EXHIBIT 4.7
STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement (the "Agreement") is entered into on this 20th of
May, 2003, by and among CDRJ Latin America Holding Company B.V. ("CDRJ Latin
America"), Latin Cosmetics Holdings, B.V. ("LCH"), Regional Cosmetics Holding,
B.V. ("RCH"), Southern Cosmetics Holdings B.V. ("SCH") and CDRJ Mexico Holding
Company B.V. ("CDRJ") (CDRJ Latin America, LCH, RCH, SHC and CDRJ, shall
collectively be referred to as the "Pledgors") as Pledgors, and Credit Suisse
First Boston, acting through its Cayman Island branch ("CSFB"), in its capacity
as collateral agent (the "Collateral Agent"), in the name and on behalf of the
Lenders (as such term is defined below), in accordance with the following
Preliminary Statements, Representations and Clauses.
Preliminary Statements
WHEREAS:
(A) pursuant to the Credit Agreement dated as of May 20, 2003 (as amended,
amended and restated, supplemented or otherwise modified from time to
time, the "Credit Agreement") among Jafra Cosmetics International, Inc.
("JCI") and Distribuidora Comercial Jafra, S.A. de C.V. ("DCJ"), as
borrowers (the "Borrowers"), Jafra Worldwide Holdings (LUX) S.AR.L., as
parent and guarantor, the Issuing Bank (as such term is defined in the
Credit Agreement, hereafter the "Issuing Bank") the lenders party
thereto from time to time (such lenders, collectively with the Issuing
Bank, the "Lenders"), and CSFB, as Collateral Agent and administrative
agent (in such capacity, the "Administrative Agent"), the Lenders have
agreed to extend credit to the Borrowers in the form of (i) term loans
in an aggregate principal amount not to exceed US$50,000,000.00 (fifty
million dollars 00/100) legal currency of the United States of America
(such currency shall be referred to as "Dollars") (such term loans
shall be referred to as, the "Term Loans"); (ii) revolving loans in an
aggregate principal amount at any time outstanding not in excess of
US$40,000,000.00 (forty million Dollars 00/100) (such revolving loans
shall be referred to as, the "Revolving Loans"); (iii) swingline loans
in an aggregate principal amount at any time outstanding not in excess
of US$7,500,000.00 (seven million five hundred thousand Dollars 00/100)
(such swingline loans shall collectively be referred to as, the
"Swingline Loans" and collectively with the Term Loans and the
Revolving Loans, the "Loans"); and (iv) letters of credit in an
aggregate face amount at any time outstanding not in excess of
US$10,000,000.00 (ten million Dollars 00/100) (such letters of credit
shall be referred to as, the "Letters of Credit"); in each case,
pursuant to the terms and subject to the conditions set forth in the
Credit Agreement;
(B) Pursuant to the Credit Agreement, the Lenders' obligations to make
Loans and the obligation of the Issuing Bank to issue Letters of Credit
pursuant to the Credit Agreement are subject to several conditions,
including, among other things, the execution and delivery by the
Pledgors of this Agreement.
Representations and Warranties
I. Each Pledgor hereby represents and warrants that:
(a) it is a private company with limited liability duly organized, validly
existing and in good standing under the laws of the Netherlands, with
its principal place of business and chief executive office located at
the address set forth in Clause Twelfth;
(b) it is the sole legal owner of, and has legal and valid title to, the
shares issued by Jafra Cosmetics International, S.A. de C.V. ("JCSA")
described under such Pledgor's name in Exhibit "A" hereto (the shares
described in such Exhibit "A" shall collectively be referred to herein
as the "Pledged JCSA Shares");
(c) it is the sole legal owner of, and has legal and valid title to, the
shares issued by DCJ described under such Pledgor's name in Exhibit "B"
hereto (the shares described in such Exhibit "B" shall collectively be
referred to herein as the "Pledged DCJ Shares");
(d) except for the security interest granted hereunder and except as
permitted under Section 6.02, 6.04 or 6.05 of the Credit Agreement,
such Pledgor (i) is and will at all times continue to be the direct
owner, beneficially and of record, of the Pledged JCSA Shares and the
Pledged DCJ Shares owned by such Pledgor and indicated on Exhibit "A"
and Exhibit "B" (ii) holds the same free and clear of all Liens (as
hereinafter defined), (iii) will make no assignment, pledge,
hypothecation or transfer of, or create or permit to exist any security
interest in or other Lien on, the Pledged JCSA Shares and the Pledged
DCJ Shares owned by such Pledgor, other than pursuant hereto;
(e) such Pledgor (i) has the power and authority to pledge the Pledged JCSA
Shares and the Pledged DCJ Shares owned by such Pledgor in the manner
hereby done or contemplated and (ii) will defend its title or interest
thereto
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or therein against any and all Liens (other than the Lien created by
this Agreement or as otherwise permitted by the Credit Agreement),
however arising, of all Persons whomsoever;
(f) all of the Pledged JCSA Shares and the Pledged DCJ Shares have been
duly authorized and validly issued and are fully paid and
nonassessable;;
(g) all information set forth herein relating to the Pledged JCSA Shares
and the Pledged DCJ Shares is accurate and complete in all material
respects as of the date hereof;
(h) the individual executing this Agreement on behalf of such Pledgor has
all necessary power, authority and corporate authorization to execute
and deliver this Agreement on such Pledgor's name and behalf, and such
powers, authority and corporate authorizations have not been amended,
revoked or limited in any way; and
(i) it is such Pledgor's intention to pledge the Pledged JCSA Shares and
Pledged DCJ Shares owned by such Pledgor to the Collateral Agent, for
the ratable benefit of the Lenders, in accordance with the provisions
of this Agreement.
II. The Collateral Agent hereby represents and warrants that:
(a) it is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization or incorporation; and
(b) the individual executing this Agreement on behalf of the Collateral
Agent has all necessary power, authority and corporate authorization to
execute and deliver this Agreement on behalf of the Collateral Agent,
and such powers, authority and corporate authorizations have not been
amended, revoked or limited in any way.
NOW, THEREFORE, based on the Preliminary Statements and Representations
and Warranties contained herein, which constitute an essential inducement to the
Lenders (motivo determinante de la voluntad) for the making of Loans and the
issuance of Letters of Credit, the parties hereto agree as follows:
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CLAUSES
First. Certain Defined Terms.
(a) As used in this Agreement, the following terms shall have the following
meanings:
"Additional Shares" has the meaning specified in paragraph (d) of
Clause Second.
"Administrative Agent" has the meaning specified in Preliminary
Statement (A) of this Agreement.
"Affiliate" shall mean, as to any Person, any other Person that,
directly or indirectly, is in Control of, is Controlled by or is under
common Control with, such Person.
"Agreement" has the meaning specified in the preamble of this
Agreement.
"Borrowers" has the meaning specified in Preliminary Statement (A) of
this Agreement.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City, United States of
America or in the City of Mexico, Federal District, United Mexican
States, are authorized or required by law to close.
"CDRG" has the meaning specified in the preamble of this Agreement.
"CDRJ Latin America" has the meaning specified in the preamble of this
Agreement.
"Collateral Agent" has the meaning specified in the preamble of this
Agreement.
"Control" shall mean the power, directly or indirectly, to direct or
cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise,
and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
"Credit Agreement" has the meaning specified in Preliminary Statement
(A) of this Agreement.
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"CSFB" has the meaning specified in the preamble of this Agreement.
"DCJ" means Distribuidora Comercial Jafra, S.A. de C.V., a sociedad
anonima de capital variable, duly organized and validly existing under
the laws of Mexico.
"Dollars" has the meaning specified in Preliminary Statement (A) of
this Agreement.
"Event of Default" has the meaning assigned to such term in the Credit
Agreement.
"Governmental Authority" shall mean any nation, government, branch of
power, state or municipality or other political subdivision thereof and
any entity exercising executive, legislative, judicial, monetary,
regulatory or administrative functions of or pertaining to government.
"Issuing Bank" has the meaning specified in Preliminary Statement (A)
of this Agreement.
"Issuing Company" means each of JCSA and DCJ.
"JCI" has the meaning specified in Preliminary Statement (A) of this
Agreement.
"JCSA" means Jafra Cosmetics International, S.A. de C.V., a sociedad
anonima de capital variable, organized under the laws of Mexico.
"Law" means the Mexican General Law of Negotiable Instruments and
Credit Transactions (Ley General de Titulos y Operaciones de Credito).
"LCH" has the meaning specified in the preamble of this Agreement.
"Lenders" has the meaning specified in Preliminary Statement (A) of
this Agreement.
"Letters of Credit" has the meaning specified in Preliminary Statement
(A) of this Agreement.
"Loan Documents" has the meaning assigned to such term in the Credit
Agreement.
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"Lien" shall mean any mortgage, pledge, hypothecation, encumbrance,
lien (statutory or other), charge or security interest or any
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional
sale or other title retention agreement and any financing lease having
substantially the same economic effect as any of the foregoing).
"Loans" has the meaning specified in Preliminary Statement (A) of this
Agreement.
"Mexico" means the United Mexican States.
"Notice of Additional Pledge" has the meaning specified in paragraph
(d) of Clause Second.
"Notice of Pledge over Additional Shares" has the meaning specified in
paragraph (d) of Clause Second.
"Person" shall mean any individual, corporation, company, voluntary
association, partnership, limited liability company, joint venture,
trust, unincorporated organization or Governmental Authority or other
entity of whatever nature.
"Pesos" means the legal currency of Mexico.
"Pledged DCJ Shares" has the meaning specified in paragraph (c) of
Representation I.
"Pledged JCSA Shares" has the meaning specified in paragraph (b) of
Representation I.
"Pledged Shares" means the Pledged JCSA Shares, the Pledged DCJ Shares,
any Additional Shares, and all proceeds of any of the foregoing.
"Pledgors" has the meaning specified in the preamble to this Agreement.
"RCH" has the meaning specified in the preamble of this Agreement.
"Required Lenders" has the meaning assigned to such term in the Credit
Agreement.
"Revolving Loans" has the meaning specified in Preliminary Statement
(A) of this Agreement.
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"Secured Obligations" has the meaning specified in paragraph (a) of
Clause Second.
"Security Interest" has the meaning specified in paragraph (a) of
Clause Second.
"SCH" has the meaning specified in the preamble of this Agreement.
"Swingline Loans" has the meaning specified in Preliminary Statement
(A) of this Agreement.
"Term Loans" has the meaning specified in Preliminary Statement (A) of
this Agreement.
"Termination Notice" has the meaning specified in Clause Third.
(b) Usage. The definitions in this Clause First shall apply
equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. All references in
this Agreement to Clauses, sections, paragraphs and Exhibits shall be
deemed to be references to Clauses, sections, paragraphs and Exhibits
of this Agreement, unless the context shall otherwise require and all
references to Exhibits refer to Exhibits attached and incorporated by
reference to this Agreement. When used in this Agreement, the words (i)
"hereof", "herein" and "hereunder" and words of similar import, shall
refer to this Agreement as a whole and not to any particular Clause,
section, paragraph of this Agreement; (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation" unless otherwise expressly specified; and (iii)
"assets" and/or "property" shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets
and properties, including cash, shares or partnership interests in the
capital stock of any company or person, securities, revenues, accounts,
leasehold interests and contract rights.
In addition, any reference to (i) any agreement, document or instrument
shall be deemed to refer to such agreement, document or instrument as
amended, supplemented, restated or otherwise modified from time to
time; and (ii) any statute, law or regulation shall be deemed to
include any amendments thereto from time to time or any successor
statute, law or regulation thereof.
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Second. Pledge; Grant of Security Interest.
(a) The Pledgors hereby grant an unconditional and irrevocable first
priority pledge and security interest (the "Security Interest") to the
Collateral Agent (acting in the name and on behalf of the Lenders) for
the ratable benefit of the Lenders, in and to: (i) the Pledged JCSA
Shares and (ii) the Pledged DCJ Shares, as collateral security for the
due and timely payment, performance and satisfaction when due (whether
at stated maturity, by acceleration or otherwise) of any and all
obligations of any nature of DCJ arising from or in connection with the
Credit Agreement (collectively, the "Secured Obligations").
(b) For purposes of perfecting the Security Interest over the Pledged JCSA
Shares and the Pledged DCJ Shares pursuant to paragraph II of Article
334 of the Law, each Pledgor hereby delivers to the Collateral Agent
(i) the share certificates evidencing such Pledgor's right, title and
interest in and to each of (A) the Pledged JCSA Shares held by such
Pledgor and (B) the Pledged DCJ Shares held by such Pledgor, in each
case, duly endorsed "in pledge" ("en prenda") in favor of the
Collateral Agent, for the ratable benefit of the Lenders, and (ii)
copies of the entries made in the shares registry book (libro de
registro de acciones) of each of the Issuing Companies, duly certified
by the secretary of the board of directors of each of the Issuing
Companies (in the form of Exhibit "C" hereto), evidencing that, on the
date hereof, the Security Interest in and to the Pledged JCSA Shares
and the Pledged DCJ Shares has been duly recorded in such shares
registry books.
(c) In accordance with Article 337 of the Law, the Pledgors and the
Collateral Agent agree that this Agreement shall constitute a receipt
(resguardo) by the Collateral Agent of the Pledged Shares.
(d) The Pledgors hereby acknowledge and agree that any and all additional
shares of any Issuing Company, or increases in the value of the Pledged
JCSA Shares and/or the Pledged DCJ Shares, whether such shares or
increases represent the fixed portion or the variable portion of the
corporate capital of any such Issuing Company, to which any such
Pledgor may subscribe in the future or any shares corresponding to the
Pledged JCSA Shares and/or the Pledged DCJ Shares and issued as
consequence of a capital increase, merger, spin-off, transformation or
other action of any such Issuing Company (the "Additional Shares") will
be considered for all legal purposes as pledged pursuant to this
Agreement, and will be considered as part of the Pledged Shares. For
such purposes and pursuant to paragraph II of Article 334 of the Law,
the relevant Pledgor shall, within a period of 5 (five) Business Days
after the corresponding capital increase,
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merger, spin-off, transformation or other action of any such Issuing
Company (i) notify the Collateral Agent of the creation of a security
interest in and to such Additional Shares substantially in the form of
Exhibit "D" hereof (the "Notice of Pledge over Additional Shares");
(ii) deliver to the Collateral Agent the share certificate or
certificates evidencing such Pledgor's right, title and interest in and
to such Additional Shares, duly endorsed "in pledge" ("en prenda") in
favor of the Collateral Agent, for the ratable benefit of the Lenders;
and (iii) deliver to the Collateral Agent a certificate issued by the
secretary of the board of directors of the relevant Issuing Company,
substantially in the form of Exhibit "C" hereto, certifying that, on
such date, the security interest on such Additional Shares has been
duly registered in the stock registry book of the relevant Issuing
Company.
Third. Continuing Security Interest.
(a) The Security Interest shall be continuing and shall (i) subject to what
is provided in paragraphs (b), (c) and (d) below, remain in full force
and effect until all of the Secured Obligations shall have been
satisfied, paid and discharged in full; (ii) be binding upon each
Pledgor, its successors and assigns; and (iii) inure to the benefit of
and be enforceable by the Collateral Agent, acting in the name and on
behalf of the Lenders, and their respective successors and assigns.
Subject to what is provided in paragraphs (b), (c) and (d) below), no
later than 10 (ten) Business Days following the due and timely payment,
satisfaction and fulfillment of all of the Secured Obligations, and
upon written request by the Pledgors, the Lenders shall deliver to the
Collateral Agent a written notice to that effect, and the Collateral
Agent shall deliver to the Pledgors a termination notice (the
"Termination Notice") substantially in the form attached hereto as
Exhibit "E", together with the share certificates representing the
Pledged Shares, with the endorsement in pledge duly cancelled. Only
upon delivery of the Termination Notice by the Collateral Agent to the
Pledgors as herein contemplated, this Agreement shall terminate and the
Security Interest shall cease, terminate and be released.
(b) Upon any sale or other transfer by any Pledgor of any Pledged Shares
that is permitted under the Credit Agreement to any Person (unless sold
or transferred to a Person that is required to pledge such Pledged
Shares to the Collateral Agent pursuant to Section 5.11 of the Credit
Agreement), or, upon the effectiveness of any written consent to the
release of the security interest granted hereby in any Pledged Shares
pursuant to Section 9.01(d) of the Credit Agreement, the security
interest in such Pledged Shares shall be automatically released.
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(c) If all of the capital stock of a Pledgor is sold, transferred or
otherwise disposed of to a Person that is not an Affiliate of the
Borrowers pursuant to a transaction permitted by Section 6.05 of the
Credit Agreement, such Pledgor shall be released from its obligations
under this Agreement without further action and the security interest
in the Pledged Shares of such Pledgor shall be automatically released.
(d) In connection with any termination or release pursuant to paragraph (b)
or (c) above, the Collateral Agent shall execute and deliver to any
Pledgor, at such Pledgor's expense, all documents that such Pledgor
shall reasonably request to evidence such termination or release and
shall deliver to such Pledgor all related Pledged Shares of such
Pledgor held by the Collateral Agent. Any execution and delivery of
documents pursuant to this paragraph (d) shall be without recourse to
or warranty by the Collateral Agent.
Fourth. Voting Rights; Dividends and Interest, etc. (a) Unless and until an
Event of Default shall have occurred and be continuing and the Collateral Agent
has given notice as specified in clause (b) or (c) below:.
(i) Each Pledgor shall be entitled to exercise any and all voting
and/or other consensual rights and powers inuring to an owner
of the Pledged Shares or any part thereof for any purpose;
provided, however, that such Pledgor will not be entitled to
exercise any such right (other than in connection with a
transaction permitted by the Credit Agreement) which would
result in any violation of any provision of the Credit
Agreement, this Agreement or any other Loan Document. The
Collateral Agent shall be free and clear of any liability
arising from or in connection with the exercise or failure to
exercise the voting rights or any other corporate rights
corresponding to the Pledged Shares.
(ii) The Collateral Agent shall promptly execute and deliver to
each Pledgor, or cause to be promptly executed and delivered
to each Pledgor, all such proxies, powers of attorney and
other instruments as such Pledgor may reasonably request for
the purpose of enabling such Pledgor to exercise the voting
and/or consensual rights and powers it is entitled to exercise
pursuant to subparagraph (i) above and to receive the cash
dividends it is entitled to receive pursuant to subparagraph
(iii) below.
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(iii) Each Pledgor shall be entitled to receive and retain any and
all cash dividends, interest and principal paid on the Pledged
Shares to the extent such cash dividends, interest and
principal are permitted by the Credit Agreement. All noncash
dividends, interest and principal, and all dividends, interest
and principal paid or payable in cash or otherwise in
connection with a partial or total liquidation or dissolution,
return of capital, capital surplus or paid-in surplus, and all
other distributions (other than distributions referred to in
the preceding sentence) made on or in respect of the Pledged
Shares, whether paid or payable in cash or otherwise, whether
resulting from a subdivision, combination or reclassification
of the outstanding capital stock of the Issuing Company of any
Pledged Shares or received in exchange for Pledged Shares or
any part thereof, or in redemption thereof, or as a result of
any merger, consolidation, acquisition or other exchange of
assets to which such Issuing Company may be a party or
otherwise, shall be and become part of the Pledged Shares,
and, if received by any Pledgor, shall not be commingled by
such Pledgor with any of its other funds or property but shall
be held separate and apart therefrom, shall be held in trust
for the benefit of the Collateral Agent and shall be forthwith
delivered to the Collateral Agent in the same form as so
received (with any necessary endorsement).
(b) Upon the occurrence and during the continuance of an Event of Default
and subsequent notice by the Collateral Agent to the relevant Pledgor
or Pledgors of its intent to exercise such rights, all rights of any
Pledgor to dividends, interest or principal that such Pledgor is
authorized to receive pursuant to paragraph (a)(iii) above shall cease,
and all such rights shall thereupon become vested in the Collateral
Agent, which shall have the sole and exclusive right and authority to
receive and retain such dividends, interest or principal. All
dividends, interest or principal received by any Pledgor contrary to
the provisions of this Clause Fourth shall be held in trust for the
benefit of the Collateral Agent, shall be segregated from other
property or funds of such Pledgor and shall be forthwith delivered to
the Collateral Agent upon demand in the same form as so received (with
any necessary endorsement). Any and all money and other property paid
over to or received by the Collateral Agent pursuant to the provisions
of this paragraph (b) shall be retained by the Collateral Agent in an
account to be established by the Collateral Agent upon receipt of such
money or other property and shall be applied in accordance with the
provisions of the Credit Agreement. After all Events of Default have
been cured or waived, the Collateral Agent shall, within 5 (five)
Business Days after all such Events of Default have been cured or
waived, repay to each Pledgor all cash
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dividends, interest or principal (without interest), that such Pledgor
would otherwise be permitted to retain pursuant to the terms of
paragraph (a)(iii) above and which remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default
and subsequent notice by the Collateral Agent to the relevant Pledgor
or Pledgors of its intent to exercise such rights, all rights of any
Pledgor to exercise the voting and consensual rights and powers it is
entitled to exercise pursuant to paragraph (a)(i) of this Clause
Fourth, and the obligations of the Collateral Agent under paragraph
(a)(ii) of this Clause Fourth, shall cease, and all such rights shall
thereupon become vested in the Collateral Agent, which shall have the
sole and exclusive right and authority to exercise such voting and
consensual rights and powers, provided that, unless otherwise directed
by the Required Lenders, the Collateral Agent shall have the right from
time to time following and during the continuance of an Event of
Default to permit the Pledgors to exercise such rights. After all
Events of Default have been cured or waived, such Pledgor will have the
right to exercise the voting and consensual rights and powers that it
would otherwise be entitled to exercise pursuant to the terms of
paragraph (a)(i) above.
(d) The rights of the Collateral Agent hereunder shall not be conditioned
or contingent upon the exercise by the Collateral Agent of any right or
remedy against any Pledgor or any other person which may be or become
liable in respect of all or any part of the Secured Obligations or
against any collateral security therefor, guarantee therefor or right
of offset with respect thereto. The Collateral Agent shall not be
liable for any failure to demand, collect or realize upon all or any
part of the rights corresponding to the Pledged Shares or for any delay
in doing so, nor shall the Collateral Agent be under any obligation to
sell or otherwise dispose of any of the Pledged Shares upon the request
of any of the Pledgors or any other person (except for the Required
Lenders), or to take any other action whatsoever with regard to the
Pledged Shares or any part thereof, except as expressly provided
herein.
Fifth. Covenants of the Pledgors. So long as this Agreement is in effect, each
Pledgor covenants that it (a) shall defend the right, title and interest of the
Collateral Agent and the Lenders in and to the Pledged Shares against the claims
and demands of any Person other than the Collateral Agent or the Lenders; (b)
shall not create, incur, assume, or permit to exist any Lien on any of the
Pledged Shares, whether now held or hereafter subscribed, except for the
Security Interest and except as expressly permitted under Section 6.02 of the
Credit Agreement; (c) shall not sell, transfer, assign, pledge, deliver,
transfer in trust, grant, usufruct or
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otherwise dispose of, or grant any option with respect to, any such Pledged
Shares or any interest therein without the prior written consent of the
Collateral Agent, except as expressly permitted under Section 6.04 and 6.05 of
the Credit Agreement; (d) shall execute and deliver to the Collateral Agent such
documents in favor of the Collateral Agent and do such things relating to the
Security Interest as the Collateral Agent may reasonably request in order to
protect and maintain the Security Interest and to protect and preserve the
Pledged Shares, and pay all reasonable costs arising from or in connection
therewith; and (e) shall pay any and all taxes, assessments, and other charges
of any nature which may be imposed, levied, or assessed against or with respect
to the Pledged Shares.
Sixth. Safekeeping of the Pledged Shares. The obligations of the Collateral
Agent with respect to the safekeeping and preservation of the Pledged Shares
shall be limited to the obligations imposed by the Law. Any actions carried out
by the Collateral Agent for the safekeeping and preservation of the Pledged
Shares shall be at the sole expense and risk of the Pledgors, except for actions
or omissions caused by the gross negligence or willful misconduct of the
Collateral Agent.
Seventh. Events of Default. If an Event of Default shall occur and be continuing
the Collateral Agent is hereby expressly and irrevocably authorized by each
Pledgor to foreclose upon the Security Interest pursuant to the provisions of
Clause Eighth, and to exercise its rights in any other manner as set forth in
the Law.
Eighth. Foreclosure.
(a) Each Pledgor hereby expressly and irrevocably agrees that upon the
occurrence of an Event of Default, the Collateral Agent may foreclose
upon the Security Interest and request the sale of the Pledged Shares,
pursuant to Article 341 of the Law, or exercise its rights in any other
manner as set forth in the Law, in order to seek payment of the Secured
Obligations.
(b) Each Pledgor shall take or shall cause each Issuing Company to take,
any and all actions and/or initiate any and all proceedings that may be
reasonably necessary or convenient, in the Collateral Agent's
reasonable discretion, to facilitate the execution and transfer of the
Pledged Shares. The Pledgors further agree to do or cause to be done
all such other acts as may be reasonably necessary or convenient to
expedite such sale or sales of all or any portion of the Pledged
Shares, and to execute and deliver such documents and take such other
action as the Collateral Agent deems reasonably necessary or advisable
in order that any such sale may be in compliance with applicable law.
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(c) Due to the fact that the Secured Obligations are monetary obligations
denominated in Dollars and payable outside of Mexico, in order to
satisfy such Secured Obligations, any and all amounts in Pesos that are
received by the Collateral Agent will be (i) exchanged by the
Collateral Agent in a foreign exchange transaction into Dollars with a
financial institution appointed by the Collateral Agent, and the
currency so exchanged shall be distributed by the Collateral Agent
pursuant to the provisions of paragraph (d) below; or (ii) in case such
Pesos cannot be exchanged into Dollars as a result of exchange rate
controls or other governmental action, law or regulation, the
Collateral Agent will deliver such Pesos to the Lenders pursuant to the
provisions of paragraph (d) below.
(d) The proceeds of any sale of Pledged Shares pursuant to this Clause
Eighth, as well as any cash proceeds thereof may, in the sole
discretion of the Collateral Agent, be applied by the Collateral Agent
against the respective Secured Obligations of the relevant Pledgor then
due and owing in the following order of priority:
FIRST, to the payment of all reasonable costs and expenses incurred by
the Collateral Agent in connection with such sale or otherwise in
connection with this Agreement, any other Loan Document or any of the
Secured Obligations of the relevant Pledgor, including all court costs
and the reasonable fees and expenses of the Collateral Agent's agents
and legal counsel, the repayment of all advances made by the Collateral
Agent hereunder or under any other Loan Document on behalf of such
Pledgor and any other reasonable costs or expenses incurred in
connection with the exercise of any right or remedy hereunder or under
any other Loan Document;
SECOND, to the payment in full of the Secured Obligations of the
relevant Pledgor (the amounts so applied to be distributed among the
Lenders pro rata in accordance with the amounts of such Secured
Obligations owed to them on the date of any such distribution); and
THIRD, to the relevant Pledgor, its successors or assigns or to
whomsoever may be lawfully entitled to receive the same, or as a court
of competent jurisdiction may otherwise direct.
Ninth.- Capacity of Collateral Agent. As an essential inducement (motivo
determinate de la voluntad) to the Lenders for the making of the Loans and the
issuance of Letters of Credit, (i) each Pledgor hereby expressly and irrevocably
acknowledges that the Collateral Agent has all necessary appointments, legal
capacity and authority to act in the name and on behalf of the Lenders for all
- 14 -
matters arising from or relating to this Agreement; and (ii) each Pledgor hereby
expressly and irrevocably waives its rights to carry out any action challenging
the legal existence, appointments, legal or other capacity and authority of the
Collateral Agent to act in the name and on behalf of the Lenders for such
matters.
Tenth.- Assignments. The rights and obligations arising from this Agreement may
not be assigned or transferred by any Pledgor to any third party, except with
the prior written consent of the Collateral Agent or as expressly contemplated
by Section 6.04 or 6.05 of the Credit Agreement. The Collateral Agent (or any
successor Collateral Agent appointed pursuant to the terms of the Credit
Agreement) may assign, in whole or in part, its rights and obligations hereunder
to any successors or assignees under the Credit Agreement, and, in any such
case, the successor or assignee shall be entitled to exercise all rights of the
Collateral Agent hereunder.
Eleventh.- Amendments. This Agreement may only be amended or modified with the
prior written consent of the Pledgors and the Collateral Agent.
Twelfth.- Notices. All notices to be delivered by the parties hereto shall be
made in writing and shall be served either: (i) personally, return receipt
requested; (ii) by courier delivery, return receipt requested; or (iii) by
facsimile followed by courier or personal delivery, return receipt requested.
All notices shall be served at the following addresses and facsimile numbers,
and shall become effective upon personal delivery:
To the Pledgors:
CDRJ Latin America Holding Company B.V.
Latin Cosmetics Holdings, B.V.
Regional Cosmetics Holding, B.V.
Southern Cosmetics Holdings B.V.
CDRJ Mexico Holding Company B.V.
c/o Jafra Cosmetics International, Inc.
2451 Townsgate Road
Westlake Village, California 91361
Attention: Corporate Secretary
Tel: (805) 449-3000
Fax: (805) 449 3270
- 15 -
To the Collateral Agent:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10011
Attention: Yvette McQueen
Tel: (212) 325-9934
Fax: (212) 325-8304
Fourteenth.- Exhibits and Captions. All documents attached hereto are hereby
incorporated by reference into, and shall be deemed a part of, this Agreement.
The captions and headings contained in this Agreement are for convenience only
and shall not affect the interpretation of this Agreement.
Fifteenth.- Jurisdiction, Governing Law. For all matters relating to the
interpretation and fulfillment of this Agreement, the parties hereto expressly
and irrevocably submit to the applicable laws of Mexico, and to the jurisdiction
of the competent courts sitting in Mexico, Federal District, Mexico, with
respect to any action or proceeding arising out of or relating hereto, and the
parties hereby expressly and irrevocably waive all rights to any other
jurisdiction to which they may be entitled to by reason of their present or
future domiciles, or by any other reason with respect to this Agreement.
Sixteenth.- Further Assurances. The Pledgors, at the Collateral Agent's request,
agree to promptly execute or cause to be executed and deliver to the Collateral
Agent any and all documents, instruments and agreements deemed reasonably
necessary by the Collateral Agent to give effect to or carry out the terms of
this Agreement.
- 16 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed in __ (________) counterparts, on this 20th day of May 2003.
The Pledgors:
CDRJ Latin America Latin Cosmetics Regional Cosmetics
Holding Company B.V. Holdings, B.V. Holding, B.V.
/s/ Ralph S. Mason, III /s/ Ralph S. Mason, III /s/ Ralph S. Mason, III
- ------------------------- ------------------------- -------------------------
Name: Ralph S. Mason, III Name: Ralph S. Mason, III Name: Ralph S. Mason, III
Title: Executive Vice Title: Executive Vice Title: Executive Vice
President President President
Southern Cosmetics Holdings B.V. CDRJ Mexico Holding Company B.V.
/s/ Ralph S. Mason, III /s/ Ralph S. Mason, III
- ------------------------------- -------------------------------
Name: Ralph S. Mason, III Name: Ralph S. Mason, III
Title: Executive Vice President Title: Executive Vice President
The Collateral Agent:
Credit Suisse First Boston,
acting through its Cayman Island branch
/s/ Karl Studer
- -------------------------------
Name: Karl Studer
Title: Director
/s/ Cedric Evard
- -------------------------------
Name: Cedric Evard
Title: Assistant Vice President
Exhibit "A"
Stock Pledge Agreement
Pledged JCSA Shares
- -------------------------------------------------------------------------------------------------
CERTIFICATE FIXED (F)/ STOCK
ISSUED IN THE CLASS VARIABLE CERTIFICATE NUMBER
ISSUER NAME OF OF STOCK (V) NUMBER OF SHARES
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics CDRJ Latin America Series B F 33 11,000
International, S.A. de C.V. Holding Company B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics CDRJ Latin America Series B V 38 20,382
International, S.A. de C.V. Holding Company B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Latin Cosmetics Series B F 35 10,000
International, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Latin Cosmetics Series B V 40 18,613
International, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Regional Cosmetics Series B F 34 10,000
International, S.A. de C.V. Holding B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Regional Cosmetics Series B V 39 17,690
International, S.A. de C.V. Holding B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Southern Cosmetics Series B F 32 10,000
International, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Southern Cosmetics Series B V 37 16,767
International, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics CDRJ Mexico Holding Series B F 31 9,000
International, S.A. de C.V. Company B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics CDRJ Mexico Holding Series B V 36 15,921
International, S.A. de C.V. Company, B.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Distribuidora Series C V 1 11,627
International, S.A. de C.V. Comercial Jafra,
S.A. de C.V.
- -------------------------------------------------------------------------------------------------
Jafra Cosmetics Distribuidora Series C V 2 2,015
International, S.A. de C.V. Comercial Jafra,
S.A. de C.V.
- -------------------------------------------------------------------------------------------------
Exhibit "B"
Stock Pledge Agreement
Pledged DCJ Shares
- -------------------------------------------------------------------------------------------------
FIXED (F)/ STOCK
CERTIFICATE ISSUED CLASS VARIABLE CERTIFICATE NUMBER
ISSUER IN THE NAME OF OF STOCK (V) NUMBER OF SHARES
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial CDRJ Latin America Series B F 1 10
Jafra, S.A. de C.V. Holding Company B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial Latin Cosmetics Series B F 2 10
Jafra, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial Regional Cosmetics Series B F 3 10
Jafra, S.A. de C.V. Holding B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial Southern Cosmetics Series B F 4 10
Jafra, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial CDRJ Mexico Holding Series B F 5 10
Jafra, S.A. de C.V. Company B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial CDRJ Latin America Series B V 6 17
Jafra, S.A. de C.V. Holding Company B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial Latin Cosmetics Series B V 7 19
Jafra, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial Regional Cosmetics Series B V 8 24
Jafra, S.A. de C.V. Holding B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial Southern Cosmetics Series B V 9 20
Jafra, S.A. de C.V. Holdings B.V.
- -------------------------------------------------------------------------------------------------
Distribuidora Comercial CDRJ Mexico Holding Series B V 10 21
Jafra, S.A. de C.V. Company B.V.
- -------------------------------------------------------------------------------------------------
Exhibit "C"
Stock Pledge Agreement
Form of Secretary Certificate
[DATE]
Credit Suisse First Boston
[INSERT ADDRESS]
Attention: [___________________]
Reference is made to the Stock Pledge Agreement (the "Stock Pledge Agreement"),
entered into on May [__], 2003, by and among CDRJ Latin America Holding Company
B.V., Latin Cosmetics Holdings, B.V., Regional Cosmetics Holding, B.V., Southern
Cosmetics Holdings B.V. and CDRJ Mexico Holding Company B.V. as pledgors, and
Credit Suisse First Boston, acting through its Cayman Island branch, in its
capacity as collateral agent, in the name and on behalf of the Lenders (as
defined in the Stock Pledge Agreement). Capitalized terms used and not otherwise
defined herein are used as defined in the Stock Pledge Agreement.
I, _______________, in my capacity as Secretary of the Board of Directors of
[JCSA/DCJ] do hereby certify, under oath, that on the date hereof, the Security
Interest created on the Pledged [JCSA/DCJ] Shares in favor of the Collateral
Agent has been duly recorded in the shares' registry book (libro de registro de
acciones) of [JCSA/DCJ]. A certified copy of the relevant entry in the shares'
registry book (libro de registro de acciones) of [JCSA/DCJ] is attached hereto
as Annex "A".
IN WITNESS WHEREOF, I have set my hand this ____ day of __________ 200[__].
By:
Name:
Title: Secretary of the Board of Directors of [JCSA/DCJ]
Exhibit "D"
Stock Pledge Agreement
Form of Notice of Pledge over Additional Shares
Credit Suisse First Boston
[INSERT ADDRESS]
Attention: [___________________]
Reference is made to the Stock Pledge Agreement (the "Stock Pledge
Agreement"), entered into on May [__], 2003, by and among CDRJ Latin America
Holding Company B.V., Latin Cosmetics Holdings, B.V., Regional Cosmetics
Holding, B.V., Southern Cosmetics Holdings B.V. and CDRJ Mexico Holding Company
B.V. as pledgors, and Credit Suisse First Boston, acting through its Cayman
Island branch, in its capacity as collateral agent, in the name and on behalf of
the Lenders (as defined in the Stock Pledge Agreement). Capitalized terms used
and not otherwise defined herein are used as defined in the Stock Pledge
Agreement.
By means of this Notice and pursuant to the provisions of paragraph (d)
of Clause Second of the Stock Pledge Agreement, the undersigned hereby notifies
you of the creation of the security interest in and to the following Additional
Shares representing the capital stock of [INCLUDE NAME OF THE RELEVANT ISSUING
COMPANY], pursuant to the Stock Pledge Agreement: [INCLUDE A DETAILED
DESCRIPTION OF SUCH ADDITIONAL SHARES]
In addition, we are attaching herewith as Annex "A" and Annex "B",
respectively, (i) the share [CERTIFICATE] [CERTIFICATES] representing such
Additional Shares, duly endorsed in pledge (en prenda) in favor of the
Collateral Agent, and (ii) a certificate issued by the secretary of the board of
directors of [INCLUDE NAME OF THE RELEVANT ISSUING COMPANY] certifying that, on
the date hereof, the security interest created in favor of the Collateral Agent
in and to such Additional Shares held by the Pledgors in the capital stock of
[INCLUDE NAME OF THE RELEVANT ISSUING COMPANY] has been duly recorded in the
shares' registry book (libro de registro de acciones) of [INCLUDE NAME OF THE
RELEVANT ISSUING COMPANY], together with a true, correct and complete copy of
the relevant entry in the shares' registry book (libro de registro de acciones)
of [INCLUDE NAME OF THE RELEVANT ISSUING COMPANY].
Truly yours,
[INCLUDE NAME OF RELEVANT PLEDGOR(S)]
__________________
Name:
Title:
Exhibit "E"
Stock Pledge Agreement
Form of Termination Notice
[DATE]
[CDRJ LATIN AMERICA [LATIN COSMETICS [REGIONAL COSMETICS
HOLDING COMPANY B.V.] HOLDINGS, B.V.] HOLDING, B.V.]
Attention: Attention: Attention:
[SOUTHERN COSMETICS HOLDINGS B.V.] [CDRJ MEXICO HOLDING COMPANY B.V.]
Attention: Attention:
This Termination Notice is delivered pursuant to Clause Third of the
Stock Pledge Agreement (the "Stock Pledge Agreement"), entered into on May [__],
2003, by and among CDRJ Latin America Holding Company B.V., Latin Cosmetics
Holdings, B.V., Regional Cosmetics Holding, B.V., Southern Cosmetics Holdings
B.V. and CDRJ Mexico Holding Company B.V. as pledgors, and Credit Suisse First
Boston, acting through its Cayman Island branch, in its capacity as collateral
agent, in the name and on behalf of the Lenders (as defined in the Stock Pledge
Agreement). Capitalized terms used and not otherwise defined herein are used as
defined in the Stock Pledge Agreement.
By means of this Termination Notice the undersigned, acting as
Collateral Agent under the Stock Pledge Agreement, hereby certifies that the
Secured Obligations have been satisfied and, therefore, the Stock Pledge
Agreement and the Security Interest created thereby shall terminate pursuant to
Clause Third of the Stock Pledge Agreement and the Security Interest is hereby
released.
By virtue of the foregoing, [JCSA/DCJ] may proceed to cancel from its
shares' registry book (libro de registro de acciones) the entries made with
respect to the Stock Pledge Agreement and the Pledged Shares.
Sincerely,
The Collateral Agent
Credit Suisse First Boston, acting through its Cayman Island branch
__________________
Name:
Title: