EXHIBIT 10.37
EXCHANGE AGENT AGREEMENT
August 13, 2003
U.S. Bank National Association
000 Xxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000.
Attn: Xxxxxx Xxxx, Xx.
Ladies and Gentlemen:
Jafra Cosmetics International, Inc. and Distribuidora Comercial Jafra, S.A.
de C.V. (collectively, the "Issuers") propose to make an offer (the "Exchange
Offer") to exchange the Issuers' 10% Senior Subordinated Notes Due 2011 (the
"Existing Notes") for the Issuers' 10% Senior Subordinated Notes Due 2011 (the
"New Notes"), which have been registered under the Securities Act of 1933, as
amended. The terms and conditions of the Exchange Offer, as currently
contemplated, are set forth in a prospectus (and any amendments thereto) filed
with the Securities and Exchange Commission on June 30, 2003 as part of a
Registration Statement on Form S-4 (as so amended, the "Prospectus"), proposed
to be distributed to all record holders of the Existing Notes. The Existing
Notes and the New Notes are collectively referred to herein as the "Notes". Any
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Prospectus.
The Issuers hereby appoint U.S. Bank National Association to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer as
of August 13, 2003. References hereinafter to "you" shall refer to U.S. Bank
National Association.
The Exchange Offer is expected to be commenced by the Issuers on or about
August 13, 2003. The Letter of Transmittal accompanying the Prospectus (or in
the case of book entry securities, the ATOP system) is to be used by the Holders
of the Existing Notes to accept the Exchange Offer and contains instructions
with respect to the delivery of certificates for Existing Notes tendered in
connection therewith.
The Exchange Offer is expected to expire at 5:00 P.M., New York City time,
on September 13, 2003, or on such later date or time to which the Issuers may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Issuers expressly reserve the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you before 9:00 A.M.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Issuers expressly reserve the right to delay acceptance of any Existing
Notes, to amend, extend or terminate the Exchange Offer, and not to accept for
exchange any Existing Notes not theretofore accepted for exchange, upon the
occurrence of any of the conditions of the Exchange Offer specified in the
Prospectus under the caption "The Exchange Offer-Conditions." The Issuers will
give oral (confirmed in writing) or written notice of any amendment, termination
or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in accordance
with the following instructions:
Section 1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
Section 2. You will establish an account with respect to the Existing
Notes at The Depository Trust Company (the "Book-Entry Transfer Facility") for
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the
Existing Notes by causing the Book-Entry Transfer Facility to transfer such
Existing Notes into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
Section 3. You are to examine each of the Letters of Transmittal and
certificates for Existing Notes (or confirmation of book-entry transfer into
your account at the Book-Entry Transfer Facility) and any message transmitted by
a Book-Entry Transfer Facility to, and received by, the Exchange Agent and
forming a part of a Book-Entry Confirmation, which message states that the
Book-Entry Transfer Facility has received an express acknowledgement from the
participant in the Book-Entry Transfer Facility exchanging the Existing Notes
which are the subject of the Book-Entry Confirmation that the participant has
received and agrees to be bound by the terms of the Letter of Transmittal and
that the Issuers may enforce the Letter of Transmittal against the participant
and any other documents delivered or mailed to you by or for holders of the
Existing Notes to ascertain whether: (i) the Letters of Transmittal and any
such other documents are duly executed and properly completed in accordance with
instructions set forth therein and (ii) the Existing Notes have otherwise been
properly tendered. In each case where the Letter of Transmittal or any other
document has been improperly completed or executed or any of the certificates
for Existing Notes are not in proper form for transfer or some other
irregularity in connection with the acceptance of the Exchange Offer exists, you
will endeavor to inform the presenters of the need for fulfillment of all
requirements and to take any other action as may be necessary or advisable to
cause such irregularity to be corrected, unless we have advised you that we
waive such irregularity.
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Section 4. With the approval of the President, Chief Financial Officer or
any Vice President of the Issuers (such approval, if given orally, to be
confirmed in writing) or any other party designated by such an officer in
writing, you are authorized to waive any irregularities in connection with any
tender of Existing Notes pursuant to the Exchange Offer.
Section 5. Tenders of Existing Notes may be made only as set forth in the
Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer-Procedures for Tendering," and Existing Notes shall be considered
properly tendered to you only when tendered in accordance with the procedures
set forth therein. Notwithstanding the provisions of this Section 5, Existing
Notes which the President, Chief Financial Officer or any Vice President of the
Issuers shall approve as having been properly tendered pursuant to Section 4
above shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing).
Section 6. You shall advise the Issuers with respect to any Existing
Notes received subsequent to the Expiration Date and accept their instructions
with respect to disposition of such Existing Notes (such advice, if given
orally, shall be confirmed in writing).
Section 7. Notwithstanding the procedures set forth in the Prospectus
under the section entitled "Exchange Offer" or in the Letter of Transmittal, you
shall accept tenders:
(a) in cases where the Existing Notes are registered in two or more
names, only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity, only
when proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Existing Notes
provided that customary transfer requirements, including the payment by
such persons of any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Existing Notes where so indicated and
as permitted in the applicable Letter of Transmittal and deliver certificates
for Existing Notes to the transfer agent for split-up and return any untendered
Existing Notes to the holder (or to such other person as may be designated in
the applicable Letter of Transmittal) as promptly as practicable after
expiration or termination of the Exchange Offer.
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Section 8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Issuers will notify you (such notice if given orally, to be
confirmed in writing) of their acceptance, promptly after the Expiration Date,
of all Existing Notes properly tendered and you, on behalf of the Issuers, will
exchange such Existing Notes for New Notes and cause such Existing Notes to be
cancelled. Delivery of New Notes will be made on behalf of the Issuers by you
at the rate of $1,000 principal amount of New Notes for each $1,000 principal
amount of the corresponding series of Existing Notes tendered promptly after
notice (such notice if given orally, to be confirmed in writing) of acceptance
of said Existing Notes by the Issuers; provided, however, that in all cases,
Existing Notes tendered pursuant to the Exchange Offer will be exchanged only
after timely receipt by you of certificates for such Existing Notes (or
confirmation of book-entry transfer into your account at the Book-Entry Transfer
Facility), a properly completed and duly executed Letter of Transmittal (or
facsimile thereof) with any required signature guarantees and any other required
documents. You shall issue New Notes only in denominations of $1,000 or any
integral multiple thereof.
Section 9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Existing Notes tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
Section 10. The Issuers shall not be required to exchange any Existing
Notes tendered if any of the conditions set forth in the Exchange Offer are not
met. Notice of any decision by the Issuers not to exchange any Existing Notes
tendered shall be given (and confirmed in writing) by the Issuers to you.
Section 11. If, pursuant to the Exchange Offer, the Issuers do not accept
for exchange all or part of the Existing Notes tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer-Conditions" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted Existing Notes (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
Section 12. All certificates for reissued Existing Notes, unaccepted
Existing Notes or for New Notes (other than those effected by book-entry
transfer) shall be forwarded by (a) first-class certified mail, return receipt
requested, under a blanket surety bond obtained by you protecting you and the
Issuers from loss or liability arising out of the non-receipt or non-delivery of
such certificates or (b) registered mail insured separately for the replacement
value of each of such certificates.
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Section 13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any person to solicit tenders.
Section 14. As Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those specifically
set forth in the Prospectus or set forth herein or as may be subsequently
agreed to in writing by you and the Issuers;
(b) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of
any of the certificates or the Existing Notes represented thereby deposited
with you pursuant to the Exchange Offer, and will not be required to and
will make no representation as to the validity, value or genuineness of the
Exchange Offer; provided, however, that in no way will your general duty to
act in good faith be discharged by the foregoing;
(c) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless
you shall have been furnished with reasonable indemnity;
(d) may reasonably rely on and shall be protected in acting in good
faith in reliance upon any certificate, instrument, opinion, notice,
letter, telegram or other document or security delivered to you and
reasonably believed by you to be valid, genuine and to have been signed by
the proper party or parties;
(e) may reasonably act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due execution
and validity and effectiveness of its provisions, but also as to the truth
and accuracy of any information contained therein, which you shall in good
faith reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(f) may rely on and shall be protected in acting upon written or oral
instructions from any officer of the Issuers;
(g) may consult with your counsel with respect to any questions
relating to your duties and responsibilities and the advice or opinion of
such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the advice or opinion of
such counsel; and
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(h) shall not advise any person tendering Existing Notes pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Existing
Notes;
(i) may perform any of your duties hereunder either directly or by or
through agents or attorneys, provided, however, that you shall be as fully
responsible to the Issuers for the acts and omissions of any agent or
attorney as you are for your own acts and omissions.
Section 15. You shall take such action as may from time to time be
requested by the Issuers or their counsel (and such other action as you may
reasonably deem appropriate) to furnish copies of the Prospectus, Letter of
Transmittal and the Notice of Guaranteed Delivery (as defined in the Prospectus)
or such other forms as may be approved from time to time by the Issuers, to all
persons requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided that such
information shall relate only to the procedures for accepting (or withdrawing
from) the Exchange Offer. The Issuers will furnish you with copies of such
documents at your request. All other requests for information relating to the
Exchange Offer shall be directed to the Issuers, Attention: Xxxxx X. Xxxxx,
III, Esq., General Counsel of Jafra Cosmetics International, Inc.
Section 16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxx X. Xxxxx, III, Esq., General
Counsel of Jafra Cosmetics International, Inc. and such other person or persons
as he may request, daily (and more frequently during the week immediately
preceding the Expiration Date and if otherwise requested) up to and including
the Expiration Date, as to the number of Existing Notes which have been tendered
pursuant to the Exchange Offer and the items received by you pursuant to this
Agreement, separately reporting and giving cumulative totals as to items
properly received, items improperly received and items covered by Notices of
Guaranteed Delivery. In addition, you will also inform, and cooperate in making
available to, the Issuers or any such other authorized person or persons upon
oral or written request made from time to time prior to the Expiration Date of
such other information as they reasonably request. Such cooperation shall
include, without limitation, the granting by you to the Issuers and such person
as the Issuers may request of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that immediately prior to
the Expiration Date, the Issuers shall have received information in sufficient
detail to enable them to decide whether to extend the Exchange Offer. You shall
prepare a list of all registered holders (and other holders known to you) who
failed to tender or whose tenders were not accepted and the aggregate principal
amount of Existing Notes not tendered or not accepted and deliver said list to
the Issuers at least seven days prior to the Expiration Date. You shall also
prepare a final list of all persons whose tenders were accepted, the aggregate
principal amount of
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Existing Notes tendered, the aggregate principal amount of Existing Notes
accepted and deliver said list to the Issuers.
Section 17. Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt thereof and shall
be preserved by you for a period of time at least equal to the period of time
you preserve other records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus materials by
returning them to the Issuers.
Section 18. You hereby expressly waive any lien, encumbrance or right of
setoff whatsoever that you may have with respect to funds deposited with you for
the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Issuers, or any of their subsidiaries or affiliates pursuant to any loan or
credit agreement with you or for compensation owed to you hereunder.
Section 19. For services rendered as Exchange Agent hereunder, you shall
be entitled to such compensation as set forth on Schedule I attached hereto.
Section 20. You hereby acknowledge receipt of the Prospectus and the
Letter of Transmittal and further acknowledge that you have examined each of
them. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and rights, including
compensation and indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
Section 21. The Issuers covenant and agree to indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any loss,
liability, cost or expense, including reasonable attorneys' fees and expenses,
arising out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by you to be valid, genuine and sufficient and in accepting any tender or
effecting any transfer of Existing Notes reasonably believed by you in good
faith to be authorized, and in delaying or refusing in good faith to accept any
tenders or effect any transfer of Existing Notes; provided, however, that the
Issuers shall not be liable for indemnification or otherwise for any loss,
liability, cost or expense to the extent arising out of your negligence, willful
breach of this Agreement, willful misconduct or bad faith. In no case shall the
Issuers be liable under this indemnity with respect to any claim against you
unless the Issuers shall be notified by you, by letter or cable or by facsimile
confirmed by letter, of the written assertion of a claim against you or of any
other action commenced against you, promptly, but in any event within enough
time to file an answer to such claim, after you shall have received any such
written assertion or notice of commencement of action. Failure to so notify the
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Issuers shall not relieve the Issuers of any liability which they may have
otherwise than on account of this Agreement except such liability which is a
result of your failure to notify promptly. The Issuers shall be entitled to
participate at their own expense in the defense of any such claim or other
action, and, if the Issuers so elect, the Issuers shall assume the defense of
any suit brought to enforce any such claim. In the event that the Issuers shall
assume the defense of any such suit, the Issuers shall not be liable for the
fees and expenses of any additional counsel retained by you, which fees and
expenses are incurred thereafter, so long as the Issuers shall retain counsel
reasonably satisfactory to you to defend such suit except for any reasonable
fees and expenses of your counsel incurred in representing you that are
necessary and appropriate as a result of the need to have separate
representation because the Issuers' counsel has reasonably determined a conflict
of interest exists between the Issuers and you. You shall not settle or
compromise any such action, proceeding, suit or claim or other action without
the prior written consent of the Issuers.
Section 22. You shall arrange to comply with all requirements under the
tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service. The Issuers understand that you are required to deduct backup
withholding at applicable rates on payments to holders who have not supplied
their correct Taxpayer Identification Number or required certification. You
shall turn over such funds to the Internal Revenue Service in accordance with
applicable regulations.
Section 23. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles to the
extent that such rules or principles would require the application of the laws
of another jurisdiction, and shall inure to the benefit of, and the obligations
created hereby shall be binding upon, the successors and assigns of each of the
parties hereto, provided, however, you may not assign this Agreement without the
prior written consent of the Issuers.
Section 24. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 25. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 26. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written
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instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
Section 27. Unless otherwise provided herein, all notices, requests and
other communications to any party hereunder shall be in writing (including
facsimile or similar writing) and shall be given to such party, addressed to it,
at its address or telecopy number set forth below:
If to the Issuers:
CDRJ Investments (Lux) S.A.
Distribuidora Comercial Jafra, S.A. de C.V.
c/o Jafra Cosmetics International, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, III, Esq., General Counsel
With a copy to:
Xxxxxx X. Xxxxxxx, Esq.
Debevoise & Xxxxxxxx
000 Xxxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Exchange Agent:
U.S. Bank National Association
000 Xxxx 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Specialized Finance Department
Section 28. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Sections 19 and 21 shall survive the termination
of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Issuers any certificates for Notes, funds or property then held
by you as Exchange Agent under this Agreement.
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Section 29. This Agreement shall be binding and effective as of the date
hereof. Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
JAFRA COSMETICS INTERNATIONAL, INC.
By: _______________________________
Name:
Title:
DISTRIBUIDORA COMERCIAL JAFRA,
S.A. de C.V.
By: _______________________________
Name:
Title:
Accepted as of the date first above written:
U.S. BANK NATIONAL ASSOCIATION,
as Exchange Agent
By:_______________________________
Name:
Title:
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SCHEDULE I
FEES
Exchange Agent Fee ......................................... $5,000.00
All out-of-pocket expenses will be billed as incurred.
