EXHIBIT 4.21
CONFORMED COPY
CONSENT AND WAIVER dated as of June 30, 2001 (the "Consent"), to the
Credit Agreement dated as of April 30, 1998, as amended (the "Credit
Agreement"), among JAFRA COSMETICS INTERNATIONAL, INC. (formerly CDRJ
Acquisition Corporation), a Delaware corporation ("JCI"), JAFRA COSMETICS
INTERNATIONAL, S.A. de D.V., a sociedad anonima decapital 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 Luxemburg ("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, 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. Required Lenders and 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
extend (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 by
continuing, (b) the aggregate principal amount of all such Subordinated Notes
repurchased pursuant to this Consent shall not exceed $25,000,000 and (c) the
aggregate purchase price of all such Subordinated Notes repurchased pursuant to
this Consent shall not exceed $27,000,000.
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 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 dater 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, 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.
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
JAFRA COSMETICS INTERNATIONAL
S.A. DE C.V.
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
CDRJ INVESTMENTS (LUX) S.A.,
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
CREDIT SUISSE FIRST BOSTON,
individually and as Administrative Agent,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SIGNATURE PAGE TO
CONSENT AND WAIVER
DATED AS OF JUNE 30, 2001,
TO THE JAFRA COSMETICS
CREDIT AGREEMENT
NAME OF LENDER: THE CHASE MANHATTAN BANK
by
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NAME OF LENDER: HSBC BANK USA
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
NAME OF LENDER: BANK OF AMERICA
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President
NAME OF LENDER: BANK OF NEW YORK
by
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
NAME OF LENDER: CITY NATIONAL BANK
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
