EXHIBIT 4.18
CONSENT AND WAIVER dated as of November 19, 1999 (this
"Consent"), to the Credit Agreement dated as of April 30,
1998, as amended by Amendment No. 1 thereto dated as of
August 26, 1998 (the "Credit Agreement"), among JAFRA
COSMETICS INTERNATIONAL, INC. (formerly CDRJ Acquisition
Corporation), a Delaware corporation ("JCI"), JAFRA
COSMETICS INTERNATIONAL, S.A. de C.V., a sociedad anonima de
capital variable organized under the laws of Mexico
(together with JCI, the "Borrowers"), CDRJ INVESTMENTS (LUX)
S.A., a societe anonyme organized under the laws of
Luxembourg ("Parent"), the several banks and financial
institutions party to the Credit Agreement (the "Lenders"),
the Issuing Bank and CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting through its
New York branch, as administrative agent (in such capacity,
the "Administrative Agent").
A. Pursuant to the Credit Agreement, the Lenders and the Issuing Bank have
extended, and have agreed to extend, credit to the Borrowers.
B. Parent and the Borrowers have requested that the Required Lenders and
the Administrative Agent consent to the purchase by the Borrowers of their
Subordinated Notes in certain circumstances, and the Administrative Agent and
the Required Lenders are willing to grant such consent, on the terms and subject
to the conditions set forth herein.
C. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Credit Agreement.
Accordingly, in consideration of the mutual agreements herein contained and
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Consent and Waiver. The Required Lenders and the
Administrative Agent hereby consent to the purchase by the Borrowers of their
Subordinated Notes in the open market from time to time, and hereby waive
compliance by the Borrowers with the provisions of Section 6.10 of the Credit
Agreement to the extent (but only to the extent) necessary to permit such
purchases, in each case so long as (a) at the time of and immediately after
giving effect to each such purchase, no Default or Event of Default shall have
occurred and be continuing, and (b) the aggregate purchase price for all such
Subordinated Notes repurchased pursuant to this Consent shall not exceed
$25,000,000.
SECTION 2. Representations and Warranties. To induce the other parties
hereto to enter into this Consent, each of Parent and each Borrower represents
and warrants to each of the
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Lenders and the Administrative Agent that (a) the representations and warranties
set forth in Article III of the Credit Agreement are true and correct in all
material respects on and as of the date hereof with the same effect as though
made on and as of the date hereof, except to the extent such representations and
warranties expressly relate to an earlier date, and (b) as of the date hereof no
Default or Event of Default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Consent shall become
effective as of the date hereof upon receipt by the Administrative Agent of
counterparts of this Consent that, when taken together, bear the signatures of
Parent, the Borrowers, the Administrative Agent and the Required Lenders.
SECTION 4. Effect of Consent. Except as expressly set forth herein, this
Consent shall not by implication or otherwise limit, impair, constitute a waiver
of, or otherwise affect the rights and remedies of the Lenders, the
Administrative Agent, Parent or either Borrower under the Credit Agreement or
any other Loan Document, and shall not alter, modify, amend or in any way affect
any of the terms, conditions, obligations, covenants or agreements contained in
the Credit Agreement or any other Loan Document, all of which are ratified and
affirmed in all respects and shall continue in full force and effect. Nothing
herein shall be deemed to entitle Parent or either Borrower to a consent to, or
a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.
After the date hereof, any reference to the Credit Agreement shall mean the
Credit Agreement as modified hereby. This Consent shall constitute a "Loan
Document" for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 5. Counterparts. This Consent may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
Delivery of any executed counterpart of a signature page of this Consent by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
SECTION 6. APPLICABLE LAW. THIS CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICTS OF LAWS TO THE
EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION.
SECTION 7. Notices. All notices hereunder shall be given in accordance
with the provisions of Section 9.02 of the Credit Agreement.
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SECTION 8. Headings. The headings of this Consent are for purposes of
reference only and shall not limit or otherwise affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed by their duly authorized officers, all as of the date and year first
above written.
JAFRA COSMETICS INTERNATIONAL, INC.,
by
/s/ Xxxxxxx X. XxXxxxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
JAFRA COSMETICS INTERNATIONAL, S.A. DE C.V.,
by
/s/ Xxxxxxx X. XxXxxxxxxx
-------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
CDRJ INVESTMENTS (LUX) S.A.,
by
/s/ Xxxxxxx X. XxXxxxxxxx
--------------------------------------
Name: Xxxxxxx X. XxXxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
by
/s/ Xxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxxx
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Title: Director
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by
/s/ Xxxxx X. Xxxxxx
--------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
HSBC BANK USA,
by
/s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Authorized Signatory
BANK OF AMERICA, N.A.,
by
/s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
THE BANK OF NEW YORK,
by
/s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.,
by
/s/ Xxxxxxx X. XxXxxx
----------------------------
Name: Xxxxxxx X. XxXxxx
Title: Vice President
CITY NATIONAL BANK,
by
/s/ Xxxxxx X. Xxxxx
----------------------------
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Name: Xxxxxx X. Xxxxx
Title: Vice President
THE CHASE MANHATTAN BANK,
by
/s/ Xxxxxxx Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
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