EXHIBIT 4.12
CONFORMED COPY
PARENT GUARANTEE AGREEMENT dated as of April 30, 1998,
between CDRJ INVESTMENTS (LUX) S.A., a Luxembourg societe anonyme
(the "Guarantor") and CREDIT SUISSE FIRST BOSTON, a bank
organized under the laws of Switzerland, acting through its New
York 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 April 30, 1998 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Guarantor, CDRJ Acquisition Corporation (to be renamed
Jafra Cosmetics International, Inc.), a Delaware corporation ("JCI"), Jafra
Cosmetics International, S.A. de C.V., a sociedad anonima de capital variable
organized under the laws of the United Mexican States (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. 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. As the indirect owner of all of the issued and outstanding capital
stock of, or other equity interests in, the Borrowers, 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 the Borrowers:
(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, receivership
or other similar proceeding, regardless of whether allowed or allowable in
such proceeding) on the Loans, 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 the Borrowers 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, receivership or other similar proceeding, regardless of whether
allowed or allowable in such proceeding), of the Borrowers to the Secured
Parties under the Credit Agreement and the other Loan Documents;
(b) for the due and punctual performance of all covenants,
agreements, obligations and liabilities of the Borrowers under or pursuant
to the Credit Agreement and the other Loan Documents; and
(c) unless otherwise agreed upon in writing by the counterparty
thereto, the due and punctual payment and performance of all obligations of
the Borrowers, monetary or
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otherwise, under each Hedging Agreement entered into with a counterparty
(whether or not a Lender or an Affiliate thereof) (all the monetary and
other obligations referred to in the preceding clauses (a) through (c)
being collectively called the "Obligations").
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 the Borrowers 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 either Borrower 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
pursuant to the terms of the Credit Agreement, the Pledge Agreement and the
other Security Documents 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 pursuant to the terms of
the Credit Agreement, the Pledge Agreement and the other Security Documents 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 either Borrower or
any other Person.
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 of all the Obligations, as the case may be).
SECTION 6. Defenses of Borrowers Waived. To the fullest extent permitted
by applicable law, the Guarantor waives any defense based on or arising out of
any defense of either Borrower or the unenforceability of the Obligations or any
part thereof from any cause, or the cessation from any cause of the liability of
either Borrower, 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
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adjust any part of the Obligations, make any other accommodation with either
Borrower or any other guarantor or exercise any other right or remedy available
to them against either Borrower 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 either Borrower 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 the Borrowers
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 the financial condition and assets of the
Borrowers, 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.
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 or reorganization of the Borrowers, 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 except with the written consent of the
Collateral Agent (and any such attempted assignment shall be void).
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
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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 SUCH
PRINCIPLES OR RULES WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.
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. All covenants, agreements,
representations and warranties made by the Guarantors herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall survive the making by the Lenders of the Loans
and the issuance of the Letters of Credit by the Issuing Bank.
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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
CDRJ INVESTMENTS (LUX) S.A., as Guarantor,
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice Chairman and EVP
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary and Director
CREDIT SUISSE FIRST BOSTON, as Collateral
Agent,
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
