FOURTH AMENDMENT
THIS FOURTH AMENDMENT dated as of July 28, 2006 (this “Amendment”) amends the Credit Agreement dated as of May 10, 2001 (as previously amended, the “Credit Agreement”) among Nu Skin Enterprises, Inc. (the “Company”), various financial institutions (the “Lenders”) and JPMorgan Chase Bank, N.A. (as successor to Bank One, NA), as successor administrative agent (in such capacity, the “Administrative Agent”). Terms defined in the Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as defined therein.
WHEREAS, the Company, the Lenders and the Administrative Agent have entered into the Credit Agreement; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain respects as more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendment. Subject to the satisfaction of the conditions precedent set forth in Section 3, solely for purposes of Sections 10.10.2 and 10.11(a)(i) of the Credit Agreement, Consolidated Net Income (as such term is used in the definitions of “EBITDA” and “Consolidated Income Available for Fixed Charges”) for the fiscal quarter ended March 31, 2006 shall be increased by the aggregate amount of non-cash restructuring charges and inventory write-downs incurred during such fiscal quarter, so long as such aggregate amount does not exceed $32,000,000.
SECTION 2 Warranties. The Company represents and warrants to the Administrative Agent and the Lenders that (a) each warranty set forth in Section 9 of the Credit Agreement is true and correct in all material respects as of the date of the execution and delivery of this Amendment by the Company, with the same effect as if made on such date, (b) no Event of Default or Unmatured Event of Default exists and (c) the Credit Agreement as amended hereby constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
SECTION 3 Effectiveness. The amendment set forth in Section 1 above shall become effective as of the date first written above when the Administrative Agent has received (i) counterparts of this Amendment executed by the Company and the Required Lenders, (ii) a Confirmation, substantially in the form of Exhibit A, signed by the Company and each Subsidiary Guarantor and (iii) a fully-executed amendment to the Multi-Currency Private Shelf Agreement dated as of August 26, 2003 among the Company and various purchasers which provides for an amendment thereto that is substantially identical to that provided herein.
SECTION 4 Miscellaneous.
4.1 Continuing Effectiveness, etc. As herein amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. After the effectiveness of this Amendment, all references in the Credit Agreement and the other Loan Documents to “Credit Agreement” or similar terms shall refer to the Credit Agreement as amended hereby.
4.2 Counterparts. This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original but all such counterparts shall together constitute one and the same Amendment. Delivery to the Administrative Agent of a counterpart hereof, or a signature page hereto, by facsimile shall be effective as an original, manually-signed counterpart.
4.3 Governing Law. This Amendment shall be a contract made under and governed by the laws of the State of placeStateNew York (without regard to principles of conflicts of laws, other than Title 15 of Article 5 of the New York General Obligations Law).
4.4 Successors and Assigns. This Amendment shall be binding upon the Company, the Lenders and the Administrative Agent and their respective successors and assigns, and shall inure to the benefit of the Company, the Lenders and the Administrative Agent and the respective successors and assigns of the Lenders and the Administrative Agent.
Delivered as of the day and year first above written.
| NU SKIN ENTERPRISES, INC. |
| By: | Xxxxx X. Xxxx |
| Title: | Chief Financial Officer |
| JPMORGAN CHASE BANK, N.A. (as successor to Bank One, NA), as Adminstrative Agent and as a Lender |
| By: | Xxxxxxx Xxxxxx |
| Title: | Vice President |
Exhibit A
CONFIRMATION
Dated as of July 28, 2006
| To: | JPMorgan Chase Bank, N.A., individually and as Administrative Agent (as defined below), and the other financial institutions party to the Credit Agreement referred to below |
Please refer to (a) the Credit Agreement dated as of May 10, 2001 (as amended prior to the date hereof, the “Credit Agreement”) among Nu Skin Enterprises, Inc., various financial institutions (the “Lenders”) and JPMorgan Chase Bank, N.A., as successor to Bank One, NA (in such capacity, the “Administrative Agent”); (b) the other “Loan Documents” (as defined in the Credit Agreement), including the Guaranty and the Pledge Agreement; and (c) the Fourth Amendment dated as of the date hereof to the Credit Agreement (the “Amendment”).
Each of the undersigned hereby confirms to the Administrative Agent and the Lenders that, after giving effect to the Amendment and the transactions contemplated thereby, each Loan Document to which such undersigned is a party continues in full force and effect and is the legal, valid and binding obligation of such undersigned, enforceable against such undersigned in accordance with its terms.
| NU SKIN ENTERPRISES, INC. |
| By: | Xxxxx X. Xxxx |
| Name: | Xxxxx X. Xxxx |
| Title: | Chief Financial Officer |
| NU SKIN INTERNATIONAL, INC NU SKIN ENTERPRISES HONG KONG, INC., NU SKIN TAIWAN, INC., NU SKIN UNITED STATES, INC., BIG PLANET, INC., NSE PRODUCTS, INC., NU SKIN ASIA INVESTMENT, INC., |
| By: | D. Xxxxxxx Xxxxx |
| Name: | D. Xxxxxxx Xxxxx; |
| Title: | Vice President |
| NSE KOREA LTD., (a Korean corporation) |
| By: | Xxxx X. Xxx |
| Name: | Xxxx X. Xxx |
| Title: | President |
