EXHIBIT 4.2
EXECUTION COPY
INDEMNITY, SUBROGATION AND CONTRIBUTION
AGREEMENT dated as of May 20, 2003, among
DISTRIBUIDORA COMERCIAL JAFRA , S.A. DE C.V. ("DCJ"),
JAFRA COSMETICS INTERNATIONAL, S.A. DE C.V. ("JCSA"),
each, a sociedad anonima de capital variable
organized under the laws of the United Mexican
States, each Subsidiary of JCSA listed on Schedule I
hereto and each Subsidiary of JCSA or DCJ that may
become a party hereto after the date hereof (together
with JCSA, the "Guarantors") and CREDIT SUISSE FIRST
BOSTON, a bank organized under the laws of
Switzerland, acting through its Cayman Islands
branch, as collateral agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as
defined in the Credit Agreement referred to below).
Reference is made to (a) the Credit Agreement dated as of May 20, 2003
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among Jafra Worldwide Holdings (Lux) S.AR.L., a Luxembourg societe
a responsabilite limitee, Jafra Cosmetics International, Inc., a Delaware
corporation ("JCI"), DCJ (together with JCI, the "Borrowers"), the lenders from
time to time party thereto (the "Lenders"), the Issuing Bank (as defined
therein) and Credit Suisse First Boston, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"), as swingline lender and as
Collateral Agent and (b) the Mexican Subsidiary Guarantee Agreement dated as of
May 20, 2003, among the Guarantors and the Collateral Agent (the "Mexican
Subsidiary Guarantee Agreement"). Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to DCJ and the Issuing Bank has
agreed to issue Letters of Credit for the account of DCJ pursuant to, and upon
the terms and subject to the conditions specified in, the Credit Agreement. The
Guarantors have guaranteed such Loans and the other Obligations (as defined in
the Guarantee Agreement) of DCJ pursuant to the Mexican Subsidiary Guarantee
Agreement; certain Guarantors have granted Liens on and security interests in
certain of their assets to secure such guarantees. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by DCJ and the
Guarantors of an agreement in the form hereof.
Accordingly, DCJ, each Guarantor and the Collateral Agent agree as
follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), DCJ agrees that (a) in the event a payment shall be made
by any Guarantor under the Mexican Subsidiary Guarantee Agreement, DCJ shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the Person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to any Security Document to satisfy a claim of
any Secured Party, DCJ shall indemnify such Guarantor in an amount equal to the
greater of the book value or the fair market value of the assets so sold.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guarantee Agreement or
assets of any other Guarantor shall be sold pursuant to any Security Document to
satisfy a claim of any Secured Party and such other Guarantor (the
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"Claiming Guarantor") shall not have been fully indemnified by DCJ as provided
in Section 1, the Contributing Guarantor shall indemnify the Claiming Guarantor
in an amount equal to the amount of such payment or the greater of the book
value or the fair market value of such assets, as the case may be, in each case
multiplied by a fraction of which the numerator shall be the net worth of the
Contributing Guarantor on the date hereof and the denominator shall be the
aggregate net worth of all the Guarantors on the date hereof (or, in the case of
any Guarantor becoming a party hereto pursuant to Section 12, the date of the
Supplement hereto executed and delivered by such Guarantor). Any Contributing
Guarantor making any payment to a Claiming Guarantor pursuant to this Section 2
shall be subrogated to the rights of such Claiming Guarantor under Section 1 to
the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of DCJ or any Guarantor to
make the payments required by Sections 1 and 2 (or any other payments required
under applicable law or otherwise) shall in any respect limit the obligations
and liabilities of any Guarantor with respect to its obligations hereunder, and
each Guarantor shall remain liable for the full amount of the obligations of
such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been paid
in full, and so long as the L/C Exposure has not been reduced to zero or any of
the Commitments under the Credit Agreement have not been terminated, and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by any Secured Party or any Guarantor upon the bankruptcy, concurso
mercantil, or reorganization of DCJ, any Guarantor or otherwise. Notwithstanding
the foregoing, at the time any Guarantor is released from its obligations under
the Mexican Subsidiary Guarantee Agreement in accordance with such Mexican
Subsidiary Guarantee Agreement or the Credit Agreement, such Guarantor will
cease to have any rights or obligations under this Agreement.
SECTION 5. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICTS OF LAWS TO THE EXTENT THAT
THE SAME ARE NOT MANDATORILY APPLICABLE BY STATUTE AND THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Collateral Agent, DCJ or any Guarantor to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy by the
Collateral Agent or any Guarantor preclude any other or further exercise thereof
or the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law. None of
the Collateral Agent, DCJ and the Guarantors shall be deemed to have waived any
rights hereunder unless such waiver shall be in writing and signed by such
parties.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
DCJ, the Guarantors and
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the Collateral Agent, with (if required by the Credit Agreement) the prior
written consent of the Required Lenders.
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Mexican Subsidiary Guarantee Agreement
and addressed as specified therein or with respect to DCJ as provided in the
Credit Agreement.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither DCJ nor any Guarantor may assign or transfer any of its rights
or obligations hereunder without the prior written consent of the Collateral
Agent.
SECTION 9. Survival of Agreement; Severability. (a) All covenants and
agreements made by DCJ and each Guarantor herein shall survive the making by the
Lenders of the Loans and the issuance of the Letters of Credit by the Issuing
Bank.
(b) In the event any one or more of the provisions contained in this
Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 10. Counterparts. This Agreement may be executed by one or more
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. This Agreement shall be
effective with respect to any Guarantor when a counterpart bearing the signature
of such Guarantor shall have been delivered to the Collateral Agent.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.11 of the
Credit Agreement, certain Subsidiaries of JCSA and DCJ are required to become
parties to the Mexican Subsidiary Guarantee Agreement and this Agreement. Upon
execution and delivery, after the date hereof, by the Collateral Agent and such
Subsidiary of an instrument in the form of Annex 1 hereto, such Subsidiary shall
become a Guarantor hereunder with the same force and effect as if originally
named as a Guarantor hereunder. The execution and delivery of any instrument
adding an additional Guarantor as a party to this Agreement shall not require
the consent of any Guarantor hereunder. The rights and obligations of each
Guarantor hereunder shall remain in full force and effect notwithstanding the
addition of any new Guarantor as a party to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first appearing above.
JAFRA COSMETICS INTERNATIONAL, S.A.
DE C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
DISTRIBUIDORA COMERCIAL JAFRA, S.A.
DE C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
SERVIDAY, S.A. DE C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
DISTRIBUIDORA VENUS, S.A. DE C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
DIRSAMEX, S.A. DE C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
JAFRA COSMETICS, S.A. DE C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
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COSMETICOS Y FRAGRANCIAS, S.A. de
C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
JAFRAFIN, S.A. DE C.V.,
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Name: Xxxxx X. Xxxxx, III
Title: Executive Vice President
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands branch, as
Collateral Agent,
By: /s/ Xxxx X. Xxxxxx
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxx Xxxxx
-------------------------------
Name: Xxx Xxxxx
Title: Director
SCHEDULE I
to the Indemnity, Subrogation
and Contribution Agreement
Guarantors
Jafra Cosmetics International, S.A. de C.V. Subsidiaries
Name Address
SERVIDAY, S.A. DE C.V Paseo Tollocan #28
Zona Industrial Xxxxx
Xxxxx, Edo. de Mexico
DISTRIBUIDORA VENUS, S.A. DE X.X. Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx Xx. 000,
Xxxxxx Xxxx, Xxxxxx
DIRSAMEX, S.A. DE X.X. Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx Xx. 000,
Xxxxxx Xxxx, Xxxxxx
JAFRA COSMETICS, S.A. DE C.V. Xxxxxxxxx Xxxxxx Xxxxx Xxxxxx Xx. 000,
Xxxxxx Xxxx, Xxxxxx
COSMETICOS Y FRAGRANCIAS, S.A. DE Victoria #25
C.V. Xxxxxx. Xxxxxxxxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxx. xx Xxxxxx 000000
JAFRAFIN, S.A. DE C.V. Apartado Postal 19-590, Admon. Xxxxxxx 00,
00000 Xxxxxx, D.V.
Distribuidora Comercial Jafra, S.A. de C.V. Subsidiaries
Name Address
None as of the Closing Date.
Annex 1 to
the Indemnity, Subrogation and
Contribution Agreement
SUPPLEMENT NO. dated as of , to the
Indemnity, Subrogation and Contribution Agreement
dated as of May 20, 2003 (as the same may be amended,
supplemented or otherwise modified from time to time,
the "Indemnity, Subrogation and Contribution
Agreement"), among DISTRIBUIDORA COMERCIAL JAFRA ,
S.A. DE C.V. ("DCJ"), JAFRA COSMETICS INTERNATIONAL,
S.A. DE C.V. ("JCSA"), each, a sociedad anonima de
capital variable organized under the laws of the
United Mexican States, each Subsidiary of JCSA listed
on Schedule I thereto and each Subsidiary of JCSA or
DCJ that may have become a party thereto after the
date thereof (together with JCSA, the "Guarantors")
and CREDIT SUISSE FIRST BOSTON, a bank organized
under the laws of Switzerland, acting through its
Cayman Islands branch, as collateral agent (in such
capacity, the "Collateral Agent") for the Secured
Parties (as defined in the Credit Agreement referred
to below).
A. Reference is made to (a) the Credit Agreement dated as of May 20,
2003 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Jafra Worldwide Holdings (Lux) S.AR.L., a Luxembourg
societe a responsabilite limitee, Jafra Cosmetics International, Inc., a
Delaware corporation ("JCI"), DCJ (together with JCI, the "Borrowers"), the
lenders from time to time party thereto (the "Lenders"), the Issuing Bank (as
defined therein) and Credit Suisse First Boston, as administrative agent for the
Lenders (in such capacity, the "Administrative Agent"), as swingline lender and
as Collateral Agent and (b) the Mexican Subsidiary Guarantee Agreement dated as
of May 20, 2003, among the Guarantors and the Collateral Agent (the "Mexican
Subsidiary Guarantee Agreement").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Indemnity, Subrogation and
Contribution Agreement and the Credit Agreement.
C. DCJ and the Guarantors have entered into the Indemnity, Subrogation
and Contribution Agreement in order to induce the Lenders to make Loans and the
Issuing Bank to issue Letters of Credit. Pursuant to Section 5.11 of the Credit
Agreement, certain Subsidiaries of JCSA and DCJ are required to become parties
to the Mexican Subsidiary Guarantee Agreement and this Agreement. Section 12 of
the Indemnity, Subrogation and Contribution Agreement provides that additional
Subsidiaries of JCSA and DCJ may become Guarantors under the Indemnity,
Subrogation and Contribution Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary of JCSA or
DCJ, as the case may be (the "New Guarantor"), is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Guarantor
under the Indemnity, Subrogation and Contribution Agreement in order to induce
the Lenders to make additional Loans and the Issuing Bank to issue additional
Letters of Credit and as consideration for Loans previously made and Letters of
Credit previously issued.
Accordingly, the Collateral Agent and the New Guarantor agree as
follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under
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the Indemnity, Subrogation and Contribution Agreement with the same force and
effect as if originally named therein as a Guarantor and the New Guarantor
hereby agrees to all the terms and provisions of the Indemnity, Subrogation and
Contribution Agreement applicable to it as a Guarantor thereunder. Each
reference to a "Guarantor" in the Indemnity, Subrogation and Contribution
Agreement shall be deemed to include the New Guarantor. The Indemnity,
Subrogation and Contribution Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Guarantor represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency, concurso mercantil,
fraudulent conveyance, reorganization, moratorium, or similar laws relating to
or affecting creditors' rights generally and by general equitable principles
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
SECTION 3. This Supplement may be executed by one or more parties to
this Supplement on any number of separate counterparts (including by facsimile
transmission), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument. This Supplement shall become effective
when the Collateral Agent shall have received counterparts of this Supplement
that, when taken together, bear the signatures of the New Guarantor and the
Collateral Agent.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ITS PRINCIPLES OR RULES OF CONFLICTS OF LAWS TO THE EXTENT THAT THE SAME ARE NOT
MANDATORILY APPLICABLE BY STATUTE AND THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 6. Any provision of this Supplement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
IN WITNESS WHEREOF, the New Guarantor and the Collateral Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
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[Name of New Guarantor],
by ______________________________________
Name:
Title:
Address:
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands branch, as
Collateral Agent,
by ______________________________________
Name:
Title:
Address:
by ______________________________________
Name:
Title:
Address:
SCHEDULE I
to Supplement No.___ to the Indemnity,
Subrogation and Contribution Agreement
Guarantors
Name Address
