THIS
FOURTH AMENDMENT dated as of July 28, 2006 (this “Fourth Amendment”)
to the Multi-Currency Private Shelf Agreement dated as of August 26, 2003 (as amended to
date, the “Private Shelf Facility”) is between Nu Skin Enterprises, Inc.,
a Delaware corporation (the “Company”), on the one hand, and Prudential
Investment Management, Inc. and the holders of the Series A Senior Notes, Series B Senior
Notes and Series C Senior Notes issued under the Private Shelf Facility that are
signatories hereto (collectively, “Prudential”), on the other hand.
RECITALS
A.
Pursuant to the request of the Company, the Company and Prudential now desire to
amend the Private Shelf Facility in the respects, but only in the respects,
hereinafter set forth.
B.
Capitalized terms used herein shall have the respective meanings ascribed
thereto in the Private Shelf Facility unless herein defined or the context shall
otherwise require.
C.
All requirements of law have been fully complied with and all other acts and
things necessary to make this Third Amendment a valid, legal and binding
instrument according to its terms for the purposes herein expressed have been
done or performed.
NOW,
THEREFORE, upon the full and complete satisfaction of the conditions precedent to the
effectiveness of this Fourth Amendment set forth in Section 2 hereof, and in
consideration of good and valuable consideration the receipt and sufficiency of which is
hereby acknowledged, the Company and Prudential do hereby agree as follows:
Section 1. Amendment to
Private Shelf Facility
Solely
for purposes of Sections 10.5(a) and 10.6 of the Private Shelf Facility, Consolidated Net
Income (as such term is used in the terms “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 quarter, so long as such aggregate amount does not exceed
$32,000,000.
Section 2. Conditions to
Effectiveness of This Amendment.
This
Fourth Amendment shall become effective as of the date hereof upon the delivery to
Prudential of (a) executed counterparts of this Fourth Amendment, duly executed by the
Company, the Subsidiary Guarantors named as signatories hereto and the Required Holders
and (b) a fully executed and effective amendment to the Company’s principal bank
credit agreement which provides for an amendment thereto which is substantially identical
to that provided herein.
Section 3. Miscellaneous.
This
Fourth Amendment may be executed in any number of counterparts, each executed counterpart
constituting an original, but all together only one agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be duly
executed and delivered by their respective officers thereunto duly authorized as of the
date first written above.
| |
|
PRUDENTIAL INVESTMENT
MANAGEMENT, INC. |
| |
|
THE PRUDENTIAL
INSURANCE
COMPANY OF AMERICA |
| |
|
PRUCO LIFE INSURANCE COMPANY |
| |
|
BAYSTATE INVESTMENTS, LLC.
Prudential Private Placement Investors, L.P.,
as Investment Advisor |
| |
By: |
Prudential Private
Placement Investors, Inc., General Partner |
| |
|
GOLDEN AMERICAN LIFE
INSURANCE COMPANY
Prudential Priate Placement Investors, L.P., as Investment Advisor |
| |
By: |
Prudential Private Placement Investors, Inc., General Partner |
| |
|
PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY |
| |
By: |
Prudential Investment
Management, Inc., Investment Manager |
| |
|
NU SKIN ENTERPRISES, INC. |
| |
Its: |
Chief Financial Officer |
| The undersigned Subsidiary Guarantors
hereby consent and agree to the foregoing, and to each previous amendment to the Private
Shelf Agreement. |
|
|
| |
|
NU SKIN ENTERPRISES HONG KONG, INC.,
a Delaware corporation
NU SKIN INTERNATIONAL, INC.,
a Utah corporation
NU SKIN TAIWAN, INC.,
a Utah corporation
NU SKIN UNITED STATES, INC.,
a Delaware corporation
BIG PLANET, INC.,
a Delaware corporation
NSE PRODUCTS, INC.,
a Delaware corporation
NU SKIN ASIA INVESTMENT, INC.,
a Delaware corporation
|
| |
|
NSE KOREA LTD.,
a Korean corporation
|
