Exhibit
10.4.1
AMENDMENT NO.
7
TO
RESTATED CORPORATE JOINT VENTURE AGREEMENT
This amendment
is effective the 10 th
day
of December, 2010, and is between Costco Venture Mexico
(“CVM”) (formerly, “Price Venture Mexico,”
a California corporation also known as “PRIMEX” in its
own capacity and as the surviving entity in the merger between
PRIMEX and The Price Company, a California corporation
(“PRICE”)), and Controladora Comercial Mexicana, S.A.B.
de C.V., a corporation organized under the laws of the United
Mexican States (“CCM”), also known as
“Comercial,” and is for the purpose of amending the
Restated Corporate Joint Venture Agreement, dated February 15,
1995, between PRICE and PRIMEX on the one hand and Comercial on the
other, as amended (the “Restated Joint Venture
Agreement”).
The parties
agree as follows:
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1.
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The definition
of “Primex” and “Price” is superseded and
amended to mean, everywhere such terms appear in the Restated Joint
Venture Agreement, “Costco Venture Mexico” or
“CVM”.
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2.
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The definition
of “Price/Costco, Inc.” is superseded and amended to
mean, everywhere such term appears in the Restated Joint Venture
Agreement, “Costco Wholesale Corporation,” a Washington
corporation, the surviving corporation in their merger.
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3.
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The definition
of “Comercial” is superseded and amended to mean,
everywhere such term appears in the Restated Joint Venture
Agreement, “Controladora Comercial Mexicana, S.A.B. de
C.V.” or “CCM.”
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4.
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The definition
of “Shares” is superseded and amended to mean,
everywhere such term appears in the Restated Joint Venture
Agreement, “shares of capital stock of the Holding
Company.”
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5.
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The definition
of “Holding Company” is superseded and amended to mean,
everywhere such term appears in the Restated Joint Venture
Agreement, “Costco de México, S.A. de
C.V.”
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6.
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The definition
of “Management Agreements” is superseded and amended to
mean, everywhere such term appears in the Restated Joint Venture
Agreement, the surviving “Management Agreement,” dated
February 15, 1995, as amended, between Costco Wholesale
Corporation, a Washington corporation as the successor in interest
of Price/Costco, Inc., formerly a Delaware corporation, and Costco
de México, S.A. de C.V., as the successor in interest of its
subsidiary Importadora Primex, S.A. de C.V., a corporation
organized under the laws of the United Mexican States.
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7.
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The definitions
of “Pricemex Group” and “Pricemex Group
Companies” are superseded and amended to mean, everywhere
such terms appear in the Restated Joint Venture Agreement, the
Holding Company and its subsidiaries.
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8.
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The new
definition “Trust Agreement” is added and shall mean
everywhere such term appears in the Restated Joint Venture
Agreement:
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“That
certain Irrevocable Management and Guaranty Trust Agreement dated
December 10th, 2010 by and among CCM as Settlor and Third
Place Beneficiary, CVM as First Place Beneficiary, Banco Invex,
S.A., Institucion de Banca Multiple, Invex Grupo Financiero in its
role as ALF Collateral Agent in benefit of the Lenders as Second
Place Beneficiary, and Deutsche Bank Mexico, S.A., Institucion de
Banca Multiple, Division Fiduciaria as Trustee.”
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9.
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The definition
of “Change in Control Event” is superseded and amended
to mean, everywhere such term appears in the Restated Joint Venture
Agreement, as “Change in Control Event:”
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“Means
(a) the acquisition of CCM by another entity (other than a
reincorporation for the purpose of changing CCM’s domicile)
by means of merger, consolidation, share exchange or other form of
entity reorganization in which the outstanding capital stock of CCM
is exchanged for, converted into or cancelled in consideration of
obtaining the right to receive securities or other consideration
issued by or on behalf of the acquiring entity as a result of which
the holders of the capital stock of CCM immediately, before such
transaction or series of related transactions, do not hold at least
a majority of the voting power and at least a majority of the
outstanding securities of the surviving, resulting or acquiring
entity after such transaction or series of related transactions in
substantially the same proportions as held by the holders of
capital stock of CCM immediately before such transaction or series
of related transactions; or (b) a transaction or series of
related transactions in which a Person, entity, or a group of
related Persons acquires direct or beneficial ownership of shares
representing more than thirty-five percent (35%) of the
outstanding voting power of CCM; or (c) the sale, lease,
transfer, exclusive license or other disposition, in a single
transaction or series of related transactions, by CCM of all or
substantially all the assets of CCM, or the sale or disposition
(whether by merger or otherwise) of one or more subsidiaries of CCM
if substantially all of the assets of CCM are held by such
subsidiary or subsidiaries; provided however, that for purposes of
this definition, assets shall be deemed “substantially
all” if they constitute or represent either of: (i) 60%
of CCM’s consolidated asset value; or (ii) 60% of
consolidated sales for CCM during the previous twelve months; or
(d) a change in the composition of the board of directors of
CCM during any two-year period such that the individuals who, as of
the beginning of such two-year period, constitut
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