PROMISSORY CONTRACT ENTERED INTO BY AND BETWEEN PUERTO DE LIVERPOOL, S.A. DE
C.V., HEREIN REPRESENTED BY MR. FELIPE JAQUEZ GARCES, WHO SHALL HEREINAFTER BE
CALLED THE "PROMISOR PURCHASER," AND THE PARTY OF THE SECOND PART, GRUPO
ELEKTRA, S.A. DE C.V., REPRESENTED BY MESSRS. LUIS JORGE ECHARTE FERNANDEZ AND
GONZALO GARCIA DE LUCA, WHO SHALL HEREINAFTER BE CALLED THE "PROMISOR SELLER,"
UNDER THE TENOR OF THE FOLLOWING STATEMENTS AND CLAUSES
STATEMENTS
I. The Promisor Purchaser States:
a) That it is a commercial company duly established and existing
pursuant to the laws of the United States of Mexico, with full
capacity to enter into the present Contract and to commit
under the terms hereof.
b) That simultaneously with the signing of the present Contract
it has acquired 94.3% of the shares representing the share
capital of Grupo SyR, S.A. de C.V. ("Grupo Syr"), with full
voting rights and as a result of such purchase / sale
transaction, it controls Grupo SyR.
c) That Grupo SyR is the owner, directly or through some of its
subsidiary companies, of four pieces of real property in which
operate the same number of department stores under the name
"Salinas y Rocha," which are described in Appendix "A" of the
present contract (the "Properties").
d) That Grupo SyR is the lessee, directly or through some of its
subsidiary companies, of seven pieces of real property in
which operate the same number of department stores under the
name "Salinas y Rocha," which are described in Appendix "B" of
the present contract (the "Leaseholds" and jointly with the
Properties, the "Department Stores").
e) That Grupo SyR is the owner, directly or through some of its
subsidiary companies, of the inventory of merchandise, as well
as the chattel and equipment related to the handling,
operation and management of the Department Stores (jointly,
the "Inventory").
f) That Grupo SyR is the holder, directly or through some of its
subsidiary companies, of the credit rights with respect to the
lines of credit granted to the customers of the Department
Stores (jointly, the "Portfolio").
g) That Grupo SyR is the employer, under the terms of the Federal
Labor Law, directly or through some of its subsidiary
companies, of all the employees who perform their services
physically in the Department Stores, for the direct operation
thereof, excluding purchasers or such others who have been
hired through third parties (jointly, the "Substitute
Employees").
h) That it is represented herein by Messrs. Luis J. Echarte
Fernandez and Gonzalo Garcia de Luca, who have sufficient
authorities to enter into in behalf and in representation of
the Promisor Seller, acts of management under the terms of the
second paragraph of Article 2554 of the Civil Code for the
Federal District, which have not been limited since the date
on which they were granted.
II. The Promisor Purchaser states:
a) That it is a commercial company duly established pursuant to
the laws of the United States of Mexico, with full capacity to
enter into the present Contract and to commit under the terms
hereof.
b) That it is interested in purchasing directly or through some
of its subsidiary companies, the Properties and the Inventory,
as well as the right and obligations of the lessee of the
Leaseholds. Likewise, it is interested in acquiring the
Portfolio through assignment, and in assuming as Substitute
employer, the employment obligations of the Substituted
Employees.
c) That it is herein represented by Mr. Felipe Jaquez Garces, who
has sufficient authority to obligate it under the terms of the
present Contract, which have not been limited since the date
they were granted to him.
d) That it is aware of the authorities of the representatives
of the Promisor Seller and they recognize its agency for the
purposes of the present Contract.
III. Both parties state that:
They are in agreement in entering into the present Promissory Contract
under the following
CLAUSES
FIRST. Properties and Inventory. The Promisor Seller undertakes to sell or
to take such as are necessary in order for the owner of the Properties and of
the Inventory to sell the same to the Promisor Purchaser, which undertakes to
acquire such Properties and Inventory from the Promisor Seller or from the
legitimate owner thereof, by entering into such purchase / sale contracts as are
necessary to that end, which shall contain the elements cited in this contract
and shall contain the common and usual clauses in this type of contract.
SECOND. Leasehold. The Promisor Seller undertakes to assign or to the
perform such acts as are required for the holder of the rights of the lessee of
Leaseholds to assign in favor of the Promisor Purchaser, which undertakes to
assume such lessee's rights with respect to the Leaseholds by means of entering
into such assignment contracts of the lessee's rights as are required to that
end, which shall contain the elements cited in this contract.
THIRD. Portfolio. Likewise, the Promisor Seller undertakes to assign or to
perform such acts as are required for the owner of the Portfolio to
assign in favor of the Promisor Purchaser, which undertakes to acquire such
credit rights corresponding to the Portfolio by means of entering into such
rights assignments contracts as are required to that end, which shall contain
the elements cited in this contract.
FOURTH. Employer Substitution. With the acquisition of the Properties and
the assignment of the Leaseholds cited in Clauses First and Second, above, the
Promisor Purchaser shall assume the employer liabilities with respect to the
Substituted Employees, establishing itself as Substitute Employer under the
terms of the Federal Labor Law. The parties undertake to formalize such employer
substitution in writing, on the date on which the contracts for the acquisition
of the Properties and the assignment of the Leaseholds are signed, which
document shall be subject to the stipulations of Clause Seventh of the present
Contract.
FIFTH. Price of the Properties, Inventory and Leaseholds. As overall
consideration for the assets cited in Clauses First and Second of this Contract,
the promisor Purchaser promises to pay and the Promisor Seller promises to
accept payment of an amount equivalent to UI 115,851,760 (one hundred fifteen
million eight hundred fifty-one thousand seven hundred sixty Investment Units
"UDI's"). Likewise, the parties shall agree the manner in which such amount
shall be distributed among the different contracts. The aforementioned amount or
amounts shall be paid by the Promisor Purchaser on the date on which the
corresponding contracts are entered into.
SIXTH. Portfolio Price. As consideration for the assignment of the entirety
of the Portfolio, the Promisor Purchaser promises to pay and the Promisor Seller
promises to accept payment of an amount equivalent to 95% of the unpaid balance
of the portion of the Portfolio identified as "Normality," that is to say, such
as is current with respect to its payments and such as is not more than 30 days
in arrears. Such amount shall be paid by the Promisor Purchaser on the date on
which the assignment of the Portfolio is made.
SEVENTH. Statements. The definitive contracts to which Clauses First to
Fourth, above, refer (the "Definitive Contracts") shall also contain a clause of
statements by the Promisor Seller and of the subsidiary thereof which enters
into such Contracts under the terms of Appendix "C", as well as a clause of
statements on the part of the Promisor Purchaser and of the subsidiary thereof
which enters into the contracts under the terms of Appendix "D". Likewise, such
contracts shall contain a clause by means of which the Promisor Seller and the
subsidiary thereof which enters into the Definitive Contracts undertake jointly
and severally to hold the Promisor Purchaser harmless with respect to any damage
which the latter might have suffered in virtue of any falsehood in the
statements contained in the Definitive Contracts and vice versa.
EIGHTH. Termination. The Definitive Contracts may be signed (i)
simultaneously on only one date, or (ii) successively on different dates, with
the understanding that in both cases all the Definitive Contracts shall have
been entered into by no later than June 15, 1999 (the "Deadline"). Likewise, the
parties agree that if the Definitive Contracts are entered into under the terms
of paragraph (ii), above, such contracts as are entered into, pending the
signature of others of the Definitive Contracts, shall be subject to the
resolutive condition that the rest of the Definitive Contracts be entered into
no later than by the Deadline. For this reason, if any of the Definitive
Contracts is not signed by the Deadline such condition shall occur and the
Definitive Contracts already signed at such date shall be understood as not
having been entered into. Notwithstanding the foregoing, the parties undertake
to make their best efforts for all the Definitive Contracts to be signed as
quickly as possible.
NINTH. Audit. The Promisor Purchaser shall have a right to perform and
conclude a purchase audit prior to the Closing Date, which shall be focused
toward verifying, independently, the veracity of the statements cited in
Appendix "C" of the present Contract. In this regard, the Promisor Seller
undertakes to provide the Promisor Purchaser all the information which is
reasonably requested by the Promisor Purchaser in order to conclude its purchase
audit.
TENTH. Governmental Authorization. Entering into the Definitive Contracts
shall be conditioned on obtaining from the Federal Antitrust Commission official
correspondence in which such department decides favorably and without any
condition whatsoever on the concentration in question. The Promisor Purchaser,
for its part, undertakes to make its best efforts to process and obtain such
favorable decision from the Federal Antitrust Commission.
ELEVENTH. Use of Brand. In order to perform the liquidation of the
inventory of merchandise which shall be acquired under the terms of Clause First
of this Contract, the Promisor Purchaser may continue to operate the Department
Stores under the name Salinas and Rocha, for a period of up to 60 days
calculated form the date on which the Promisor Purchaser takes possession
thereof.
TWELFTH. Selection of Notary. The parties agree that the Promisor Purchaser
shall be the one which shall determine before which notary or notaries public
the Definitive Contracts shall be entered into which must be certified.
THIRTEENTH. Expenses. The parties are in agreement that the expenses, fees
and charges which must be paid for notarization and registration of the
Definitive Contracts which must be certified shall be borne by the Promisor
Purchaser.
FOURTEENTH. Domiciles. The parties indicate the following as their
domiciles for notifications related to this contract:
The PROMISOR SELLER
Av. Insurgentes Sur 3579 Tower I 8th Floor
Col. Tlalpan la Joya
Mexico, F.D. 14000
Tel.: 5629-9323
THE PROMISOR PURCHASER
Vasco de Quiroga 3800
Col. Santa Fe
Mexico, F.D. 05109
Tel.: 5257-9087
FIFTEENTH. Contractual Penalty and Guarantee. The parties agree that in
case of (i) nonperformance by any of the parties of any of its obligations
pursuant to the present Contract, and (ii) that the other party has for such
reason terminated the present contract, the party responsible for the breach
shall be obligated to pay the party that has terminated and notified
extrajudicially of the termination of the Contract, a contractual penalty in the
amount of US$ 5,000,000 (five million United States dollars).
In order to guarantee the timely payment of the contractual penalty cited
in the preceding paragraph, the Promisor Seller hereby delivers to the Promisor
Purchaser, within the three business days subsequent to the signing of the
present Contract, an unconditional and irrevocable letter of credit from a
credit institution acceptable to the Promisor Purchaser under terms acceptable
to the Promisor Purchaser.
Likewise, the parties agree that the letter of credit delivered by the
Promisor Purchaser to the Promisor Seller on March 23, 1999 may be exercised by
the Promisor Seller to, and only to, cover payment of the contractual penalty
cited in the present Clause.
SIXTEENTH. Condition Precedent. The present Contract, as well as all the
parties' obligations and rights which derive herefrom, are subject to the
condition precedent that the consent of all the lessors of the Leaseholds for
entering into the assignment contracts for the lessee's rights cited in Clause
Second of the present Contract, be obtained within the ten (10) business days
subsequent to the signing hereof. That is to say, if such consent is not
obtained, the present contract shall be deemed not entered into and the parties
shall return their guarantees, without there being any penalty whatsoever for
any of them. The Promisor Seller undertakes to make its best efforts to obtain
the consent of the lessors cited in this Clause and the Promisor Purchaser, for
its part, shall take all actions which are reasonably requested of it by the
Promisor Seller to aid it in the obtention of the consent of the lessors.
SEVENTEENTH. Jurisdiction and Applicable Laws. For all controversies which
arise based on the performance or interpretation of the present Contracts, the
parties expressly subject themselves to the laws and courts of Mexico City,
Federal District, waiving any others which might correspond to them by reason of
present or future domicile.
The present document is signed in duplicate in Mexico City, Federal
District, on the 21st day of the month of April 1999.
Promisor Seller Promisor Purchaser
Grupo Elektra, S.A. de C.V. El Puerto de Liverpool, S.A. de C.V.
By: Luis J. Echarte Fernandez By: Felipe Jaquez Garces
By: Gonzalo Garcia de Luca
APPENDIX "A"
The Properties
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1. Monterrey, N.L. (Melchor Ocampo, store 102)
2. Boca del Rio, Ver. (Plaza Mocambo, store 130)
3. Guadalajara, Jal. (Plaza Tapatia, store 427)
4. State of Mexico (Perinorte, store 448)
APPENDIX "B"
The Leaseholds
1. Monterrey, N.L. (Plaza San Agustin, store 133)
2. Leon, Gto. (Center, store 224)
3. Leon, Gto. (Gran Plaza, store 230)
4. Acapulco, Gro. (Gran Plaza, store 231)
5. Mazatlan, Sin. (store 438)
6. Zapopan, Jal. (La Gran Plaza, store 450)
7. Monterrey, N.L. (Pabellon Tec., store 150)
APPENDIX "C"
STATEMENTS
I. Properties Purchase / Sale Contracts
The Promisor Seller and the seller shall state:
a) That the seller is the legitimate and sole proprietor of the Property.
b) That the Property is free of all types of liens and limitations of dominion
and it is current in the payment of its property taxes and debts for water,
sewer services, local taxes, electricity, telephone service, condominium
and association payments, security, maintenance payments, etc.
d) That the seller has not entered into any agreement or contract which
continues to be in effect which prevents or restricts the holding or
transmission of the Property including, but not limited to, any right of
preference or first refusal in favor of any other person or entity.
e) That the Property is current with respect to all tax obligations, whether
federal, state or municipal, as well as obligations to federal, state or
municipal administrative authorities and, therefore, entering into this
Contract has not caused nor shall it cause the purchaser to incur tax
liabilities derived from the nonperformance of such obligations.
f) That the building that forms part of the Property complies with health
requirements and those stipulated by the building code of the municipality
where it is located. Likewise, no amount whatsoever is owed for such
building, not taxes or fees, payments or any other obligations related
thereto.
g) That the Property has the land use and authorizations required for a
department store to operate on it.
h) That there are no real rights and no knowledge of any personal rights
whatsoever on the Property in favor of third parties.
i) That (i) there is no judicial, administrative or arbitration litigation
whatsoever which involves the Property, whether such is pending resolution
or to the best of its knowledge and understanding is threatened by any
creditor or person with a legal interest; (ii) the Property is not
distrained and there is no knowledge that it is subject to any legal or
administrative procedure whatsoever; and (iii) that the seller is unaware
of any legal or administrative claim whatsoever which might challenge the
validity of the present Contract.
j) That entering into this Contract (i) does not contravene any contractual
obligation whatsoever assumed by the seller; (ii) it does not violate,
breach or in any manner contravene the legal stipulations of (1) the
seller's corporate bylaws; (2) any agreement or contract signed by the
seller; (3) any concession, license, permit or governmental authorization
granted to the seller; and (4) any other right.
II. Contracts for the Assignment of Lessee's Rights With Respect to the
Leaseholds
The Promisor Seller and the assignor shall state:
a) That the assignor is the legitimate holder of all the lessee's rights in
the Lease Contract which is attached hereto as Appendix "__" (the "Lease
Contract").
b) That the leased property is free of all liens and limitations of dominion,
other than those which might be established in the Lease Contract, which
might cause injury to the assignee.
c) That the leased property is current in the payment of its fees and debts
for water, sewer service, local taxes, electricity, telephone services,
condominium and association payments, security, maintenance payments, etc.,
to the extent that the Promisor Seller or any of its subsidiaries are
obligated, for any reason, to the payment of such obligations.
d) That the leased property is current is current with respect to all tax
obligations, whether federal, state or municipal, as well as obligations to
federal, state or municipal administrative authorities and, therefore,
entering into this Contract has not caused nor shall it cause the purchaser
to incur tax liabilities derived from the nonperformance of such
obligations, to the extent that the Promisor Seller or any of its
subsidiaries are obligated, for any reason, to the payment of such
obligations.
e) That the building that forms part of the leased property complies with
health requirements and those stipulated by the building code of the
municipality where it is located. Likewise, the assignor owes no amount
whatsoever for such building, not taxes or fees, payments or any other
obligations related thereto.
f) That the leased property has the land use and authorizations required for a
department store to operate on it.
g) That it has no knowledge of the existence of any personal right whatsoever
which obligates the Promisor Seller or any of its subsidiaries and which
might limit or in any manner adversely affect the use and enjoyment of the
leased party by the Promisor Seller or any of its subsidiaries.
h) That to the best of its knowledge and understanding, (i) there is no
judicial, administrative or arbitration litigation whatsoever which
involves the leased property, whether such is pending resolution or is
threatened by any creditor or person with a legal interest; (ii) the leased
property is not subject to any legal or administrative procedure; and (iii)
that no legal or administrative claim whatsoever exists which might
challenge the validity of the present Contract.
i) That entering into this Contract (i) does not contravene any contractual
obligation whatsoever assumed by the assignor; (ii) it does not violate,
breach or in any manner contravene the legal stipulations of (1) the
assignor's corporate bylaws; (2) any agreement or contract signed by the
assignor; (3) any concession, license, permit or governmental authorization
granted to the assignor; and (4) any other right.
j) That the assignor is current in its payment obligations derived from the
Lease Contract.
k) That the Lease Contract is current and binding on the parties thereto and
that no situation has occurred in virtue of which it might be considered
that a breach exists by any of the parties of its obligations with respect
to the Lease Contract.
III. Inventory Purchase / Sale Contracts
The Promisor Seller and the seller shall state:
a) That the Inventory covered by the purchase / sale is comprised of (i) the
entirety of the merchandise inventory that is physically in the Department
Stores, as well as the merchandise inventory corresponding to the
Department Stores contained in any warehouses or distribution centers
destined therefor, (ii) all the chattel which is contained in the
Department Stores, and (iii) all the equipment used for the operation and
administration of the Department Stores.
b) That the seller is the legitimate and sole proprietor of all the Inventory,
which inventory is free from all liens and limitations of dominion.
c) That the portion of the Inventory that corresponds to merchandise for sale
to the public is at normal operating levels.
d) That there does not exist within the Inventory merchandise on consignment
or leased equipment. The purchaser does not assume any liability whatsoever
with respect to the payment of usage licenses for packages employed in the
computer systems used for the operation, handling and administration of the
Department Stores.
IV. Portfolio Assignment Contract
The Promisor Seller and the assignor shall state:
a) That the Portfolio covered by the assignment is described in Appendix "__"
of the present Contract and includes all the lines of credit granted to
customers of the Department Stores, including but not limited to that
portion of the Portfolio that is more than 30 days in arrears.
b) That the credits which are assigned together with the portfolio were
granted to customers of the Department Stores in the normal operation
thereof.
c) That the credits that are assigned together with the portfolio are duly
documented.
d) That the portfolio identified in the present contract as "Normality" is
comprised of the entirety of the Portfolio whose payments are current, plus
the entirety thereof which is at most 30 days in arrears.
e) That the assignor guarantees the existence and legitimacy of the entirety
of the portfolio; however, it does not state or guarantee in any manner
whatsoever to the assignee, the solvency of the customers or the
collectability of the portfolio.
f) That the assignment of the portfolio is done with all the accessories
thereto, which are described in Appendix "__" of the present Contract.
g) That from the date on which El Puerto de Liverpool, S.A. de C.V. was named
as Winning Bidder in the private bid process for the sale, among other
things of the Portfolio, no promotion whatsoever has been performed in the
Department Stores, consisting in sales with terms greater than 30 days,
interest-free.
V. Document in which the Employer Substitution Shall Be Formalized
The Promisor Seller and the substituted employer shall state:
a) That they are current in their labor obligations with respect to the
Substituted Employees, including but not limited to all those related to
Social Security, with INFONAVIT, workers' share in the company's profits,
salaries, services, collective or individual employment contracts and in
general any labor obligations for which it is responsible; and that no
manager or, in general, employee of the Department Stores receives more
benefits than those normally granted to managers or employees with similar
characteristics.
b) That all taxes withheld from the Substituted Employees have been duly paid
to the tax authorities, and the amount of such withholdings is not less
than that stipulated by the applicable law.
c) That there is no litigation, whether collective or individual, with respect
to the Substituted Employees.
APPENDIX "D"
I. Contracts for the Purchase / Sale of the Properties
The Promisor Purchaser and the purchaser state:
a) That they know the Building covered by the purchase / sale and the physical
condition which it is in and that complies satisfactorily with the purposes
for which it is acquired.
II. Contracts for the Assignment of Lessee's Rights With Respect to the
Leaseholds
The Promisor Purchaser and the purchaser state:
a) That they know the leased Building and the physical condition which it is
in and that complies satisfactorily with the purposes for which they seek
to use it.
b) That they know and agree with the terms of the Lease Contract.
III. Portfolio Assignment Contract
The Promisor Purchaser and the purchaser state:
a) That they acknowledge that in virtue of the fact that the Promisor Seller
and the seller do not guarantee the solvency of the debtors or the
collectability of the Portfolio, the portfolio identified as at the date of
signing of the present Contract as "Normality" may, subsequently, suffer
arrears greater than 30 days and thereby cease to be identified as such,
for which, because of this mere fact, neither the Promisor Purchaser or the
purchaser shall have a right to take any legal action whatsoever against
the Promisor Seller and the seller.
IV. Document In which the Employer Substitution Shall Be Formalized
The Promisor Purchaser and the substitute employer shall state:
a) That they acknowledge that certain employees with respect to whom it
assumes the position of substitute employer under the terms hereof, form
part of one or several workers unions with which the substituted employer
has signed one or several collective labor contract, for which reason they
likewise acknowledge that based on the employer substitution the substitute
employer shall assume all the obligations of the substituted employer with
respect to the union and the employers under the terms of the collective
and individual contracts which have been signed with the substituted
employer.
June 21, 2000
The undersigned does hereby represent and certify that the above Promissory
Contract is a fair and accurate representation of the original Contrato de
Promesa.
Grupo Elektra, S.A. de C.V.
By: /s/ Ricardo Martinez Cruz
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