AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment"), dated as
of April 1, 2000, is entered into by and among:
(1) NU SKIN ENTERPRISES, INC., a Delaware corporation ("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. NSE and NSJ (collectively, "Borrowers"), Lenders and Agent are
parties to a Credit Agreement dated as of May 8, 1998, as amended by Amendment
No. 1 to Credit Agreement effective as of June 30, 1998, Amendment No. 2 to
Credit Agreement effective as of February 22, 1999, and Amendment No. 3 to
Credit Agreement dated as of May 10, 1999 (such Credit Agreement, as so amended,
the "Credit Agreement").
B. NSE has requested Lenders and Agent to amend the Credit Agreement to
permit NSE to (i) clarify the amount due on the Maturity Date and (ii) change
the Fixed Charge Coverage Ratio applicable to NSJ.
C. Lenders and Agent are willing so to amend the Credit Agreement upon
the terms and subject to the conditions set forth below.
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrowers, Lenders and Agent hereby agree as follows:
1. Definitions; Interpretation. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in the Credit Agreement, as amended by
this Amendment. The rules of construction set forth in Section I of the Credit
Agreement shall, to the extent not inconsistent with the terms of this
Amendment, apply to this Amendment and are hereby incorporated by reference.
2. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions set forth in Paragraph 4 below, the Credit Agreement is hereby
amended as follows:
(a) Subparagraph 2.01(f) is amended by deleting the language
opposite the reference to "Maturity Date" and the proviso immediately
following and substituting the following:
Maturity Date All remaining unpaid principal on the U.S.
Borrowing.
(b) Subparagraph 2.02(e) is amended by deleting the language
opposite the reference to "Maturity Date" and the proviso immediately
following and substituting the following:
Maturity Date All remaining unpaid principal on the Japanese
Borrowing.
(c) Subparagraph 2.03(d)(iv)(B) is amended by deleting the
language opposite the reference to "Maturity Date" and the proviso
immediately following and substituting the following:
Maturity Date All remaining unpaid principal on the U.S.
Borrowing.
(d) Subparagraph 2.03(d)(iv)(C) is amended by deleting the
language opposite the reference to "Maturity Date" and the proviso
immediately following and substituting the following:
Maturity Date All remaining unpaid principal on the Japanese
Borrowing.
(e) Subparagraph 5.03(b) is amended in its entirety as
follows:
(b) Fixed Charge Coverage Ratio:
(i) NSE shall not permit its Fixed Charge
Coverage Ratio to be less than 2.25 for any
consecutive four-quarter period ending on the last
day of any fiscal quarter.
(ii) NSJ shall not permit its Fixed Charge
Coverage Ratio to be less than (w) 2.25 to 1.00 for
the consecutive four-quarter period ending on March
31, 2000, (x) 2.00 to 1.00 for the consecutive
four-quarter period ending on June 30, 2000, (y) 1.75
to 1.00 for the consecutive four-quarter period
ending on September 30, 2000, or (z) 1.50 to 1.00 for
any consecutive four-quarter period ending on the
last day of any fiscal quarter thereafter.
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(f) Schedule 4.01(g) is amended in its entirety in the form
attached to this Amendment.
3. Representations and Warranties. Each Borrower hereby represents and
warrants to Agent and Lenders that the following are true and correct on the
date of this Amendment and, after giving effect to the amendments set forth in
Paragraph 2 above, the following will be true and correct on the Effective Date
(as defined below):
(a) The representations and warranties of each Borrower and
its Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement
and in the other Credit Documents are true and correct in all material
respects as if made on such date (except for representations and
warranties expressly made as of a specified date, which are true and
correct as of such date);
(b) No Default or Event of Default has occurred and is
continuing; and
(c) Each of the Credit Documents is in full force and
effect.
(Without limiting the scope of the term "Credit Documents," each Borrower
expressly acknowledges in making the representations and warranties set forth in
this Paragraph 3 that, on and after the Effective Date hereof, such term
includes this Amendment.)
4. Effective Date. The amendments effected by Paragraph 2 above shall
become effective on April 1, 2000 (the "Effective Date"), subject to receipt by
Agent and Lenders on or prior to the Effective Date of the following, each in
form and substance satisfactory to Agent, Required Lenders and their respective
counsel:
(a) This Amendment duly executed by Borrowers, Required
Lenders and Agent;
(b) A letter in the form of Exhibit A hereto, dated the
Effective Date and duly executed by all Material
Domestic Subsidiaries of NSE and, in the case of any
such Subsidiaries that are organized under the laws of
jurisdictions outside the United States and
domesticated under the laws of Delaware (or any other
state of the United States), by the Delaware (or other
state) counterparts of such Subsidiaries; and
(c) Such other evidence as Agent or any Lender may
reasonably request to establish the accuracy and
completeness of the representations and warranties and
compliance with the terms and conditions contained in
this Amendment and the other Credit Documents.
5. Effect of this Amendment. On and after the Effective Date, each
reference in the Credit Agreement and the other Credit Documents to the Credit
Agreement shall mean the Credit Agreement as amended hereby. Except as
specifically amended above, (a) the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby
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ratified and affirmed and (b) the execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power, or remedy of Lenders or Agent, nor constitute a waiver of any
provision of the Credit Agreement or any other Credit Document.
6. Miscellaneous.
(a) Counterparts. This Amendment may be executed in any
number of identical counterparts, any set of which
signed by all the parties hereto shall be deemed to
constitute a complete, executed original for all
purposes.
(b) Headings. Headings in this Amendment are for
convenience of reference only and are not part of the
substance hereof.
(c) 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.
(d) NSE Guaranty. In its capacity as the guarantor under
the NSE Guaranty, NSE hereby (i) consents to this
Amendment, (ii) agrees that this Amendment in no way
affects or alters the rights, duties, or obligations of
NSE, Agent or Lenders under the NSE Guaranty, (iii)
agrees its consent to this Amendment shall not be
construed (A) to have been required by the terms of the
NSE Guaranty or any other document, instrument or
agreement relating thereto or (B) to require the
consent of NSE in its capacity as guarantor in
connection with any future amendment of the Credit
Agreement or any other Credit Document.
[The first signature page follows.]
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IN WITNESS WHEREOF, Borrowers, Agent and Required Lenders have caused
this Amendment to be executed as of the day and year first above written.
BORROWERS: NU SKIN ENTERPRISES, INC.
By: /s/Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Treasurer
NU SKIN JAPAN CO., LTD.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Auditor
AGENT: ABN AMRO BANK N.V.
By: /s/Xxxxxx Trefflers-Xxxxxxx
Name: Xxxxxx Trefflers-Xxxxxxx
Title: Group Vice President
By: /s/Xxxxx Xxxxxxx-Xxxxxxx
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Vice President
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LENDERS: ABN AMRO BANK N.V.
By: /s/Xxxxxx Trefflers-Xxxxxxx
Name: Xxxxxx Trefflers-Xxxxxxx
Title: Group Vice President
By: /s/Xxxxx Xxxxxxx-Xxxxxxx
Name: Xxxxx Xxxxxxx-Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/Xxxxxxx Xxxxxxxx
Name: Theres Xxxxxxxx
Title: Managing Director
BANK ONE, UTAH, NATIONAL ASSOCIATION
By: /s/Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Assistant Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By:
Name:
Title:
U.S. BANK, NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
ZIONS FIRST NATIONAL BANK
By: /s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
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EXHIBIT A
GUARANTOR CONSENT LETTER
April 1, 2000
TO: ABN AMRO Bank N.V.,
As Agent for the Lenders under the Credit Agreement referred to below
1. Reference is made to the following:
(a) The Credit Agreement dated as of May 8, 1998, as amended
by Amendment No. 1 to Credit Agreement effective as of June 30, 1998,
Amendment No. 2 to Credit Agreement effective as of February 22, 1999,
and Amendment No. 3 to Credit Agreement dated as of May 10, 1999 (such
Credit Agreement, as so amended, the "Credit Agreement") among Nu Skin
Enterprises, Inc., ("NSE"), Nu Skin Japan Co., Ltd. ("NSJ"), the
financial institutions listed in Schedule I thereto ("Lenders") and ABN
AMRO Bank N.V., as agent for Lenders (in such capacity, "Agent");
(b) The Guaranty dated as of May 8, 1998 (the "Subsidiary
Guaranty") executed by the undersigned ("Guarantors") in favor of Agent
for the benefit of Lenders; and
(c) Amendment No. 4 to Credit Agreement dated as of April 1,
2000 (the "Amendment") among NSE, NSJ, Required Lenders and Agent.
Unless otherwise defined herein, all capitalized terms used herein shall have
the respective meanings given to those terms in the Credit Agreement.
2. Each Guarantor hereby consents to the Amendment. Each Guarantor
expressly agrees that the Amendment shall in no way affect or alter the rights,
duties or obligations of such Guarantor, Lenders or Agent under the Subsidiary
Guaranty.
3. From and after the date hereof, the term "Credit Agreement" as used
in the Subsidiary Guaranty shall mean the Credit Agreement, as amended by the
Amendment.
4. No Guarantor's consent to the Amendment shall be construed (i) to
have been required by the terms of the Subsidiary Guaranty or any other
document, instrument or agreement relating thereto or (ii) to require the
consent of such Guarantor in connection with any future amendment of the Credit
Agreement or any other Credit Document.
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IN WITNESS WHEREOF, each Guarantor has executed this Guarantor Consent
Letter as of the day and year first written above.
NU SKIN JAPAN CO., LTD.,
a Japanese Corporation
By: _______________________
Name: _______________________
Title: _______________________
NU SKIN KOREA, INC.,
a Delaware Corporation
By: _______________________
Name: _______________________
Title: _______________________
NU SKIN KOREA, LTD.,
a South Korean Corporation
By: _______________________
Name: _______________________
Title: _______________________
NU SKIN INTERNATIONAL, INC.,
a Utah Corporation
By: _______________________
Name: _______________________
Title: _______________________
NU SKIN TAIWAN, INC.,
a Utah Corporation
By: _______________________
Name: _______________________
Title: _______________________
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NU SKIN HONG KONG, INC.,
a Utah Corporation
By: _______________________
Name: _______________________
Title: _______________________
NU SKIN UNITED STATES, INC.,
a Delaware Corporation
By: _______________________
Name: _______________________
Title: _______________________
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