Exhibit 4.13
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JJL/5101360/40013829
(EXECUTION COPY)
DEED OF THIRD PARTY PLEDGE ON REGISTERED SHARES IN CDRJ LATIN AMERICA
HOLDING COMPANY B.V.
This twentieth day of May, two thousand three, there appeared before me,
Joyce Johanna Cornelia Aurelia Leemrijse, hereinafter referred to as:
"civil law notary", as substitute of Rudolf van Bork, civil law notary
officiating at Amsterdam, the Netherlands:_________________________________
1. Catharina Anna Kramer, with office address at Fred. Roeskestraat 100,
1076 ED Amsterdam, the Netherlands, born in Purmerend, the
Netherlands, on the sixteenth day of December, nineteen hundred
sixty-six, in this matter acting as authorized representative of:_____
a. CDRJ NORTH ATLANTIC (LUX) S.A R.L., a limited liability company
(Societe a responsabilite limitee) organized under the laws of
the Grand Duchy of Luxembourg, having its registered office and
office address at 174, Route de Longwy, L-1941 Luxembourg, Grand
Duchy of Luxembourg, hereinafter, the "PLEDGOR";_________________
b. CDRJ LATIN AMERICA HOLDING COMPANY B.V., a private company with
limited liability (besloten vennootschap met beperkte
aansprakelijkheid) incorporated organized under the laws of the
Netherlands, having its statutory seat in Amsterdam and its
office address at Kempenlandstraat 11 G, 5262 GK Vught,
hereinafter: the "COMPANY"; and__________________________________
2. Kethy Renske van Putten, with office address at Fred. Roeskestraat
100, 1076 ED Amsterdam, the Netherlands, born in Groningen, the
Netherlands, on the twelfth day of September, nineteen hundred and
seventy-three, as authorized representative of:_______________________
CREDIT SUISSE FIRST BOSTON, a banking organization organized under the
laws of Switzerland, having its registered office and office address
at Uetlibergstrasse 231, CH 8070 Zurich, Switzerland, acting through
its Cayman Islands branch with registered office and office address at
c/o CIBC Bank and Trust Company (Cayman) Limited, 54 Edward Street,
George Town, Grand Cayman Cayman Islands, B.W.I., and for the purposes
of this transaction choosing office at Eleven Madison Avenue, New
York, New York 10010, the United States, hereinafter: the
"PLEDGEE".____________________________________________________________
POWERS OF ATTORNEY:________________________________________________________
The authorization of the appearing persons is evidenced by three (3) powers
of attorney which shall be attached to this Deed (Annex I). Sufficient
proof of the existence of the powers of attorney was presented to me, civil
law notary.________________________________________________________________
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The persons appearing have declared:
The Pledgor and the Pledgee have agreed as follows:
WHEREAS:
a. Pursuant to the Credit Agreement, as defined hereafter, the Pledgor wishes
to provide a security right in the form of a third party right of pledge on
the Shares, as defined hereafter, to the Pledgee for the Secured
Obligations, as defined hereafter, of the Guarantor, as defined hereafter,
the Pledgor's wholly-owned subsidiary, in view of the impending transfer of
the Shares from the Pledgor to the Guarantor;
b. By notarial deed of contribution and transfer of shares, executed before a
deputy of F.W. Oldenburg, civil law notary officiating in Armsterdam, on
the thirtieth day of April, nineteen hundred and ninety-eight, the Pledgor
acquired the legal and beneficial title to the Shares, as defined
hereafter, such deed also containing the acknowledgment of the above
acquisition by the Company;
c. To secure the performance of the Secured Obligations, the Pledgor and the
Pledgee wish to hereby establish a first priority third party right of
pledge on the Shares under the following terms.
DEFINITIONS.
ARTICLE 1.
Unless otherwise defined herein, or the context requires otherwise, terms used
in this Deed, including its preamble and recitals, shall have the meaning as
defined in the Credit Agreement. In addition, the following terms used in this
Deed, including its preamble and recitals, shall have the following meanings:
a. the "BORROWERS": Jafra Cosmetics International, Inc. and Distribuidora
Comercial Jafra, S.A. de C.V., a Mexican sociedad anonima de capital
variable;
b. the "CREDIT AGREEMENT": the credit agreement, dated as of the twentieth day
of May, two thousand three (May 20, 2003) (as amended, supplemented, amended
and restated or otherwise modified from time to time), among the Borrowers,
the Guarantor, the Pledgee and Merrill Lynch, Pierce, Fenner & Smith,
Incorporated as Lead Arrangers, the Pledgee as Administrative Agent, Merrill
Lynch, Pierce, Fenner & Smith, Incorporated as Syndication Agent, and the
other lenders party thereto;
c. an "EVENT OF DEFAULT": each Event of Default as defined in article 7 of the
Credit Agreement, as well as, insofar as not included in that definition,
each Event of Statutory Default;
d. an "EVENT OF STATUTORY DEFAULT": each event in which the Pledgor is in
default ("veizuim"), as defined in Section 6:81 of the Netherlands Civil
Code, of performing one or more of the Secured Obligations;
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e. the "GUARANTOR": Jafra Worldwide Holdings (Lux) S.a r.l., a wholly owned
subsidiary of the Pledgor, in its capacity as guarantor under the Credit
Agreement;_________________________________________________________________
f. the "PARALLEL DEBT": shall mean the Parent Parallel Debt as defined in
article 9.21 of the Credit Agreement;______________________________________
g. the "RIGHT OF PLEDGE": the first priority third party right of pledge on
the Shares established in this Deed;_______________________________________
h. the "SECURED OBLIGATIONS": any and all undertakings and obligations at any
time owing by the Guarantor to the Pledgee under the Parallel Debt and the
obligations and liabilities resulting from the non-performance thereof, to
the extent such undertakings, obligations and liabilities consist of
monetary payment obligations (verbintenissen tot betaling van een
geldsom);__________________________________________________________________
i. the "SHARES": forty (40) ordinary shares, having a par value of one
thousand Dutch guilders (NLG 1,000.00) or (read by virtue of law and in
accordance with Section 2:178c of the Dutch Civil Code) four hundred and
fifty three Euro and seventy-eight cents (EUR 453.78) each, numbered 1 up
to and including 40, in the share capital of the Company, constituting the
entire issued and outstanding share capital of the Company.________________
PLEDGE OF SHARES.__________________________________________________________
ARTICLE 2. ________________________________________________________________
1. The Pledgor agrees to grant and hereby so grants to the Pledgee, as
security for the payment when due of the Secured Obligations, a disclosed
first-ranking third party right of pledge (een openbaar derdenpandrecht,
eerste in rang) on the Shares, which third party right of pledge the
Pledgee agrees to accept and hereby so accepts, and the Pledgor undertakes
to pledge to the Pledgee under the same terms and conditions as set forth
in this deed any future shares and the rights related thereto as soon as
such future shares shall be capable of being so pledged as long as any of
the Secured Obligations are outstanding.__________________________________
2. The Pledgor shall, if and when required by the Pledgee, execute such
further encumbrances and assurances, and do all such acts and things as the
Pledgee may reasonably require over or in relation to all or any of the
Shares to maintain, perfect or protect the security rights created by this
Deed over the Shares and future shares or any part thereof, such that this
Deed will continue to constitute a first priority right of pledge over the
Shares and future shares, until payment in full of the Secured
Obligations.______________________________________________
VOTING RIGHTS.__________________________________________________________________
ARTICLE 3.______________________________________________________________________
During the term of the Right of Pledge, the voting rights attaching to the
Shares shall accrue to the Pledgor._____________________________________________
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AUTHORITY TO COLLECT.
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ARTICLE 4.
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1. The authority to collect dividends, distributions from reserves, repayments
of capital and all other distributions and payments in any form, which, at
any time, during the term of the Right of Pledge, become payable on any one
or more of the Shares, shall accrue to the Pledgee, as provided for in
Section 3:246 of the Dutch Civil Code.
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2. In derogation of the provisions of paragraph 1, the Pledgee hereby grants
approval to the Pledgor to collect dividends.
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3. The Pledgee may terminate the authorization mentioned in paragraph 2 upon
occurrence of an Event of Statutory Default only. Termination of the
authorization is made by written statement to that effect, by the Pledgee
to the Pledgor. The Pledgee shall inform the Company of the termination in
writing.
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FURTHER PLEDGES.
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ARTICLE 5.
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1. Each time the Pledgor, after execution of this deed, acquires pledgeable
(depositary receipts for) shares and rights to acquire (depositary receipts
for) shares in the capital of the Company, the Pledgor shall, on the
occasion thereof and otherwise immediately thereafter, establish a first
priority right of pledge on such (depositary receipts for) shares and
rights in favor of the Pledgee, in so far as possible under the same or
similar terms and conditions as mentioned in this deed.
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2. The Pledgor warrants to the Pledgee that the Pledgor has not disposed in
any way of the (depositary receipts for) shares and rights referred to the
paragraph 1.
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3. The Pledgor shall as much as possible provide that the (depositary receipts
for) shares and right to acquire (depositary receipts for) shares in the
capital of the Company he acquires after execution of this deed shall be
pledgeable; and that the transferability thereof shall not be more
cumbersome than the transferability of the Shares.
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EXERCISE OF THE RIGHT OF PLEDGE.
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ARTICLE 6.
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1. After a court of law, on the demand of the Pledgee, has established that an
Event of Statutory Default has occurred, the Pledgee shall be authorised to
sell the Shares or part thereof, in accordance with Section 3:248 of the
Dutch Civil Code, without prejudice to the provision of Section 3:251 of
the Dutch Civil Code, in order to recover the proceeds thereof.
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2. The blocking clause contained in the articles of association of the Company
shall apply to the transfer of the Shares by the Pledgee, it being
understood that the Pledgee shall exercise all of the Pledgor's rights
relevant to the alienation and transfer of the Shares, and that the Pledgee
shall fulfill the Pledgor's obligations relevant thereto.
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3. In the event the Pledgee levies execution of the Right of Pledge, the
Pledgee shall, following payment of the execution costs from the proceeds,
allocate the net proceeds to fulfill the Secured
Obligations._______________________________________________________________
FINAL PROVISIONS.______________________________________________________________
ARTICLE 7._____________________________________________________________________
1. The Right of Pledge, including all provisions of this deed, shall be
governed by the laws of the Netherlands.___________________________________
2. All disputes relating to the Right of Pledge shall be submitted exclusively
to the competent court of law in Amsterdam, the Netherlands, it being
understood that the Pledgee shall be authorised to initiate a claim
elsewhere also._____________________________________________________________
3. The Pledgee shall be entitled to terminate the Right of Pledge in whole or
in part. Termination shall be effectuated by a written notification to that
effect by the Pledgee to the Pledgor. The Pledgee shall inform the Company
of the termination in writing.______________________________________________
FINALLY, THE COMPANY HAS DECLARED:______________________________________________
a. that it acknowledges the aforementioned pledge;_____________________________
b. that it has been informed of the provisions under which the Right of Pledge
is established, and fully cooperates with the implementation thereof;_______
c. it shall register in the Company's shareholders' register that the Shares
are encumbered with a first priority right of pledge in favor of the
Pledgee, stating whether the voting rights attaching to the Shares accrue to
the Pledgor or the Pledgee, and to whom, the Pledgor or the Pledgee, the
rights accrue which the law attributes to holders of depositary receipts of
shares in the capital of a company which are issued with its co-operation;_
d. that all resolutions and approvals required from the Company for
establishing a first priority right of pledge on the Shares by the Pledgor
in favor of the Pledgee under the provisions contained in this deed, have
been adopted and received respectively.____________________________________
END.___________________________________________________________________________
The persons appearing are known to me, civil law notary._______________________
This deed was executed in Amsterdam on the date stated in the first paragraph
of this deed. The contents of the deed have been stated and clarified to the
person appearing. The persons appearing have declared not to wish the deed to
be fully read out, to have noted the contents of the deed timely before its
execution and to agree with the contents.______________________________________
After limited reading, this deed was signed first by the persons appearing and
thereafter by me, civil law notary, at five hours and thirty-five minutes p.m._
(Was signed: C.A. Kramer; K.R. van Putten; J.J.C.A. Leemrijse)
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Amsterdam, June 3, 2003