AMENDMENT NO. 1
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO CREDIT AGREEMENT (this "Amendment") is entered
into as of the Effective Date (as defined below) by and among:
(1) NU SKIN ENTERPRISES, INC., a Delaware corporation formerly named Nu
Skin Asia Pacific, Inc. ("NSE");
(2) NU SKIN JAPAN CO., LTD., a Japanese corporation ("NSJ");
(3) The financial institutions listed in Schedule I to the Credit
Agreement described below (such financial institutions referred to herein
collectively as "Lenders"); and
(4) ABN AMRO BANK N.V., as agent for Lenders (in such capacity,
"Agent").
RECITALS
A. Certain credit facilities are being provided to NSE and NSJ
(collectively, "Borrowers") upon the terms and subject to the conditions of a
Credit Agreement, dated as of May 8, 1998, by and among Borrowers, Lenders and
Agent (the "Credit Agreement", the terms defined therein being used herein as
therein defined).
B. From time to time in connection with bona fide hedging operations,
Borrowers may request that one or more Lenders or their Affiliates enter into
Rate Contracts and, to induce such Lenders or their Affiliates to enter into
such Rate Contracts, Borrowers requests that such Rate Contracts be entitled to
share ratably in the benefits of any guaranties and security provided for the
credit facilities under the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
1. Amendments to Section I. Interpretation.
(a) The definition of "Credit Documents" in Section I of the
Credit Agreement is hereby amended to add the words ", the Lender Rate
Contracts" after the words "Security Documents".
(b) A definition of "Lender Rate Contract" is hereby added to
Section I of the Credit Agreement as follows:
"Lender Rate Contract" shall mean any Rate Contract entered
into by either Borrower or its Subsidiaries with a Lender or its
Affiliates as permitted by this Agreement.
2. Amendment to Paragraph 2.11 Taxes on Payment. Paragraph 2.11 of the
Credit Agreement is hereby amended to add the following new subparagraph (e):
(e) Lender Rate Contracts. Nothing contained in this Paragraph
2.11 shall override or supercede any term or provision of any Lender
Rate Contract regarding withholding taxes relating to Rate Contracts.
3. Amendments to Section VI Default.
(a) Paragraph 6.01(a) of the Credit Agreement is hereby
amended to add the following new clause (ii) and to renumber former clause (ii)
as clause (iii):
, (ii) fail to make any payment or transfer when due under any Lender
Rate Contract,
(b) A new Paragraph 6.03 is hereby added to the Credit
Agreement as follows:
6.03. Lender Rate Contract Remedies. Notwithstanding any other
provision of this Section VI, each Lender or its Affiliate which has
entered into a Lender Rate Contract shall have the right, with prior
notice to Agent, but without the approval or consent of Agent or any
other Lender, (a) to declare an event of default, termination event or
other similar event thereunder which will result in the early
termination of such Lender Rate Contract, (b) to determine net
termination amounts in accordance with the terms of such Lender Rate
Contract and to set-off amounts between Lender Rate Contracts of such
Lender, and (c) to prosecute any legal action against either Borrower
or its Subsidiaries to enforce net amounts owing to such Lender or its
Affiliate under such Lender Rate Contracts.
4. Amendment to Paragraph 8.05 Successors and Assigns. Subparagraph
8.05(c) of the Credit Agreement is hereby amended to delete the word "and" at
the end of clause (v), to delete the period at the end of clause (vi) and
substitute "; and", and to add the following new clause (vii):
(vii) Any Assignor Lender which is, or which has an Affiliate
which is, a party to a Lender Rate Contract may not make an Assignment
of all of its Commitment or all of its Loans to an Assignee Lender
unless such Assignee Lender or its Affiliate shall also assume all
obligations of such Assignor Lender or its Affiliate with respect to
such Lender Rate Contract.
5. Counterparts. This Amendment may be executed in any number of
identical counterparts, any set of which signed by all parties hereto shall be
deemed to constitute a complete, executed original for all purposes.
6. Effective Date. This Amendment shall become effective on the date
(the "Effective Date") when Agent has received counterparts of this Amendment
executed by both Borrowers, the Required Lenders and Agent.
7. Reference to and Effect on Credit Documents. On and after the
Effective Date, each reference in the Credit Agreement to "this Agreement,"
"hereof," "herein," and "hereunder" and words of similar import, and each
reference in the other Credit Documents to the Credit Agreement, shall mean and
be a reference to the Credit Agreement as amended by this Amendment. Except as
specifically amended by this Amendment, the Credit Agreement and the other
Credit Documents shall remain in full force and effect and are hereby ratified
and confirmed.
8. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of California without reference to
conflicts of law rules.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the Effective Date.
BORROWERS: NU SKIN ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
Date: June 29, 1998
NU SKIN JAPAN CO., LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Representative Director
Date: June 29, 1998
AGENT: ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Vice President & Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Date: June 29, 1998
LENDERS: ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Vice President & Director
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
Date: June 29, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. Leader
Name: ▇▇▇▇▇ ▇. Leader
Title: Vice President
Date: June 22, ▇▇▇▇
▇▇▇▇ ▇▇▇, ▇▇▇▇, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date:
BANQUE NATIONALE DE PARIS
By: /s/ D. ▇▇▇ ▇▇▇▇
Name: D. ▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
Date:
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇.▇. ▇▇▇▇▇▇
Name: ▇.▇. ▇▇▇▇▇▇
Title: Vice President
By:
Name:
Title:
Date: June 22, 1998
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Date: June 25, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Date:
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Date: June 26, 1998
ZIONS FIRST NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Date: July 6, 1998
