it in connection with the performance, fulfillment or authentication of this Contract. Each Party shall be responsible of complying with all applicable tax regulations because of its activity.

12.08. Entire Contract and prevalence : This Contract, including its Annexes, contains the entire agreement between the Parties as to the subject matter hereof, and supersedes all prior agreements concerning the same matter.

12.09. Amendments : All amendments, additions and clarifications to this Contract shall be valid only if they are in written form and duly signed by the legal representatives of the Parties.

12.10. Domicile : For all legal purposes the contractual domicile is the city of Bogota D.C.

12.11. Governing Law : Colombian Law shall govern the performance, interpretation, enforcement and dispute resolutions connected with this Contract.

12.12. Notices : Except in the case that there has been a different agreement in the present contract, all notices or communications required or allowed by under this Contract shall be made in written form, personally delivered and/or send by fax machine and/or electronic mail to the following addresses:

In the case of the TENANT:

 

To the attention of:    -Legal Representative.
Address:    Av. El Dorado Cll. 26 No. 59-15, Bogota D.C., Colombia
Telephone:    +571 5877700 ext. 2552
Fax:    +571 5877700 ext. 2552
Email:    notificaciones@avianca.com

In case of OPAIN:

 

To the attention of:    -General Manager
Address:    Calle 26 No. 103-09, Edificio Cisa, Bogotá D.C., Colombia

To the attention of:

 

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Telephone:    +571 4397070
Fax    +571 4135104
Email:    jpulido@eldorado.aero

Communications shall be deemed as delivered: (i) the next business day following its remission, if it is a personal delivery; (ii) the third business day following its mailing, if the remissions were made by registered mail or a similar source with acknowledge of receipt; (iii) the next business day, if it was send by fax or email, provided the sending machine produces receipt confirmation or that there are reasonable proofs to demonstrate the message has been received.

12.13. Expenses: The expenses resulting from the performance of this Contract shall be borne by the TENANT .

12.14. Counterparts: This Contract is simultaneously signed in counterparts on October 29 2012, each of which shall be deemed to be an original.

 

Signed for and on behalf of

OPAIN

  

Signed for and on behalf of

The TENANT

(Illegible signature)    (Illegible Signature)

JUAN ALBERTO PULIDO ARANGO

General Manager

OPAIN

  

ELISA MURGAS DE MORENO

Legal Representative

AEROVÍAS DEL CONTINENTE

AMERICANO S.A. AVIANCA

 

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ANNEX 1

Certification Of Commencement Of Adaptation Works

By and between the undersigned to wit: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Adaptation Works of the Lease Contract No. OP-DC-CA-T1-0028-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: In accordance to Clause 5.04 of the Contract the prior conditions required were established for the signing of the Certification of Commencement of Adaptation Works set forth in order to begin the Adaptation Stage given that the Parties have met the prior conditions to give way to this Stage of the Contract.

SECOND: The Parties, with the intention to begin the Stage of Adaptation Works,

AGREE TO

FIRST : Through this Certification of Commencement of Adaptation Works, OPAIN grants access to the TENANT to the Premises from October 22, 2012, in order to begin the necessary works in the Premises, in accordance with the provisions set forth in Chapter 6 of the Contract.

SECOND: Through Annex 1 of this Certification of Commencement of Adaptation Works, the inventory of the conditions of the Premises on the date of endorsement of this Certification is duly signed.

THIRD: Starting October 22, 2012 the TENANT shall begin with the performance of the Stage of Adaptation Works following the provisions of Chapter 6 of the Contract.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., December 19 2012.

 

Grantor    Grantee
(Illegible signature)    (Illegible Signature)

JUAN ALBERTO PULIDO ARANGO

General Manager

OPAIN

  

ELISA MURGAS DE MORENO

Legal Representative

AEROVÍAS DEL CONTINENTE

AMERICANO S.A. AVIANCA


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

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ANNEX 2

Certification Of Commencement Of Commercial Exploitation

By and between the undersigned to wit: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Commercial Exploitation of the Lease Contract No. OP-DC-CA-T1-0028-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: Clause 6.04 of the Contract set forth the preliminary conditions required to sign the Certification of Commencement of Commercial Exploitation, in order to begin with the Stage of Commercial Exploitation.

SECOND: The Parties express that they have willingly agreed on beginning the Stage of Commercial Exploitation along with the corresponding obligations to said stage, starting January 4, 2013.

The Parties, with the intention to begin the Stage of Commercial Exploitation, the Parties

AGREE AS FOLLOWS

FIRST : Provided the signing by the Parties of the Partial Certification of Satisfactory Receipt of the Works on February 20 20(illegible writing), and the fulfillment of other conditions to endorse the Certification of Commencement of Commercial Exploitation, the Parties state that at the time of the signing of this document an inspection the premises has been carried out, finding that the works comply with the provisions of Annex 5 of the contract and the Certification of Partial Satisfactory Receipt of the Works, therefore OPAIN hands over, and the TENANT receives, the Premises, in order to start the Stage of Commercial Exploitation beginning January 4, 2013.

SECOND: With the signing of this Certification of Commencement of Commercial Exploitation the Parties formalize the performance of the Stage of Commercial Exploitation, beginning January 4, 2013.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., January 21, 2013.

 

Delivers,    Receives,
(Illegible signature)    (Illegible Signature)

JUAN ALBERTO PULIDO ARANGO

General Manager

OPAIN

  

ELISA MURGAS DE MORENO

Legal Representative

AEROVÍAS DEL CONTINENTE

AMERICANO S.A. AVIANCA


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 3

Partial Certification Of Satisfactory Receipt of the Works

By and between the undersigned to wit: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Commercial Exploitation of the Lease Contract No. OP-DC-CA-T1-0028-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: In accordance with the Adaptation Works Stage established in Chapter 6 of the Contract, the TENANT partially handed over the works as stated in Annex 1 of this Partial Certification Of Satisfactory Receipt of the Works.

SECOND: The partial performance of the Works by the TENANT fulfills the designs and specifications of the project approved by OPAIN .

THIRD : Copy of the record plans and their Autocad file version is attached to this Partial Certification Of Satisfactory Receipt of the Works.

FOURTH : In compliance of Clause 6.03.4 of the Contract, OPAIN carried out the inspection of the adaptation Works, and these were partially approved, as appears in Annex 1 of this Partial Certification Of Satisfactory Receipt of the Works.

FIFTH : The TENANT shall conclude the works in a definitive manner, as stated by the observations of Annex 2 of this Partial Certification Of Satisfactory Receipt of the Works

The Parties, according to the aforementioned,

AGREE AS FOLLOWS

FIRST : The adaptation Works corresponding to the Stage of Adaptation Works of the Contract and the record plans or “as built” plans have been satisfactorily received by OPAIN, according to the provision and requirements of the Contract, and in the manner established in Annex 1 of this Partial Certification Of Satisfactory Receipt of the Works.

SECOND: The TENANT is bound to finalize in a complete and definite manner the observations and missing elements established by Annex 2 of this Partial Certification Of Satisfactory Receipt of the Works, no later than 4 p.m., March 15, 2013

PARAGRAPH 1: In the event the TENANT fails to comply with the preceding Second Agreement, OPAIN shall immediately terminate the Contract, giving way to the effects brought about by the applicable law and the contractual provisions, such as fines, penal clause and non-monetary sanctions.

THIRD : Provided the TENANT fulfills the preceding Second Agreement, the parties shall sign the Definitive Certification Of Satisfactory Receipt of the Works not later than March 15, 2013.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., January 21, 2013.


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

Delivers,    Receives,
/s/ JUAN ALBERTO PULIDO ARANGO    /s/ ELISA MURGAS DE MORENO
JUAN ALBERTO PULIDO ARANGO    ELISA MURGAS DE MORENO
General Manager    Legal Representative
OPAIN    AEROVÍAS DEL CONTINENTE
   AMERICANO S.A. AVIANCA


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 1

Good afternoon,

According to the meeting held on 21 January 2013, from 9:30 a.m. till 11:30, when a walking inspection of the Back Office area was carried out with the purpose of validating the fulfillment of the approvals made by OPAIN, with the oarticipation of Mr. Raul Acevedo and Mr. Luis Fernando Gonzalez on behalf of Avianca, and with Rocío Ospina and Ginna Cortés on behalf of OPAIN, we wish to send the observations found during the said inspection, which we request be tended to in order to perform another inspection, thus, getting OPAINS approval for signing the Certification of Satisfactory Receipt of the works.

Level 13.70

>Electrical Room:

 

   

The maintenance department of OPAIN will carry out an inspection to validate the connections, conductive installations and insulation of the electric board. Avianca must deliver the “as built” plans and full Retie certification. There are no ups. The fire breaker seals of the main connection in the wall perforations and plates made in electrical room SDB-43, all the way to the derivation box in bus way, are missing.

 

   

The technical room is in an enclosed space, and the smoke detection system was not found.

PICTURE

> In the Office Area next to the electrical room on this level, the smoke detectors delivered by the franchisee were left there, however, when the distribution and design were carried out it was not relocated, and it is currently out of the margin where the rook box is set. The regulations are not being fulfilled.

PICTURE

A leveling must be made in the corridor with expansion joints located in the first glass door.

A Sprinkler is detected in the corridor and was relocated and is found to be breaching that which is established by the norm.

PICTURE

>Computer Room: There are neither smoke detectors nor protection against FIRE hazards.

>CCTV: There is no fire detector.

>Delivery of Safety Equipment: There is no smoke detector.

> The office to the back of the premises doesn’t have smoke detectors.

PICTURE

>For the two offices in this level, HSEQ department points out that there is no signage system indicating the evacuation routes for the Airline, which shall comply with what was approved in the blueprints No. A-08 and A 09 introduced in the project. There is no rigid stretcher available with cervical and cephalic stabilizer, nor body harness, first-aid kit, which, we insist, its contents must comply with the Type A designation, one of this elements for each area.


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

>Regarding waste, there are no waste-separation points in the source (environmental points).

>One of the risks found is that a cable conduit is broken.

PICTURE

>Archive, electric boards and air conditioning office: There is no smoke detector.

 

  Ø The offices located in this area, including the Archive, Avianca Services and Airport Management doesn’t have smoke detectors and sprinklers.

PICTURE

Level 8.70

>Electric Room:

The maintenance department of OPAIN will carry out an inspection to validate the connections, conductive installations and insulation of the electric board. Avianca must deliver the as built blueprints and full Retie certification.

>Many of the inspected sprinklers don’t comply with the regulations because they are stuck to the wall.

PICTURE

>As an observation from the HSEQ area, we insist the portable fire extinguishers must be Clean Agent.

>For the two offices in this level, HSEQ department points out that there is no signage system indicating the evacuation routes for the Airline, which shall comply with what was approved in the blueprints No. A-08 and A 09 introduced in the project. There is no rigid stretcher available with cervical and cephalic stabilizer, nor body harness, first-aid kit, which, we insist, its contents must comply with the Type A designation

>The Technical Room doesn’t have a smoke detector or supply system against fires.

>The hallway doesn’t have smoke detectors or supply.

>The Customer Service office doesn’t have smoke detector.

>The copier area doesn’t have smoke detector or wet systems.

>The handicap office doesn´t have no smoke detector or sprinklers.

>The emergency door installed by Avianca next to the Children Room, is not properly signalized.

>The special passengers office m, doesn’t have the smoke detector or sprinkler demanded by the regulations.

>In one of the hallways, a sliding door covering a electric board was detected. Because of the location of the doors, it is impossible to access said board, since only the door on the other edge slides. There are not smoke detector or sprinklers.

PICTURE

>There are two smoke detectors in the cafeteria area that were located over the air conditioning ducts, which is not allowed by the regulations.


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

PICTURE

>The Cash Register room doesn’t have smoke detectors.

PICTURE

>The Training Room doesn’t have smoke detector or sprinklers.

PICTURE

>The Internet Café doesn’t have smoke detectors.

>The expansion joint in this floor must be leveled.

PICTURE

According to the site inspection, the fire network distributions were not constructed following the specifications established in the building regulations of Terminal 2, there is no fulfillment on the NFPA 72 detection systems regulations, sprinklers NFPA 13. This occurred in the adaptation of the space handed over to Avianca.

Regarding Air Conditioning, OPAIN will provide the water condensation system located in the same level, so they will be able to connect to it. However, taking into account the request of the tenant, there is a second option (connect to the cold water supply that could be extended from the AV Back Office on level 8.70 all the way to level 13.70) which, if technically feasible prior presentation, the expenses shall be covered in its totality by the TENANT. We insist: project subject to technical validation.

Avianca will present the proposal for air renovation; once received it will be handed to the designer to assess its technical feasibility.

Moreover, we request again that the definitive project is presented to OPAIN, which was requested following the approval with observations provided by the grantee, since as of today it haven’t been received.


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 2

CONTINGENCY PLAN FOR LEVEL 8.70 AND 13.70 OF AVIANCA’S BACK OFFICE

DETECTION:

 

  1. All existing detectors delivered by OPAIN will be left enabled.

 

  2. Provisional portable detectors will be installed en the areas lacking of these devices, in order to guarantee a timely warning sign in case of threat of fire. These devices work independently and have their own alarm, but they are not connected to the main detection system and therefore it is necessary that the areas be occupied in order to effectively warn about the threat.

 

  3. Emergency staff will be permanently held in the area in order to guarantee compliance with the safety protocols in case a threat should arise.

EXTINCTION

 

  1. To this date, Avianca haven’t performed any modification to this system or any of its elements and devices, which were delivered by OPAIN.

 

  2. Additional clean agent extinguishers will be installed to those already delivered in the premises, accepted in the Emergency and Evacuation plan approved by OPAIN. Based on the grounds of regulation NFPA72, those areas were the sprinklers don’t comply with provisions of regulation NFPA72 and/or were there aren’t located, will be reinforced, making sure that they cover 100% of the areas inhabited by the employees, providing full safety.

 

  3. Emergency staff will be permanently held in the area in order to guarantee compliance with the safety protocols in case a threat should arise.

AREAS UNFIT TO BE OCCUPIED

Taking into account that the priority is guarantee the safety of our staff, the contingency plan disabled some areas where we consider we can provide full safety; these areas are specified in the attached plans.

EMERGENCY AND EVACUATION SIGNS

 

  1. The necessary first-aid elements, stretchers, first-aid kits, evacuation plans and emergency routes were located, according to the plan presented and approved by OPAIN.

Plans with the proposal for the emergency protocol are attached.

Regards,

Raul Acevedo G

AVIANCA TACA


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 4

The Premises


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

BO-15

AVIANCA

Area 228.00 m2

NOTE: The measurement might change in the final result of the works; this must be verified in site.

PREMISES LINES:

TO THE NORTH: 14.71 mts. bordering to empty space over international waiting room.

TO THE WEST: 16.72 mts. bordering empty space over central hall.

TO THE SOUTH: 12.97 mts. bordering empty space over

TO THE EAST: Sectioned front of 8.64 mts., 2.56 mts., 4.65 mts., 0.82 mts. and 3.44 mts bordering the access hall to the back office bathrooms.

SOCIEDAD CONCESIONARIA AEROPORTUARIA OPAIN S.A.

COMMERCIAL OPERATOR:

AVIANCA

USE:

Back Offices

CONTRACT No.

OP-DC-CA-T2-0028-12

LOCATION:

Terminal T1+T2 New Building, Level +13.70, behind the counters of Eldorado International Airport

Starting date:

 

Premises    Area:
BO-15    228.00 M2

LEGAL REPRESENTATIVE SIGNATURE

OPAIN LEGAL REPRESENTATIVE SIGNATURE


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

BO-16

AVIANCA

Area 383.00 m2

NOTE: The measurement might change in the final result of the works; this must be verified in site.

PREMISES LINES:

TO THE NORTH: Sectioned front of 1.30mts., 0.90mts., 2.51mts., 0.90mts., 56.61mts., 0.92nts., 2.52mts., 0.90mts. and 2.17 mts. bordering the back office access hall.

TO THE WEST: 5.91mts. bordering deposits an circulation hall.

TO THE SOUTH: 66.01mts. bordering with the back office entrance hall.

TO THE EAST: Sectioned front of 2.47mts., 0.82mts., and 3.42mts. bordering with circulation hall and elevators.

SOCIEDAD CONCESIONARIA AEROPORTUARIA OPAIN S.A.

COMMERCIAL OPERATOR:

AVIANCA

USE:

Back Offices

CONTRACT No.

OP-DC-CA-T2-0028-12

LOCATION:

Terminal T1+T2 New Building, Level +13.70, behind the counters of Eldorado International Airport

Starting date:

 

Premises    Area:
BO-15    383.40 M2

LEGAL REPRESENTATIVE SIGNATURE

OPAIN LEGAL REPRESENTATIVE SIGNATURE


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

BO-01

AVIANCA

Area 575.80m2

NOTE: The measurement might change in the final result of the works; this must be verified in site.

PREMISES LINES:

TO THE NORTH: ILLEGIBLE

TO THE WEST: ILLEGIBLE

TO THE SOUTH: ILLEGIBLE

TO THE EAST: ILLEGIBLE

SOCIEDAD CONCESIONARIA AEROPORTUARIA OPAIN S.A.

COMMERCIAL OPERATOR:

AVIANCA

USE:

Back Offices

CONTRACT No.

OP-DC-CA-T2-0028-12

LOCATION:

Terminal T1+T2 New Building, Level +13.70, behind the counters of Eldorado International Airport

Starting date:

 

Premises    Area:
BO-1    575.80 M2

LEGAL REPRESENTATIVE SIGNATURE

OPAIN LEGAL REPRESENTATIVE SIGNATURE


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 5

Design and Technical Specifications of the Premises Handover

CD attached.


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 6

Adaptation/Remodeling Procedure and Space Holder Maintenance

CD attached.

1. Procedure for approval of Adaptation, Remodeling and/or Maintenance approval carried out by Space Holders.

2. Environmental Plan.

3. HSEQ Standard Requirements Version 5.0.

4. Industrial Safety Manual Version 2.0.

5. Hazardous Waste and Material Management Standard Version 2.0.

6. Operative Plan.

7. Employee Handbook.

8. Premises Entrance Design and Technical Specifications.

9. Procurement Transparency Protocol.


LEASE CONTRACT No. OP-DC-CA-T1-0028-12 BETWEEN OPAIN S.A. AND

AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

ANNEX 7

Procurement Transparency Protocol

Exhibit 10.2.2

LEASE CONTRACT No. OP-DC-CA-T1-0061-12

LEASE AGREEMENT DATED OCTOBER 29, 2012, BETWEEN OPAIN S.A.

AND AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

TABLE OF CONTENTS

 

1. INTERPRETATION AND DEFINITIONS

     3   

1.01. Interpretation

     3   

1.02 Definitions

     3   

2. WHEREAS

     4   

3. PURPOSE

     5   

3.01. Purpose

     5   

3.02. Term

     5   

3.03. Consideration

     5   

3.0.4. Invoicing

     5   

3.05. Method of payment

     5   

3.06. Non exclusivity

     5   

4. THE PREMISES

     6   

4.01. The Premises

     6   

4.02. Use

     6   

4.03. Receiving Possession / Condition of the Premises

     6   

4.04. Improvements

     6   

5. PRELIMINARY STAGE

     6   

5.01. Term

     6   

5.02. Obligations of the TENANT relating to the Preliminary Stage

     6   

5.03. Obligations of OPAIN relating to the Preliminary Stage

     7   

5.04. Conditions for the signing of the Certificate for the Commencement of Adaptations

     7   

6. Adaptation Stage

     7   

6.01. Term

     7   

6.02. Obligations of the TENANT relating to the Adaptation Stage

     7   

6.03. Obligations of OPAIN relating to the Adaptation Stage

     8   

6.04. Conditions to sign the Certificate of Commencement of Commercial Exploitation

     9   

7. COMMERCIAL EXPLOITATION STAGE

     9   

7.01. Term

     9   

7.02. Obligations of the TENANT relating to the Commercial Exploitation Stage

     9   

7.03. Repairs and Improvements

     9   

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

8. OBLIGATIONS OF THE PARTIES APPLICABLE TO ALL STAGES OF THE AGREEMENT

     9   

8.01. Obligations of the TENANT

     9   

8.02. Obligations of the

     11   

8.03. TENANTE in relation to Environmental Regulations

     11   

8.03 Obligations OPAIN

     11   

8.04. Indemnity

     12   

9. SPECIAL PROVISIONS

     12   

9.01. Utilities

     12   

9.02. Civil Non-Contractual Liability Policy

     12   

9.03. Compliance Policy

     13   

9.04. Lease Assignment

     13   

9.05. Good Will

     13   

9.06. Risks of the TENANT

     13   

9.07. Conformity with the Procurement Transparency Protocol of OPAIN

     13   

9.12 Non-Economic sanctions

     15   

9.13 Penal Obligation Clause

     15   

9.14 Contract settlement

     15   

10. TERMINATION BY MUTUAL AGREEMENT

     15   

11.01. Premises Restitution

     16   

12. MISCELLANEOUS

     16   

12.01. Inspection

     16   

12.02. Liability

     16   

12.03. Relation between the Parties

     16   

12.4. Identification of the TENANT’S staff

     17   

12.5. Confidentiality

     17   

12.06. Settlement of Disputes

     17   

12.07. Taxes

     18   

12.09. Amendments

     18   

12.11. Governing Law

     18   

12.13. Expenses

     19   

12.14. Counterparts

     19   

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

LEASE CONTRACT ENTERES INTO OCTOBER 29 2012, BETWEEN OPAIN S.A. AND AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA

This lease Contract (as amended or supplemented from time to time by mutual agreement between the parties, including its annexes, the “Contract”) is entered into on 29 October 2012 by and between (i) Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“ OPAIN ”); and (ii)  AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), collectively referred to as “ The Parties ”.

1. INTERPRETATION AND DEFINITIONS

1.01. Interpretation: For the purposes of this Contract, unless otherwise expressly stated, the terms in capitals herein used shall have the meaning granted to those terms in Clause 1.02 stated below. Technical and scientific words that are not expressly defined in this Contract shall have the correspondent meaning according to their respective technic or science area and the rest of the words shall be understood in their natural an obvious sense, according to their general use. Titles in the respective Clauses are included for reference and convenience purposes but in no way limit, define or describe the scope of this Contract and are not considered part of it.

1.02 Definitions: The following definitions are established for the purposes of this Contract, which shall have the meaning stated below, whether used in singular or plural:

Certification of Commencement of Adaptation Works ”: Document to be signed by the Parties following the model of Annex 1.

Certification of Commencement of Commercial Exploitation : Document to be signed by the Parties following the model of Annex 2.

Certification of Satisfactory Receipt of the Works ”: Document to be signed by the Parties following the model of Annex 3.

Certification of Conclusion ”: Document to be signed by the Parties at the time of the Contract settlement. “ AEROCIVIL ”: The Special Administrative Unit of the Civilian Aeronautics of the Republic of Colombia.

AIRPORT ”: Eldorado International Airport of Bogota D.C.

Granted Area ”: Areas handed over to OPAIN to manage, operate, make commercial use, keep in good condition, retrofit and expand under this Lease Contract.

TENANT ”: It refers to the meaning provided in the heading of this Contract.

Governmental Authorities ”: (i) Any State or Republic, including, without limitation, Aerocivil, authorities or organizations belonging to any branch of the public power or any entity that does not belongs to them but are part of the State or Republic or who are performing activities granted by the State or Republic (including the Central Bank), administrative subdivision of said State or Republic (such as Ministries, Administrative Departments, Superintendence, Districts and Municipalities, among others) and any entity, with or without legal capacity, that is a decentralized administrative entity, by services or collaboration, of any order, that has authority to issue laws, decrees, resolutions, ordinances, rulings, judicial decrees, arbitration awards, or, in general, mandatory enforcement decisions, provided the Party to whom it is imposed is legally bound to the proceedings, as a party or as a third part; and (ii) any other public entity with authority to enforce such laws, decrees, resolutions, ordinances.,.

Consideration ”: It refers to the meaning provided in Clause 3.03 of this Contract.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

Contract ”: It refers to the meaning provided in the heading of this Contract.

Business day ”: Any day of the week that is not Friday, Sunday or a public holyday in Colombia.

Preliminary Stage ”: The stage of performance of the Contract according to Clause 5.

Adaptations Stage ”: The stage of undertaking the adaptation works of the Contract according to Clause 6.

Commercial Exploitation Stage ”: The stage of performance of the Contract according to Clause 7.

Trust ”: The FIDECOMISO OPAIN S.A – FIDUCIARIA BANCOLOMBIA S.A. trust or the trust replacing it.

Premises ”: The space defined in Clause 4.01 of the Contract.

CPI ”: The Consumer Price Index that represents their variation in Colombia, issued bye the National Administrative Department of Statistics – DANE (or the governmental authority acting as such).

Applicable Law ”: The laws, decrees, resolutions, ordinances and administrative acts applicable to the parties or, in general, the mandatory regulation.

Month ”: Each one of the twelve periods, between 28 and 31 days, the year is divided by. Said periods are: January, February, March, April, May, June, July, August, September, October, November and December.

OPAIN ”: It refers to the meaning provided in the heading in this Contract.

Parties ”: It refers to the meaning provided in the heading in this Contract.

Permits ”: The authorizations, related to the TENANT, issued by OPAIN to commence the works required during the adaptations stage.

OPAIN Plan ”: The current maintenance, operation and safety plans developed by OPAIN for the Airport, available from OPAIN upon request.

Policy ”: It refers to the meaning provided in Clauses 9.02 and 9.03.

Space Possessor Adaptation / Remodeling and Maintenance Procedure ”: The document contained in Annex 6, which defines the rules and parameters for the physical adaptations of the property.

2. WHEREAS,

2.01.1 OPAIN and AEROCIVIL signed the Concession Contract by which the administration, operation, commercial exploitation, maintenance, retrofitting and expansion of the Airport were granted to OPAIN .

2.01.2 OPAIN holds the tenancy of the Granted Area under a concession title. Because of this Contract the mere tenancy of the Property is handed over to the TENANT for its use, keeping AEROCIVL all the rights derived from its ownership.

2.01.3 The Premises, whose tenancy OPAIN hands over to the TENANT , is part of the Granted Area.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

2.01.4 In accordance with the provisions set forth in the Concession Contract, OPAIN is entitled to the commercial exploitation of the Airport arising from the performance of agreements or legal transactions that might create any kind of consideration, including, among others, this Contract.

3. PURPOSE

3.01. Purpose: By means of this agreement, OPAIN , on the date of the Certification of Commencement of Commercial Exploitation, shall hand over the tenancy of the Premises to the TENANT for the duration set forth in Clause 3.02, so the TENANT gives the Premises the use provided in Clause 4.02, prior fulfillment of the activities of the Preliminary and Adaptation Stages.

OPAIN shall provisionally hand over the Premises during the adaptations period, so it can be prepared it for its commercial destination, through a Certification of Commencement of Adaptation Works. The property shall be physically handed over to the TENANT as appears on the Certification of Commencement of Commercial Exploitation, signed by the Legal Representative Agents of each Party.

3.02. Term: The Contract shall apply from its date of signing until the due date of Month No. 23 counted from the date on the Certification of Commencement of Commercial Exploitation. This Term shall extend automatically, in a successive manner, and the Parties shall not invoke the expiration of the term to end the Contract.

In the event that OPAIN requests the Premises invoking Paragraph two (2) or three (3), Article 518 of the Commercial Code, or in the event of an order issued by a competent authority, the provisions of Clause 10.01 shall apply.

3.03. Consideration : The TENANT is bound to unconditionally pay to OPAIN the following amount (the “ Consideration ”), starting from the date on the Certification of Commencement of Commercial Exploitation, for the Tenancy of the Premises:

3.03.1 . $13,877.759.00 plus VAT for 35.59 M2. This amount shall be readjusted every accomplished year counted from the date on the Certification of Commencement of Commercial Exploitation, with the accrued CPI between January 1 and December 31 of the immediately preceding year. The agreed readjustment in this clause shall be the only one applicable to the Consideration, even in the event of extension or renewal of the Contract.

3.0.4. Invoicing: In order to issue the invoices one shall proceed as follows:

The amount of the consideration shall be invoiced monthly in an advanced month manner.

3.05. Method of payment : The TENANT is bound to pay the Consideration as follows:

The amount of the consideration shall be paid within 5 days of receipt of the invoice issued by the Trust.

3.06. Non exclusivity: This Contract does not imply exclusivity in favor or the TENANT to develop its commercial activities. Therefore, OPAIN may lease other areas that are part of the Granted Area to whom it deems necessary to carry out the purpose of the Concession Contract, even if said third parties carry out the same activities as the TENANT and compete with the latter. OPAIN does not guarantee the TENANT minimal income for carrying out its activities in the Premises.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

4. THE PREMISES

4.01. The Premises: Is the defined and delimited area presented in Annex 4, which shall be handed over to the TENANT to use according to the provisions en Clause 4.02 below:

4 .02. Use: The Premises shall be used by the TENANT , solely and exclusively as an essential area for the TENANT’S support office intended as a ticket sales counter (Front Office) as established in Appendix F, Paragraph 7.1.1 of the Concession Contract No. 6000169 OK, and shall not have a different use without prior and written consent from OPAIN . The TENANT is bound to name its business establishment operating in the Premises as AVIANCA . If the business establishment requires changing its denomination, the TENANT must inform OPAIN before hand, and shall such request proceed, it must be stated in written form.

4.03. Receival and Condition of the Premises: The TENANT declares (i) pursuant to the Contract and the Certification of Commencement of Adaptation Works, it shall receive the Premises in an adequate state, completed structure, as established in Paragraph 12, Section 1.5, Appendix F of the Concession Contract, in the Premises Hand-over Design and Technical Specifications established in Annex 5 , and in accordance with the Certification of Commencement of Commercial Exploitation, which is considered part of this document, that establishes, in addition, the Premise’s inventory; (ii) that it is bound to take care of, preserve and maintain the Premises; and, (iii) that it shall return the Premises to OPAIN in the same condition described in the Certification of Commencement of Adaptation Work, except for the damage caused by the passage of time, improvement works that can be removed, and its legitimate use. The damages to the Premises caused by abuses or carelessness from the TENANT during its tenancy, shall be charged to him. Notwithstanding the provisions of this clause, the TENANT is bound to make wear and tear repairs and thus keep the Premises in the same condition as it received it, according to the Certification of Commencement of Adaptation Works, except for those that may result due to day to day use.

4.04. Improvements: The TENANT acknowledges all adaptations carried out in the Premises that have a fixed and permanent character, whatever their nature and value, shall be property of AEROCIVIL, thus, the TENANT shall not receive any reimbursement or compensation for said adaptations, whether declaratory or compensatory. Notwithstanding the foregoing, the TENANT may remove adaptations in order to leave the Premises in the same condition as it received it, according to the Certification of Commencement of Adaptation Works, I, except for those that may result due to day-to-day use. Furthermore, the adaptations consisting of equipment installation and other goods that can be removed from the Premises without causing it damage shall be taken by the TENANT at its own expense upon termination of this Contract.

5. PRELIMINARY STAGE

5.01. Term: The Preliminary Stage shall last from the date of signing of this Contract until the date on the Certification of Commencement of Adaptation Works.

5.02. Obligations of the TENANT relating to the Preliminary Stage: During the Preliminary Stage the TENANT is bound to:

5.02.1. Constitute the Policy and hand it over to OPAIN within the 30 calendar days after signing the Contract;

5.02.2. Hand over the design, adaptation and works plan for the Premises following OPAIN’S instructions, within 30 calendar days after signing the Contract, and perform the adjustments suggested by OPAIN in a timely manner.

 

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5.02.3. Apply before OPAIN for the Permit, according to the applicable conditions established in Annex 6.

5.03. Obligations of OPAIN relating to the Preliminary Stage: During the Preliminary Stage OPAIN is bound to:

5.03.1. Check the design, adaptation and works plan for the Premises and works schedule provided by the TENANT , within 15 calendar days after having received them, (i) approve if they agree with them; r (ii) request the adjustments deemed necessary. In the event that OPAIN requests an adjustment or clarifications, the TENANT shall give an answer within five (5) calendar days and OPAIN shall have an additional term of five (5) calendar days to make a pronouncement on the matter. The design, adaptation and works plan and schedule shall be considered as approved if OPAIN fails to make a pronouncement within the terms aforementioned.

5.03.2. Allow the TENANT to access the Premises, so the TENANT can elaborate the plans and assess the physical and structural particularities of the Premises in order to execute the Adaptation Stage.

5.03.3. Grant the Permit to the TENANT , according to the applicable conditions established in Annex 6.

5.04. Conditions for the signing of the Certification of Commencement of Adaptation Works : The Parties shall sign the Certification of Commencement of Adaptation Works only if the following requirements are met:

5.04.1. The Policy has been constituted in a satisfactory manner for OPAIN;

5.04.2 . The design, adaptation and works plans have been approved by OPAIN;

5.04.3. The TENANT has the necessary Permits to start the adaptation works in the Premises.

5.04.4. The Premises are in suitable conditions to start the adaptation;

6. Adaptation Stage

6.01. Term: The Adaptation Stage shall last from the date on the Certification of Commencement of Adaptation Works until the date on the Certification of Commencement of Commercial Exploitation.

6.02. Obligations of the TENANT relating to the Adaptation Stage: During the Adaptation Stage the TENANT is bound to:

6.02.1. Carry out the adaptation works in a coordinated manner with OPAIN.

6.02.2 . Install in the Premises the Voice & Data Systems available in the Airport, according to the operational needs of the Premises. This installation shall only be performed pursuant to the procedures and guidelines established by OPAIN . In any event, OPAIN , directly or indirectly, shall guarantee the existence of the telecommunication services through OPAIN’S Network and Telecommunication Services Provider (ESP) of its preference.

6.02.3. Comply with the Adaptation / Remodeling and Maintenance Procedure for Space Possessors, according to the provisions in Annex 6, by which the guidelines on physical adaptations of the Premises are set forth, which must conserve uniformity with the image and architectural identity displayed in the Airport.

 

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6.02.4. Carry out the adaptation works in a maximum period of forty-five (45) calendar days, counted from the Certification of Commencement of Adaptation Works.

6.02.5. Allow for programmed visits and inspections in the leased property resulting from the verification process of the Retrofitting and Expansion Works that Aerocivil and the Concession Contract Auditor will perform.

6.02.6 . Carry out the connections to the utilities available in the Premises;

6.02.7 . Pay for the utilities available in the Premises, payment that shall be done to the company providing the service.

6.02.8 . Examine any request from OPAIN regarding the withdrawal of the TENANT staff and/or any of the subcontractors performing the works, with prior delivery of a communication describing the reasonable causes leading to believe the said personnel might affect the Airport´s safety, or might compromise OPAIN’S liability under the Concession Contract, annexing supporting proofs for such claims. In any event, by signing this Contract the TENANT accepts that in any moment and once the aforementioned situation is notified, OPAIN may prevent such personnel from entering the area where the works are being performed without any liability for the TENANT , who renounces to file any claim against OPAIN regarding such events;

6.02.9. Accept the regulations established in OPAIN’S Plans for the undertaking of the works, one of which is that all personnel designated to execute this Contract shall comply with the security regulations set forth by OPAIN . Also, the TENANT must comply with the Airport Security regulations, including those relating to entering the facilities and identification bearing;

6.02.10. Undertake, at his own risk and expense, one hundred percent (100%) of the total investment in the Premises that allows for the performance of the Contract; and,

6.03. Obligations of OPAIN relating to the Adaptation Stage: During the Adaptation Stage OPAIN is bound to:

6.03.1. Perform the provisional hand over for adaptations of the Premises regarding to the conditions established jointly by the Parties by agreement.

6.03.2. Cooperate with the TENANT during the adaptation works the TENANT will carry out, timely providing all the information the TENANT requires to perform under the purpose of this Contract.

6.03.4. Inform the TENANT about the utilities that will be available in the PREMISES and the authorized providers in the Airport; and

6.03.5. Inspect the adaptation works and, within 15 calendar days after being notified of their finalization by the TENANT , (i) approve the works if OPAIN is satisfied, which shall stated in the Certification of Satisfactory Receipt of the Works; or (ii) demand the adjustments deemed necessary by OPAIN . In the event OPAIN requests adjustment or clarification, the TENANT shall provide an answer within the next ten (10) calendar days and OPAIN shall have an additional term of 5 days to approve them or request further adjustments. The adaptation works shall be deemed as approved if OPAIN does not make any statements during the aforementioned term.

 

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6.04. Conditions for the signing of the Certification of Commencement of Commercial Exploitation: The Parties shall sign the Certification of Commencement of Commercial Exploitation only if the following requirements are met:

6.04.1. OPAIN has approved the adaptation works of the Premises, tacitly or expressly;

6.04.2. OPAIN has informed the TENANT the Passenger Terminal is ready for a comprehensive start of operations; and

6.04.3. The TENANT begins the commercial use of the Premises for passenger assistance.

7. COMMERCIAL EXPLOITATION STAGE

7.01. Term: The Commercial Exploitation Stage shall last from the date of on the Certification of Commencement of the Exploitation Stage until the date on the Certification of Termination of the Contract.

7.02 . Obligations of the TENANT relating to the Commercial Exploitation Stage: During the Commercial Exploitation Stage the TENANT is bound to:

7.02.1 . Deliver de Front office areas.

7.02.2. Pay OPAIN the Consideration under the conditions and amount established in this Contract;

7.02.3. Keep the Premises in an adequate state, as received by the TENANT , according to the Certification of Commencement of Commercial Exploitation;

7.02.4. Operate the Premises in order to perform the use for which this Contract is signed, 7 days a week, in the hours established by the TENANT according to his timetables.

7.02.5. Attempt to make sure the TENANT’S staff assisting the passengers has basic knowledge of the English language; and

7.02.6 . Make sure a fixed-point supervisor appointed by the TENANT is available in order to timely resolve any inconvenience or complain that may arise from the passengers.

7.03. Repairs and Improvements : OPAIN shall carry out only the repairs directly related to the structural elements of the Premises, produced by the passage of time, construction flaws, force majeure or acts of nature, so the TENANT is bound to carry out at his own risk and expenses the rest of the repairs, including those considered wear and tear.

The TENANT shall perform useful and voluntary improvements in the Premises, with prior written consent of OPAIN . In any event, the TENANT shall be responsible for any damage inflicted to third parties, provided there is gross negligence or willful misconduct by the TENANT , e. The aforementioned consent does not apply to the regular maintenance of the property.

8. OBLIGATIONS OF THE PARTIES APPLICABLE TO ALL STAGES OF THE AGREEMENT

8.01. Obligations of the TENANT : The following are the general obligations of the TENANT :

8.01.1 Use the Premises in accordance with the provisions set forth in this Contract;

8.01.02 . Comply with OPAIN’S Plans;

8.01.3. Pay to OPAIN the Consideration established in Clause 3.03;

 

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8.01.4. Keep the Permits in full force, at any time.

8.01.5. Pay OPAIN the Regulated Income at the TENANT’S charge (as defined in the Concession Contract) directly related to this agreement, in a complete and timely way, pursuing Resolution 05496, 2005, issued by AEROCIVIL, and amended by Resolution 2013, 2006.

8.01.6. Pay all utilities invoices and/or fares of the Premises, caused since the Certification of Commencement of Adaptation Works;

8.01.7. Refrain from using the Premises to hide people; deposit arms, explosives or terrorist group’s money; therefore, it is expressly and strictly prohibited to use the Premises to the ends established in section b) of the paragraph of Article 38, Decree 180, 1998, and Article 34, Law 30, 1986. Likewise, the TENANT shall not use the Premises to produce, store and sell drugs and hallucinatory substances such as marihuana, hashish, cocaine and other related, or any other illicit activity; in any event the TENANT is no responsible for third parties’ acts that for this specific case, shall be all people different to the staff of the TENANT .

8.01.8. Keep in force the Policies that Clauses 9.02 and 9.03 of this Contract refers to, for the complete duration of this lease agreement.

8.01.9. Observe and strictly comply the written instructions provided by OPAIN , inherent with the performance of this agreement.

8.01.10. Accept responsibility before OPAIN and third parties for all damages and harm the TENANT or any person under his supervision or care cause to people or property because of gross negligence or willful misconduct, carelessness or ignorance of the safety regulations established in the applicable laws and OPAIN’S Plans;

8.01.11 Free and relieve OPAIN from liability as established in Clause 8.04;

8.01.12. Accept responsibility for all expenses and expenditures caused during the performance of the TENANT’S activities, including those relating to any accident attributable to it.

8.01.13. Take all measures required to take care of any accident that may occur while performing its activities and prevent the occurrence of new accidents. Furthermore, the TENANT is bound to adopt the applicable preventive and corrective measures in order to avoid that the accident occur again, or to prevent the damage to extend or worsen the situation;

8.01.14. Notify OPAIN immediately about any misappropriation, disturbance, encumbrance, loss of tenure, imposition of easement rights that any person attempts on the Premises, wear and/or flaw in the Premises that OPAIN must repair;

8.01.15. Refrain from introducing in the Premises or the Granted Area inflammable substances, explosives, pollutants, hallucinogen substances, or any other element that might threaten the integrity and security of the Airport or its users. Without prejudice of the foregoing, OPAIN may grant express authorization to introduce these substances, in the event the activity of the TENANT requires it;

8.01.16. Address the complaints and claims received through OPAIN, relating to the condition of the Premises or to flaws in the quality of the service provided by the TENANT . The TENANT must resolve these complaints and claims within the next 10 workdays after notification from OPAIN .

8.01.17. Comply with the Airport’s solid waste management rules, according to the Environmental Plan.

 

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8.01.18. Ensure that the TENANT , its stockholders or people part of the economic group (if it exists) it belongs to, (i) are not part of the executive list of the OFAC (Office of Foreign Assets Control of the Department of Treasury of the United States of America), (ii) have not been condemned for crimes against property, money laundering and/or illicit enrichment, and (iii) expired ownership has been declared upon their properties in accordance to the Applicable Law;

8.01.19. Assess the recommendations provided by all entities regulating International Civil Aviation, and allow the development of the campaigns to inform passengers about these recommendations.

8.01.20. Refrain from granting access to personnel to other areas different to the leased ones, without bearing the identification that authorizes them to transit these areas.

8.01.21 . Comply with the Airfields Regulations and the dispositions established in the Local Airport Safety Plan;

8.01.22. Refrain from exhibiting external advertisements in the Premises, excluding the Establishment Sign, which must be approved by OPAIN within 5 business days, counted from the receipt of the request from the TENANT .

8.01.23 . Refrain from using the name, brands or logos of OPAIN associated to the Airport, unless there is written consent from OPAIN .

8.01.24. Refrain from performing any action or omission that, because of its nature, might represent or cause a security threat in the Premises, the Airport or to the air operation;

8.01.25 . Deliver and/or pay to the Trust the amount stated by this Contract, according to the instructions of OPAIN and/or the Trust; and

8.01.26 . Fulfill the rest of the obligations derived from this Contract and the Applicable Law.

8.02. Obligations of the TENANT relating to Environmental Regulations . The TENANT shall always fulfill the applicable provisions of the Environmental Plan, as well as the obligations below, and shall take all the necessary measures to protect the environment;

8.02.1. Prepare any document necessary to comply with the Environmental License (as per the definition established in the Concession Contract), where applicable;

8.02.2. Notify OPAIN immediately regarding any breach relating the Environmental Regulation, as well as any claim alleged by the environmental control and monitoring agencies, or any contractual breach relating to the fulfillment and performance of the obligations derived from the Environmental Obligations; and

8.02.3 . Comply with the corrective plans pointed out by OPAIN , AEROCIVIL and/or the control and monitoring agencies, regarding the breaches or threats that may arise, associated with the Environmental Regulations.

8.03. Obligations of OPAIN : The following are the general obligations of OPAIN :

8.03.1. Deliver the tenancy of the Premises to the TENANT , under leasehold title, from the date stated in the Certification of Commencement of Commercial Exploitation.

 

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8.03.2. Allow the access to the Premises to the TENANT’S staff duly identified with the identity card issued by OPAIN , in accordance to the instructions provided by OPAIN .

8.03.3. Free and relieve the TENANT from liability as established in Clause 8.04;

8.03.4. Fulfill the rest of the obligations derived from this Contract and the Applicable Law.

8.04. Indemnity : Each Party shall Free and relieve the other Party and its subsidiaries, affiliates, headquarters and their respective stockholders, executives, employees, agents, successors, assignees, trusts or any other party, against all liabilities, damages, demands and claims caused to properties, lives, or personal integrity of a Party, its employees, agents or subcontractors, or any third party, directly or indirectly arising from incidents, actions or omissions of one of the Parties, its employees, agents, subcontractors, during the performance of this Contract.

8.04.1. Each Party will immediately inform of any claim or action that is instituted against any of the Parties Party relating to this Contract, as soon as they are aware of it. In this event, the Party shall provide all the necessary collaboration and provide any document or information it has that might be considered as useful.

8.04.02 . The indemnity obligation established in this Clause shall outlast the termination of this Contract and shall have effect for a term of 5 years after the date of termination of this Contract.

9. SPECIAL PROVISIONS :

9.01. Utilities : During the validity of this Contract, the TENANT commits to fulfill the payment of all invoices and/or fare of the utilities of the Premises generated since the date stated by the Certification of Commencement of Adaptation Works.

9.01.1. OPAIN reserves the right to request that the TENANT hand over the invoices as evidence of payment of the utilities.

9.01.2. The claims relating to the proper provision or invoicing of the aforementioned utilities, shall be directly settled by the TENANT before the respective service provider.

9.01.3. If as a result of non-timely payment of the utilities the respective company suspends, removes the electric power service or telephone line services, the TENANT be responsible for the payment, at its own expense, of the related interests as well as reconnection expenses.

9.01.4 . This Contract, along with the invoices paid by OPAIN, constitutes an enforcement order to judicially collect from the TENANT and its guarantors; the utilities the TENANT refrained from paying.

9.02. Civil Non-Contractual Liability Policy : The TENANT commits to procure a Civil Non-Contractual Liability Policy (the “Policy”) with a legally established Colombian insurance company, which is deemed as acceptable by OPAIN, with the following conditions:

Taker: THE TENANT

Policy Holders : OPAIN S.A. NIT 900.105.860-4, FIDUCIARIA OPAIN S.A.-FIDUCIARIA BANCOLOMBIA, NIT 830.054.539-0, and the TENANT.

Beneficiaries : Damaged Third Parties.

Protection and Validity : The validity of this protection shall be annual.

 

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Insured Value: The Policy shall have an insured value equivalent to Sixty Million Pesos ($60.000.000). The contracted coverture shall be full (100%) basic protection (land, labor and operations) per event, plus the annual accrued, medical expenses 10% per event and 20% for the annual accrued, contractors and subcontractors to full extend (100%), own and third parties’ vehicles 10% per event and 30% validity, employer 25% per event and 50% for the annual accrued. All protections have a deductible charge of 10% of the loss value that the TENANT shall assume, minimum 5 Monthly Legal Wages.

9.02.1. The issuing of the Policy does not exempt the TENANT of its obligation of indemnifying OPAIN for all the damages arising from the non-fulfillment of this Contract.

9.02.2. The TENANT shall replace the Policy when its value is affected for whatever reason. Said replacement shall be performed within the next 10 calendar days after using the initial insured value for the occurrence of an incident. In the event the Policy is called upon, the TENANT shall pay the deductible. The Policy is an accessory and shall be taken without prejudice of all obligations derived from the same

9.03. Compliance Policy : A policy to ensure the compliance of the obligations derived from the signing of this Contract, including, but not limited to, those related to payments on its charge, with the following characteristics:

Taker and Secured Person : The TENANT.

Beneficiaries: OPAIN S.A. NIT 900.105.860-4, FIDUCIARIA OPAIN S.A.-FIDUCIARIA BANCOLOMBIA, NIT 830.054.539-0.

Protection and Validity: The validity of this protection shall be annual.

OBSERVANCE : Observance of all obligations taken by the TENANT while entering the corresponding Contract, for an amount equivalent to thirty percent (30%) of the annual value of the Contract, which is the result of multiplying the Consideration by twelve.

The validity of this protection shall be annual. In any event, this policy shall be valid throughout the performing term of the agreement plus four (4) months.

9.04. Lease Assignment: It shall be governed in accordance with the provisions of article 23, Code of Commerce, Goodwill : The TENANT expressly waives the right to demand any amount corresponding to “commercial premiums”, “Goodwill” or any denomination used in the market, that indicates an improvement of the Premises as a lease unit at the termination of this Contract. Therefore, the TENANT waives any right to demand OPAIN or AEROCIVIL any amount for that reason during the validity of the Contract, or in case the relocation of the Premises is necessary at any time of the performance of the Contract and/or its termination.

9.06. Risks of the TENANT : The TENANT takes on the risks derived from the performance of the Contract, particularly those relating to changes in the passenger flow, sales percentage and operative and management changes that take place in the Airport due to the Concession Contract. Thus, the TENANT exempts OPAIN from any responsibility relating these matters, as OPAIN does not guarantee nor taken on any obligation before the TENANT to ensure passenger flux, percentage of sales percentage or the non-occurrence of operative and management changes in the Airport.

9.07. Conformity with the Procurement Transparency Protocol of OPAIN: OPAIN expresses that its actions derived from the performance of this Contract follow objectivity and transparency principles, in accordance to OPAIN’S by-laws, the applicable law and the Procurement Transparency Protocol (the “Protocol”) adopted by OPAIN’S Board of Directors, and enforced by all of its employees, stockholders and managers.

 

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9.08. Termination of the Contract by Just Cause in favor of OPAIN: OPAIN shall have the right to terminate the Contract before the term, due to any of the following causes:

9.08.1 . Breach of the economic obligations taken on by the TENANT for more than 10 consecutive days. In this event, OPAIN must request the TENANT to make up for the failure in a reasonable term. If the TENANT does not fulfill its obligations, OPAIN may terminate the Contract within the next ten (10) calendar days.

9.08.2. Imposition of one or several fines on OPAIN by AEROCIVIL or any other authority or person, caused by facts attributable to the TENANT ;

9.08.3 By liquidation or closing of TENANT operations;

9.08.4. By order of a Governmental Authority;

9.08.5 . Falsity in the documents or information provided by the TENANT , or in the Policy;

9.08.6. Other causes foreseen in the Applicable Law, the Concession Contract, and the Contract.

9.09. Termination of the Contract by the TENANT:

The TENANT shall have the right to terminate the Contract before the term, due to any of the following causes:

9.09.1. Breach of compliance regarding obligations of OPAIN for more than 10 consecutive days.

9.09.2. Dissolution and/or liquidation of OPAIN ;

9.09.3. By order of a Governmental Authority;

9.09.4. Falsity in the documents or information provided by the OPAIN ; and

9.09.5. Other causes foreseen in the Applicable Law, the Concession Contract, and this Contract.

9.10. Unilateral Termination of the Contract by the TENANT: The TENANT shall have the right to terminate the contract unilaterally and in advance by giving six a 6 months prior notice to OPAIN , provided that the TENANT pays OPAIN , as a compensation, the amount equivalent of 3 months worth of the Consideration, calculated taking into account the average of the last 3 billed months.

9.11. Notice and Effects of the Termination of the Contract : In order for contract termination to be effective on the grounds of Clause 9.08, 9.09 and 9.10, the Party requesting termination on the Contract shall send written notification exposing the reasons for said termination. In the event of Contract termination because of the causes established in Clauses 9.08, 9.09 and 9.10, the TENANT shall return the property in the same conditions as it received it, in accordance with the provisions of this Contract and the Applicable Law, within the 30 calendar days after the judicial or extra-judicial restitution request. Error! The source of the reference is not found. and the following effects shall come into force:

9.11.1 . The TENANT shall pay all due amounts to OPAIN , including the Penalty Clause and the Consideration installments, as well as all utilities bills caused from the date on the Certification of Commencement Adaptation Works until the termination of the Contract date, within the next thirty (30) days after the termination of the Contract date.

 

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9.12. Non-monetary sanctions : In the event of failure of any of the obligations of the TENANT established in paragraph 8.01.1, 8.01.3, 8.01.8, 8.01.19, 8.01.20, 8.01.23, 8.01.25 of the Contract persisting for more than 10 calendar days, without prejudice of other agreed sanctions in this CONTRACT or established in the Applicable Law, prior the admonition established in Clause 9.08.1, OPAIN shall have the right to: (i) terminate the Contract; (ii) revoke all access permits granted to the TENANT , its employees and subcontractors; and (iii) inform the users and/or security authorities of the Airport that the TENANT is no longer authorized to use the Premises nor enter the restricted areas of the Airport.

9.13 Penalty Clause : In the event of failure to comply with the obligations of the TENANT set forth in paragraphs 8.01.1, 8.01.24, 8.02.4 of this Contract, except for the monetary obligations such as the monthly monetary Consideration established in this Contract, the TENANT shall pay OPAIN , as a Penalty Clause, an amount corresponding to one (1) year of installments, once the TENANT is required to comply with its obligations and the term established in clause 9.08.1 has expired without solving the failure. Payment of the penal clause does not exempt the Parties from fulfilling the obligations derived from this Contract.

9.14. Contract Settlement: The Termination Document must be signed in order to proceed with the final verification of accounts relating to the present Contract and subsequent final settlement.

9.14.1. The final verification of accounts relating to the present Contract shall be carried out in a term that is no longer than 15 calendar days calculated from the termination notice date send by the Party requesting the Contract termination, or from the expiration date of this Contract.

9.14.2. In order to sign the Termination Document, the Parties shall settle the certain, particular and demandable benefits due to each other, which shall appear in said document.

9.15. Default Interests: In the event any of the Parties fail to comply with any of its obligations consisting of paying an amount of money under this Contract, the breaching Party shall recognize and pay the other default interest calculated at the highest current legal rate.

10. TERMINATION BY MUTUAL AGREEMENT:

10.01. The Parties may concur on the termination of the Contract before the agreed term in the event OPAIN requires the whole or a portion the Premises, in order to carry out works to fulfill the Concession Contract. This kind of Termination shall be applicable provided that, along with the procedure described below, the aforementioned works have such a character that prevent the complete and permanent normal use of the leased area, and that the works make the TENANT to permanently stop using the leased area. In addition to this, the Parties acknowledge beforehand that this clause shall not be applicable in the event of works that don’t demand returning the property, without prejudice of the provisions of paragraph 3.07, Clause 3 of this Agreement. In order to implement this form of termination, the procedure below shall be followed:

(i) OPAIN shall inform the TENANT about the necessity of getting back the Premises and shall propose a substitute area in the Airport, which shall be appropriate for the TENANT’S operation.

(ii) The TENANT shall inform OPAIN if the proposed area complies with reasonable purpose and operational conditions to move its operation. Said conditions shall be the same or better than those offered in the Premises.

 

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(iii) If the TENANT does not accept the offered area to move its operation, OPAIN shall offer the TENANT another area that complies with the minimum requirements requested by the TENANT , if such area existed.

(iv) Only if OPAIN and the TENANT concur on a satisfactory area for the TENANT , the Parties shall sign a new lease contract that maintains equivalent conditions to the agreed in this Contract regarding duration and price. Regarding price, the Parties shall agree that it will only be required from the day the TENANT begins exploitation in the new area, so no compensation will be caused or paid during the time it takes the TENANT to adapt the new area.

11. RESTITUTION OF LEASED AREAS

11.01. Premises Restitution : When this Contract is terminated for any cause, the TENANT shall hand over the Premises to OPAIN , personally o to whom OPAIN authorizes to receive it, according to the Certification of Commencement of Adaptations Works, without prejudice of the provisions of Clause 4.034 regarding improvements, which shall be property of AEROCIVIL, committing itself to present the fully paid utility invoices. Concerning the utilities pending for revision, the TENANT guarantees its payment through proportional provision equivalent to the average of the preceding year, according to the respective invoices.

12. MISCELLANEOUS

12.01. Inspection ; OPAIN , directly or through the person it appoints, at any time and when it deems convenient, shall have the right to inspect the way the TENANT is performing the Contract and shall request information and the correcting measures OPAIN deems necessary, unless the information is considered confidential by the TENANT . OPAIN shall give prior notice of two (2) calendar days before the inspections, which shall not interfere with the commercial activities of the TENANT or present inconvenience to its customers and employees. The TENANT understands and accepts that the exercise of this faculty by OPAIN does not imply exoneration of the responsibility of the TENANT respecting its obligations established in this Contract .

12.2. Liability: The TENANT is liable before OPAIN and third parties for the damages to people and property that the personal under its surveillance might directly cause resulting from the deployment of its activities and, in general, the use and exploitation of the Premises, related to the development of its activities.

OPAIN does not take on any responsibility for the damages or harm the TENANT might suffer because of causes attributable to third parties.

12.03. Relation among the Parties : Both the TENANT and OPAIN are independent contractors and no provision from this Agreement shall be interpreted in a sense that creates a corporation, joint venture, principal and agent relationship, nor constitutes a commercial agency. Under no circumstances OPAIN shall act as agent or representative of the TENANT .

There is no employment relationship between OPAIN and the TENANT’S employees. The TENANT acts independently, as the verified employer of its staff, with technical and administrative autonomy, thus, there is no employment relationship or subordination with OPAIN; therefore the TENANT is responsible for all the expenses of hiring workers and subcontractors, as well as payment of wages, transportation, travel allowances, any kind of social benefits, or any other compensation that according to employment law, employment contracts, deals and collective labor agreements said workers and subcontractors have or might have the right to.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

12.4. Identification of the TENANT’S staff : The TENANT shall process the identity card or sticker that identifies its employees or subcontractors as part its staff, following the identity card issue procedures established by OPAIN . To this effect, the TENANT shall provide OPAIN the list of employees and subcontractors requiring access to the restricted areas, with at lest 5 business days beforehand. Once the respective employee or subcontractor ceases operations, the TENANT shall return to OPAIN the identity card and credentials obtained for every employee or subcontractor, and OPAIN shall suspend the respective access to the restricted areas.

12.5. Confidentiality : The Parties shall maintain in absolute confidentiality all documents or information received from the other Party during the performance of this Contract, and therefore shall not disclose said information without prior written consent from the other Party, except for judicial decision, during the term of the Contract and the 5 subsequent years after its termination. Confidentiality shall not apply to the following events: (i) when at a latter time the information becomes available to the general public for a reason different to the failure to comply with the Confidentiality obligation of this clause; (ii) when the information was already known by the receptor and they may demonstrate this by documents or other proofs showing this; (iii) when the information is known by the receptor due to causes outside the control of the Parties; (iv) when the information is prepared by or in behalf of the disclosing Party without involving confidential information of the other Party; (v) when the information is revealed by request of a competent governmental authority or applicable law disposition; and (vi) when OPAIN requires the statistical and commercial information provided by the TENANT relating to the activity carried out by the TENANT and authorized by virtue of this Contract, in order to process and disclose its own data and statistics about the different commercial areas of the Airport. Opain guarantees the information it may use is related to the normal operation of the industry the TENANT belongs to, and shall not wrongfully disclose privileged or reserved information, those relating to its financial statements and/or its income level.

Without prejudice of the aforementioned provision, the TENANT may share, with ought previous consent, the existence of this Contract or the information it contains or any other additional information obtained due to its signing or during its validity, with any of the companies the TENANT controls or those which act as its controllers or those that are under joint control of any of them, including the executives, directors, legal and financial counsels, underwriters, and/or insurers of each of them.

12.06. Settlement of Disputes : In the event of a dispute between the Parties under this Agreement and/or its annexes during its deployment or performance, the Parties agree on the following settlement procedures:

1. Direct Negotiation:

The Parties shall resort to direct-settlement procedures, for which any of them may give written notice to the other about the existence of a dispute, and the other shall respond in written in a term of ten (10) business days, expressing its position about the dispute and a brief presentation of the alleged reasons.

The Parties shall meet up through their legal representatives or whom they appoint, to try to resolve the dispute, within a term of fifteen (15) business days after the date of dispatch of the communication.

All direct negotiations between the Parties shall be confidential, thus all information disclosed by a Party to the other in the course of negotiations may not be used as evidence in court or arbitration proceedings, unless said information was already public or could be accessed directly by the other Party.

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

If the Parties can’t directly resolve the dispute by the end of a thirty (30) business day period, counted from the date of the initial communication, the provisions established on the following paragraph shall apply:

2. Arbitration: If the Parties couldn’t settle the dispute in the previous stage, any of them shall submit the dispute to the Arbitration and Conciliation Center of the Chamber of Commerce of Bogota for binding arbitration, and appoint by agreement of the Parties three (3) arbitrators from the “A” list of eligible arbitrators, in a period of five (5) days. If such appointment is not possible the arbitrators shall be appointed by the Arbitration and Conciliation Center of the Chamber of Commerce of Bogota to the request of any of the Parties. The decision shall be based on Law.

The appointed arbitrators shall inform the Parties, within the next five (5) working days following their notice, if they accept or reject the appointment. If they remain silent it shall be understood that they do not accept. If an arbitrator does not accept, renounces, dies or becomes disabled, he shall be replaced by the same means used to his appointment.

The arbitral tribunal shall rule on the controversy based on Law, and the defeated Party shall pay the cost of the arbitration.

12.07. Taxes: Each Party shall be responsible for any direct or indirect tax or cost, national, local or municipal which is attributable to it in connection with the performance, fulfillment or authentication of this Contract. Each Party shall be responsible of complying with all applicable tax regulations because of its activity.

12.08. Entire Contract and prevalence : This Contract, including its Annexes, containes the entire agreement between the Parties as to the subject matter hereof, and supersedes all prior agreements concerning the same matter.

12.09. Amendments : All amendments, additions and clarifications to this Contract shall be valid only if they are in written and duly signed by the legal representatives of the Parties.

12.10. Domicile : For all legal purposes the contractual domicile is the city of Bogota D.C.

12.11. Governing Law : Colombian Law shall govern the performance, interpretation, enforcement and dispute resolutions connected with this Contract.

12.12. Notices : Except in the case that there has been a different agreement in the present contract, all notices or communications required or allowed by under this Contract shall be made in written form, personally delivered and/or send by fax machine and/or electronic mail to the following addresses:

In the case of the TENANT:

 

To the attention of:    -Legal Representative.
Address:    Av. El Dorado Cll. 26 No. 59-15, Bogota D.C., Colombia
Telephone:    +571 5877700 ext. 2552
Fax:    +571 5877700 ext. 2552
Email:    notificaciones@avianca.com

 

In case of OPAIN:

 

To the attention of:    -General Manager
Address:    Calle 26 No. 103-09, Edificio Cisa, Bogotá D.C., Colombia
Telephone:    +571 4397070
Fax    +571 4135104
Email:    jpulido@eldorado.aero

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

Communications shall be deemed as delivered: (i) the next business day following its remission, if it is a personal delivery; (ii) the third business day following its mailing, if the remissions were made by registered mail or a similar source with acknowledge of receipt; (iii) the next business day, if it was send by fax or email, provided the sending machine produces receipt confirmation or that there are reasonable proofs to demonstrate the message has been received.

12.13. Expenses: The expenses resulting from the performance of this Contract shall be borne by the TENANT .

12.14. Counterparts: This Contract is simultaneously signed in counterparts on October 29 2012, each of which shall be deemed to be an original.

 

Signed for and on behalf of OPAIN    Signed for and on behalf of The TENANT
(Illegible signature)    (Illegible Signature)

JUAN ALBERTO PULIDO ARANGO

General Manager

OPAIN

  

ELISA MURGAS DE MORENO

Legal Representative

AEROVÍAS DEL CONTINENTE

AMERICANO S.A. AVIANCA

 

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LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

ANNEX 1

Certification Of Commencement Of Adaptation Works

By and between the undersigned to wit: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Adaptation Works of the Lease Contract No. OP-DC-CA-T1-0028-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: In accordance to Clause 5.04 of the Contract the prior conditions required were established for the signing of the Certification of Commencement of Adaptation Works set forth in order to begin the Adaptation Stage given that the Parties have met the prior conditions to give way to this Stage of the Contract.

SECOND: The Parties, with the intention to begin the Stage of Adaptation Works,

AGREE TO

FIRST : Through this Certification of Commencement of Adaptation Works, OPAIN grants access to the TENANT to the Premises from October 17, 2012, in order to begin the necessary works in the Premises, in accordance with the provisions set forth in Chapter 6 of the Contract.

SECOND: Through Annex 1 of this Certification of Commencement of Adaptation Works, the inventory of the conditions of the Premises on the date of endorsement of this Certification is duly signed.

THIRD: Starting October 17, 2012 the TENANT shall begin with the performance of the Stage of Adaptation Works following the provisions of Chapter 6 of the Contract.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., December 19 2012.

 

Grantor    Grantee
(Illegible signature)    (Illegible Signature)

JUAN ALBERTO PULIDO ARANGO

General Manager

OPAIN

  

ELISA MURGAS DE MORENO

Legal Representative

AEROVÍAS DEL CONTINENTE

AMERICANO S.A. AVIANCA


LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

ANNEX 2

Certification Of Commencement Of Commercial Exploitation

By and between the undersigned to wit: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Commercial Exploitation of the Lease Contract No. OP-DC-CA-T1-0028-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: Clause 6.04 of the Contract set forth the preliminary conditions required to sign the Certification of Commencement of Commercial Exploitation, in order to begin with the Stage of Commercial Exploitation given that the Parties have met the required preliminary conditions to begin this Stage of the Contract

SECOND: With the intention to begin the Stage of Commercial Exploitation, the Parties

AGREE AS FOLLOWS

FIRST : Provided that the conditions for the signing of the Certification of Commencement of Commercial Exploitation have been met , the Parties state that with the signing of this document an inspection the premises has been carried out, finding that the works comply with the provisions of Annex 5 of the contract therefore OPAIN hands over, and the TENANT receives, the Premises satisfactorily in order to start the Stage of Commercial Exploitation beginning January 4, 2013.

SECOND: With the signing of this Certification of Commencement of Commercial Exploitation the Parties will initiate the Stage of Commercial Exploitation, beginning October 19, 2012 , date in which AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA declared the commencement of the Commercial Exploitation Stage in the areas pertaining to the purpose of contract OP-DC-CA-T1_0061-12.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C., December 20, 2013.

 

Delivers,    Receives,
(Illegible signature)    (Illegible Signature)

JUAN ALBERTO PULIDO ARANGO

General Manager

OPAIN

  

ELISA MURGAS DE MORENO

Legal Representative

AEROVÍAS DEL CONTINENTE

AMERICANO S.A. AVIANCA

 


LEASE CONTRACT No. OP-DC-CA-T1-0061-12

 

ANNEX 3

Certification Of Satisfactory Receipt of the Works

By and between the undersigned to wit: Juan Alberto Pulido Arango , bearer of the identity card No. 70.876.189 issued in La Estrella, Antioquia, domiciled in Bogotá, acting as legal representative of Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. (“OPAIN), and AEROVÍAS DEL CONTINENTE AMERICANO S.A. AVIANCA (the “ TENANT ”), which together shall be referred as the “Parties”, have agreed on signing this Certification of Commencement of Commercial Exploitation of the Lease Contract No. OP-DC-CA-T1-0028-12 (the “Contract”), which shall be governed by the provisions hereof, considering the following:

WHEREAS,

FIRST: In accordance with the Adaptation Works Stage established in Chapter 6 of the Contract, the TENANT delivers the work(s) as stated in Annex 1 of this Certification Of Satisfactory Receipt of the Works.

SECOND: That the performance of the Works by presented and delivered by the TENANT fulfill the designs and specifications of the project approved by OPAIN .

THIRD : Copy of the record plans and their Autocad file version is attached to this Certification Of Satisfactory Receipt of the Works.

FOURTH : That the installation of notices and signs installed in the Premises comply with the conditions established in the Space Possessor Adaptation / Remodeling and Maintenance Procedure.

FIFTH: In compliance of Clause 6.03.4 of the Contract, OPAIN carried out the inspection of the adaptation Works, and these were approved.

SIXTH : The Parties, according to the aforementioned,

AGREE AS FOLLOWS

FIRST : The adaptation Works corresponding to the Stage of Adaptation Works of the Contract and the record plans or “as built” plans have been satisfactorily received by OPAIN, according to the provision and requirements of the Contract.

In witness whereof, the Parties sign two (2) identical counterparts in Bogota D.C.,                      , 201      .

 

Delivers,    Receives,
/ s / JUAN ALBERTO PULIDO ARANGO    /s/ ELISA MURGAS DE MORENO

JUAN ALBERTO PULIDO ARANGO

General Manager

OPAIN

  

ELISA MURGAS DE MORENO

Legal Representative

AEROVÍAS DEL CONTINENTE

AMERICANO S.A. AVIANCA

 

Exhibit 10.3

REPUBLIC OF COLOMBIA

CIVIL AERONAUTICS

Special Administrative Unit

RENTAL CONTRACT NUMBER SOAR 0011 04

LANDLORD: U.A.E. CIVIL AERONAUTICS

LESSEE: AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA

“AVIANCA” NIT (Tributary Identification Number): 890.100.577

OBJECT: PROPERTY RENTAL- AIR LIFT

 

AREAS    Item    Area
   Parking lot    12,487.69 m²
   Platform    16,743.50 m²
   Land    86,730.19 m²
   Terminal Building    10,500.74 m²
   Total    126,462.72

 

DESTINATION:    TERMINAL FOR PASSENGER DISPATCH, PLATFORM FOR AIRCRAFTS, VEHICLE PARKING PLACE, ACCESS ROADS, HANGAR, WORKSHOP AND WAREHOUSES
MONTHLY WORTH:    $484,315,285 discriminated as follows:
   $452,631,109 monthly rent
   $ 31,684,178 Value Added Tax
TOTAL WORTH:    $ 11,623,566,888 discriminated as follows:
   $ 10,863,146,616 rental value
   $ 760,420,272 Value Added Tax
TERM:    TWO (2) YEARS
LOCATION:    INTERNATIONAL AIRPORT “ELDORADO” OF BOGOTA C.D. CITY


Among the subscribers, SILVIA FERNANDEZ DE CASTRO , of legal age, domiciled in Bogotá, C.D., with citizenship identity card No. 41.638.219 issued in Bogotá, whom, as GENERAL MANAGER OF THE ELDORADO AIRPORT acts in name of and in representation of the SPECIAL ADMINISTRATIVE UNIT OF THE CIVIL AERONAUTICS , specialized entity, of technical character, ascribed to the Ministry of Transportation, with legal entity, administrative autonomy and independent patrimony, according to the delegation of functions established in Resolution number 01583 as of April 30 th , 2004, whom for the purpose of the present document will be known as the LANDLORD on one side, and on the other side, FRANCISCO MENDEZ GARCIA , of legal age, identified with citizenship identity card No. 79.158.664 issued in Usaquén, whom, as legal representative, acts in the name of and in representation of AEROVIAS NACIONALES DE COLOMBIA S.A. “AVIANCA S.A .”, legal person, constituted as a corporation by public deed number 2374 as of December 5th, 1919, issued at the Notary Second of the circle of Barranquilla and registered at the Third Court of the same city, modified on several opportunities, being its last amendment that included in public deed number 1714 as of April 11 th , 2002, issued at the Notary 18 th of Bogotá´s circle, presently active, as is stated in the Certificate of Existence and Legal Representation issued by the Chamber of Commerce of Barranquilla, duly authorized to enter into the present contract by its Directive Board, whom, for the purposes of this contract will be called the LESSEE, who also expressly declares, under oath, that neither him nor the legal person he is representing is immersed in any cause of inability or incompatibility as specified in article 8 of Law 80 of 1993, have agreed in entering into the present rental contract which will be ruled by the said law, its regulatory regulations, the pertinent dispositions included in the Civil and Commercial Codes, Resolutions numbers 3379 of June 3 rd , 1996 and 2883 of July 4 th , 1999 and all other regulations which may clarify, modify, amend or derogate them from time to time, previous the following considerations: 1) that the 26 th of June of 2000 the rental contract number 0036 00 was entered into by the AEROCIVIL and the company AEROVIAS NACIONALES DE COLOMBIA S-A- “AVIANCA S.A.”, over the airlift terminal which was comprised by two adjacent pieces of land, according to maps drawn by AEROCIVIL , which are part of said contract. 2) That, by communication No.


1070010000-378 of April 12, 2002, the company AVIANCA S.A . stated its interest in continuing with the use of the rented area as a consequence of the impossibility of AEROCIVIL to allow it to concentrate the integrated operation of THE COMPANIES AVIANCA S.A. and S.A.M. at the international terminal of the ELDORADO airport. 3) That in order to initiate the internal proceedings for the renewal of the contract the concepts of viability and convenience were requested to the Infrastructure Direction, to the General Management of the Eldorado Airport and to the Security Division, all which were positive. 4) That the Director of Corporate Services and Buying of the company AVIANCA S.A., through communication number 1053000 030 as of November 8, 2002 let be known that the company is capable of assuming the costs of the rental appraisal of the Air Lift Terminal and neighboring areas. 5) That the GENERAL MANAGEMENT OF THE ELDORADO AIRPORT with letter number 1120 0595 of May 20, 2004 asked the LONJA COLOMBIANA (Real Estate Association) to prepare the appraisal of the rental value of the AIR LIFT TERMINAL , which was sent to the company on May 25, 2004, over a total area of 126,482.72 square meters and with a value of $484,805,579 pesos. 6) That with letter number 5403 635 dated June 3 rd , 2004 the General Management of the Eldorado Airport delivered the original copy of the rental contract for the Air Lift Terminal to the company AVIANCA. 7) That with letter number 1000201000 0091 of June 15 th , 2004 the legal representative of the airline AVIANCA S.A. increases his unconformity for the amount of the appraisal since the constructions of hangars 1 and 2 were included with their workshops, warehouses and offices which do not belong to AEROCIVIL, reason why, he asked for a pronouncement from the Entity on this respect, as the review of the rental appraisal. 8) That with letter No. 1120 0733 of June 24, 2004, the entity recommended, after conducting the pertinent study. To exclude from the rental contract the improvements which do not belong to the entity and to request from the LONJA COLOMBIANA an amendment of the rental appraisal in order to determine the value of the land where they are built”. 9) The General Management of the International Eldorado Airport, with letter No. 1120 0739 of June 25, 2004, requested to the Lonja Colombiana to disaggregate or separate from the rental appraisal the constructions on the piece of land and to specify the rental value of the said land and the total monthly rental. 10) That, by letter


of July 6, 2004 the expert appraiser delivered to the entity the value of the monthly rent in $452,631,109. 11) That owing to the above, (the parties) proceed to enter into the contract, which will be ruled by the commercial and civil regulations and by Law 80 of 1993 and the following clauses:

FIRST: OBJECT. THE LANDLORD delivers in rental to the LESSEE , and the latter receives at the same title, the property called Air Lift Terminal located at the northern side of the Eldorado Avenue at the height of 108 th street, within the lands which actually are part of the International Airport “Eldorado” of Bogotá, D.C.

SECOND: AREA . The total area of the property which is delivered by the present contract is defined as a business unit and has a space of ONE HUNDRED TWENTY-SIX THOUSAND FOUR HUNDRED EIGHTY-TWO POINT SEVENTY-TWO SQUARE METERS (126,482.72 m² ), it is comprised by two adjacent pieces of land, according to adjunct maps prepared by the Real Estate Administration Group on December 2002, which are part of the present contract, discriminated and within the following boundaries: On the NORTH : starting at point TPA1 and heading east in a straight line until reaching point TPA2 at a distance of fifty four point ninety eight (54.98 M) lineal meters; from this point heading north in straight line up to reaching point TPA3 at a distance of ten point twelve (10.12 m) lineal meters, from this point heading west in straight line up to point TPA4 at a distance of one hundred twenty-four point twenty-eight (124.28 M) linear meters bordering with freight warehouse No. 165, platform and taxiway. SOUTH : starting from point TPA5 going west in a straight line until reaching point TPA6 at a distance of sixty-two point fifty-seven (62.57 M) linear meters, from this point heading south and in a curved line until reaching point TPA7 at a distance of forty-five point fifteen (45.15 M) linear meters, from this point heading south and in a straight line until reaching point TPA8 at a distance of thirty-five point zero eight (35.08 M) linear meters, from this point going south and in curved line until reaching point TPA9 at a distance of seventeen point sixty-six (17.66 M) lineal meters bordering green security area, heliports, from this point heading west and in straight line until reaching point TPA10 at a distance of eighty-one point forty-five (81.45 M) linear meters, from this point going west and in a straight line until reaching point TPA11 at a


distance of nine point eighty-seven (9.87 M) linear meters, from this point heading west and in a straight line until reaching point TPA12 at a distance of thirty-six point sixty-four (36.64 M) linear meters, from this point heading south and in a straight line until reaching point TPA13 at a distance of four point twenty-eight (4.28 M) linear meters, from this point heading west and in a straight line until reaching point TPA14 at a distance of seven point forty-seven (7.47 M) linear meters, from this point heading south and in a straight line until reaching point TPA15 at a distance of twenty-seven point ninety-two (27.92 M) linear meters bordering in all this extension with security zone taxiway kilo (K), from this point heading west and in a straight line until reaching point TPA16 at a distance of sixty-two point fifty-two (62.52 M) lineal meters bordering plot number L-170 rented by Central Charter; from this point heading south and in a straight line until reaching point TPA17 at a distance of twenty-nine point nineteen (21.19 M) linear meters, from this point heading south and in a straight line until reaching point TPA18 at a distance of nine point twelve (9.12 M) linear meters bordering vehicle access to the Air Lift Terminal. On the EAST : Heading south from point TPA4 in a straight line until reaching point TPA5 at a distance of four hundred thirty-eight point ninety (438.90 M) linear meters bordering security zone taxiway Foxtrot (F) and on the WEST : parting from point TPA18 heading north in a straight line until reaching point TPA19 at a distance of two hundred twenty-three point thirty (223.30 M) linear meters, from this point heading north in a straight line until reaching point TPA20 at a distance of seven point seventy-four (7.74 M) linear meters, from this point heading north in a straight line until reaching TPA21 at a distance of six point thirty-one (6.31 M) linear meters, from this point heading north in a straight line until reaching TPA22 at a distance of eleven point thirty seven (11.37 M) linear meters, from this point heading north in a straight line until reaching TPA23 at a distance of eight point twenty five (8.25 M) linear meters, from this point heading north in a straight line until reaching TPA24 at a distance of twenty-five point twenty-nine (25.29 M) linear meters, from this point heading north in a straight line until reaching TPA25 at a distance of fourteen point ninety-nine (14.99 M) linear meters, from this point heading north in a straight line until reaching TPA26 at a distance of twelve point fifty three (12.53 M) linear meters, from this point heading north in a straight line until reaching TPA27 at a distance of nine point


ninety-nine (9.99 M) linear meters, from this point heading north in a straight line until reaching TPA28 at a distance of nine point ninety-two (9.92 M) linear meters with border parallel to the Eldorado Avenue. From this point heading north in a straight line until reaching TPA29 at a distance of twenty seven point ninety-seven (27.97 M) linear meters bordering the Air Lift Terminal vehicle exit, from this point heading north in a straight line until reaching TPA30 at a distance of forty-nine point ten (49.10 M) linear meters bordering parallel to the Eldorado Avenue, from this point heading east and in a straight line until reaching point TPA31 at a distance of twenty-five point thirty-eight (25.38 M) lineal meters, from this point heading north and in a straight line until reaching point TPA32 at a distance of thirteen point zero five (13.05 M) linear meters, from this point heading north in a straight line until reaching point TPA33 at a distance of twenty point eighty seven (13.87 M) linear meters, from this point heading north in a straight line until reaching point TPA34 at a distance of fifteen point zero eight (15.08 M) linear meters, heading north 15 in a straight line until reaching point TPA35 at a distance of thirteen point sixty-three (13.63 M) linear meters, from this point heading north in a straight line until reaching point TPA36 at a distance of sixteen point ninety-eight (16.98 m) linear meters, from this point heading north in a straight line until reaching point TPA37 at a distance of thirteen point fourteen (13.14 M) linear meters, from this point heading north in a straight line until reaching point TPA38 at a distance of fourteen point seventy (14.70 M) linear meters¸ from this point heading north in a straight line until reaching point TPA39 at a distance of eleven point zero four (11.04 M) linear meters, from this point heading north in a straight line until reaching point TPA1 at a distance of thirty nine point thirty five (39.35 M) linear meters, bordering the green zone, a parallel to the Eldorado Avenue. This property comprises two pieces of land which are contiguous and adjacent, separated by an imaginary broken line, which starts at point AC1 located at the bus parking lot up to point AC22 located at the border of the access platform with the security zone with the Foxtrot taxiway. PARAGRAPH ONE : The total area of the property being delivered in rental by the present contract, are integrated in one business unit and include land and constructions, except the constructions of the building annex next to the Air Lift Terminal and the hangar constructions with their warehouses, workshops and offices which, since they


were not built by AEROCIVIL, do not belong to the latter and thus are delivered as land. Likewise, it is understood that the internal public access road to the Air Lift with its sidewalks, the internal vehicle access road, the common areas of the Terminal’s commercial zone, the departing lounges (and) the luggage areas are also included in the rental areas. The Foxtrot road security zone, which due to airport operation or security for the normal operation of the Eldorado International Airport, are not object of commercial exploitation by the LESSEE under this contract, but they are delivered, without damage to any operational use AEROCIVIL may give them, without affecting the right of use by the LESSEE. PARAGRAPH TWO: The uses of the areas comprised by this contract may vary according to the operational, commercial and service needs of the terminal and of the LESSEE, provided that the aeronautic service is not impaired. These being so, the LESSEE expressly waives before the LANDLORD, any judicial authority or arbitration tribunal, to invoke a right of change in the rental value due to any change in the destination or use of the areas inside the Air Lift Terminal, except in the event that the LANDLORD reduces the area object of the contract. PARAGRAPH THREE : With the present contract, the exclusive use of all the contract areas is being given to the LESSEE who has the mere possession, and the LANDLORD is keeping all rights derived from their ownership. Thus, the LANDLORD may cease all contract effects and request the restitution of all areas at any moment for the purpose of enlargement, remodeling, implementation or development of the Master Plan or when any of the causes stipulated in the fourth or twentieth clause of the present contract are incurred in, without having to pay any indemnity whatsoever and without prejudice to the right held by LESSEE to obtain from the LANDLORD the areas required by the latter in order to guarantee his operation.

THIRD: DESTINATION . The property which is the object of the present rental contract have one destination of Airport Services ; thus the LESSEE will set them aside, only and exclusively for the ATTENTION OF NATIONAL FLIGHTS OF THE AIRLINES AVIANCA AND SAM, PASSENGER DISPATCH TERMINAL, ITS ENTREPRENEURIAL OFFICES, EXPLOITATION OF COMMERCIAL AREAS, AIRCRAFT PLATFORM, VEHICLE PARKING, ACCESS ROADS, HANGAR, WORKSHOP AND WAREHOUSES.


PARAGRAPH ONE: Due to the location and destination of the property, and for security reasons, it is expressly prohibited to the LESSEE : a) to allow the internal access of non authorized personnel in areas different to those rented; b) Infringe the rules on Regulation of Aerodromes or the dispositions included in the National Program of Airport Security of the International “Eldorado” Airport and related provisions. C) Allow the use of the rented areas to other natural or legal persons, without prejudice to the necessary use which has to be made by other companies hired to support the LESSEE’S operation and the authorized uses by the sub let of areas of commercial premises. D) Every action or default which, given its nature, may represent or cause any security risk in the rented areas, in the airport or for the aerial operation. PARAGRAPH TWO : External advertising is only permitted with the commercial name of the LESSEE with whom the present contractual relationship is established.

FOURTH: TERM OF THE CONTRACT . The term of this contract is of TWO (2) YEARS starting from the date of signature of this contract. PARAGRAPH : In the event the LESSEE desires to continue using the property which is the object of the rental, he must state his interest in writing to the LANDLORD, with anticipation no less than three (3) months previous to its termination date. Once the request is filed, the LANDLORD will state his acceptance or rejection within three (3) months following the petition and, in case the LESSEE does not receive an answer from the LANDLORD , the contract will be deemed extended for a period of three (3) months successively, without exceeding the term initially agreed upon.

FIFTH: DELIVERY OF THE PROPERTY . The property which is the object of the rental, through the present contract, has been occupied by the LESSEE through Rental Contract No. BO AR 0036 00, thus there is no need to make a delivery act, nor inventory, and the present legal business substitutes in all its parts the Rental Contract No. BO AR 0036 00 entered into between the SPECIAL ADMINISTRATIVE UNIT CIVIL AERONAUTICS and the company AEROVIAS NACIONALES DE COLOMBIA S.A. “AVIANCA S.A.”


SIXTH: RESTITUTION . The LESSEE must restitute the property which is the object of the present contract in the events prescribed in the Fourth, Fourteenth and Twentieth clauses of the present contract and in the other causes in which specifically the property must be restituted. In any case, the property must be restituted in the same state as it was delivered, except for natural deterioration caused by the legitimate use and enjoyment and without of the application of Clause Thirteen related to improvement management. For such purposes, a Restitution Act will be prepared and signed, as well as the inventory of goods belonging to the LANDLORD, documents which will be subscribed by the General Manager of the “Eldorado” Airport or a functionary commissioned for said purpose by the LANDLORD, and by the LESSEE , within thirty (30) calendar days following the occurrence of the generating event.

SEVENTH: VALUE OF THE CONTRACT AND PAYMENT FORM . For all legal and fiscal effects, the total value of the present contract is the amount of ELEVEN BILLION SIX HUNDRED TWENTY-THREE MILLION, FIVE HUNDRED SIXTY-SIX THOUSAND EIGHT HUNDRED EIGHTY-EIGHT PESOS ($11,623,566,888) LEGAL TENDER , amount which is discriminated as follows: TEN BILLION EIGHT HUNDRED SIXTY-THREE MILLION ONE HUNDRED FORTY-SIX THOUSAND SIX HUNDRED SIXTEEN PESOS ($10,863,146,616) COLOMBIAN LEGAL TENDER , as the value of the rental payment and SEVEN HUNDRED SIXTY MILLION, FOUR HUNDRED TWENTY THOUSAND TWO HUNDRED SEVENTY-TWO PESOS ($760,420,272) LEGAL TENDER as valued added tax IVA, without including readjustments. Payment of rent will be caused from the date of subscription of the present contract, will be paid in monthly fees of FOUR HUNDRED EIGHTY- FOUR MILLION THREE HUNDRED FIFTEEN THOUSAND TWO HUNDRED EIGHTY-SEVEN PESOS ($484,315,287) LEGAL TENDER , amount which is discriminated in the following way: FOUR HUNDRED FIFTY-TWO MILLION SIX HUNDRED THIRTY-ONE THOUSAND ONE HUNDRED NINE PESOS ($452,631,109) LEGAL TENDER as the value of the monthly rental fee and the amount of THIRTY ONE MILLION SIX HUNDRED EIGHTY-FOUR THOUSAND ONE HUNDRED SEVENTY-EIGHT PESOS ($ 31,684,178) LEGAL TENDER as value added tax, IVA. These amounts will be automatically increased every twelve (12) months, from the date of the subscription of the contract, in the same proportion in which the National Government increases the Monthly Minimum Wage.


PARAGRAPH ONE: The LESSEE undertakes to pay the rental fee every month in anticipation, within the five (5) initial calendar days of the contract month, clarifying that the LANDLORD receives the rental fee at the cashier of the Unit, presently located on the second floor of the Eldorado International Airport, with public attendance every day including Saturdays, Sundays and holidays. The corresponding monthly fee must be paid in the offices of the Paymaster or Cashier of the Unit which are located in the “Eldorado” International Airport of Bogotá D.C. or in the place or account notified by the LANDLORD to this effect.

PARAGRAPH TWO : In the event that the monthly rental fee of the value of the public services are paid by the LESSEE by a check presented on time and not paid due to the latter´s fault, the latter undertakes to pay to the LANDLORD, together with the immediately following rental fee, twenty per cent (20%) of the amount of the check, established as penalty, previous notice from the LANDLORD to the LESSEE of the devolution of the title by the bank and without damage of the LANDLORD persecuting the indemnity for the damages this event may cause him, by the common ways, according to what is established in article 731 of the Commerce Code. In any case, the payment will only be reputed as made in the moment in which it becomes effective and thus, the LESSEE incurs in arrears in the payment, which may give way to the anticipated termination of the present contract and the immediate restitution of the property which is the object of the rental.

PARAGRAPH THREE : in the event the payment of the amount imposed as a penalty for the devolution of the check, as specified in the previous paragraph, is not made, the LESSEE authorizes the LANDLORD to debit it from the monthly rental fee of the following month to be paid.


PARAGRAPH FOUR : According to what is established in Resolution Nos. 03379 of June 03, 1996 and 02883 of July 27, 1999, the rental fee hereby agreed upon, was determined based on the rental appraisal as of May 25, 2004, appraisal practiced by the LONJA COLOMBIANA .

EIGHTH: SERVICES. The property which is given in rental by this contract, has the infrastructure for public services of water, sewage, electric energy, cleaning, waste collection (and) vigilance, all of which will be totally on the account of the LESSEE . The LANDLORD is not responsible for irregularities that may occur in the performance of said services. Likewise, the LESSEE assumes the costs which may be required for the installation of the public service meters.

PARAGRAPH ONE : The consumption of electric energy, water, sewage, national and international telephone service, incurred through the utilization of the LANDLORD´S central systems must be paid by the LESSEE , monthly, previous invoicing issued by the LANDLORD for these concepts. For such effect, the regulatory fees for such services from the SPECIAL ADMINISTRATIVE UNIT OF THE CIVIL AERONAUTICS or the entity which may assume its functions in the future, will apply.

PARAGRAPH TWO: In relation to waste collection, waste must be deposited by the LESSEE in the stationary boxes available for such purposes or, in the absence of these, he must follow the instructions given by the LANDLORD and other rules in force on the subject, undertaking to pay the fees which are established for such effect. In any case, the costs incurred for this concept will be paid by the LESSEE to the natural or legal persons who render the service or to the LANDLORD when the latter hires directly the service for the airport. Likewise, and according to what is stated in the Airport Operations Manual and other dispositions on the matter, the LESSEE accepts and undertakes to pay to the LANDLORD the amount the Special Administrative Unit of the Civil Aeronautics determines for waste transfer.

PARAGRAPH THREE : In relation to the vigilance service, the LESSEE must establish it according to its own assessment of the existent security needs in the matter, applying the regulations of the National Security Program and Airport Operations in force. Nevertheless, the employees performing such services must be directly hired by the LESSEE through a company specialized in the matter, dully authorized by the Superintendency of Private Vigilance and Security.


NINTH: LATE PAYMENT INTERESTS . Payments made on a different date from that stipulated in clauses seven and eight of this contract, will result in the charge of late payment interests, equivalent to one point five (1.5) times the annual interest rate certified by the Bank Superintendency for ordinary credits, calculated per month or fraction and liquidated at the rate in force at the payment date; in any case, this late payment interest may not exceed the limits established as usury. At the same time, it will entitle the LANDLORD to immediately cease the effects of this contract and to demand judicially or extra judicially the immediate restitution of the property.

PARAGRAPH: THE LESSEE expressly waives any requirements to constitute him in arrears, as well as any retention rights which the Law may grant him at any title, over the property object of this contract, rights to which are not waived by the LANDLORD .

TENTH: WARRANTIES. To guarantee the general compliance of the obligations derived from this contract, the LESSEE undertakes to constitute at his cost and in favor of the LANDLORD , through an Insurance Company or Commercial Bank legally established in Colombia, a Unique Warranty Policy of the contract and of the obligations derived from it, for a sum equivalent to thirty five per cent (35%) of the total value of the same, which must be valid during the contract term referred to in Clause Four of the contract and six (6) additional months.

PARAGRAPH ONE: the LESSEE undertakes to adjust every year such warranties in the percentage in which the rental fee is adjusted. Likewise, in the event this contract is extended, such warranties shall be modified according to the term of the corresponding extension and readjustment of the rental fee.


PARAGRAPH TWO : the compliance policy must be delivered by the LESSEE in office 313 of the “Eldorado” international airport, Group of Real Estate Administration of the Special Administrative Unit of Civil Aeronautics, within the ten (10) calendar days following the signature of the present contract, for the corresponding study and approval by the LANDLORD. In the same term, counted as of the initiation of the extension, the Certificate of Modification of the policy must be delivered for its study and approval.

ELEVENTH: THE LESSEE must keep up to date his obligations before the Integral Social Security System (Family Compensation agencies, National Apprenticeship Service- SENA and Colombian Institute of Family Wellbeing- ICBF) and parafiscal payments. The non compliance of this shall be cause for the imposition of successive fines until compliance is completed, previous verification of the amount in arrears through liquidation made by the administration entity. When during the performance of the contract or at the date of its liquidation there appears to be persistence in the non compliance for four months, the State Agency will apply the unilateral termination of the contract.

TWELFTH: For all effects derived from the present contract, only the instructions given by the entitled functionary according to the internal regulations of the Special Administrative Unit of the Civil Aeronautics will have binding force.

THIRTEENTH: LOCATIVE REPAIRS AND IMPROVEMENTS. DEFINITION. According to article 1998 of the Civil Code, LOCATIVE REPARATIONS are those which, according to what is customary, are on the account of the LESSEE and in general those kinds of deterioration which ordinarily are produced by the LESSEE´S or negligence of his dependents and deterioration due to normal use, all of which will be on the account of the LESSEE. IMPROVEMENTS are all types of constructions and, in general, any civil, architectural, electric, hydraulic, telephone work, etc., executed by the LESSEE at his own account and risk, whom, with no exception, must present to the LANDLORD for his approval the project and plans of the works to be executed, signed or endorsed by dully registered professionals. The LANDLORD reserves itself the right to approve or not the request presented and, in the event that he approves it, the destination stated in clause Three of this contract will be taken into account, as well as the existing technical infrastructure and the Airport Master Development


Plan. In any case, the authorization given to that effect by the LANDLORD is strictly understood to be ruled according to what is stipulated in articles 1823 and 1824 of the Commerce Code and in no moment implies any pact, agreement or commitment from the LANDLORD to pay to the LESSEE the value of the constructions or works executed by the latter. Once the execution of the works is approved by the LANDLORD , the latter will designate a supervisor, whom, besides supervising the execution of the works will present a detailed report of the executed works. The technical specifications of the works to be conducted will be detailed in the authorization given by the LANDLORD for such purpose. Thus, if the LESSEE executes works without previous authorization or in breach of what is being authorized, the LANDLORD will command the immediate withdrawal, and this event will constitute a sufficient cause to terminate this contract in anticipation. In any case, the parties clarify understand and state, that the constructions or improvements will only render serviceability, benefit and comfort to the LESSEE and are not necessary nor useful for the LANDLORD. Thus, there will be no compensation or indemnity whatsoever for this concept.

PARAGRAPH ONE: REMOVABLE IMPROVEMENTS . Removable improvements are those which can be withdrawn without deterioration of the normal conditions of the property object of the rental. For such purposes, the LESSEE has thirty (30) working days, from the termination of this contract to withdraw them. After this term, if the LESSEE has not withdrawn said improvements, these will become the property of the LANDLORD without any indemnity.

PARAGRAPH TWO: FIXED IMPROVEMENTS. Fixed improvements are those which cannot be withdrawn because they imply deterioration in the construction conditions of the property object of the rental or the existing technical infrastructure will be affected, thus they accrue to the property object of the rental, at the end of the term agreed upon, becoming the property of the LANDLORD without any indemnity. The parties agree, understand and thus declare that these works, even though they were authorized by the LANDLORD, only produce benefits, serviceability and/or comfort to the LESSEE who executes them on his account and at his risk; that they are not necessary, useful nor relevant for the LANDLORD . In consequence, there will not be any indemnity or compensation whatsoever for this subject, in compliance of articles 1993 of the Civil Code and 1823 and 1824 of the Commercial Code.


PARAGRAPH THREE : The LESSEE will perform, on his own account and at his risk, the locative reparations ordered by law, in accordance to what is established in articles 2028, 2029 and 2030 of the Civil Code.

PARAGRAPH FOUR : the adaptations presently required by the property object of the rental must be previously authorized by the LANDLORD and will be executed by the LESSEE at his own account and risk.

PARAGRAPH FIVE : the damages and prejudice that the LESSEE causes on the occasion of the repairs, adaptations or improvements executed by him, will be of his exclusive responsibility.

PARAGRAPH SIX : the equipment, artifacts, implements and/or other goods or elements which the LESSEE requires and which are not included in the Inventory of Goods, shall be provided by the LESSEE and are of his exclusive property. In consequence, they can be withdrawn at the end of the contract, within the term established in paragraph one of the present clause and there will be no indemnity or compensation whatsoever by the LANDLORD in the event they are not withdrawn within that term.

PARAGRAPH SEVEN: the equipment, artifacts, implements and in general, the goods or elements delivered to the LESSEE in the Inventory of goods, must be returned to the LANDLORD in the same condition as they were delivered, except for the natural deterioration caused by their use and enjoyment. The maintenance, care and conservation of these goods will be in the exclusive charge of the LESSEE and in no case would there be new supplies or replacements of goods or elements by the LANDLORD.

PARAGRAPH EIGHT : the improvements which belong to the LESSEE which comprise the constructions of the building annex next to the Air Lift Terminal and the constructions of the hangar with its warehouses, workshops and offices located in the hangar zone, may be withdrawn by the LESSEE at the termination of the contract, as he chooses, unless there is an agreement to buy them with the LANDLORD.


FOURTEENTH: RELOCATIONS . If, according to the enlargement, remodeling, execution of a master plan, performance of earthquake resistance works or the smooth operation of the service, the LANDLORD requires his installations or properties, by this clause, he is empowered to obtain the restitution of the area object of the present contract and to relocate, transitorily or definitely the LESSEE in another sector, at the decision of the LANDLORD without there being any indemnity. For such purpose, a written notice to the LESSEE , communicating such decision, with no less than three months in advance, will be sufficient.

SINGLE PARAGRAPH : if the LESSEE does not accept the conditions of the new location and the objections cannot be solved by direct settlement between the LANDLORD and the LESSEE , after a negotiation period which may not exceed 15 days, the contract will be terminated and the areas object of the contract will be restituted, without any indemnity by the LANDLORD for this cause.

FIFTEENTH: SUPERVISION . The supervision, inspection and /or verification of the compliance of the obligations derived from this contract will be in charge of the General Manager of the “Eldorado” International Airport according to what is established in Resolution No. 297 of January 30 th , 2002 and other dispositions which rule the matter. In consequence, (the General Manager) may, at any time, perform directly or through the functionaries of the Real Estate Administration Group, dependency ascribed to the Management of the Eldorado airport of the Special Administrative Unit Civil Aeronautics, inspections to the rented area, notifying in writing, to the LESSEE , the observations and irregularities presented, (and) the suggestions and recommendations needed for a better service or area functioning, which must be immediately complied by the LESSEE . Failure to comply with the aforesaid is sufficient cause to terminate the present contract in an anticipated form, resulting in the immediate restitution of the property.


SIXTEENTH: AIRPORT SECURITY DISPOSITIONS. THE LESSEE expressly undertakes to comply with the dispositions on airport functioning and restructuring, with the National Airport Security Plan, with the Local Plan of the “Eldorado” airport security, with the Airport Operational Manual of the “Eldorado” and all other internal regulations of the Special Administrative Unit of the Civil Aeronautics related to the use or operation of the “Eldorado” International airport. In consequence, (the Lessee) undertakes to comply with said regulations and to pay to the LANDLORD the amount that the aeronautic authority determines in the regulations, proceedings and dispositions related to the operation of the said airport.

PARAGRAPH: THE LESSEE undertakes to comply with the dispositions of taxation character issued by the competent fiscal authority, related to the economic activity developed (by the lessee). Likewise, he undertakes to comply with the sanitary and environmental rules, according to what is established in Decrees number 1601 of 1984 and 3075 of 1997 or rules which modify or supplement them. In any case, any breach of the taxing, sanitary or environmental regulations is sufficient cause to terminate in anticipation the present contract and request the restitution of the area.

SEVENTEENTH: PERSONNEL . The personnel hired by the LESSEE is considered in every sense as its labor dependants, thus, in no case would their conduct compromise the LANDLORD. THE LESSEE undertakes to deliver to the General Management of the “Eldorado” International Airport a list of the personnel under its dependency, adjoining copy of the respective identity document and indicating the job he/she is performing. Likewise, (the lessee) undertakes to inform about any replacement, in order that, the LANDLORD , if he considers it pertinent, may issue a card identifying them and authorizing them to enter into the rented area, if such is the case. Thus, the LESSEE is only responsible for the use his dependants make of the given card and for the obligations derived from it.


EIGHTEENTH: AIRPORT FUNCTIONING. THE LANDLORD warranties the use and functioning of the airport, but he may, at any moment close and /or restrict the access to it for the period he deems necessary, due to reasons of security or public order or by reasons of force majeure or acts of God, In consequence, for the purposes of this contract, the LANDLORD does not assume any responsibility before the LESSEE in relation to any disturbance, reduction or loss of the business or commercial activity as a result of such decision. The parties agree that for this case, there will be no indemnity.

NINETEENTH: TRANSFER AND SUBLETTING . It is prohibited to the LESSEE to transfer the contract, sublet or allow the total or partial use of the property object of the present contract to third parties, (and he may not) transfer its tenure without prior express authorization by the LANDLORD . In relation to the use by third party contractors which support the LESSEE´S operation, as well as the subletting of the commercial areas, this authorization is deemed as given with the subscription of this contract, since these are part of the business unit. In any case, the parties expressly agree that this contract will not be an integral part of any commercial establishment and thus, the eventual transfer of the commercial establishment, not only doesn´t transfer any rental right to the buyer, but it also constitutes sufficient cause for the anticipated termination of the present contract, resulting in the immediate restitution of the property. The LESSEE expressly undertakes to abstain from transferring, subletting, allowing the use by third parties, transferring the tenure under any title, except when there is authorization by the LANDLORD . For legal purposes, this stipulation is equivalent to the opposition referred to in subsection 3 of article 528 of the Commercial Code, in such a way that the responsibility of the LESSEE will not cease with the disposal of the commercial establishment, nor with the notice of its transference, not even with the registration of the transfer in the Mercantile Registry. This being so, the LESSEE is responsible for the use of the property and undertakes to indemnify the LANDLORD the damages that his conduct may cause and must pay for all the expenses which the restitution of the property demands.

TWENTIETH: CAUSES FOR ANTICIPATED TERMINATION OF THE CONTRACT. The following will be causes for the anticipated termination of the present contract, resulting in the immediate restitution of the property given in rental : a) When the demands of the public service so require or the public order


situation imposes it. b) If, under the terms agreed upon in this contract, the LESSEE fails to pay the rental fee and other monetary obligations which are in his charge. c) When it is proven that the documentation delivered for the adjudication is fraudulent. d) When the properties are given a destination which differs from that agreed upon. e) By the denial, cancellation, expiration or loss of the permits or licenses required by the LESSEE to develop its company object or the activity to be performed in the leased properties. f) For reiterated infringements of the airport security and operational regulations, taxing, sanitary and/or environmental regulations established by the competent authorities. g) For transferring, subletting or allowing the use of the leased property to a third party without prior express authorization from the LANDLORD . h) For dissolution or liquidation of the legal person. i) When it is proven that the tenderer has acted as intermediary of third parties. j) For cessation of payments, bankruptcy or Judicial seizures of the contractor which affect the normal compliance of his obligations derived from the present contract, and for which the LANDLORD declares to know the existence of the present situation of the LESSEE within the process of the chapter eleven of the Bankruptcy Code of the United States. k) For contravening, with intention or gross fault, any legal regulation in force. l) For intentional breach of the regulations of Airport Security and /or Airport Operational Manual, as well as those included in the international covenants and treaties legally ratified by Colombia, (and or) by other internal dispositions of the Unit. m) For non compliance of any of the special obligations derived from this contract. n) For starting works without the previous and express authorization of the LANDLORD for the said purpose. o) For the occurrence of any cause of inability or incompatibility of the LESSEE not being possible the transfer of the contract according to what is prescribed in Article 9 of Law 80 of 1993. p) For providing deficient or poor services. q) For unjustifiably not using or abandoning the leased property during more than one (1) month. r) For destruction or deterioration of the property in such a way that its use is impossible. s) When ordered by law. t) For sale of the commerce establishment. u) When the LESSEE breaches the payment agreement signed with the entity, which is included in an appendix incorporated to the present contract. v) When the LESSEE breaches what is established in clause eleven of this contract. w) For special anticipated termination causes stated in this contract.


TWENTY FIRST: FINES. THE LANDLORD may impose successive fines to the LESSEE , equivalent to zero point five per cent (0.5%) and up to ten per cent (10%) of the total value of the contract, in case of breach by the latter of what is agreed upon in the present contract, as long as such non compliances does not constitute a cause for anticipated termination. PARAGRAPH ONE : If once the imposition of the fine is effected, the LESSEE repeats the conduct which caused it, such non compliance will be deemed as cause for anticipated termination of the contract. PARAGRAPH TWO . The fine referred to in the present clause will be imposed through an administrative act, dully motivated, which, once it is firm, will have executive merit.

TWENTY SECOND: PENALTY CLAUSE . The non compliance of the obligations of the LESSEE in virtue of the present contract, will result in the payment, in the benefit of the LANDLORD , of a sum equivalent to twenty per cent (20%) of the value of the contract which has not been executed at the moment the anticipated termination decision is made, as penalty clause independently of the anticipated estimate of the damages suffered by the LANDLORD and notwithstanding their additional charge, if they are greater.

TWENTY THIRD : In development of article 48 of Law 105 of 1993 and as an effect of the airport decentralization process, the LANDLORD may transfer, without the consent of the LESSEE , the present contract and the litigious rights derived from it to the legal Person who manages the Airport or the entity which assumes its functions in the future.

TWENTY FOURTH: DOCUMENTS. The following documents are part of this contract: a) the documents referred to in the considerations of the present contract. b) Localization map of the leased property prepared by the Real Estate Administration Group. c) Certifications of Existence and Legal representation of the LESSEE , (issued) by the Chamber of Commerce of Barranquilla.


TWENTY FIFTH: NOTIFICATIONS . The notifications that any party may have to give to the other must be given in writing to the following addresses: to the LANDLORD Management of “Eldorado” Airport- Real Estate Administration Group, “Eldorado” International Airport of Bogotá, D.C., third floor or place which may be notified in the future. To the LESSEE in the location of the leased property.

TWENTY SIXTH: CONTRACT EXECUTION. The present contract is deemed executed with voluntary agreement among the parties, which is manifested by its signature.

TWENTY SEVENTH: PUBLICATION IN THE UNIQUE CONTRACTING NEWSPAPER AND STAMP TAX . Once the present contract is subscribed, the LESSEE must proceed, within the following five (5) working days, to publish it in the Unique Contracting Newspaper and to pay the stamp tax, obligations which will be deemed complied with the presentation of the respective payment receipts.

TWENTY EIGHTH: the taxes, contributions, fees and/or fines which are generated by effect of or on occasion of the celebration or execution of the present contract will be all in charge of the LESSEE , who undertakes to pay them in the legal opportunity.

TWENTY NINTH: REQUISITES . Once subscribed the present contract, the LESSEE must proceed, within the following ten (10) calendar days, to deliver to the group of Real Estate Administration of Eldorado, the receipt of payment of the Stamp Tax and the receipt of payments of the publication rights. SINGLE PARAGRAPH : If at the expiration of the term stipulated in the present clause, the LESSEE has not fulfilled the requisites demanded, it is understood that the LESSEE desists from entering into the contract and in consequence, the present document has no validity or legal effect. The present contract substitutes contract BO AR 0036 00 subscribed between AEROCIVIL and the company AVIANCA S.A. The present contract is signed in Bogotá city D.C., on July 30 th , 2004.


THE LANDLORD     LESSEE
/s/ SILVIA FERNADEZ DE CASTRO     /s/ FRANCISCO MENDEZ GARCIA
SILVIA FERNADEZ DE CASTRO     FRANCISCO MENDEZ GARCIA
C.C. No. 41.638.219     C.C. No. 79.158.664
General Manager of Eldorado Airport     Legal Representative
Civil Aeronautics     AVIANCA S.A.

 

Prepared by: Germán Gama Cubillos    0K   
Revised Patricia de Castro Brando    R/ACEVEDO   
Written on official stationary      

Exhibit 10.3.1

REPUBLIC OF COLOMBIA

CIVIL AERONAUTICS

Special Administrative Unit

MODIFYING CONTRACT No. 1 TO THE RENTAL CONTRACT NUMBER BO AR 0011 04

 

OBJECT:    PROPERTY RENTAL – EL DORADO INTERNATIONAL AIRPORT AIR LIFT
AREAS   

Item

 

Parking lot

 

Platform

 

Land

 

Terminal Building

 

Platform Security Zone

 

Foxtrot Road between Juliet

 

And Kilo

 

Total

  

Area

 

12,487.69 m²

 

16,743.50 m²

 

86,730.19 m²

 

10,500.74 m²

 

 

 

 

11,572.40 m²

 

138,035.15

DESTINATION:    TERMINAL FOR PASSENGER DISPATCH, AIRCRAFT PLATFORM, VEHICLE PARKING, ACCESS ROADS, HANGAR, WORKSHOP AND WAREHOUSES
MONTHLY WORTH:    From January 1 st , 2006 to April 30 th 2006:
  

$556,015,361 discriminated as follows:

 

$505,468,510 value of the monthly fee

 

$ 50,546,851 value added tax

 

From May 1 st , 2006 to March 31 st , 2009

 

$593,389,835 discriminated as follows:

 

$539,444,850 value of the monthly fee

 

$ 53,944,485 value added tax

TOTAL VALUE:   

$22,292,705,669 discriminated as follows:

 

$ 20,902,443,790 rental value

 

$ 2,090,244,379 value added tax

  


TERM:    THREE (3) YEARS FROM JANUARY 1 st , 2006
LOCATION:    “ELDORADO” INTERNATIONAL AIRPORT OF BOGOTA D.C. CITY

Among the subscribers, ANDRES BOTERO ARBELAEZ , of legal age, domiciled in Bogotá, D.C., with citizenship identity card No. 71.690.069 issued in Medellín, whom, as GENERAL MANAGER OF THE ELDORADO AIRPORT acts in name of and in representation of the SPECIAL ADMINISTRATIVE UNIT OF THE CIVIL AERONAUTICS , specialized entity, of technical character, ascribed to the Ministry of Transportation, with legal entity, administrative autonomy and independent patrimony, according to the delegation of functions established in Resolution number 01583 as of April 30 th , 2004, whom for the purpose of the present document will be known as the LANDLORD on one side, and on the other side, ELISA MURGAS DE MORENO , of legal age, identified with citizenship identity card No. 41.614.534 issued in Bogotá, whom, as legal representative, acts in the name of and in representation of AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA, (formerly AEROVIAS NACIONALES DE COLOMBIA S.A . “AVIANCA S.A. ”), legal person, constituted as a corporation by public deed number 2374 as of December 5fth, 1919, issued at the Notary Second of the circle of Barranquilla and registered at the Court Third of the same city, modified on several opportunities , being its last amendment that included in public deed number 4023 as of June 14 of 2005, issued at the Notary 18 th of Bogotá´s circle, presently active, as is stated in the Certificate of Existence and Legal Representation issued on November 2, 2005, by the Chamber of Commerce of Barranquilla, duly authorized to enter into the present contract by its Directive Board, whom, for the purposes of this contract will be called the LESSEE or AVIANCA, who also expressly declares, under oath, that neither her, or the legal person she is representing is immersed in any cause of inability or incompatibility as specified in article 8 of Law 80 of 1993, have agreed in entering into the present rental contract which will be ruled by the said law, its regulatory regulations, the pertinent dispositions


included in the Civil and Commercial Codes, Resolutions numbers 3379 of June 3 rd , 1996 and 2883 of July 4 th , 1999 and all other regulations which may clarify, modify, amend or derogate them from time to time, previous the following considerations: 1) that the company AVIANCA subscribed with AEROCIVIL the rental contract number BO AR 0011 04 over the areas identified as Air Lift Terminal, contract which is in force. 2) that with office note as of October 4, 2005 AVIANCA declared to AEROCIVIL, through the area of Airport Infrastructure, that the area available for aircraft parking in the platform Air Lift was insufficient for the operational needs and for that reason submitted to its consideration the project to build the platform in the property on the area located in the Security Zone Foxtrot road between Juliet and Kilo, which investment, it proposed, could be performed by AVIANCA, in order for AEROCIVIL to recognize its value as useful improvements through their payment discounting a percentage in the value agreed upon as rental fee for the Air Lift Terminal. 2) That through office note No. 44000 1515 the Direction of Airport Development of Aerocivil, issued a favorable concept on the construction for A of the platform for aircraft parking in the Security Zone Foxtrot road between Juliet and Kilo, supported in the technical evaluation performed, finding that the project activities, prices and technical specifications were adjusted. 3) That with Letter No. 1070 847 05 of October 19, 2005, the Commercialization and Investment Office of AEROCIVIL made the recommendations in relation to the project, which are an integral part of this contract, as follows: a. Reduce the rental fee of the Air Lift Terminal only by 40% instead of the 50% proposed by AVIANCA. b. Same reduction for the land rental and the platform already built. c. Inclusion of the cost of parking determined in option 2 of annex 2 which is equivalent to five million monthly, with amortizations also of 40%. d. Extend the rental contract for three months. e. It recommends that the direction of the Operations and Technical Support Group of the Eldorado Airport certify that the proposed construction does not affect the operation or the security of the aircrafts that will use the airport´s infrastructure. f. It recommends the ElDorado Airport Management to produce a concept on the appraisal prepared by the company Oscar Velásquez and Cia S. in C. g. For the subscription or amendment of the rental contract of the T.A.L., it recommends previous endorsement by the Legal office both of the entity and of


AVIANCA. h. It recommends that the Office of the Aeronautic Advisor in the matter of the El Dorado concession certifies that the proposed business has been coordinated with respect to the new concession, with the KPMG arranger, as to the way it will affect the income of the future concession. i. The technical conditions for the definite delivery of the platform from AVIANCA to the entity must be clear. 4) That with letter No. 1123 756 of October 19, 2005, THE OPERATIONS AND TECHNICAL SUPPORT GROUP OF THE EL DORADO AIRPORT states the importance of the project since it helps to minimize the movement of clients and aircrafts between terminals, during the next two years, which increases the airport´s capacity, and also states the importance of equipping the platform with illumination with floor demarcation of the parking positions. 5) That on November 15, 2005, Avianca presented the executive summary for the construction of the platform for aircraft parking in the area of the security zone of the Foxtrot road between Juliet and Kilo to Aerocivil´s Directive Council. 6) That the ELDORADO AIRPORT requests from LONJA COLOMBIANA the appraisal of rent for the security zone of the Foxtrot road between Juliet and Kilo, located in the old General Aviation Zone. 7) That the LONJA COLOMBIANA, through the company OSCAR VELÁSQUEZ Y CIA S. EIN C, delivered to the entity the rent appraisal for a monthly value of $23,144,800 for the land area and of $52,121,141 for the same area once it is built, with an area of 11,572.40 m². 8) That the present amending contract will be ruled by the following clauses:

FIRST: The clause SECOND “AREA” of the initial contract is modified in order to include the area of the security zone land of Foxtrot Road between Juliet and Kilo, which will state the following:

SECOND: AREA. The total area of the property which is delivered by the present contract is defined as a business unit and has a space of ONE HUNDRED THIRTY EIGHT THOUSAND FIFTY FIVE POINT TWELVE SQUARE METERS (138,055.12 m²) , it is composed of two adjacent pieces of land, according to adjoining maps prepared by the Real Estate Administration Group in the month of December of 2002, which are part of the present contract, discriminated and comprised within the following boundaries: On the NORTH: starting from point TPA1 to the east and in a straight line until reaching


point TPA2 at a distance of fifty four point ninety eight (54.98 M) lineal meters, from this point to the north and in a straight line up to reaching point TPA3 at a distance of ten point twelve (10.12 M) lineal meters, from this point to the west and in a straight line up to point TPA4 at a distance of one hundred twenty four point twenty eight (124.28 M) linear meters bordering with freight warehouse No. 165, platform and taxiway. SOUTH : starting at point TPA5 heading west in a straight line until reaching point TPA6 at a distance of sixty two point fifty seven (62.57 M) linear meters, from this point to the south and in a curved line until reaching point TPA7 at a distance of forty five point fifteen (45.15 M) linear meters, from this point to the south and in a straight line until reaching point TPA8 at a distance of thirty five point zero eight (35.08 M) linear meters, from this point to the south and in a curved line until reaching point TPA9 at a distance of seventeen point sixty six (17.66 M) lineal meters bordering green security area, heliports, from this point to the west and in a straight line until reaching point TPA10 at a distance of eighty one point forty five (81.45 M) linear meters, from this point to the west and in a line until reaching point TPA11 at a distance of nine point eighty seven (9.87 M) linear meters, from this point to the west and in a straight line until reaching point TPA12 at a distance of thirty six point sixty four (36.64 M) linear meters, from this point to the south and in a straight line until reaching point TPA13 at a distance of four point twenty eight (4.28 M) linear meters, from this point to the west and in a straight line until reaching point TPA14 at a distance of seven point forty seven (7.47 M) linear meters, from this point to the south and in a straight line until reaching point TPA15 at a distance of twenty seven point ninety two (27.92 M) linear meters bordering all this extension with security zone taxiway kilo (k), from this point heading west and in line until reaching point TPA16 at a distance of sixty two point fifty two (62.52 M) lineal meters bordering plot number L-170 rented by Central Charter, from this point to the south and in a straight line until reaching point TPA17 at a distance of twenty nine point nineteen (21.19 M) linear meters, from this point to the south and in a straight line until reaching point TPA18 at a distance of nine point twelve (9.12 M) linear meters bordering vehicle access to the Air Lift Terminal. On the EAST : Heading south from point TPA4 in a straight line until reaching point TPA5 at a distance of four hundred thirty eight point ninety (438.90 M) linear meters bordering security zone taxiway Foxtrot and on


the WEST : starting at point TPA18 to the north in a straight line until reaching point TPA19 at a distance of two hundred twenty three point thirty (223.30 M) linear meters, from this point to the north in a straight line until reaching point TPA20 at a distance of seven point seventy four (7.74 M) linear meters, from this point to the north in a straight line until reaching point TPA21 at a distance of six point thirty one (6.31 M) linear meters, from this point to the north in a straight line until reaching point TPA22 at a distance of eleven point thirty seven (11.37 M) linear meters, from this point to the north in a straight line until reaching point TPA23 at a distance of eight point twenty five (8.25 M) linear meter, from this point heading north in a straight line until reaching point TPA24 at a distance of twenty five point twenty nine (25.29 M) linear meters, from this point to the north in a straight line until reaching point TPA25 at a distance of fourteen point ninety nine (14.99 M) linear meters, from this point to the north in a straight line until reaching point TPA26 at a distance of twelve point fifty three (12.53 M) linear meters, from this point to the north in a straight line until reaching point TPA27 at a distance of nine point ninety nine (9.99 M) linear meters, from this point heading north in a straight line until reaching point TPA28 at a distance of nine point ninety two (9.92 M) linear meters bordering parallel to the Eldorado Avenue. From this point to the north in a straight line until reaching point TPA29 at a distance of twenty seven point ninety seven (27.97 M) linear meters bordering the Air Lift Terminal vehicle exit, from this point and to the north in a straight line until reaching point TPA30 at a distance of forty nine point ten (49.10 M) linear meters bordering parallel to the Eldorado Avenue, from this point to the east and in a straight line until reaching point TPA31 at a distance of twenty five point thirty eight (25.38 M) lineal meters, from this point to the north and in a straight line until reaching point TPA32 at a distance of thirteen point zero five (13.05 M) linear meters, from this point to the north in a straight line until reaching point TPA33 at a distance of twenty point eighty seven (13.87 M) linear meters, from this point to the north in a straight line until reaching point TPA34 at a distance of fifteen point cero eight (15,08 M) linear meters, heading north 15 in a straight line until reaching point TPA35 at a distance of thirteen point sixty three (13.63 M) linear meters, from this point to the north in a straight line until reaching point TPA36 at a distance of sixteen point ninety eight (16.98 m) linear meters, from this point to the north in a


straight line until reaching point TPA37 at a distance of thirteen point fourteen (13.14 M) linear meters, from this point to the north in a straight line until reaching point TPA38 at a distance of fourteen point seventy (14.70 M) linear meters¸ from this point to the north in a straight line until reaching point TPA39 at a distance of eleven point zero four (11.04 M) linear meters, from this point to the north in a straight line until reaching point TPA1 at a distance of thirty nine point thirty five (39.35 M) linear meters, bordering the green zone, parallel to the Eldorado Avenue. This land comprises two pieces of land which are contiguous and adjacent, separated by an imaginary broken line which starts at point AC1 located at the bus parking lot up to point AC22 located at the border of the access platform with the security zone with the Foxtrot road. Piece of land called MALVINAS with an area of 11,572.40 M2 and whose boundaries are determined as follows: On the NORTH : In 92.43 LM with taxi runway. On the SOUTH : In 91.78 LM with taxiway. On the EAST: In 123.47 LM with taxiway. On the WEST : In 123.47 LM with platform.

PARAGRAPH ONE : The total area of the property being delivered in rental by the present contract, is integrated in one business unit and includes land and constructions, except the constructions of the annex building next to the Air Lift Terminal and the constructions of the hangar with its warehouses, workshops and offices, which, as they were not built by AEROCIVIL, do not belong to the latter and thus are delivered as land. Likewise, it is understood that the internal public access road to the Air Lift with its sidewalks, internal vehicle access road, common areas of the Terminal’s commercial zone, boarding lounges (and) the luggage areas are also included in the rental areas. The security zone of the Foxtrot road between Juliet and Kilo becomes an area of operation and aircraft parking to be exploited by the LESSEE.

PARAGRAPH TWO: The uses of the areas comprised by this contract may vary according to the operational, commercial and service needs of the terminal and of the LESSEE, provided that the aeronautic service is not impaired. These being so, the LESSEE expressly waives per ante the LANDLORD any judicial authority or arbitration tribunal, to invoke a right of change in the rental value due to any change in the destination or use of the areas inside the Air Lift Terminal, except in case the LANDLORD reduces the area which object of the contract.


PARAGRAPH THREE : With the present contract, the exclusive use of all the contract areas is being given to the LESSEE who has the mere possession, and the LANDLORD retains all rights derived from their ownership. Thus, the LANDLORD may cease all contract effects and request the restitution of all areas at any moment for the purpose of enlargement, remodeling, implementation or development of the Master Plan or when any of the causes stipulated in clauses fourth or twentieth of the present contract are incurred in, without having to pay any indemnity whatsoever and without prejudice to the right the LESSEE has to obtain from the LANDLORD the areas the latter requires to guarantee his operation.

SECOND. Clause FOUR of the contract “CONTRACT TERM “, is modified in order to extend the contract term by three years and three months from the 1 st of January, 2006, as follows:

FOURTH: CONTRACT TERM. From the 1 st of January 2006, the contract term is of three (3) years and three (3) months.

PARAGRAPH: In the event the LESSEE desires to continue using the property which is the object of the rental, he musty state his interest in writing to the LANDLORD, with anticipation no less than three (3) months prior to its termination date. Once the request is filed, the LANDLORD will state his acceptance or rejection within three (3) months following the petition and, in case the LESSEE does not receive an answer from the LANDLORD , the contract will be deemed extended for a period of three (3) months successively, without exceeding the term initially agreed upon. THIRD : Clause FIVE “DELIVERY OF THE PROPERTY” is modified to put on record the obligation to deliver the additional area of the piece of land called MALVINAS, located in the security zone Foxtrot road between Juliet and kilo, clause which will be as follows:


FIFTH: DELIVERY OF THE PROPERTY . The property, object of the rental, through the present contract, has been occupied by the LESSEE through Rental Contract No. BO AR 0036 00, thus there is no need to make a delivery act, nor inventory, and the present legal business substitutes in all its parts the Rental Contract No. BO AR 0036 00 entered into between the SPECIAL ADMINISTRATIVE UNIT CIVIL AERONAUTICS and the company AEROVIAS NACIONALES DE COLOMBIA S.A. “AVIANCA S.A.” The piece of land of the Security zone Foxtrot Road between Juliet and kilo will be delivered to the LESSEE once the present amendment contract is subscribed, through the subscription of the corresponding Act.

PARAGRAPH: THE LESSEE will deliver the platform to the LANDLORD at the end of the amortization period in good maintenance and conservation conditions, except for its normal use .

FOURTH; Clause SEVEN “VALUE OF THE CONTRACT AND PAYMENT FORM “ is modified to reflect the increase in value of the contract due to the delivery of additional areas, as well as the proceeding for the recuperation, by AVIANCA, of the value of the investment, as follows:

SEVENTH: VALUE OF THE CONTRACT AND PAYMENT METHOD . For all legal and fiscal purposes, the total value of the present contract is the amount of TWENTY TWO BILLION NINE HUNDRED NINETY TWO MILLION SEVEN HUNDRED FIVE THOUSAND SIX HUNDRED SIXTY NINE PESOS ($22,992,705,669) LEGAL TENDER , value which is discriminated as follows: TWENTY BILLION NINE HUNDRED TWO MILLION FOUR HUNDRED FORTY THREE THOUSAND SEVEN HUNDRED NINETY PESOS ($20,902,443,790) COLOMBIAN LEGAL TENDER , as the value of the rent and TWO BILLION NINETY MILLION TWO HUNDRED FORTY FOUR THOUSAND THREE HUNDRED SEVENTY NINE PESOS (2.,090,244,379) LEGAL TENDER , as value added tax VAT, without including readjustments. The previous value includes, besides the rent appraisal, a monthly cost of $5,000,000 for parking costs. The rental fee hereby agreed to will be caused from January 1 st , 2006, amount that will be paid in the following way:

a) During the months comprised between January 1 st , 2006 and April 30 th , 2006, the monthly rent will be FIVE HUNDRED NINETY THREE MILLION THREE HUNDRED EIGHTY NINE THOUSAND EIGHT HUNDRED THIRTY


FIVE PESOS ($593´389,835) LEGAL TENDER, value which is discriminated as follows: FIVE HUNDRED FIVE MILLIONS FOUR HUNDRED SIXTY EIGHT THOUSAND FIVE HUNDRED TEN PESOS ($505,468,510) as monthly rental fee and FIFTY MILLION FIVE HUNDRED FORTY SIX THOUSAND EIGHT HUNDRED FIFTY ONE PESOS ($ 50,546,851) for VAT , b) From the 1 st of May, 2006 and until the 31 st of March, 2009 a monthly rental fee will be paid in the amount of FIVE HUNDRED NINETY THREE MILLION THREE HUNDRED EIGHTY NINE THOUSAND EIGHT HUNDRED THIRTY FIVE PESOS ($593,389,835) discriminated as follows: monthly rental fee in the amount of FIVE HUNDRED THIRTY NINE MILLION FOUR HUNDRED FORTY FOUR THOUSAND EIGHT HUNDRED FIFTY PESOS ($ 539,444,850) legal tender and FIFTY NINE MILLION THREE HUNDRED THIRTY EIGHT THOUSAND NINE HUNDRED EIGHTY THREE PESOS ($59,338,983) for VAT . C) To amortize the value of the improvements, AVIANCA will discount from the monthly payment due, as of the 1 st of January 2006, an amount corresponding to FORTY PER CENT (40%)  of the monthly rental fee, without including VAT and thus will effectively deliver AEROCIVIL, as cash payment, 60% of the monthly fee. D) The value of the VAT will be paid in full by the LESSEE monthly. At the date of signature of the present contract, the estimated value of the works, approved by the Development Division of the LANDLORD with letter 4400 1515 is of SEVEN BILLION FOUR HUNDRED FORTY SIX MILLION TWO HUNDRED FORTY THREE THOUSAND SEVEN HUNDRED NINETY NINE ($7,446,243,799) legal tender.

PARAGRAPH ONE: The monthly value of the contract will be increased every 12 months counted from the 1 st of January 2006, applying over the amount paid in the last month of the immediately previous year, in the same proportion in which the National Government increases the Minimum Monthly Wage.

PARAGRAPH TWO: The LESSEE undertakes to pay the rental fee every month in advance, within the five (5) initial calendar days of the contract month, clarifying that the LANDLORD receives the rental fee in the cashier of the Unit, presently located in the second floor of the Eldorado International Airport, with public attendance every day included Saturdays, Sundays and holidays. The corresponding monthly fee must be paid in the offices of the Paymaster or Cashier of the Unit which are located in the “ El dorado ” International Airport of Bogotá D.C. or in the place or account notified by the LANDLORD to this effect.


PARAGRAPH THREE : In the event that the monthly rental fee of the value of the public services are paid by the LESSEE by a check presented on time and not paid due to the latter´s fault, the latter undertakes to pay to the LANDLORD together with the immediately following rental fee, twenty per cent (20%) of the amount of the check, established as penalty, previous notice from the LANDLORD to the LESSEE of the devolution of the title by the bank and without prejudice of the LANDLORD persecuting the indemnity for the damages this event may cause him, by the common ways, according to what is established in article 731 of the Commerce Code. In any case, the payment will only be reputed as made in the moment in which it becomes effective and thus, the LESSEE incurs in arrears in the payment, which may give way to the anticipated termination of the present contract and the immediate restitution of the property which is the object of the rental..

PARAGRAPH FOUR : in the event the payment of the amount imposed as a penalty for the devolution of the check, as specified in the previous paragraph, is not made, the LESSEE authorizes the LANDLORD to debit it from the monthly rental fee of the following month to be paid.

PARAGRAPH FIVE : According to what is established in Resolution Nos. 03379 of June 03, 1996 and 02883 of July 27, 1999, the rental fee base of the areas, excluding the security zone of the Foxtrot road between Juliet and Kilo , was determined based on the rent appraisal as of May 25, 2004, appraisal made by the LONJA COLOMBIANA and that of the MALVINAS zone was determined based on the appraisal made by OSCAR VELÁSQUEZ Y CIA S in C, member of the LONJA COLOMBIANA, on October 3, 2005.

FIFTH: the TENTH clause, “WARRANTIES”, of the main contract, is clarified stating that the coverage of the Unique Warranty Policy of the contract will be given by renewable quarters, taking as the insured value the total amount to be paid, that is, the monthly fee plus the VAT to be paid each quarter, until termination of the contract.


SIXTH: The FIRST PARAGRAPH “REMOVABLE IMPROVEMENTS” OF THE THIRTEENTH Clause “LOCATIVE REPARATIONS AND IMPROVEMENTS” of the initial contract is amended in the sense that the LESSEE undertakes to, in case due to the works of the El Dorado International Airport Master Plan development, it is required to demolish the constructions of the Annex Building contiguous to the Air Lift Terminal and of the constructions of the hangar with its warehouses, workshops and offices, which, since they were not built by the LANDLORD, are not part of the property of the latter but of the property of the LESSEE, (The LANDLORD) undertakes to program the development of such works with due anticipation in order to guarantee the LESSEE the availability of adequate areas in relation to the size of its operation, in order that the LESSEE may move his workshops, warehouses and offices, includes the furnishings , in such a way as it doesn´t affect the continuity of his air transportation and aircraft maintenance according to the quality standards and regulatory requisites of the different control authorities. Likewise, it is agreed that the LANDLORD, once the movement of the areas of workshops, warehouses and offices of the LESSEE is made , will make, on his own account, the demolition of said constructions, placing at the disposition of the LESSEE the removable improvements and materials which can be reused.

SEVENTH: DOCUMENTS. The Certificate of Existence and Legal Representation of the LESSEE and the documents referred to in the considerations of this amending contract are part of the same.

EIGHTH: NOTIFICATIONS . The notifications that any party may have to give to the other must be done so in writing to the following addresses: to the LANDLORD Management of “Eldorado” Airport- Real Estate, International “Eldorado” Airport of Bogotá, D.C., Third floor Office 313 or place which may be notified in the future. To the LESSEE in the location of the leased property AIR LIFT.


NINTH: CONTRACT EXECUTION. The present contract is deemed executed with the voluntary agreement among the parties, which is manifested by its signature.

TENTH: PUBLICATION IN THE UNIQUE CONTRACTING NEWSPAPER AND STAMP TAX . Once the present contract is subscribed, the LESSEE must proceed, within the following five (5) working days, to publish it in the Unique Contracting Newspaper and to pay the stamp tax, obligations which will be deemed complied with the presentation of the respective payment receipts. Likewise he must send the compliance policy with the modifications of this contract.

The main contract continues in force in what has not been modified by the present contract and is signed in the city of Bogotá D.C., at.

The present contract is signed in the city of Bogotá D.C.on December 12, 2005.

 

LANDLORD    LESSEE
ANDRÉS BOTERO ARBELÁEZ    ELISA MURGAS DE MORENO
C.C. No. 71.690.069 of Medellín    C.C. No. 41.614.534 OF Bogotá
Manager El Dorado Airport    Legal Representative
Civil Aeronautics    Avianca

Prepared by: Germán Gama Cubillos

Revised Patricia de Castro Brando

Written on official stationary

Exhibit 10.3.2

MODIFYING CONTRACT No. 2 TO THE RENTAL CONTRACT NUMBER BO AR 0011 04

MODIFYING CONTRACT No. 2 TO THE RENTAL CONTRACT NO. BO AR 0011-04

Among the subscribers, JUAN ALBERTO PULIDO ARANGO , of legal age, domiciled in Bogotá, D.C., with citizenship identity card No. 70.876.189 issued in La Estrella, acting as legal Representative of OPAIN S.A., a corporation constituted by public deed number 2335 of September 1 st , 2006 subscribed at the Notary 25 of the Bogotá Circle, with Tributary Identification number NIT 900105860-4 and with commercial register No. 01633083, duly authorized by the Directive Board as recorded in Act No. 43 of October 21, 2008, whom from now on and for all the purposes of the present document will be known as OPAIN S.A. and/or the LANDLORD and ELISA MURGAS DE MORENO , of legal age, identified with citizenship identity card No. 41.614.534 issued in the city of Bogotá D.C., who acts as legal representative of AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA, as stated in the Certificate of the Chamber of Commerce of Bogotá, commercial company, constituted by public deed number 2374 as of December 5 th , 1919, issued at the Notary Second of the circle of Barranquilla with Tributary Identification number NIT No. 890-100.577-6, whom, from now on and for all the purposes of the present document will be called the AVIANCA and/or the LESSEE, have agreed to enter into the present contract amending rental Contract No. BO AR 0011 04, which will be ruled by the legal dispositions applicable to the matter, and especially by the clauses which are detailed below, based on the following,

CONSIDERATIONS:

FIRST: that on the 30 th of July, 2004 the rental Contract No. BO AR 0011 – 04 was subscribed between SAD (Special Administrative Unit) of the Civil Aeronautics (from now on AEROCIVIL) and AVIANCA regarding the areas identified as Air Lift Terminal (from now on The Contract).


SECOND : That on the 12 th of December, 2005 the amending Contract No. 1 to said contract No. BO AR 0011 – 04 between AEROCIVIL and AVIANCA was subscribed.

THIRD : That on the 30 th of August, 2005, AEROCIVIL and AVIANCA subscribed a document transferring the rights and obligations derived from the rental contracts numbers BO AR 0076-05 as of December 20, 2005 and BO AR 0059 – 04 as of January 31, 2005 corresponding to the rental of advertising areas and television spaces in the common areas of the Air Lift Terminal of the EL DORADO International Airport.

FOURTH : That on the 12 th of September, 2006 the AEROCIVIL and OPAIN S.A. subscribed a Concession Contract for the Administration, Operation, Commercial Exploitation, Maintenance and Modernization and Expansion of the El Dorado International Airport of the city of Bogotá, D.C.

FIFTH: That complying with what was established in clause 20 of the referred Concession Contract, as of January 20 th , 200, AEROCIVIL transferred to OPAIN S.A. its contract position as LANDLORD in the rental contract number BO AR 0011 – 04 subscribed with AVIANCA company and assumed the totality of the rights and obligations of the transferred contract, being empowered to subscribe all acts needed to extend and /or modify the said contract.

SIXTH: That the area called Air Lift, object of the present rental contract, is part of the area in concession delivered by AEROCIVIL top OPAIN S.A., in virtue of the referred concession contract.

SEVENTH: that on the 29 th of September, 2008, via communication OP-JUR-08-0149, OPAIN notified AVIANCA of its decision to terminate Rental Contract BO AR 0011 – 04.

EIGHTH : That given the present operational limitations of the El Dorado Airport, the Company AVIANCA has stated its interest to continue using the rented area, as a consequence of the present impossibility by OPAIN and AEROCIVIL to allow AVIANCA to concentrate the integrated operations of the AVIANCA and S.A.M companies in the International terminal of El Dorado and the PARTIES have deemed it viable and appropriate to accept such a request from AVIANCA.


NINTH: That, after the different alternatives for the extension of the contract were evaluated, and having in mind the actual conditions of the business Unit of the property called Air Lift and what is contemplated in the Concession Contract mentioned before, the parties have agreed to modify the contract in the conditions set in this amending contract.

CLAUSES

FIRST : Clause number Two of The Contract is modified to exclude from the rented area an approximate amount of forty two thousand five hundred sixty seven point ten (42,567.10) square meters from the platform, with eleven (11) aircraft parking positions which, according to Appendix No. 1 “General Identification of amending Contract No. 2 to rental contract No. BO AR 0011 – 04 Map” is highlighted in the color green, will be delivered to OPAIN on the 1 st of April, 2009. Thus the Second Clause of The Contract will become as follows:

CLAUSE SECOND: AREA . With effects as of April 1, 2009, the total rented area of the property and defined as a business unit will have an approximate space of ninety five thousand four hundred sixty eight point zero five (95,468.05) square meters. Notwithstanding the stated area, the property will be delivered as a definite body.

PARAGRAPH ONE : The platform areas which at the date of this amending contract are part of the rented area and which are used by the LESSEE as aircraft parking areas of the Passenger Air Lift Terminal will be returned to OPAIN on the 1 st of April, 2009 in standard functioning use, except for the normal deterioration due to their use, and thus, will be excluded from the rental contract from the returning date, but will continue being for AVIANCA and its subsidiary S.A.M.s exclusive use. In Appendix No. 1, the excluded area is identified in the color green.

PARAGRAPH TWO : THE LESSEE will continue with the operation, administration and exploitation of the rented areas, as a business unit, as established in The Contract, except what is related to the platform areas which will now be administrated by the LANDLORD from April 1 st , 2009 on and will be used exclusively by the LESEE and its subsidiary SAM according to what is prescribed in the first paragraph of this clause.


“SECOND . The Fourth Clause of The Contract is modified for:

a) Extending the term of The Contract for the rental of the maintenance area by one (1) year and one month, as of April 1 st , 2009 and until April 30 th , 2010 and, in any case, until the moment in which the LANDLORD may provide the required area, furnished as is established in the Concession Contract, for the LESSEE to translate its maintenance operation, included that of its subsidiary, SAM, to another similar area. Prior to that moment, the Parties will subscribe a new contract in which they will agree on the terms and economic conditions of the negotiation. In Appendix 2, “Maintenance Area Identification Map”, the Maintenance area which has to be returned at the end of the term stated in this sub section a) is identified by the color purple.

b) Extending the term of the rental contract of the other areas of the Air Lift by three (3) years and six (6) more months, from April 1 st , 2009 and until September 30 th , 2012, unless the parties agree in writing, before its expiration date, to extend such date, until the moment in which the LESSEE moves its integrated operation, included that of its subsidiary SAM to the El Dorado Airport terminal.

In Consequence, Fourth Clause of The Contract will be as follows:

CLAUSE FOUR.- CONTRACT TERM: From April 1 st , 2009, the Parties agree to extend the Contract Term in the following manner:

a) With respect to the maintenance area, by one (1) year and one more month, from April 1 st , 2009 and until April 30 th , 2010 and, in any case, until the moment in which the LANDLORD may provide the required area, furnished as is established in the Concession Contract, for the LESSEE to transfer its maintenance operation, included that of its subsidiary, SAM, to another similar area. Prior to that moment, the Parties will subscribe a new contract in which they will agree the terms and economic conditions of the negotiation. In Appendix 2 “Maintenance Area Identification Map” the Maintenance area which has to be returned at the end of the term stated in this sub section a) is identified by the color purple.


b) With respect to the other rented areas of the Air Lift identified in Appendix No. 3 “Identification of the other Areas of the Air Lift Terminal Map” with orange and pink colors by Three (3) years and six (6) more months, that is, until the 30 th of September, 2012, unless the parties agree in writing, before its expiration date, to extend such date, until the moment in which the LESSEE moves its integrated operation, included that of its subsidiary SAM to the El Dorado Airport terminal.

PARAGRAPH : THE LANDLORD will notify the LESSEE, seven (7) months in advance, the definite date in which the latter must return the maintenance area referred to in sub section a) of this clause. Prior to the expiration of the term for the restitution of the Maintenance Area, the parties will subscribe a new contract by which OPAIN S.A. will deliver to AVIANCA the new zone in which the latter may install its Maintenance operation and the price and conditions of such negotiation will be agreed upon.

THIRD: Clause Six of the main contract is modified and will be as follows:

CLAUSE SIX: RESTITUTION . The LESSEE must restitute the areas of the Air Lift Terminal which is the object of the rental contract in good maintenance and conservation conditions, except for the natural deterioration caused by the normal use of the same. As for the improvements, the LANDLORD undertakes to buy from the LESSEE the removable improvements included the furnishings in the conditions they agree in the improvement buy- sale contract which the parties will subscribe in a separate document.

THE LESSEE undertakes to return to the LANDLORD the areas of the Air Lift Terminal at the termination of the rental contract hereby or of the extension if there is one, the area object of the contract with its removable and non-removable improvements, in a good state of conservation except for the natural deterioration due to their use and without prejudice of the locative reparations which, by nature, correspond to the LESSEE and of other needed reparations which correspond to the LANDLORD.


FOURTH: Clause Seven of The Contract is modified as follows:

“CLAUSE SEVEN: VALUE OF THE CONTRACT AND PAYMENT METHOD . The LESSEE will pay to the LANDLORD , from the 1 st of April, 2009 the amount of SIX HUNDRED FIFTY MILLION PESOS Legal tender ($650.000.000) as monthly rental fee plus the corresponding value added tax VAT. The LESSEE must pay said amount at the latest within the five (5) days following the issuance of the corresponding invoice by the Fiduciary BBVA Trust. This amount will be paid for in advance by contractual month.

PARAGRAPH ONE: Annual increase. The monthly value of the contract will be increased by annual periods from January 1 st , 2010 on, in the equivalent of the National Consumer Price Index established for the immediately previous year, plus one percent point (CPI + 1%).

PARAGRAPH TWO : Payment of Rights and Fees from the LESSEE to the LANDLORD. THE LESSEE will pay to the LANDLORD the total amount of rights and fees established by AEROCIVIL in the applicable Resolutions. The amount paid for such matters is not part of the value of the rental contract.

PARAGRAPH THREE : Reduction of the rented area. From the moment in which the LESSEE returns to the LANDLORD the rented maintenance areas as prescribed in the present Amending Contract, THE PARTIES agree that the fee established in the present clause will be reduced in proportion to the area returned, in an equivalent of four thousand pesos per square meter ($4,000 m²) plus VAT, updated at their present value on the date of return, with the National CPI certified for the immediately previous year.


FIFTH: CLAUSE THIRTEEN “LOCATIVE REPAIRS AND IMPROVEMENTS” as well as PARAGRAPH ONE of the same clause, are modified as follows:

CLAUSE THIRTEENTH: LOCATIVE REPAIRS AND IMPROVEMENTS. DEFINITION. According to article 1998 of the Civil Code, LOCATIVE REPARATIONS are those which, according to what is customary, are on the account of the LESSEE and in general that kind of deterioration which is appropriate for normal use, which will be on account of the LESSEE who may execute them during the term of the contract without needing previous authorization from the LANDLORD.

IMPROVEMENTS are all classes of constructions and, in general, any civil work, architectural, electric, hydraulic, telephone, etc., executed by the LESSEE at his own account and risk, whom, with no exception, must present to the LANDLORD for his approval the project and plans of the works to be executed, signed or endorsed by dully registered professionals. The LANDLORD reserves itself the right to approve or not the request submitted and, in the event of its approval, the destination stated in clause Three of this contract will be taken into account, as well as the existing technical infrastructure and the Concession contract work schedule. In any case, the authorization given to that effect by the LANDLORD is strictly understood to be ruled according to what is stipulated in articles 1823 and 1824 of the Commerce Code and at no moment implies any pact, agreement or commitment from the LANDLORD to pay to the LESSEE the value of the constructions or works executed by the latter. Once the execution of the works is approved by the LANDLORD , the latter will designate a supervisor, whom, besides supervising the execution of the works, will present a detailed report of the executed works. The technical specifications of the works to be conducted will be detailed in the authorization given by the LANDLORD for such purposes.

PARAGRAPH ONE: the LESSEE undertakes to, in case due to the works foreseen in the concession contract, if it is required to demolish the constructions of the Annex Building contiguous to the Air Lift Terminal and of the constructions of the hangar with its warehouses, workshops and offices (which for the purposes of this contract are identified as maintenance areas), and which, since they were not built by AEROCIVIL,


are not of the property of the latter but of the property of the LESSEE, the LANDLORD will perform the demolition of said constructions on his own account, placing at the disposition of the LESSEE the removable improvements and the reusable materials.

PARAGRAPH TWO: THE LANDLORD will coordinate with the LESSEE the efficient use of the platforms contiguous to the Air Lift Terminal once these areas are returned by the LESSEE according to what is foreseen in this contract”.

SIXTH : The Contract is supplemented with a new clause as follows:

CLAUSE THIRTY: Obligation of the LESSEE to perform reparation works in the maintenance area and in position 10 and the entry to position 11 of the parking (SPOT CERO) which corresponds to an approximate area of 10,631.25 m² ) which are part of the area presently under the tenancy of the LESSEE.

THE LESSEE will perform, at his own account and at his charge, the maintenance works of the paving stones of the platform in the maintenance area and in position 10 and the entry to position 11 of the parking (SPOT CERO) which are identified in a Map adjoined in APPENDIX No. 4 “Map of identification of the areas of the platform subject to maintenance in charge of the LESSEE ”, according to the design indicated by the LANDLORD, complying with the Horizontal/ Vertical signaling specifications according to RAC and OACI regulations and under the surveillance of the LANDLORD, following his technical guidelines.

THE LANDLORD, on his own account and at his charge, will perform the surveillance of the maintenance works referred to in the present paragraph. Once said works are received satisfactorily, the LANDLORD will be in charge of the future maintenance of the same areas, as well as all the other areas of the platform which are or will become, during the life of said (contract), areas of exclusive use by the LESSEE under this contract, undertaking in any case, to coordinate the maintenance activities in such a way that the LESSEE does not suffer damages nor the continuity of his operation and of the operation of its subsidiary SAM is not affected.”


SEVENTH: The Contract is supplemented with a new clause as follows:

CLAUSE THIRTY ONE: Removal of the Converters for the energy supply in the platform area which will be returned to the LANDLORD.

THE LANDLORD and the LESSEE agree that, as long as the LESSEE continues operating from the Air Lift Terminal he will not be obliged to remove the converters for energy supply which are installed in the platform area that he returns to the LANDLORD. If, after the LESSEE transfers his operation to the El Dorado Airport Terminal, the LANDLORD decides to use them, it will be agreed upon to pay their value to the LESSEE, which failing to do so, the LESSEE may withdraw them at the moment of the definite move of the integrated operation to the El Dorado Terminal. During the life of the contract, the LESSEE of the ALT may continue having the free usufruct and with no additional charge of this equipment”.

EIGHT: Clause FIFTEEN of the Contract “SUPERVISION” is modified as follows:

“CLAUSE FIFTEEN: SUPERVISION . The supervision, inspection and /or verification of the compliance of the obligations derived from this contract will be by OPAIN responsibility of the Directions of Operations and Commercial, and by AVIANCA responsibility of the Airports Direction.”

NINTH : Clause Ten- Warranties modified as follows:

“CLAUSE TEN: WARRANTIES. The LESSEE undertakes to deliver to the LANDLORD, during the five (5) days following the signing of the present amending contract, the extension of the Unique Complying Warranty included in the Tenth Clause of the Initial Contract, adjusting it in relation to the insured value and the term in the following conditions:

Insured Value: equivalent to 35% of the annual value of the present amending contract No. 2.


Term: The warranty must be valid during the entire Contract term, that is, until the 30 th of September, 2012 and three (3) additional months, or its extensions if there are any, and may be issued by annual renewable periods.

PARAGRAPH: RESPONSIBILITY AND INDEMNITY . Except in the case of fraud or gross negligence by the LANDLORD, the LESSEE is responsible per ante the LANDLORD and before third parties for personal and material damages which directly or indirectly, through the personnel in his charge, could cause, as a consequence of the development of his activities and in general by the use and exploitation of the areas which are rented in virtue of the present contract. In such circumstances, the LANDLORD will have no responsibility in case any kind of damage or prejudice is caused. For the effect, the LESSEE expressly undertakes to assume the reparation costs or corresponding indemnity. The LESSEE will keep the LANDLORD permanently unharmed for any omission, infraction, default, non compliance either his own or his personnel´s and all damage that may be caused to third parties by acts, events or omissions of his own or by those for whom he is responsible, and will only be responsible for the losses or damages resulting from or related to his operations, acts, contracts and businesses or as a result of his acts or omissions or that of any of his employees.”

TENTH: STAMP TAX. Since the initial contract was subscribed with the Special Administrative Unit of the Civil Aeronautics which is a public entity, the stamp tax was required on 50% of its value according to what is established in article 532 of the Fiscal Statute. With the subscription of this amending contract, the stamp tax that is derived will be required on 100% of the value of the amending contract and will be paid in full by the LESSEE.

ELEVENTH: EXECUTION AND INITIATION IMPLEMENTATION . This contract will be executed by its signature between the two contracting parties and does not require additional formalities to commence its execution.


TWELFTH: SUBSISTENCE OF THE CLAUSES NOT MODIFIED. The parties agree that, in what has not been modified by this contract and as long as they are not incompatible with it, the clauses of the Initial Contract will continue in force, as well as those of the amending contract number 1, subscribed by the LESSEE with the Special Administrative Unit of the Civil Aeronautics and transferred by the latter to the LANDLORD. In case of conflict between the dispositions of one or others, the clauses of the present amending contract will prevail.

THIRTEENTH: DOCUMENTS. The Certificates of Existence and Legal Representation of the parties and the following APPENDICES are part of the present contract:

 

  1. Appendix No. 1 . General Identification Map of the amending Contract No. 2 to the rental contract No.BO AR 0011 – 04 with demarcation of the platform area which is restituted and thus excluded, identified in the color green”.

 

  2. Appendix No. 2. Maintenance Area Identification Map

 

  3. Appendix No. 3. Identification of the other Areas of the Air Lift Terminal Map

 

  4. Appendix No. 4 . Referential Map of identification of the areas of the platform subject to maintenance in charge of the LESSEE , according to clause thirty of the amending contract number 2 to the contract BO AR 0011 – 04.

The present amending contract number 2 is signed in two copies of identical content and date, at the fifth (5 th ) day of January TWO THOUSAND NINE (2009) in the city of Bogotá D.C.

BY OPAIN S.A.

/s/ JUAN ALBERTO PULIDO ARANGO

JUAN ALBERTO PULIDO ARANGO

C.C. No.  70.876.189 of La Estrella

Legal representative


BY AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

/s/ ELISA MURGAS DE MORENO

ELISA MURGAS DE MORENO

C.C. No. 41.614.534 of Bogotá D.C.

Legal Representative

Exhibit 10.3.3

AMENDING AGREEMENT No. 3 TO RENTAL AGREEMENT No. BO-AR-0011-04

Among the undersigned, namely: JUAN ALBERTO PULIDO ARANGO , of legal age, identified with identification document No. 70.876.189, domiciled in Bogotá, acting in his capacity as Legal Representative for SOCIEDAD CONCESIONARIA OPERADORA AEROPORTUARIA INTERNACIONAL S.A. – OPAIN S.A. , a corporation incorporated by means of Public Deed No. 2335 of September 1, 2006, issued by the 25 th Notary Public of the Bogota Circuit, with TIN. 900.105.860-4 and Trade Registration No. 01633083, who hereinafter and for all the purposes hereof will be called OPAIN S.A. and/or the LANDLORD ; and ELISA MURGAS DE MORENO , of legal age, identified with identification document No. 41.614.534, domiciled in Bogotá, acting in her capacity as Legal Representative for AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA , as evidenced in the certificate of existence and legal representation issued by the Barranquilla Chamber of Commerce attached hereto, a business corporation incorporated by means of Public Deed No. 2374 of December 5, 1919, issued by the 2 nd Notary Public of the Barranquilla Circuit, with TIN. 890.100.577-6 and Trade Register No. 6135, who hereinafter and for all the purposes hereof will be called AVIANCA S.A. and/or the LESSEE and, together with OPAIN S.A. and/or the LANDLORD , the PARTIES ; have agreed to enter into this AMENDING AGREEMENT No. 3 to LEASING AGREEMENT No. BO-AR-0011-04 , which will be ruled by the provisions of the Commercial Code and any other legal provisions applicable thereon, and specially, by the clauses detailed below, based on the following

CONSIDERATIONS

FIRST . On July 30, 2004, Leasing Agreement No. BO-AR-0011-04 was signed between the Special Administrative Unit of Civil Aeronautics (hereinafter, “UDEAC”) and AVIANCA, with regard to areas identified as Air Lift Terminal and that integrate a single business unit, for a period of 2 years from its execution, and in which, among other things, the UDEAC authorized the subleasing of the business premises, recognizing that these are part of AVIANCA’s business unit (hereinafter, the “Leasing Agreement”).

SECOND . On December 12, 2005, the UDEAC and AVIANCA signed Amending Agreement No. 1 to Leasing Agreement whereby, among others, (I) an additional area was included, corresponding to the plot of land of the safety zone of Foxtrot road between Juliet and Kilo; (ii) its term of duration was extended by 3 years and 3 months more, as of January 1, 2006; and (iii) the value of the Leasing Agreement was adjusted, due to the effects of the delivery of the additional area.

THIRD . On August 30, 2006, the UDEAC and AVIANCA signed the document for the Assignment of Rights and Obligations derived from Leasing Agreements No. BO-AR-0076-05 of December 20, 2005 and BO-AR-0059-04 of January 31, 2005, corresponding to the lease of advertising areas and spaces for televisions in the common areas of the Air Lift Terminal.

FOURTH . On September 12, 2006, the UDEAC and OPAIN S.A. signed Concession Agreement No. 60001690K of 2006, whose purpose is the “Management, Operation, Commercial Exploitation, Maintenance and Modernization and Expansion of the El Dorado International Airport of the city of Bogota D.C.,” (hereinafter, the “Concession Agreement”).

FIFTH . As established in Clause 20 of the Concession Agreement, as of January 20, 2007, the UDEAC assigned to OPAIN S.A. its contractual position as landlord, among others, in the Leasing Agreement, with the latter assuming all the rights and obligations arising from the same.

 

Page 1 of 4


AMENDING AGREEMENT No. 3 TO RENTAL AGREEMENT No. BO-AR-0011-04

 

SIXTH . In addition, the property subject matter of the Leasing Agreement is part of the area under concession that has been delivered by the UDEAC to OPAIN S.A., under the Concession Agreement.

SEVENTH . On January 5, 2009, OPAIN S.A. and AVIANCA signed Amending Agreement No. 2 to the Leasing Agreement, whereby the PARTIES agreed on, among other things:

 

  1. Exclude an area of approximately 42,567.10 square meters from the Platform, with 11 parking spaces for aircraft, as of April 1, 2009;

 

  2. Expand the term of the Leasing Agreement for the maintenance area, by one year and one month more, as of April 1, 2009 and, in any case, until the moment when OPAIN S.A. is able to provide the area required, having been prepared as established in the Concession Agreement, for AVIANCA to move its maintenance operation to another similar area;

 

  3. Extend the term of the Leasing Agreement for other areas that make up the Air Lift Terminal, by 3 years and 6 months more, as of April 1, 2009 and, in any case, until the moment when OPAIN S.A. is able to provide the area required for AVIANCA to move its integrated operation to the Terminal of the El Dorado International Airport;

 

  4. Adjust the value of the Leasing Agreement, improvements and guarantees.

EIGHTH . As established in the Concession Agreement, OPAIN S.A. as a concessionaire for the El Dorado International Airport, is empowered to perform any acts aimed at generating resources, thereupon it can enter into and perform leasing agreement, renegotiate existing agreements, exploit the commercial areas of the El Dorado International Airport, which have been given in concession by the UDEAC, excluding commercial areas that are part of the property subject matter of the Leasing Agreement, among others.

NINTH . Likewise, OPAIN S.A., as a private company and for purposes of performing the agreement it is allowed to within the framework of the Concession Agreement for complying with the purpose thereof, is required to fulfill the existing agreements, private law and public order rules that may be applicable.

TENTH . As established in Article 518 of the Commercial Code, AVIANCA is entitled to the renewal of the Leasing Agreement upon its expiration for a period equal to that agreed upon in Amending Agreement No. 2 to Leasing Agreement No. BO-0011-04-AR, whenever that, as an entrepreneur, it has occupied the property subject matter of the Leasing Agreement for more than 2 consecutive years with its business establishment and, to date, none of the grounds expressly set forth in the Commercial Code in the aforementioned article have occurred, which prevent the renewal of the term of such agreements.

ELEVENTH . By virtue of the principle of good faith and the autonomy of will, the PARTIES have agreed to amend the Leasing Agreement in order to adjust the value of the rental fee by mutual agreement.

Therefore, the PARTIES declare that the Rental Agreement has been performed according to the terms and conditions whereon it was entered into and amended, and that, as the PARTIES are legal private entities, in compliance with any applicable and valid regulations, they proceed to sign this Amending Agreement No. 3 to the Rental Agreement, which shall be governed, in general, by the provisions of the Commercial Code and, in particular, by the following

CLAUSES

 

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AMENDING AGREEMENT No. 3 TO RENTAL AGREEMENT No. BO-AR-0011-04

 

FIRST : Retroactively as of October 01, 2012, the Seventh Clause of the Rental Agreement “Value of the Agreement and Payment Method” is partially amended, in matters pertaining to its value and annual increases, first subsection and first paragraph, which will be as follows:

SEVENTH.-VALUE OF THE AGREEMENT AND PAYMENT METHOD . The LESSEE shall pay to the LANDLORD the sum of eight hundred fifteen million pesos ($815,000,000), plus VAT, as monthly rent fee for the use and benefit of the assets subject matter of this agreement that make up a business unit. The LESSEE must pay the aforementioned sum on an early basis, no later than within five (5) days of the filing of the appropriate invoice by the LANDLORD at the offices indicated by the LESSEE for this purpose.

FIRST PARAGRAPH: Annual Increase : The monthly rent fee agreed upon will be increased in annual periods, starting from October 1, 2013, in proportion to the Consumer Price Index (CPI) certified by the DANE (National Administrative Department of Statistics for its acronym in Spanish) for the immediately preceding calendar year plus one percentage point (IPC+1%).

SECOND PARAGRAPH: Payment of Duties and Fees by the LESSEE to the LANDLORD . The LESSEE shall pay the LANDLORD all the Duties and Fees established by AEROCIVIL in any applicable Resolutions. The value paid on such account is not part of the value of the Rental Agreement.

THIRD PARAGRAPH: Reduction of the rented area . Subsequent to the LESSEE having returned to the LANDLORD the maintenance areas rented pursuant to the provisions of this Amending Agreement, the PARTIES agree that the fee established in this clause will be reduced proportionately to the area returned, equivalent to four thousand pesos per square meter ($4,000 m²) plus VAT, updated to present value on the date of delivery with the domestic CPI certified for the immediately preceding year.

THIRD : This Amending Agreement No. 3 to the Rental Agreement is formalized with the memorandum of understanding between the PARTIES, evidenced with the signing of the same and which performance does not require any further formalities.

FOURTH : The LESSEE undertakes to deliver to the LANDLORD within five (5) days following the signing of this Amending Agreement No. 3, the amendment to the Sole Performance Guarantee contained in Clause Ten of the Rental Agreement, adjusted as to the insured value and validity thereof under the following conditions:

Insured Value: Equivalent to 35% of the annual value of this Amending Agreement No. 3.

Term: The guarantee shall be in force until the end of the term of the Agreement or its extensions, if applicable.

FIFTH : The other clauses of the Rental Agreement will continue in force, notwithstanding the provisions of this document.

 

Page 3 of 4


AMENDING AGREEMENT No. 3 TO RENTAL AGREEMENT No. BO-AR-0011-04

 

This Amending Agreement No. 3 to the Rental Agreement is signed in 2 counterparts of the same value and date, in the city of Bogota D.C., on the 7 th day of the month of November of 2012.

 

BY OPAIN S.A.
/s/ JUAN ALBERTO PULIDO ARANGO
JUAN ALBERTO PULIDO ARANGO

Legal Representative

OPAIN S.A.

 

BY THE LESSEE
/s/ ELISA MURGAS DE MORENO
ELISA MURGAS DE MORENO

Legal Representative

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

Page 4 of 4

Exhibit 10.3.4

AMENDING AGREEMENT No. 4 TO RENTAL AGREEMENT No. BO-AR-0011-04

Among the undersigned, namely: JUAN ALBERTO PULIDO ARANGO , of legal age, identified with identification document No. 70.876.189, domiciled in Bogotá, acting in his capacity as Legal Representative for SOCIEDAD CONCESIONARIA OPERADORA AEROPORTUARIA INTERNACIONAL S.A. – OPAIN S.A. , a corporation incorporated by means of Public Deed No. 2335 of September 1, 2006, issued by the 25 th Notary Public of the Bogota Circuit, with TIN. 900.105.860-4 and Trade Registration No. 01633083, who hereinafter and for all the purposes hereof will be called OPAIN S.A. and/or the LANDLORD ; and ELISA MURGAS DE MORENO , of legal age, identified with identification document No. 41.614.534, domiciled in Bogotá, acting in her capacity as Legal Representative for AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA , as evidenced in the certificate of existence and legal representation issued by the Barranquilla Chamber of Commerce attached hereto, a business corporation incorporated by means of Public Deed No. 2374 of December 5, 1919, issued by the 2 nd Notary Public of the Barranquilla Circuit, with TIN. 890.100.577-6 and Trade Register No. 6135, which hereinafter and for all the purposes hereof will be called AVIANCA S.A. and/or the LESSEE and, together with OPAIN S.A. and/or the LANDLORD , the PARTIES ; have agreed to enter into this AMENDING AGREEMENT No. 4 to RENTAL AGREEMENT No. BO-AR-0011-04, which will be ruled by the provisions of the Commercial Code and any other legal provisions applicable thereon, and specially, by the clauses detailed below, based on the following

CLAUSES

FIRST : The SECOND clause of the Rental Agreement is amended, to exclude an area of 11,950 square meters from the Maintenance Area currently rented, indicated in the blue area in Annex No. 1 – Drawing of Area to be returned, which is an integral part hereof, from the date of execution of this document, whereupon the return and delivery of this area by the LESSEE to the LANDLORD is deemed made, which will be as follows:

SECOND. AREA : Effective as of March 1, 2013, the total rented area of the property and defined as a business unit, will have an approximate area of eighty-three thousand five hundred eighteen point zero five square meters (83,518.05 m² approx.) indicated in Annex No. 2 – Drawing of the Area to be Retained of Amending Agreement No. 4. Notwithstanding the indication of the area, the property is delivered as specified.

FIRST PARAGRAPH : The LESSEE will continue with the operation, management and exploitation of the other areas subject matter of the rental agreement, as a business unit, including the operation of its related companies, subsidiaries, affiliates, parent companies, holding companies or those under common control with the LESSEE , 1 as established in the Agreement as according to the area delimited in the Drawing of Annex No. 2 – Drawing of the Area to be Retained of Amending Agreement No. 4.

SECOND : As a consequence of the exclusion of the area indicated in the above clause and that gave rise to the amendment of clause SECOND of the Agreement, the PARTIES agree that the fee established in this clause will be reduced in proportion to the area returned, which is equivalent to four thousand four hundred seventy-three pesos per square meter ($4,473 M2) plus VAT. Due to the foregoing, clause SEVENTH of the Rental Agreement is amended as follows:

 

1   The companies of the LESSEE that are subsidiaries and affiliates are, in particular: TAMPA CARGO S.A. and AEROLINEAS GALAPAGOS S.A. AEROGAL S.A. and as related companies and those under common control with the LESSEE are: GRUPO TACA, which to date include: Taca International Airlines S.A., Avianca S.A., Nicaraguense de Aviacion S.A., Taca de Honduras S.A. de C.V., Lineas Aereas Costarricenses S.A., Trans American Airlines S.A. (d.b.a. TACA PERU), Transportes Aereos Inter S.A., Isleña de Inversiones S.A. de C.V., Aerotaxis la Costeña S.A., Servicios Aereos Navionales S.A., Aerolinea Pacifico Atlantico S.A., Taca Costa Rica S.A. and any other entity that may be incorporated in the future. However, each airline acts individually and will not assume any responsibility or obligation derived from this document collectively or as joint guarantors or obligors.


SEVENTH.-VALUE OF THE AGREEMENT AND PAYMENT METHOD . The LESSEE shall pay to the LANDLORD from March 1, 2013 the sum of SEVEN HUNDRED SIXTY-ONE MILLION FIVE HUNDRED FORTY-NINE THOUSAND FORTY-EIGHT PESOS (761,549,048.00), plus VAT, as monthly rent fee for the use and benefit of the assets subject matter of this agreement that make up a business unit. The LESSEE must pay the aforementioned sum on an early basis, no later than within five (5) days of the filing of the appropriate invoice by the LANDLORD at the offices indicated by the LESSEE for this purpose.

FIRST PARAGRAPH: Annual Increase : The monthly rent fee agreed upon will be increased in annual periods, starting from October 1, 2013, in proportion to the Consumer Price Index (CPI) certified by the DANE (National Administrative Department of Statistics for its acronym in Spanish) for the immediately preceding calendar year plus one percentage point (IPC+1%).

SECOND PARAGRAPH: Payment of Duties and Fees by the LESSEE to the LANDLORD . The LESSEE shall pay the LANDLORD all the Duties and Fees established by AEROCIVIL in any applicable Resolutions. The value paid on such account is not part of the value of the rental agreement.

THIRD : This Amending Agreement No. 4 to the Rental Agreement is formalized with the memorandum of understanding between the PARTIES, evidenced with the signing of the same.

FOURTH : The LESSEE undertakes to deliver to the LANDLORD within five (5) days following the signing of this Amending Agreement No. 4, the amendment to the Sole Performance Guarantee contained in Clause TEN of the Rental Agreement, adjusted as to the insured value and validity thereof under the following conditions:

 

   

Insured Value: Equivalent to 35% of the annual value of this Amending Agreement No. 3.

 

   

Validity: The guarantee shall be in force until the end of the term of the Agreement or its extensions, if applicable.

FIFTH : OPAIN S.A. declares that the area replaced under this Amending Agreement determined in Annex No. 1 will be intended for parking spaces and/or to fulfill the functions determined by Concession Agreement No. 6000169OK/2006 or any other function determined by the Special Administrative Unit of Civil Aeronautics or the entity performing its functions.

Moreover, while the purpose of the platforms is not changed by the Civil Aviation Authority and AVIANCA S.A. continues exploiting the TPA as the lessee, OPAIN S.A. is required to give preferential treatment to AVIANCA S.A. as to the use of four (4) of the six (6) parking spaces (see Annex No. 3 – Parking spaces in platform) that will be opened in the platform once the construction of the same is completed. This preferential treatment will not involve in any way the exclusive use of said parking spaces, irrespective of the use given to the same, and provided that such special treatment does not affect the proper operation of the airport.

This preference will be maintained while AVIANCA S.A. remains as the lessee of the TPA.

SIXTH : The other considerations and clauses of the Rental Agreement and Amending Agreements 1, 2 and 3 that were not expressly amended hereunder, will continue in force and unchanged, according to the time, form and place how these were drafted and agreed upon by the PARTIES; and it is signed under the understanding of not revoking the effects of other documents produced by the PARTIES for the performance of Rental Agreement BO-AR-0011-04.


This Amending Agreement No.4 to the Rental Agreement is signed in 2 counterparts of the same value and date, in the city of Bogota D.C., on the first (1) day of March of two thousand thirteen (2013).

 

BY OPAIN S.A.
/s/ JUAN ALBERTO PULIDO ARANGO
JUAN ALBERTO PULIDO ARANGO

Legal Representative

OPAIN S.A.

 

BY THE LESSEE
/s/ ELISA MURGAS DE MORENO
ELISA MURGAS DE MORENO

Legal Representative

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA


AMENDING AGREEMENT No. 4 TO LEASING AGREEMENT No. BO-AR-0011-04

ANNEX No. 1

-DRAWING OF AREA TO BE RETURNED-

 

LOGO

Conventions :

 

   

The excluded area of 11,950 m² in this amendment to rental agreement No. BO-AR-0011-04 is delimited within the blue area in the drawing.

 

   

The yellow area corresponds to the area currently used by Opain S.A. or the performance of the Modernization and Expansion Works provided for in the Concession Agreement under its responsibility.

 

   

The red area corresponds to a portion of the area included in rental agreement No. BO-AR-0011-04.


AMENDING AGREEMENT No. 4 TO LEASING AGREEMENT No. BO-AR-0011-04

ANNEX No. 2

-DRAWING OF AREA TO BE RETAINED-

 

LOGO

Total rented area: 83,518.05 m² differentiated as follows :

Maintenance Area: 60,529.62 m²

Building Area: 10,500.74 m²

Parking Area: 12,487.69 m²


AMENDING AGREEMENT No. 4 TO LEASING AGREEMENT No. BO-AR-0011-04

ANNEX No. 2

-PARKING SPACES IN PLATFORM ASSOCIATE WITH EAST DOMESTIC CARGO TERMINAL-

 

LOGO

Note:

The preferential treatment given to AVIANCA hereunder, refers to the use of four (4) of the six (6) parking spaces on the east end of the above drawing, highlighted in a red circle. The preferential use of these four (4) spaces does not involve increased AVIANCA parking spaces, but corresponds to a redistribution of those currently used.

Exhibit 10.4

AVIATION LIQUID FUEL SUPPLY AGREEMENT

ENTERED INTO BETWEEN ORGANIZACION TERPEL S.A. AND AEROVIAS DEL

CONTINENTE AMERICANO S.A., AVIANCA

Between the undersigned, ORGANIZACION TERPEL S.A. , with registered offices in the city of Bogota, D.C., incorporated under the laws of Colombia by means of Public Deed No. 6038 of November 21, 2001, issued by the Sixth (6 th ) Notary Public of the Bogota D.C. circuit, as evidenced in the certificate of existence and legal representation issued by the Bogota Chamber of Commerce, and represented herein by SYLVIA ESCOVAR GOMEZ , of legal age, domiciled in the city of Bogota, identified with identification document No. 51.615.762 issued in Bogota, acting in her capacity as Alternate Legal Representative, as established in the certificate of existence and representation (hereinafter, “ TERPEL ”), on the one hand, and on the other, AEROVIAS DEL CONTINENTE AMERICANO S.A., AVIANCA , with registered offices in the city of Barranquilla, incorporated under the laws of Colombia by means of Public Deed No. 2374 of December 19, 1919, issued by the Second 2 nd Notary Public of the Barranquilla Circuit, as evidenced in the certificate of existence and legal representation issued by the Barranquilla Chamber of Commerce, and represented herein by ELISA MURGAS DE MORENO , of legal age, domiciled in the city of Bogota, identified with identification document No. 41.614.534 issued in Bogota, acting in her capacity as Legal Representative, as established in the certificate of existence and representation (hereinafter, the “ COMPANY ” or “ AVIANCA ”), have agreed to enter into this Aviation Oil Derived Liquid Fuel Supply Agreement (hereinafter, the “ Agreement ”), in accordance with the terms and conditions stated below:

FIRST. PURPOSE . With the signing of this Agreement, TERPEL is required to supply at the process described in Annex No. 1 and during the term of the business relation, 100% of the JET A1 aviation fuel (hereinafter, the “ Product ” or “ Products ”) that the COMPANY requires for use on its aircraft in domestic and international flights from the following airports, Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro, Rafael Nuñez of Cartagena, Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira.

The supply Agreement is carried out taking into account the total estimated consumption of the COMPANY at these airports in a volume per number of gallons, as indicated in Annex No. 1 that is an integral part of this Agreement.

In turn, with the signing of this Agreement, the COMPANY is required to purchase from TERPEL, the amounts of fuel (JET-A1) subject matter of this legal transaction, provided TERPEL has the necessary technical and operational infrastructure in place for the supply of such volumes.

FIRST PARAGRAPH : The Agreement is signed on the basis of the current estimated consumption of the COMPANY indicated in Annex No. 1 . Should the COMPANY notify a considerable increase in such consumption, TERPEL is required to use its best efforts to adapt its installed capacity to the new needs of the COMPANY so that the COMPANY does not suffer any disruption in the supply of the volumes required. In the event where TERPEL states not being capable of meeting such increased consumption, it must inform the COMPANY as soon as possible and the COMPANY will freely seek other fuel suppliers for them to meet the surplus volume without any breach being generated under the terms of this Agreement.

SECOND. TERM . The Agreement will be deemed valid from its date of execution until November 30, 2012.

The Agreement will be deemed automatically extended for successive periods of one year, if TERPEL or the COMPANY do not express their intention to terminate this business relation, in the case of the first extension, by means of a brief sent with no less than thirty (30) days’ notice relative to the deadline of such term provided for in this clause. For subsequent years, with no less than thirty (30) days’ notice relative to the date of expiration of the respective annual period.


PARAGRAPH : TERPEL may perform the supply subject matter of the Agreement, using its own or third-party infrastructure, under a leasing, gratuitous loan or operational agreement, among others, as determined by TERPEL itself. In any case, TERPEL will be responsible for having the infrastructure required and it shall not be excused from complying with its obligations described in the Agreement, due to its own or third-party acts that affect or may affect the availability of the infrastructure required for carrying out the supply under the terms of this legal transaction, except in cases of duly proven acts of God or force majeure.

THIRD. PERCENTAGE OF THE TOTAL VOLUME REQUIRED BY THE COMPANY AND SUPPLIED BY TERPEL . With the signing of this Agreement, the COMPANY is required to acquire and TERPEL is required to deliver to the COMPANY the volume required pursuant to Annex No. 1 .

FOURTH. DETERMINATION OF THE VOLUME TO BE SUPPLIED PER FLIGHT . The COMPANY will deliver to TERPEL every day in the morning, a copy of the itinerary of its flights. The amount of fuel to be deliver for each flight will be notified through a Fueling Order that will be delivered when performing the fueling operation.

FIFTH. DELIVERY, TITLE AND RISK OF LOSS . The receipt of the fuel by the COMPANY will be performed as follows:

TERPEL will carry out the delivery of the volume of fuel to aircraft scheduled to flight to the airports of Cali, Barranquilla, Rionegro, Cartagena, Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira, as requested by the COMPANY.

The title and risk of loss of the fuel will be transferred from TERPEL to the COMPANY as soon as it is delivered to the aircraft. It will be understood that a delivery has been made to the aircraft in any of the following events:

 

  (i) When the fuel goes through the adapter under the wing, or

 

  (ii) When the fuel goes through the fueling connection or hose on the wing, depending on the aircraft to be fueled. Thereafter, the COMPANY will be solely responsible for any detriment or loss.

SIXTH. TERPEL’S OBLIGATIONS . With the signing of this Agreement, TERPEL is required to:

 

  a) Have the infrastructure required to guarantee the supply to the COMPANY.

 

  b) Deliver to the COMPANY the volume of the Product that had been requested, taking into account the aspects of the COMPANY’s operation and consumption and maintenance requirements and other cases, except when acts of God or force majeure events prevent TERPEL from delivering the fuel. TERPEL will use its best efforts to minimize and mitigate the propagation of the event that gave rise to the force majeure. For the duration of TERPEL’s inability to provide the fuel due to force majeure events, the COMPANY may seek other suppliers to meet its operational needs without such situation entailing a breach to the exclusivity indicated in clause third.

 

  c) Guarantee the quality of the Products delivered.

 

  d) In case of a risk of shortage or events of actual shortage from TERPEL’s regular supply source, TERPEL shall act with utmost diligence to seek alternative supply sources and give the COMPANY first priority for deliveries of fuel to its aircraft, ensuring that none is left without the Product.

 

  e) Not use the name of the COMPANY, its trademarks or slogans without prior express authorization from the COMPANY. For business purposes, TERPEL may include the COMPANY in its customer list.

 

  f) Comply with the requirements of environmental standards and hold the COMPANY unharmed against such risks.


  g) Hold and maintain in force all licenses and permits that may be required by reason of its operation.

 

  h) Agree with the respective manager of the Airport, on the terms of the permits and authorizations required for meeting the supply under the conditions required by the COMPANY.

 

  i) Meet the safety, operational and quality standards required to the COMPANY by certifying and control entities, if the same are applicable to the process that TERPEL must develop due to the functions under its responsibility hereunder. The COMPANY and TERPEL will carry out the coordination that may be necessary to guarantee the fulfillment, disclosure and application of said standards. It is clarified that the quality standards referred to herein are specified in clauses Eleven and Twelve of the Agreement, in the event where there is an additional requirement by the COMPANY, it will be notified in writing to TERPEL, and the application thereof will be agreed between the parties.

 

  j) All those expressed in the Agreement, as well as those relating to the nature or that may be essential for this legal transaction.

SEVENTH. OBLIGATIONS OF THE COMPANY . With the signing of this Agreement, the COMPANY in required to:

 

  a) Receive from TERPEL the volume of fuel required for the supply of its aircraft, unless due to force majeure events invoked by the COMPANY that prevents it from accepting the delivery of the Products. The COMPANY will use its best efforts to minimize and mitigate the propagation that gave rise to the force majeure. Upon the cessation of the event that originated the COMPANY’S inability to receive the Products, the COMPANY will continue to be required to receive from TERPEL the Products necessary for the supply of its Aircraft and Equipment and to comply with all the obligations derived from the execution of the Agreement.

 

  b) Issue the Fueling Orders and supply TERPEL with information that allows to anticipate an increase or decrease in consumption.

 

  c) Pay the value of the supply within the deadlines agreed upon.

 

  d) Not use the name of TERPEL, its trademarks or slogans, without prior express authorization from TERPEL.

 

  e) The COMPANY will support TERPEL when so requested, in the coordination of all other suppliers that service the aircraft in order to carry out the fuel supply operation in a quick and safe manner.

 

  f) All those expressed in the Agreement, as well as those relating to the nature or that may be essential for this legal transaction.

EIGHTH. TERMINATION OF THE AGREEMENT DUE TO THE CANCELLATION OF TERPEL OR THE COMPANY’S OBLIGATIONS . In the event where TERPEL or the COMPANY’s operations are terminated by any cause at the airports listed in clause first of the Agreement, the terms and conditions of the same will be deemed terminated. TERPEL or the COMPANY as appropriate, may cancel its operations and withdraw from the airport without them having any further responsibility, provided that the withdrawing party notifies the other with an advance of not less than six (6) months, except in the case where the cancellation or withdrawal decision is due to a determination made by the Government, or the owner and/or manager of the airport, and that said decision requires the cancellation or withdrawal within shorter period.

In case that the decision to cancel the operation by the COMPANY us due to the transfer of its operation to another airport, the COMPANY will be required to give TERPEL first choice for it to be its supplier at the new airport so as to guarantee, at least, the consumption subject matter of this Agreement.


The termination of this Agreement shall not be produced in the case of a complete sale of assets, transformation or merger of the COMPANY.

NINTH. RESPONSIBILITY OF TERPEL AND THE COMPANY . With the signing of this Agreement, TERPEL will be responsible for all damages and losses caused to the COMPANY, its parent company, affiliates, subsidiaries and/or related companies of the same, as well as the employees, contractors and dependents of these and/or third parties, due to any action or omission incurred or contributed by TERPEL or any of its employees or dependents during the performance, or by reason of the total or partial performance of the Agreement, and is required to hold any such persons harmless against all claims, suits or any legal action that may arise. In the event where any of these is required to the payment of any sum of money by reason of the responsibility described herein, TERPEL is required to reimburse the appropriate amount, and in case the COMPANY has any sum of money outstanding in favor of TERPEL, it accepts that the COMPANY may deduct the corresponding amount from the value payable, upon submission of the invoices or billing statements.

The COMPANY will be responsible for any damages or losses caused to TERPEL, its parent company, affiliates, subsidiaries and/or related companies of the same, as well as the employees, contractors and dependents of these and/or third parties, due to any action or omission incurred or contributed by the COMPANY or any of its employees or dependents during the performance, or by reason of the total or partial performance of the Agreement, and is required to hold any such persons harmless against all claims, suits or any legal action that may arise. In the event where any of these is required to the payment of any sum of money by reason of the responsibility described herein, the COMPANY is required to reimburse the appropriate amount, upon submission of the invoices or billing statements.

The COMPANY shall not be responsible for and there will be no indemnification whatsoever for any damages or losses that the assets and personnel of TERPEL may suffer or any person under its responsibility or its assets, in the development of the tasks of this Agreement, unless such damages or losses are attributable to the COMPANY.

TENTH. GUARANTEES . TERPEL offers to maintain, pay on its own account and timely renew with an insurance company and under acceptable conditions in the opinion of the COMPANY, the following insurance policies:

 

  a) Performance : Its purpose is to guarantee all and each of the fuel supply obligations derived from this Agreement, for an amount equivalent to TEN percent (10%) of the total value of the annual supply. The estimated value of the supply for the first year is ONE HUNDRED FIFTY-NINE BILLION ONE HUNDRED SEVENTY-THREE MILLION TWO HUNDRED THREE THOUSAND FOUR HUNDRED SIXTEEN COLOMBIAN PESOS LEGAL TENDER ($159,173,203,416.00). Coverage must be in force for one year from the tenth (10) business day following the date of execution of this Agreement, and it must be renewed every year until covering the entire period for the supply of fuels in accordance with the validity established in clause second. The value of the policy will be recalculated by the COMPANY 30 days before its expiration. The bonded party will be TERPEL and AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA will be the insured party and beneficiary.

 

  b) Tort : For a value of FIVE HUNDRED MILLION DOLLARS (US$ 500,000,000) per claim, but in the aggregate with respect to ANV 52G civil and product liability, whose purpose is guaranteeing any damages or losses caused to the COMPANY and/or third parties due to the performance, nonperformance or undue performance of the supply. Coverage must be in force throughout the term of the Agreement and four (4) months more. The insured parties will be TERPEL and AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA and the beneficiaries will be any third parties affected.

PARAGRAPH : The value of the corresponding premiums shall be assumed by TERPEL and failure to pay will allow the COMPANY to apply the penalties described in the Agreement, or alternatively, to terminate the same unilaterally and on an early basis without generating any responsibility to the COMPANY for this event. The COMPANY may claim any damages caused by this termination to TERPEL.


Civil liability policies must name the COMPANY and other persons listed in this paragraph and must include a clause for the separation of interests, primary insurance and no right to contribution and a clause of no adverse material amendment or cancellation, with thirty (30) calendar days’ or ten (10) business days’ prior notice in the cases of war risks. TERPEL, as proof of having taken the aforementioned policies, will submit the same within a term not exceeding ten (10) business days, from the date of execution of the Agreement.

TERPEL must submit the renewal of the policies no later than 15 days before the expiry thereof.

Failure to have the policy required in paragraph b of this clause within five (5) business days following the signing of the Agreement, or the renewal of the same for subsequent periods, the COMPANY may take the policy on behalf and at the expense of TERPEL, who expressly accepts that the values paid by the COMPANY on account of the premiums will be deducted directly from the amount payable.

ELEVENTH. TECHNICAL SPECIFICATIONS OF THE FUEL . With the signing of this Agreement, TERPEL will acquire from ECOPETROL and provide to the COMPANY, the JET-A1 fuel with the specifications stipulated by standards ICONTEC 1899 (ATA Guidance Material for Aviation Fuel), NTC 4642 STORAGE, NTC 4643 SUPPLY latest update. In the event where the fuel fails to meet the previous specifications, the COMPANY will be released from the obligation to buy from TERPEL the fuel required at the places where such failure occurred, until the technical specifications of the fuel meet the aforementioned standards. If TERPEL is not capable of supplying the fuel acquired from ECOPETROL with the specifications offered, TERPEL will notify the COMPANY on the deviations of the product with respect to the conditions described and will allow the COMPANY to chose accepting or rejecting the fuel. The decision by the COMPANY regarding this situation will not involve any responsibility whatsoever to TERPEL.

It is understood that TERPEL will be responsible for carrying out with ECOPETROL the efforts aimed at resolving any differences as to the quality or specifications of the fuel according to the claims made by the COMPANY on the matter.

TERPEL will indicate, in the tickets of the different deliveries made of the Products, the following data: Density, product temperature at the time of fueling and time of delivery.

TERPEL may import the Product that is required to supply to the COMPANY provided it meets the specifications stipulated by standards ICONTEC 1899 (ATA Guidance Material for Aviation Fuel), NTC 4642 STORAGE, NTC 4643 SUPPLY latest update.

TWELFTH. QUALITY AND QUANTITY CONTROL OF THE PRODUCTS .

A) QUALITY CONTROL . TERPEL will fulfill the procedures and tests described and in the time periods specified in the FUEL PROCEDURE MANUAL of the COMPANY and in the QUALITY CONTROL MANUAL of TERPEL. Should there be any discrepancy, the most favorable Manual for the COMPANY will be applied.

Furthermore, if the Quality Assurance Department of the COMPANY so requires it, TERPEL will send the tests and/or analyses of the fuel (JET-A1) conducted at plants and Airports to guarantee that the products conforms to the specifications.

The tests and their frequency are as follows:

 

TYPE OF TEST    FREQUENCY

Complete Tests

   For each Tender dispatch by the supplier.

Basic Tests

   For each Tender received at the plant.

Shortened Tests

   For each Tender received at the airport.


TERPEL will conduct appearance and water tests on the fuel on a daily basis, with the presence of the COMPANY’s maintenance representative.

The results and reports of the tests and/or analyses, including complete tests by ECOPETROL, will be available to the COMPANY at the plants and airports where TERPEL operates and will be provided when required and, in any case, those referring to complete and Millipore color tests made at the airports at least automatically. The COMPANY will be entitled at any time to take samples of the fuel (JET A-1) supplied, but such samples must be taken with the presence of TERPEL’s authorized representative.

B) QUANTITY CONTROL . The volumetric measurements submitted by TERPEL will be accepted by the COMPANY as proof the quantities delivered. TERPEL undertakes to maintain the gauges in perfect operational conditions calibrating them every six (6) months (NTC 4643 SUPPLY), it being understood that the COMPANY may verify at any time the calibration of the gauges used by TERPEL. Should the COMPANY have any claim due to variations registered by a gauge, TERPEL will perform the calibration with the presence of a representative from the COMPANY and if any failure in the calibration is verified, TERPEL will recognize to the COMPANY the appropriate percentage, deducting applying it to the volume delivered to the COMPANY by such gauge, rom the date of the last calibration until the date when it is calibrated again in presence of the COMPANY’s representatives, to the complete satisfaction of the same. Likewise, TERPEL will bear any transportation and support expenses, if any, incurred by two officials of the COMPANY, who will travel to the places where the supply services is provided to verify the proper calibration of the gauges, provided there had been any difference attributable to TERPEL.

THIRTEENTH. FUEL PRICE . During the period between the date of execution of this Agreement and November 30, 2012, fuel sale prices (“PF”) (JET-A1) for domestic and international lights of the COMPANY, will be those resulting from the sum of the following components:

Sale prices will be determined by the following formulae:

PF1 = (PE + MA) x TRM

or

PF2 = (PE * TRM) + DIF

Where:

PF1: Invoice price for the fuel (Colombian Pesos/Gallon) for airports Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena.

PF2: Invoice price of the fuel (Colombian Pesos/Gallon) for airports Simon Bolivar of Santa Marta that established in Baranoa, Palonegro of Bucaramanga that established in Bucaramanga, Camilo Daza of Cucuta.

PE: Price established by ECOPETROL in each of the airports Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro, Rafael Nuñez of Cartagena, and as detailed below for the following airports: Simon Bolivar of Santa Marta that established in Baranoa, Palonegro of Bucaramanga that established in Bucaramanga, Camilo Daza of Cucuta that established in Bucaramanga, Los Garzones of Monteria that established in Baranoa, Yariguies of Barrancabermeja that established in Bucaramanga and Matecaña of Pereira that established in Medellin (USD/Gallon).

TRM: Representative Market exchange rate on the date of delivery of the Product.

MA: Difference given by TERPEL for the domestic and international volume of the COMPANY at the airports Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro, Rafael Nuñez of Cartagena, the value of which is 0.066 $USD/gallon in seven (7) days post-paid form or as established in clause fourteenth depending on the form of payment chosen by the COMPANY.


DIF: Difference given by TERPEL for the domestic and international volume of the COMPANY at the airports Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira which value is $2,950/gallon in seven (7) days post-paid form or as established in clause fourteenth depending on the form of payment chosen by the COMPANY.

FIRST PARAGRAPH : The price formula does not include the value of any fees, sums or contributions decreed by the National Government, by the civil Aviation Authority or those imposed by the operating company and/or concessionaire of the airports Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro, Rafael Nuñez of Cartagena, Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira in addition to those existing at the date of execution of the Agreement, which, if decreed by the competent authorities, will increase the invoice price for the fuel.

SECOND PARAGRAPH : On the date of signing of the Agreement, there are no fees, sums or contribution decreed by the National Government or the Special Administrative Unit of Civil Aeronautics, or imposed by operating companies and/or concessionaires of the airports Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro, Rafael Nuñez of Cartagena, Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira other than the payments derived from leasing agreements No. CC027-2007 for Barranquilla, No. CO-009-04 for Cali, No. 0221-CON for Rionegro and Concession Agreement SACSA 121/2007 for Cartagena, No. SM-AR-005-03 for Santa Marta, BG-AR-034-08 for Bucaramanga, No. CC-AR-033-08 for Cúcuta, No. MR-AR-002-06 for Monteria, No. EJ-AR-035-08 for Barrancabermeja and 2008068 for Pereira which, on the current value and projected increases, were included for the determination of the price of this Agreement until the last day of validity hereof.

THIRD PARAGRAPH : The difference of the airports Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira will be updated according to the annual variation percentage of the CPI for the period January-December of the year prior to the first day of January of each year.

FOURTH PARAGRAPH : When the monthly consumption of the airports Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira exceed the average expected in Annex No. 1 to this Agreement, the difference in fuel will be that established in said Annex No. 1 that is an integral part of this Agreement.

FOURTEENTH. INVOICING AND PAYMENTS . TERPEL must established in coordination with the COMPANY, a mechanisms for generating information containing the following data: Base, invoice number, gallons supplied, type of domestic or international operation, delivery ticket number, exchange rate and price per gallon. The payment of fuel for domestic and international flights will be as follows:

 

  a. TERPEL will invoice the consumption per airport every day to the COMPANY, according to the domestic and international destination and as per the terms of clause four of the Agreement, it will send all corresponding invoices on a daily basis including delivery tickets, which must at least contain the following information: Date, airplane, amount supplied, flight number, base, time of supply, temperature and density of the Product and the signature of a representative of the COMPANY.

 

  b. TERPEL will send account statements to the COMPANY monthly in arrears and within the first five (5) calendar days of the following months, the statement of invoices delivered by TERPEL and outstanding, information that will be sent to the following email genconciliaciones@avianca.com. The report must be in an Excel file, with the following information as a minimum: provided such information can be obtained from the system currently used by TERPEL: (i) Complete business name of TERPEL; (ii) TIN; (iii) invoice numbers; (iv) date of issue of invoices; (v) date of filing of invoices; (vi) value of the invoices before and after taxes; and (vii) date of expiry of invoices, as well as any modification to the data of TERPEL, such as its address, name of the legal representative of the COMPANY.

 


  c. The COMPANY will have a period of seven (7) calendar days to make the payment from the date of the invoice. If the amounts owed have not been paid after ten (10) calendar days from the supply, subsequent supplies will be suspended.

FIFTEENTH. UNFUELING OF AIRCRAFT . TERPEL is required to provide at no cost for the COMPANY, the unfueling service of aircraft only at the airports El Dorado of Bogota, Terminal Puente Aereo of Bogota and Jose Maria Cordova of Rionegro, at night operating times.

The unfueling is divided into two (2) categories:

1 . Return of the fuel to TERPEL. TERPEL will prepare the unfueling tickets, which must include the same information as delivery tickets (date, registration, unfueled volume, airport, signatures, etc.) and will append them to the corresponding credit note in favor of the COMPANY. Such credit note must differentiate the value of the fuel unfueled at the price prevailing at the place and time of unfueling.

2 . In the event where the unfueled fuel fails to meet quality parameters, it will be downgraded to ground fuel (Diesel) and in this case, TERPEL will prepare the credit note corresponding to the price of Diesel prevailing at the place and time of unfueling. The transportation cost of unfueled fuel from the airport to the supply plant will be borne by the COMPANY.

SIXTEENTH. TECHNICAL ASSISTANCE . TERPEL is required to provide, free of cost, technical and training assistance to personnel designated by the COMPANY, on the management and quality control of the fuel subject matter of this Agreement, when so required by the COMPANY and upon an agreement between the parties. Likewise, the COMPANY will provide at no cost, technical and training assistance to TERPEL’s personnel in the operation, transit and circulation, signage and safety for the supply of fuel to its aircraft and the operation at the platform.

SEVENTEENTH. FORCE MAJEURE . Neither TERPEL nor the COMPANY will be liable for delays or complete or partial failures to comply with the obligations under their responsibility derived from the execution and performance of this legal transaction, due to the occurrence of any unforeseeable and unavoidable events that according to the Colombian law constitute force majeure or acts of God. For the purposes of the Agreement, the following events, among others, are understood as such: Deficiencies or interruptions in the sea, river or ground transportation of fuel or through pipelines, beyond TERPEL’s control; strikes or stoppages when the cause thereof is beyond TERPEL’s control; mutinies or revolutions, recognized or de facto political or administrative acts from the government, compliance with requests or orders from authorities, expropriation, confiscation or nationalization, restrictions in production or import of crude oil or fuel by the government or ECOPETROL, rationing or imposition of fees by the government or any of its instrumentalities, accident of aircrafts or vehicles that interrupt the provision of the service due to their magnitude, provided this is beyond the control of the COMPANY.

If TERPEL is unable to make timely deliveries of the fuel requested by the COMPANY in accordance with this Agreement, due to force majeure or acts of God, the COMPANY will be entitled to make other arrangements to purchase the same in the amounts required until TERPEL is able to make deliveries again when required by the COMPANY. The COMPANY will be entitled to use the fuel purchased from any other person other than TERPEL to use it during the time when TERPEL was unable to provide it before resuming fuel purchases made from TERPEL. In force majeure events of acts of God with respect to the COMPANY, it will not be required to purchase fuel form TERPEL. TERPEL guarantees that irrespective of the cause why at any given time it is incapable of providing the fuel, if there is a shortage in any supply source that renders TERPEL unable to meet its formal commitments subject matter of this Agreement, TERPEL will use its best efforts and will provide all information available for the fees that may be established by the competent authority to be established on a fair and reasonable basis.


EIGHTEENTH. PENALTIES . When by fault exclusively attributable to TERPEL or its personnel or subcontractors, according to the operative procedures indicated in Annex No. 2 , there is a delay in the departure of an aircraft, the COMPANY may deduct from the value payable, either as a prepayment or as an installment, on the basis of the value for the consumption of the day when the delay occurred, the following percentages:

MAIN AIRPORTS

 

  a) For each delay in the departure of the aircraft of less than or equal to twenty (20) minutes at the airport Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena, twenty percent (20%) of the value of the fuel for the flight in respect of which the delay occurred.

 

  b) For each delay in the departure of the aircraft of less than or equal to forty (40) minutes and greater than twenty (20) minutes at the airport Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena, thirty percent (30%) of the value of the fuel for the flight in respect of which the delay occurred.

 

  c) For each delay in the departure of the aircraft of less than or equal to sixty (60) minutes and greater than forty (40) minutes at the airport Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena, forty percent (40%) of the value of the fuel for the flight in respect of which the delay occurred.

 

  d) For each delay in the departure of the aircraft greater than sixty (60) minutes at the airport Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena, seventy percent (70%) of the value of the fuel for the flight in respect of which the delay occurred.

REGIONAL AIRPORTS

 

  a) For each delay in the departure of the aircraft of less than or equal to twenty (20) minutes at the airport Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira, ten percent (10%) of the value of the fuel for the flight in respect of which the delay occurred.

 

  b) For each delay in the departure of the aircraft of less than or equal to forty (40) minutes and greater than twenty (20) minutes at the airport Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena, fifteen percent (15%) of the value of the fuel for the flight in respect of which the delay occurred.

 

  c) For each delay in the departure of the aircraft of less than or equal to sixty (60) minutes and greater than forty (40) minutes at the airport Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena, twenty percent (20%) of the value of the fuel for the flight in respect of which the delay occurred.

 

  d) For each delay in the departure of the aircraft greater than sixty (60) minutes at the airport Alfonso Bonilla Aragon of Cali, Ernesto Cortizzos of Barranquilla, Jose Maria Cordova of Rionegro and Rafael Nuñez of Cartagena, thirty-five percent (35%) of the value of the fuel for the flight in respect of which the delay occurred.

These penalties will be applied notwithstanding the right of the COMPANY to terminate the Agreement and claim for any duel proven additional damages or losses that may have been caused.


NINETEENTH. BREACH . Both TERPEL and the COMPANY may terminate this Agreement by the failure to comply with any of the obligations under TERPEL or the COMPANY responsibility, an event that may only be argued by the party in compliance, provided the breach of the obligation had not been remedied within thirty (30) calendar days following the receipt of the written notice of the same.

PARAGRAPH : The early termination of the business relation by breach of either party, will give rise to the party terminating the Agreement, to charge the party in default, by way of indemnification, a sole amount equivalent to multiplying the value of the difference offered by TERPEL in each of the airports, by the volume missing to complete the volumes estimated ( Annex No. 1 ) as the sole amount and previous assessment of the damages if the relation is terminated before reaching the volume estimated.

Said amount will be enforceable by means of this Agreement signed by the Parties.

TWENTIETH. ASSIGNMENT OF THE AGREEMENT . The benefits and obligations derived from the execution and performance of this Agreement cannot be assigned, completely or partially, by neither Party without the prior written consent from the other, but it is previously accepted that they may be assigned in the event of the complete sale of assets, transformation or merger of any of the Parties. The liquidation or settlement or economic restructuring process of the COMPANY or TERPEL, will terminate this Agreement on an early basis, without this being considered as a breach unless such early termination is not allowed by the applicable legal rules.

TWENTY-FIRST. INDEPENDENCE . TERPEL represents and warrants that it is not and will not act in any case as a representative, agent, intermediary or principal of the COMPANY, Consequently, it will only acquire the obligations set out in this legal transaction once the Agreement has been signed. TERPEL represents and warrants that will not enter into any act or contract on behalf or in representation of the COMPANY.

TWENTY-SECOND. AUTONOMY . TERPEL and the COMPANY will perform the obligations derived from the Agreement using their own means, with complete freedom and technical, economic and financial autonomy, without any subordination of any kind from one to the other. In this regard, the Parties accept that they are not attorneys in fact, representatives or partners, or associates in joint accounts, and that neither them nor the personnel related to them will be considered at any time as bound to the other by any contractual or employment relation. Accordingly, each of the Parties will assume the responsibilities imposed by the law in relation to their own or affiliated personnel used for the performance of the obligations derived from the Agreement, which for all intents and purposes will be considered as contractually and exclusively related to the other, and in relation to these persons, there may not be any legal or contractual dependence or subordination of any kind to the other Party. In the event where TERPEL or the COMPANY is required to pay any sum originated from the responsibility of the other Party, the Party making such payment, notwithstanding the legal penalties established in its favor, may deduct or invoice, as the case may be, the value paid.

TWENTY-THIRD. STAMP TAX . No stamp tax is generated with the signing of this Agreement in pursuance with Law 1111/2006 and paragraph 2 of Article 519 of the Colombian Tax Code. However, if the stamp tax is generated by any reason, it will be proportionately assumed by the Parties, as well as the penalties that may be applicable in relation thereto.

TWENTY-FOURTH. DISPUTE RESOLUTION. Any dispute or difference relating to the execution, performance and liquidation of this Agreement, will be firstly resolved between the Parties by direct settlement. Upon the occurrence of an event originating a dispute, either Party may take the initiative to send to the other, no later that within the following 3 days, a notice of the commencement of the direct settlement stage. If the dispute has not been resolved one calendar month after the notice of the commencement of the direct settlement stage, any Party will be free to go to an arbitration tribunal that will be subject to the rules of the Arbitration and Conciliation Center of the Bogota Chamber of Commerce according to the following rules: i) The Arbitration Tribunal will be composed of three (3) arbitrators, who must be certified attorneys at law and will be appointed by the parties by mutual agreement. For this purpose, the Party requesting the arbitration tribunal will inform the other in writing on this event to be designated by the Parties by mutual agreement at four in the afternoon (4:00 p.m.) on the following fifth (5) business


day (Saturdays will not be taken into account) at the offices of the COMPANY. In the event where any of the Parties does not designate the arbitrator corresponding to it, the arbitrators that have not been elected or designated will be appointed by the Bogota Chamber of Commerce from the list of arbitrators registered in such Chamber of Commerce.

 

ii) The Tribunal will decide according to law.

 

iii) The fees, costs and expenses caused in instances of the Arbitration, will be borne by the defeated party and the fees and expenses associated with the enforcement of the arbitration award will be paid by the Party against which the decision is rendered.

 

iv) The Tribunal will be based in the city of Bogota.

 

v) The Tribunal will rule in the city of Bogota.

TWENTY-FIFTH. CONFIDENTIALITY . This Agreement and its conditions and terms are confidential, therefore, neither Party may, without the prior written consent from the other, communicate or disclose to any third party, the existence or contents of the same or any other information obtained by reason of the execution of performance thereof, except to its executives and directors, legal and financial counselors, auditors, insurance brokers and/or insurers, or when: (a) the information is requested by a court or administrative order from any competent authority; (b) is disclosed in accordance with any enforceable law or regulation; or (c) is disclosed according to a legal requirement from any competent authority, and which the disclosing party is required to comply with. Notwithstanding the foregoing, the Parties may share without the need of prior authorization, the information contained in this Agreement or any other additional information obtained by reason of the execution of performance of the same with its holding company and/or the holding company of the latter and/or with the companies controlled by it and/or with the companies that are under common control with any of these, including the executives and directors, legal and financial counselors, auditors, underwriters, insurance brokers and/or insurers of each of them.

In the event where any of the Parties is required through an administrative or judicial resolution issued by a competent authority, to disclose any confidential information, it must notify the other on such situation within the following five (5) business days from the date of receipt of such notification, for the other to be able to perform any such acts that may be desirable in its opinion, including obtaining any adequate protective order, cautionary measures or other appropriate remedy to prevent the disclosure of the confidential information required, and must indicate to the requiring authority that pursuant to the terms of this Agreement, it is obliged to comply with a duty of confidentiality.

FIRST PARAGRAPH : For the purposes of this Agreement, Confidential Information means any information referring to the business or properties of the Parties, which is verbally, in writing or otherwise delivered or made available to any of the Parties for the purposes provided for herein. Confidential Information is also understood as that which may be known by the Parties during conversations, discussions, or any third party related to the execution and performance of the Agreement.

For the purposes of this Agreement, the following information will not be considered as Confidential Information:

 

  a) That which the Parties have proven to be aware of on the date of disclosure under this Agreement;

 

  b) That which is publicly known at the time of being disclosed by any of the Parties, insofar as this is not caused by any action or omission of either Party.

 

  c) That provided to any of the Parties by third parties that are not bound to keep it in confidence, without this constituting a breach to this Agreement.

 

  d) That which disclosure is required by any law, order, decree, regulation, judicial resolution or decision from any competent governmental entity.


The Parties are required to maintain the Confidential Information in strict confidence and are obliged to not sale, exchange or transfer the Confidential Information in any way and on any account. Likewise, the Parties are required to not publish or reveal the Confidential Information in any way to any person or entity, on any medium, including photocopies, faxes or any other kind of reproduction, without prior written authorization from the other Party.

SECOND PARAGRAPH : the Parties may disclose the Confidential Information to an Affiliate, without prior written authorization from the other Party. In this case, before disclosing the Confidential information, the disclosing Party must obtain a strict written confidentiality and nondisclosure commitment to ensure at least the same guarantees, with respect to the preservation of the confidentiality of the Confidential Information, that those contained in this Agreement. To this end, an “Affiliate” will be understood as any corporation or legal person where the Parties hold an interest equal to or greater than 50% or any corporation or legal person that has an interest equal to or greater than 50% in any of the Parties, or any legal person that: (a) directly or indirectly controls either Party, (b) is directly or indirectly controlled by the same legal person that controls either Party, or (c) is directly or indirectly controlled by either Party. For the purposes of this clause “Control” is understood as the ownership, directly or indirectly, of more than 50% of the share capital with voting rights, that allows the person or entity exercising the same to prevail in all decisions taken at a meeting and, in particular, in the election of directors.

The Parties will be responsible for ensuring that the persons or entities referred to above will maintain the Confidential Information in strict confidence and will not disclose, sell, exchange or transfer it in any way or on any other account. Each Party will be responsible for any direct damages caused to the other Party and/or to its Affiliates, as a direct consequence of the breach of the confidentiality obligation agreed upon herein. Neither Party will be responsible, in an action initiated by one against the other, for any especial, indirect or consequential damages resulting or emerging from this Agreement, including but not limited to, loss of profits and business interruptions.

The Confidential Information will continue to be owned by each of the Parties, being these able to request its return at any time, having to notify the other Party in writing. Within a period of five (5) calendar days from the receipt of such notice, the Party will return all written and electronic originals, copies and reproductions in its possession and will formally request the destruction of the Confidential Information held by the persons to whom it disclosed the aforementioned information.

The Parties represent and warrant that they are entitled and have the authority to disclose the Confidential Information to the other Party. The Confidential Information provided under the terms of this Agreement is the best information available to the Parties, reason why they do not guarantee, expressly or implicitly, the quality, accurateness or integrity of the Confidential Information revealed, a circumstance that is known and accepted by the Parties, as well as the inherent risk of errors in the acquisition, processing and interpretation of said information.

The Parties are obliged to keep in confidence all the information and documents related to the development and performance of this Agreement for a term of three (3) years from the date of execution.

TWENTY-SIXTH. CONTRACTUAL DOMICILE . For all legal intents and purposes, the contractual domicile will be the city of Bogota D.C.

TWENTY-SEVENTH. STATEMENT OF THE LAWFUL ORIGIN OF ASSETS AND LACK OF RECORDS OR INVESTMENT RISKS FOR UNLAWFUL ACTIVITIES .

The Legal Representatives of TERPEL and the COMPANY, acting on their own behalf as natural persons, and as legal representatives for TERPEL and the COMPANY, to the best of their knowledge and on the basis of good faith, as they have carried out the inquiries that are reasonably in their reach, make the following statements, that must be held as valid for the entire term of the Agreement.


First : That the assets that comprise the assets of TERPEL and the COMPANY, as well as the assets of the partners, shareholders, legal representatives or managers of TERPEL and the COMPANY, do not directly or indirectly come from the exercise of activities considered unlawful, and have not been used as means or instruments for committing the same, as established in the following provisions: Law 190/1995, whereby rules aimed at preserving the morality in the public administration are issued and other provisions are set in order to eradicate administrative corruption; Law 747/2002, whereby reforms to the Criminal Code are established, which typifies Asset Laundering; Law 1121/2006, whereby rules are issued for the prevention, detection, investigation and penalization of terrorism financing and other provisions are issued; and Law 360/1986, whereby the National Drug Code is adopted and other provisions are issued; as well as any other amending, supplementing or clarifying rules.

Second : That in respect of which there are not and they are not aware of, in relation to each of the persons mentioned above, of the existence of records of definitive penalties or the existence of ongoing investigations, as a consequence of legal actions of a civil, criminal, administrative or fiscal nature or processes of any sort by Colombian or foreign authorities, related to the unlawful activities described above, and that testify that on the date of execution of this Agreement, none of the abovementioned parties have negative records in national or international asset laundering or terrorism financing lists.

Third : That in the event where provisions are issued that typify new unlawful conducts with respect of which the COMPANY or TERPEL requires a statement with a similar scope to that of the foregoing statements, it shall timely proceed to make it as required.

Fourth : That with the signing of this Agreement they accept the previous statements and in the event where the COMPANY or TERPEL is aware by any means that the same have ceased to be valid, with respect to the COMPANY or TERPEL from any of the persons mentioned, or in the event of a refusal to make a statement with a similar scope regarding new conducts typified as unlawful, it will be understood that the COMPANY or TERPEL are empowered to unilaterally terminate this Agreement on an early and justified basis without the payment of any indemnification in their favor or in favor of such persons, and under the responsibility of the COMPANY or TERPEL.

TWENTY-EIGHTH. BUSINESS ETHICS AND CONFLICTS OF INTEREST OF TERPEL . Based on the best practices for the prevention of corruption in the applicable legal rules, the COMPANY declares:

1. That for the purposes of this document, a Public Official is any person that is employed, provides its services directly or indirectly or represents a government or power (either executive, legislative or judicial), or a national state agency or entity or an international public agency; or any candidate to a political position or any representative of a political party, provided that in any of the previous cases the person or entity with whom any action must be carried out or intervene by reason of the performance of the purpose of this Agreement refers to a Public Official.

2. That it has not performed or taken part, and it does not have evidence that any of its main shareholders, managers, employees or any other persons works representing the same (including, with no limitation, one of its affiliates or subordinates, contractors, subcontractors, consultants) has performed or has taken part, either directly or indirectly, in:

 

  (i) A Prohibited Payment, with respect to this Agreement, which is defined as any offer, gift, payment, promise to pay or authorization to pay any sum of money or anything valuable, with the purpose of: (a) have influence on any act or decision of the Public Official in his official capacity, (b) induce the Public Official to perform or omit any act in violation of his lawful duty, (c) obtain any improper advantage, (d) induce the Public Official to use his influence with a government or any of its instrumentalities to affect or have influence over any act of said government or instrumentality in order to assist in obtaining anything in relation to this Agreement.

 

  (ii) A Prohibited Transaction with respect to this business relation, the definition of which includes the following:

 

  a. Receive, transfer, transport, retain, use, structure, deviate or conceal the proceeds of any unlawful activity, including fraud and the bribing of any Public Official;


  b. Take part or finance or fund, facilitate or grant donations to any person, activity or organization involved with terrorism;

 

  c. Participate in any transaction or conduct business in any other way with a person or entity included in any prohibitive or restricting list issued by any national or international governmental entity with respect to money laundering, terrorism financing, drug trafficking or economic or weapons embargoes.

 

  (iii) That it has received a copy of TERPEL’s Code of Conduct and agrees that its actions will be subject to the principles indicated in said Code.

 

  (iv) That neither it nor its employees, contractors, subcontractors or attorneys in fact are Public Officials.

During the performance of this Agreement the COMPANY is required to:

 

  1. Not make and take reasonable steps to prevent Prohibited Payments or Prohibited Transactions or payments for bribing purposes to be made directly or through its employees or through a third party.

 

  2. To immediately report to TERPEL any Prohibited Payment or Prohibited Transaction it is aware of.

 

  3. That it will carry out a due diligence process, according to the circumstances, regarding the reputation of contractors, subcontractors, attorneys in fact or representatives employed for performing tasks in the development of this Agreement.

The Parties agree that any failure to comply with these provisions will entitle TERPEL to terminate this Agreement as well as any other that the COMPANY has entered into with TERPEL on an early basis, with no indemnification whatsoever. In this case TERPEL will only pay to the COMPANY the sums of money corresponding to services that have been already provided.

The COMPANY will be responsible for any damage or loss in favor of TERPEL pursuant to any applicable laws.

TWENTY-NINTH. AVIANCA’S POLICY ON CONFLICTS OF INTEREST . During the term of this Agreement, each Party will use utmost diligence and care to prevent any action that may result in a conflict of interest with AVIANCA and/or any of its subsidiaries.

AVIANCA will not allow or accept negotiations of its contractors or contracting parties, as applicable, with any director, employee or third party related to the COMPANY and/or any of its subsidiaries, whatever their level may be, in the event where any of them and/or their spouse and/or permanent companion and/or family member until the fourth degree of consanguinity, second of affinity or first by adoption, have a direct or indirect interest in the properties of their contractor or contracting party, as the case may be.

Unless the conflict is revealed by the contractor or contracting party and AVIANCA has given express authorization therefor, it will be understood that the existence of such conflict may cause the decision to unilaterally terminate the Agreement on a justified basis without any indemnification whatsoever.

Similarly, the contractor or contracting party, as the case may be, must take into account that: AVIANCA does not authorize its directors, employees or related third parties and/or directors, employees or related third parties from any of its subsidiaries, to accept from its contractor or contracting party, as applicable, either directly or through any other person, payments, services, loans, retributions of any kind or benefits other than those purely related to advertisement or universally accepted in a business environment.


For the purposes of the interpretation of this clause, the following concepts are defined below:

Directors are the persons who hold the position of member of the Board of Directors, President, Vice-presidents, Human Resource Business Manager, General Secretary or whoever exercises legal representation functions.

Employees are any persons that are enrolled through an employment agreement.

Related thirds parties are any natural persons, other than directors and employees, that while are at the service of any third party contractor or supplier of goods or services for AVIANCA and/or any of its subsidiaries, performs operational, technical, administrative or business support functions for the benefit of AVIANCA and/or any of its subsidiaries.

AVIANCA’s subsidiaries are: Avianca Inc., Aviation Leasing Services (ALS), Investments S.A., Aviation Leasing Services (ALS) Inc., International Trade Marks Agency Inc. and Latin Logistics LLC and those that may be established in the future.

THIRTIETH. TERPEL’S POLICY ON CONFLICTS OF INTEREST . A conflict of interest is understood by the Parties as any situation derived from the inability to simultaneously satisfy two interests, namely that from the manager of a company as this term is defined in the law and that from the company managed, either because the interest is from the manager or a third party with which the manager as any relation. This is, when there is any personal or business interest that interferes or affects his independent judgment and objectivity in relation to the best interests of the company managed. According to the foregoing, with the execution of this Agreement the COMPANY declares the following under oath:

 

  a) That neither the COMPANY not its partners, legal representative(s), directors, members of the board of directors, have degrees of consanguinity to the fourth (4) degree, or affinity to the second (2) degree or fist (1) by adoption, with any of the legal representative(s), or members of the board of directors of Organizacion Terpel S.A.

 

  b) That it is aware of and understands the regulations provided for in the Colombian law with respect to conflicts of interest.

 

  c) That it has studied the previous provisions and any factual circumstances to guarantee that neither the COMPANY nor its partners, legal representative(s), directors, members of the board of directors violate the provisions of this clause and that its performance, liquidation or termination or any other relation that it has had with TERPEL will not be infringed during the negotiation stage prior to the execution of this Agreement, or during the execution of this Agreement.

 

  d) That in case of being involved in any conflict of interest, this event was previously informed in writing to TERPEL’s Aviation and Maritime Management, i.e., that it was revealed by the COMPANY and known by TERPEL, so that the contracting made with the COMPANY was subject to the rigorous process established by TERPEL.

 

  e) That in the event where the COMPANY or its legal representative(s), directors, members of the board of directors, at any time, are involved in any of the cases described in this clause, not having previously served the notice referred to in the above subsection, the COMPANY authorizes TERPEL to terminate this Agreement or any other contractual relationship existing by breach of this duty of information and transparency.


In witness whereof, it is signed in the city of Bogota on November 1, 2010.

AEROVIAS DEL CONTINENTE AMERICANO S.A., AVIANCA .

 

/s/ ELISA MURGAS DE MORENO
ELISA MURGAS DE MORENO

I.D. No. 41.614.534 issued in Bogota

Second Alternate of the President

 

ORGANIZACION TERPEL S.A.
/s/ SYLVIA ESCOVAR GOMEZ
SYLVIA ESCOVAR GOMEZ

I.D. No. 51.615.762 issued in Bogota

Alternate Legal Representative

Rectangular Wet Ink Stamp

RECORD OF NOTIFICATION AND APPEARANCE

SEVENTY-THIRD NOTARY PUBLIC OF THE BOGOTA CIRCUIT

Before this Notary Public appeared Elise Murgas de Moreno, identified with I.D. No. 41.614.534 issued in Bogota, who stated that the signature appearing in this document belongs to her that that the contents of the same are true.

 

/s/ Hector Cortes Diaz
Bogota D.C., January 11, 2011

Circular Wet Ink Stamp

REPUBLIC OF COLOMBIA

SEVENTY-THIRD NOTARY PUBLIC

Hector Cortes Diaz

Notary Public


ANNEX No. 1

DELIVERY AIRPORT, ESTIMATES VOLUMES, PERCENTAGES AND PRICES

Seller: Organizacion Terpel S.A.

Buyer: Aerovias del Continente Americano S.A. Avianca

Fuel: JET A1 in American gallons

Term of the supply: from July 1, 2010 until November 30, 2012.

1. MAIN AIRPORTS :

 

Airport: Cali – Alfonso Bonilla Aragon
     Rionegro – Jose Maria Cordova
     Barranquilla – Ernesto Cortizzos
     Cartagena – Rafael Nuñez

 

Airport

  

Estimated Volume (USG)

  

Formula

Cali

   22,517,494    PF = (PE + MA) * TRM

Barranquilla

   12,043,646    PF = (PE + MA) * TRM

Rionegro – Medellin

   17,188,131    PF = (PE + MA) * TRM

Cartagena

   15,327,179    PF = (PE + MA) * TRM

Where:

PF: Invoice price of fuel (Colombian Pesos/Gallon).

PE: Price established by ECOPETROL at each of the airports of Cali, Barranquilla and Rionegro (USD/Gallon).

TRM: Market exchange rate at the time of delivery of the Product.

MA: Difference given by TERPEL for the domestic and international volume of the COMPANY at the airports of Cali, Barranquilla and Rionegro and whose value is USD 0.066/gal according to 7-day credit option.

2. REGIONAL AIRPORTS :

 

Airport: Simon Bolivar – Santa Marta
     Palonegro – Bucaramanga
     Camilo Daza – Cucuta
     Los Garzones – Monteria
     Yariguies – Barrancabermeja
     Matecaña – Pereira

 

Airport

  

Estimated Volume (USG)

  

Formula

  

Applicable Product

Santa Marta

   2.390.351    PF = (PE + MA) * TRM    Baranoa

Bucaramanga

   1.757.512    PF = (PE + MA) * TRM    Bucaramanga

Cucuta

   1.419.169    PF = (PE + MA) * TRM    Bucaramanga

Monteria

   1.181.716    PF = (PE + MA) * TRM    Baranoa

Barrancabermeja

   439.514    PF = (PE + MA) * TRM    Bucaramanga

Pereira

   1.709.847    PF = (PE + MA) * TRM    Medellin


Where:

PF: Invoice price of fuel (Colombian Pesos/Gallon).

PE: Price established by ECOPETROL at each of the airports of Cali, Barranquilla and Rionegro (USD/Gallon).

TRM: Market exchange rate at the time of delivery of the Product.

MA: Difference given by TERPEL for the domestic and international volume of the COMPANY at the airports of Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira and whose value is USD $2,980/gallon in 7 days post-paid form.

3. ADDITIONAL CONSUMPTION IN REGIONAL AIRPORTS :

When the monthly consumption of the airports Simon Bolivar of Santa Marta, Palonegro of Bucaramanga, Camilo Daza of Cucuta, Los Garzones of Monteria, Yariguies of Barrancabermeja and Matecaña of Pereira exceed the average expected in Annex No. 1 to this Agreement, the fuel difference for incremental volumes will be as follows:

 

Airport

  

Formula

   Applicable Product    DIF

Santa Marta

   PF = (PE + MA) * TRM    Puente Aranda    0.072 USD/gal

Bucaramanga

   PF = (PE + MA) * TRM    Puente Aranda    0.072 USD/gal

Cucuta

   PF = (PE + MA) * TRM    Puente Aranda    0.072 USD/gal

Monteria

   PF = (PE + MA) * TRM    Puente Aranda    0.072 USD/gal

Barrancabermeja

   PF = (PE + MA) * TRM    Puente Aranda    0.072 USD/gal

Pereira

   PF = (PE + MA) * TRM    Medellin    0.15 USD/gal

Where:

PF: Invoice price of fuel (Colombian Pesos/Gallon).

PE: Price established by ECOPETROL.

TRM: Market exchange rate at the time of delivery of the Product.

MA: Difference given by TERPEL for the domestic and international volume of the COMPANY at the airports in 7 days post-paid form, or as established in clause fourteenth depending on the form of payment chosen by the COMPANY.

Exhibit 12.1

 

In US$ thousands, except ratios    Six Months Ended
June 30, 2013
    2012     2011  

Profit before income tax & adjustments for minority interest and equity earnings in affiliates

     174,694        102,962        143,690   

Add (Deduct):

      

Fixed charges, from below

     133,297        275,198        214,545   

Amortization of capitalized interest

     347        557        451   

Distributed earnings of affiliates

     —          —          —     

Less:

      

Interest capitalized

     (1,979     (3,466     (8,292

Preference security dividend

     —          —          —     

Noncontrolling interest

     —          —          —     

Earnings as adjusted

     306,359        375,251        350,394   
  

 

 

   

 

 

   

 

 

 

Fixed charges:

      

Interest expensed and capitalized and amortization of premiums, debt discounts, issuance costs and capital expenditures

     56,637        131,629        99,070   

Portion of lease expense representative of interest factor

     76,660        143,569        115,475   
  

 

 

   

 

 

   

 

 

 

Fixed charges, as above

     133,297        275,198        214,545   

Preferred share dividends

     —          —          —     

Fixed charges and preferred share dividends

     133,297        275,198        214,545   
  

 

 

   

 

 

   

 

 

 

Calculation of Earnings to Fixed charges Ratio

      

Ratio of earnings to fixed charges

     2.30        1.37        1.63   
  

 

 

   

 

 

   

 

 

 

Ratio of earnings to fixed charges and preferred share dividend

     2.30        1.37        1.63   
  

 

 

   

 

 

   

 

 

 

Exhibit 21.1

 

Name of Subsidiary

   Country of
Organization
   Ownership Interest  
     

Aerolíneas Galápagos Aerogal S.A.

   Ecuador      99.62

Avianca, S.A.

   Colombia      99.98

Líneas Aéreas Costaricenses S.A.

   Costa Rica      92.37

Nicaraguense de Aviación, S.A.

   Nicaragua      99.61

Taca International Airlines, S.A.

   El Salvador      96.84

Tampa Cargo S.A.

   Colombia      100

Trans American Airlines, S.A.

   Peru      100

Aerotaxis La Costeña, S.A.

   Nicaragua      51

Isleña de Inversiones

   Honduras      100

Servicios Aéreos Nacionales S.A.

   Costa Rica      100

Aerospace Investments Limited

   Bahamas      100

Aviation Leasing Services, Inc.

   Panama      100

Aviation Leasing Services, Investment

   Panama      100

AVSA Properties 2, Inc.

   Panama      100

AVSA Properties, Inc.

   Panama      100

Intercontinental Equipment Corp.

   Bahamas      100

Little Plane Five Limited

   Bahamas      100

Little Plane Limited

   Bahamas      100

Little Plane Six Limited

   Bahamas      100

Little Plane Two Limited

   Bahamas      100

Southern Equipment Corp.

   Bahamas      100

Turboprop Limited

   Bahamas      68

Grupo Taca Holding Limited

   Bahamas      100

Ronair

   Curaçao      100

Avianca Inc.

   USA      100

LifeMiles Corp., S.A.

   Panama      100

Tampa Cargo Logistic

   USA      100