EXHIBIT 4.4
EXECUTION COPY
DCJ GUARANTEE AGREEMENT dated as of May 20,
2003, between Distribuidora Comercial JAFRA, S.A. DE
C.V., a sociedad anonima de capital variable
organized under the laws of the United Mexican States
(the "Guarantor") and CREDIT SUISSE FIRST BOSTON, a
bank organized under the laws of Switzerland, acting
through its Cayman Islands branch, as collateral
agent (the "Collateral Agent") for the Secured
Parties (as defined in the Credit Agreement referred
to below).
Reference is made to 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" and, together with the Guarantor, the "Borrowers"), the
Guarantor, 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. 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 the Borrowers and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrowers
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The Guarantor acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders and the issuance of the
Letters of Credit by the Issuing Bank. 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 the Guarantor of a Guarantee
Agreement in the form hereof. As consideration therefor and in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Guarantor is willing to execute this Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guarantee. The Guarantor unconditionally guarantees, as a
primary obligor and not merely as a surety, all obligations of JCI:
(a) under the Credit Agreement, including the due and punctual
payment of (i) the principal of and premium, if any, and interest
(including interest accruing at the applicable rate provided in the
Credit Agreement during the pendency of any bankruptcy, insolvency,
concurso mercantil, receivership or other similar proceeding,
regardless of whether allowed or allowable in such proceeding) on the
Loans to JCI, when and as due, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (ii) each
payment required to be made by JCI under the Credit Agreement in
respect of any Letter of Credit, when and as due, including payments in
respect of reimbursement of disbursements and interest thereon and
(iii) all other monetary obligations, including fees, costs, expenses
and indemnities, whether direct, contingent, fixed or otherwise
(including monetary obligations incurred during the pendency of any
bankruptcy, insolvency, concurso mercantil, receivership or other
similar proceeding, regardless of whether allowed or allowable in such
proceeding), of JCI to the Secured Parties under the Credit Agreement
and the other Loan Documents;
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(b) for the due and punctual performance of all covenants,
agreements, obligations and liabilities of JCI under or pursuant to the
Credit Agreement and the other Loan Documents;
(c) for unless otherwise agreed upon in writing by the
counterparty thereto, the due and punctual payment and performance of
all obligations of JCI, monetary or otherwise, under each Hedging
Agreement entered into with a counterparty (whether or not a Lender or
an Affiliate thereof); and
(d) for the due and punctual payment and performance of all
guarantee obligations of JCI referred to in Section 6.01(d)(ii) of the
Credit Agreement as to which any Lender or any Affiliate thereof
originally is a beneficiary (all the monetary and other obligations
referred to in the preceding clauses (a) through (d) being collectively
called the "Obligations");
provided, however, that no legal proceedings or other remedial actions to
enforce the guarantee of the Obligations hereunder may be initiated or taken
until the earlier to occur of (a) 30 days after written demand for payment or
performance thereof has been made by the Collateral Agent to the Guarantor and
(b) an event specified in Section 7.01 of the Credit Agreement with respect to
the Guarantor.
The Guarantor further agrees that the Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee notwithstanding any extension or
renewal of any Obligation.
SECTION 2. Obligations Not Waived. To the fullest extent permitted by
applicable law, the Guarantor waives presentment to, demand of payment from and
protest to JCI of any of the Obligations, and also waives notice of acceptance
of its guarantee and notice of protest for nonpayment. To the fullest extent
permitted by applicable law, the obligations of the Guarantor hereunder shall
not be affected by (a) the failure of the Collateral Agent or any other Secured
Party to assert any claim or demand or to enforce or exercise any right or
remedy against JCI or any other guarantor of the Obligations under the
provisions of the Credit Agreement, any other Loan Document or otherwise, (b)
any rescission, waiver, amendment or modification of, or any release from any of
the terms or provisions of this Agreement, any other Loan Document, any
Guarantee or any other agreement, including with respect to any other guarantor
of the Obligations or (c) the failure to perfect any security interest in, or
the release of, any of the security held by or on behalf of the Collateral Agent
or any other Secured Party.
SECTION 3. Security. The Guarantor authorizes the Collateral Agent, for
the ratable benefit of the Secured Parties, to (a) take and hold security for
the payment of this guarantee and the Obligations and exchange, enforce, waive
and release any such security, (b) apply such security and direct the order or
manner of sale thereof as they in their sole discretion may determine and (c)
release or substitute any one or more endorsees, other guarantors or other
obligors.
SECTION 4. Guarantee of Payment. The Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Collateral Agent or
any other Secured Party to any of the security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
the Collateral Agent or any other Secured Party in favor of JCI or any other
Person.
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SECTION 5. No Discharge or Diminishment of Guarantee. The obligations
of the Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the performance or payment
in full of the Obligations, as the case may be), including any claim of waiver,
release, surrender, alteration or compromise of any of the Obligations, and
shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without limiting the
generality of the foregoing, the obligations of the Guarantor hereunder shall
not be discharged or impaired or otherwise affected by the failure of the
Collateral Agent or any other Secured Party to assert any claim or demand or to
enforce any remedy under the Credit Agreement, any other Loan Document or any
other agreement, by any waiver or modification of any provision of any thereof,
by any default, failure or delay, wilful or otherwise, in the performance of the
Obligations, or by any other act or omission that may or might in any manner or
to any extent vary the risk of the Guarantor or that would otherwise operate as
a discharge of the Guarantor as a matter of law or equity (other than the
performance or payment in full in cash of all the Obligations, as the case may
be).
SECTION 6. Defenses of JCI Waived. To the fullest extent permitted by
applicable law, the Guarantor waives any defense based on or arising out of any
defense of JCI or the unenforceability of the Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of JCI, other
than the performance or payment in full of the Obligations then due and owing.
The Collateral Agent, for the ratable benefit of the Secured Parties, may, at
its election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure, compromise or adjust any part of the Obligations, make any
other accommodation with JCI or any other guarantor or exercise any other right
or remedy available to them against JCI or any other guarantor, without
affecting or impairing in any way the liability of the Guarantor hereunder
except to the extent the Obligations then due and owing have been fully paid.
SECTION 7. Agreement to Pay; Subrogation. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against the Guarantor by virtue
hereof, upon the failure of JCI or any other Loan Party to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, the Guarantor hereby promises to and
will forthwith pay, or cause to be paid, to the Collateral Agent in cash the
amount of such unpaid Obligations. Upon payment by the Guarantor of any sums to
the Collateral Agent as provided above, all rights of the Guarantor against JCI
arising as a result thereof by way of right of subrogation, contribution,
reimbursement, indemnity or otherwise shall in all respects be subordinate and
junior in right of payment to the prior payment in full of all the Obligations.
If any amount shall erroneously be paid to the Guarantor on account of such
subrogation, contribution, reimbursement, indemnity or similar right, such
amount shall be held in trust for the benefit of the Secured Parties and shall
forthwith be paid to the Collateral Agent to be credited against the payment of
the Obligations, whether matured or unmatured, in accordance with the terms of
the Loan Documents.
SECTION 8. Information. The Guarantor assumes all responsibility for
being and keeping itself informed of JCI's financial condition and assets, and
of all other circumstances bearing upon the risk of nonpayment of the
Obligations and the nature, scope and extent of the risks that the Guarantor
assumes and incurs hereunder, and agrees that none of the Collateral Agent or
the other Secured Parties will have any duty to advise the Guarantor of
information known to it or any of them regarding such circumstances or risks.
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SECTION 9. Termination. The Guarantee made hereunder (a) shall
terminate when all the Obligations have been paid in full and the Lenders have
no further commitment to lend under the Credit Agreement, the L/C Exposure has
been reduced to zero and the Issuing Bank has no further obligation to issue
Letters of Credit under the Credit Agreement and (b) 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 the Guarantor upon the bankruptcy, concurso mercantil or
reorganization of JCI, the Guarantor or otherwise.
SECTION 10. 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 Guarantor that are contained in this
Agreement shall bind and inure to the benefit of each party hereto and their
respective successors and assigns. This Agreement shall become effective when a
counterpart hereof executed on behalf of the Guarantor shall have been delivered
to the Collateral Agent and a counterpart hereof shall have been executed on
behalf of the Collateral Agent, and thereafter shall be binding upon the
Guarantor and the Collateral Agent and their respective successors and assigns,
and shall inure to the benefit of the Guarantor, the Collateral Agent and the
other Secured Parties, and their respective successors and assigns, except that
the Guarantor shall not have the right to assign its rights or obligations
hereunder or any interest herein (and any such attempted assignment shall be
void) except with the written consent of the Collateral Agent.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Collateral Agent in exercising any power or right hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Collateral Agent hereunder
and of the other Secured Parties under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies that they would otherwise have.
No waiver of any provision of this Agreement or consent to any departure by the
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on the Guarantor in any case shall entitle the Guarantor to any
other or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to a written agreement entered into between
the Guarantor and the Collateral Agent, with the prior written consent of the
Required Lenders (except as otherwise provided in the Credit Agreement).
SECTION 12. 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.
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SECTION 13. Notices. All communications and notices hereunder shall be
in writing (including by facsimile transmission) and given as provided in
Section 9.02 of the Credit Agreement.
SECTION 14. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Guarantors 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 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract, and shall become effective as
provided in Section 10. Delivery of an executed signature page to this Agreement
by facsimile transmission shall be as effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
specified in Section 1.02 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 17. Integration. This Agreement represents the agreement
between the parties with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by any of the parties
hereto relative to the subject matter hereof not expressly set forth or referred
to herein or in the other Loan Documents.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
DISTRIBUIDORA COMERCIAL JAFRA,
S.A. DE C.V.,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Executive Vice President
CREDIT SUISSE FIRST BOSTON, acting
through its Cayman Islands branch, as
Collateral Agent,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇
Title: Director
