CREDIT AGREEMENT
among
NU SKIN ENTERPRISES, INC.
and
NU SKIN JAPAN CO., LTD.
and
THE LENDERS NAMED HEREIN
and
ABN AMRO BANK N.V.,
as Agent for Lenders
and
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
and
NATIONSBANK, N.A.,
as Co-Agents
May 8, 1998
TABLE OF CONTENTS
SECTION I. INTERPRETATION..........................................1
1.01. Definitions.................................................1
1.02. GAAP.......................................................21
1.03. Headings...................................................21
1.04. Plural Terms...............................................21
1.05. Governing Law..............................................21
1.06. English Language...........................................21
1.07. Construction...............................................21
1.08. Entire Agreement...........................................21
1.09. Calculation of Interest and Fees...........................22
1.10. References.................................................22
1.11. Other Interpretive Provisions..............................22
SECTION II. CREDIT FACILITIES......................................23
2.01. U.S. Facility..............................................23
2.02. Japanese Facility..........................................26
2.03. Maturity Date Extension....................................28
2.04. Fees.......................................................31
2.05. Prepayments................................................31
2.06. Other Payment Terms........................................32
2.07. Loan Accounts; Notes.......................................34
2.08. Loan Funding...............................................35
2.09. Pro Rata Treatment.........................................36
2.10. Change of Circumstances....................................37
2.11. Taxes on Payments..........................................39
2.12. Funding Loss Indemnification...............................41
2.13. Security...................................................42
2.14. Replacement of Lenders.....................................43
SECTION III. CONDITIONS PRECEDENT...................................44
3.01. Initial Closing Date Conditions Precedent..................44
3.02. Second Closing Date Conditions Precedent...................44
3.03. Conditions Precedent to Each Credit Event..................44
3.04. Covenant to Deliver........................................45
SECTION IV. REPRESENTATIONS AND WARRANTIES.........................45
4.01. Borrowers' Representations and Warranties..................45
4.02. Reaffirmation..............................................49
SECTION V. COVENANTS..............................................50
5.01. Affirmative Covenants......................................50
5.02. Negative Covenants.........................................53
5.03. Financial Covenants........................................60
SECTION VI. DEFAULT................................................61
6.01. Events of Default..........................................61
6.02. Remedies...................................................63
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS..................64
7.01. Appointment, Powers and Immunities.........................64
7.02. Reliance by Agent..........................................64
7.03. Defaults...................................................64
7.04. Indemnification............................................65
7.05. Non-Reliance...............................................65
7.06. Resignation or Removal of Agent............................65
7.07. Agent in its Individual Capacity...........................66
SECTION VIII. MISCELLANEOUS..........................................66
8.01. Notices....................................................66
8.02. Expenses...................................................68
8.03. Indemnification............................................68
8.04. Waivers; Amendments........................................69
8.05. Successors and Assigns.....................................69
8.06. Setoff; Security Interest..................................73
8.07. No Third Party Rights......................................73
8.08. Partial Invalidity.........................................73
8.09. Jury Trial.................................................74
8.10. Counterparts...............................................74
8.11. Borrowers' Liabilities.....................................74
8.12. Confidentiality............................................74
8.13. Consent to Jurisdiction....................................74
SCHEDULES
I Lenders
II Pricing Grid
3.01 Initial Closing Date Conditions Precedent
* 4.01(e) Authorizations
* 4.01(g) Litigation
* 4.01(o) Subsidiaries
* 5.02(a) Existing Indebtedness
* 5.02(b) Existing Liens
* 5.02(d) Potential Acquisitions
* 5.02(e) Existing Investments
EXHIBITS
* A Notice of U.S. Borrowing (2.01(b))
* B Notice of U.S. Borrowing Conversion (2.01(d))
* C Notice of U.S. Borrowing Interest Period Selection (2.01(e))
* D Notice of Japanese Borrowing (2.02(b))
* E Notice of Japanese Borrowing Interest Period Selection (2.02(d))
* F Extension Request (2.03)
* G Form of Note (2.07(b))
* H Subsidiary Guaranty (2.13(a))
* I Pledge Agreement (2.13(a))
* J NSE Guaranty (2.13(a))
* K Assignment Agreement (8.05(c))
* L Solvency Certificate (Schedule 3.01)
* Schedules and exibits omitted. The omitted schedules and exibits from this
filing will be provided upon request
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 8, 1998, is entered into 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) Each of the financial institutions from time to time listed
in Schedule I hereto, as amended from time to time (such financial
institutions to be referred to herein collectively as "Lenders");
(4) ABN AMRO BANK N.V., as agent for Lenders (in such capacity,
"Agent"); and
(5) BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION and
NATIONSBANK, N.A., as co-agents (collectively, in such capacity, the
"Co-Agents").
RECITALS
A. NSE and NSJ (collectively, "Borrowers") have requested Lenders to
provide certain credit facilities to Borrowers.
B. Lenders are willing to provide such credit facilities upon the terms
and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION I. INTERPRETATION
1.01. Definitions. Unless otherwise indicated in this Agreement or any other
Credit Document, each term set forth below, when used in this Agreement or any
other Credit Document, shall have the respective meaning given to that term
below or in the provision of this Agreement or other document, instrument or
agreement referenced below.
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"Acquired Entities" shall mean NSI and the other Persons
acquired by NSE pursuant to the NSI Acquisition Agreement.
"Affiliate" shall mean, with respect to any Person, (a) each
Person that, directly or indirectly, owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, five percent
(5%) or more of any class of Equity Securities of such Person or (b)
each Person that controls, is controlled by or is under common control
with such Person or any Affiliate of such Person; provided, however,
that in no case shall Agent or any Lender be deemed to be an Affiliate
of either Borrower or any of its Subsidiaries for purposes of this
Agreement. For the purpose of this definition, "control" of a Person
shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or otherwise.
"Agent" shall have the meaning given to that term in clause
(4) of the introductory paragraph hereof.
"Agent's Fee Letter" shall mean the letter agreement dated as
of March 13, 1998 among Borrowers and Agent.
"Agreement" shall mean this Credit Agreement.
"Applicable Lending Office" shall mean:
(a) With respect to any U.S. Lender and the U.S.
Borrowing, (i) in the case of any Base Rate Portion, such
Lender's U.S. Lending Office, and (ii) in the case of any
LIBOR Portion, such Lender's Euro-Dollar Lending Office; and
(b) With respect to any Japanese Lender and the
Japanese Borrowing, such Lender's Japanese Lending Office.
"Applicable Margin" shall mean, with respect to any Portion of
any Borrowing at any time, the per annum margin which is determined
pursuant to the Pricing Grid and added to the Base Rate, LIBO Rate or
TIBO Rate, as the case may be, for such Portion; provided, however,
that each Applicable Margin determined pursuant to the Pricing Grid
shall be increased by two percent (2.00%) per annum on the date an
Event of Default occurs and shall continue at such increased rate
unless and until such Event of Default is cured or waived in accordance
with this Agreement. The Applicable Margins shall be determined as
provided in the Pricing Grid and may change for each Pricing Period.
"Assignee Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment Agreement" shall have the meaning given to that
term in Subparagraph 8.05(c).
"Assignment Effective Date" shall have, with respect to each
Assignment Agreement, the meaning set forth therein.
"Assignor Lender" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Base Rate" shall mean, on any day, the greater of (a) the
Prime Rate in effect on such date and (b) the Federal Funds Rate for
such day plus one-half percent (0.50%).
"Base Rate Portion" shall mean, at any time, a Portion of the
U.S. Borrowing or a U.S. Loan, as the case may be, which then bears
interest at a rate specified in clause (i) of Subparagraph 2.01(c).
"Borrowers" shall have the meaning given to that term in
Recital A.
"Borrowing" shall mean the U.S. Borrowing or the Japanese
Borrowing.
"Business Day" shall mean any day on which commercial banks
are not authorized or required to close in San Francisco, California,
New York, New York or Salt Lake City, Utah and (a) if such Business Day
is related to a LIBOR Portion of the U.S. Borrowing, dealings in Dollar
deposits are carried out in the London interbank market and commercial
banks are open for business in London or (b) if such Business Day is
related to the Japanese Borrowing, dealings in Yen deposits are carried
out in the Tokyo interbank market and commercial banks are open for
business in Tokyo.
"Capital" shall mean, with respect to either Borrower at any
time, the sum, determined on a consolidated basis in accordance with
GAAP, of the Indebtedness and net worth of such Borrower and its
Subsidiaries at such time.
"Capital Adequacy Requirement" shall have the meaning given to
that term in Subparagraph 2.10(d).
"Capital Asset" shall mean, with respect to any Person, any
tangible fixed or capital asset owned or leased (in the case of a
Capital Lease) by such Person, or any expense incurred by such Person
that is required by GAAP to be reported as a non-current asset on such
Person's balance sheet.
"Capital Expenditures" shall mean, with respect to any Person
and any period, all amounts expended by such Person during such period
for the acquisition of Capital Assets (including all amounts paid or
accrued on Capital Leases and other Indebtedness incurred or assumed to
acquire Capital Assets).
"Capital Leases" shall mean any and all lease obligations
that, in accordance with GAAP, are required to be capitalized on the
books of a lessee.
"Change of Control" shall mean
(a) With respect to NSE, (i) the acquisition after
the date hereof by any person or group of persons (within the
meaning of Section 13 or 14 of the Securities Exchange Act of
1934 (as amended, the "Exchange Act")) of (A) beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Exchange Act) of
forty percent (40%) or more of the outstanding Equity
Securities of NSE entitled to vote for members of the board of
directors (excluding any such acquisition (1) by Persons who
are shareholders of NSE on the date of this Agreement, (2)
resulting from the conversion by the current holders of NSE
preferred shares of such shares into NSE common shares and (3)
resulting from the conversion by the current holders of NSE
Class B common shares of such shares into NSE Class A common
shares), or (B) all or substantially all of the assets of NSE;
or (ii) during any period of twelve (12) consecutive calendar
months, individuals who are directors of NSE on the first day
of such period ("Initial Directors") and any directors of NSE
who are specifically approved by two-thirds of the Initial
Directors and previously-approved Directors shall cease to
constitute a majority of the Board of Directors of Borrower
before the end of such period;
(b) With respect to (i) NSJ, Nu Skin Hong Kong, Inc.,
Nu Skin Taiwan, Inc. or Nu Skin Korea, Inc. or (ii) any
Domestic Subsidiary of NSE that is a Material Subsidiary, NSE
shall cease to own directly or indirectly one hundred percent
(100%) of the Equity Securities of such Subsidiary; or
(c) With respect to any Foreign Subsidiary of NSE
that is a Material Subsidiary, NSE shall cease to own directly
or indirectly fifty-one percent (51%) or more of the Equity
Securities of such Subsidiary.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.10(b).
"Closing Date" shall mean the U.S. Closing Date or the
Japanese Closing Date.
"Co-Agents" shall have the meaning given to that term in
clause (5) of the introductory paragraph hereof.
"Collateral" shall mean all property in which Agent or any
Lender has a Lien to secure the Obligations.
"Commitment Fees" shall mean collectively the U.S. Commitment
Fees and the Japanese Commitment Fees.
"Commitments" shall mean, collectively, the U.S. Commitments
and the Japanese Commitments.
"Commitment Termination Date" shall mean May 29, 1998.
"Compliance Certificate" shall have the meaning given to that
term in Subparagraph 5.01(a).
"Contingent Obligation" shall mean, with respect to any
Person, (a) any Guaranty Obligation of that Person; and (b) any direct
or indirect obligation or liability, contingent or otherwise, of that
Person (i) in respect of any Surety Instrument issued for the account
of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments, (ii) as a partner or joint
venturer in any partnership or joint venture, (iii) to purchase any
materials, supplies or other property from, or to obtain the services
of, another Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or
other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is ever
made or tendered, or such services are ever performed or tendered, or
(iv) in respect to any Rate Contract that is not entered into in
connection with a bona fide hedging operation that provides offsetting
benefits to such Person. The amount of any Contingent Obligation shall
(subject, in the case of Guaranty Obligations, to the last sentence of
the definition of "Guaranty Obligation") be deemed equal to the maximum
reasonably anticipated liability in respect thereof, and shall, with
respect to item (b)(iv) of this definition be marked to market on a
current basis.
"Contractual Obligation" of any Person shall mean, any
indenture, note, lease, loan agreement, security, deed of trust,
mortgage, security agreement, guaranty, instrument, contract, agreement
or other form of contractual obligation or undertaking to which such
Person is a party or by which such Person or any of its property is
bound.
"Credit Documents" shall mean and include this Agreement, the
Notes ,the Security Documents and the Agent's Fee Letter; all other
documents, instruments and agreements delivered to Agent or any Lender
pursuant to Section III; and all other documents, instruments and
agreements delivered by either Borrower or any of its Subsidiaries to
Agent or any Lender in connection with this Agreement on or after the
date of this Agreement.
"Credit Event" shall mean the making of any Loan; the
conversion of any Portion of the U.S. Borrowing into a LIBOR Portion;
the selection of a new Interest Period for any LIBOR Portion of the
U.S. Borrowing; or the selection of a new Interest Period exceeding one
(1) month for the Japanese Borrowing.
"Debt/EBITDA Ratio" shall mean, with respect to either
Borrower for any period, the ratio, determined on a consolidated basis
in accordance with GAAP, of:
(a) The total Indebtedness of such Borrower and its
Subsidiaries on the last day of such period (excluding, in the
case of NSJ, Indebtedness of NSJ and its Subsidiaries to NSE
and NSE's other Subsidiaries);
to
(b) The EBITDA of such Borrower and its Subsidiaries
for such period.
"Default" shall mean an Event of Default or any event or
circumstance not yet constituting an Event of Default which, with the
giving of any notice or the lapse of any period of time or both, would
become an Event of Default.
"Defaulting Lender" shall mean a Lender which has failed to
fund its portion of any Borrowing which it is required to fund under
this Agreement and has continued in such failure for three (3) Business
Days after written notice from Agent.
"Dollar Equivalent" shall mean , as to any amount denominated
in Yen as of any date of determination, the equivalent amount in
Dollars as determined by Agent on the basis of the Telegraphic Transfer
Mid Rate quoted by Bank of Tokyo Mitsubishi at or about 10:00 a.m.
(Tokyo time) on such date.
"Dollars" and "$" shall mean the lawful currency of the United
States of America and, in relation to any payment under this Agreement,
same day or immediately available funds.
"Domestic Lending Office" shall mean, with respect to any U.S.
Lender and the U.S. Borrowing, (a) initially, its office designated as
such in Part B of Schedule I (or, in the case of any U.S. Lender which
becomes a U.S. Lender by an assignment pursuant to Subparagraph
8.05(c), its office designated as such in the applicable Assignment
Agreement) and (b) subsequently, such other office or offices as such
U.S. Lender may designate to Agent as the office at which such Lender's
Base Rate Portion will thereafter be maintained and for the account of
which all payments of principal of, and interest on, such Lender's Base
Rate Portion will thereafter be made.
"Domestic Subsidiary" shall mean, at any time, each Subsidiary
of NSE (a) which is created or organized in the United States or under
the law of the United States or any state thereof or any territory
thereof, (b) which was included as a member of NSE's affiliated group
in NSE's most recent consolidated United States federal income tax
return, or (c) the earnings of which were includible in the taxable
income of NSE or any other Domestic Subsidiary (to the extent of NSE's
and/or such other Domestic Subsidiary's ownership interest of such
Subsidiary) in NSE's most recent consolidated United States federal
income tax return.
"EBITDA" shall mean, with respect to either Borrower for any
period, the sum, determined on a consolidated basis in accordance with
GAAP, of the following:
(a) The net income or net loss of such Borrower and
its Subsidiaries for such period before provision for income
taxes;
plus
(b) The sum (to the extent deducted in calculating
net income or loss in clause (a) above) of (i) all Interest
Expenses of such Borrower and its Subsidiaries accruing during
such period and (ii) all depreciation and amortization
expenses of such Borrower and its Subsidiaries accruing during
such period.
"Eligible Assignee" shall mean a commercial bank having a
combined capital and surplus of at least $100,000,000 that is acting
through a branch or agency located in (a) the United States, in the
case of a potential Assignee Lender that is to become a U.S. Lender or
(b) Japan, in the case of a potential Assignee Lender that is to become
a Japanese Lender.
"Employee Benefit Plan" shall mean any employee benefit plan
within the meaning of section 3(3) of ERISA maintained or contributed
to by NSE or any ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean the all Governmental Rules
relating to the protection of human health and the environment,
including all Governmental Rules pertaining to the reporting,
licensing, permitting, transportation, storage, disposal, investigation
or remediation of emissions, discharges, releases, or threatened
releases of Hazardous Materials into the air, surface water,
groundwater, or land, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation or
handling of Hazardous Materials.
"Equity Securities" of any Person shall mean (a) all common
stock, preferred stock, participations, shares, partnership interests
or other equity interests in and of such Person (regardless of how
designated and whether or not voting or non-voting) and (b) all
warrants, options and other rights to acquire any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may from time to time be amended or supplemented,
including any rules or regulations issued in connection therewith.
"ERISA Affiliate" shall mean any Person which is treated as a
single employer with NSE under Section 414 of the IRC.
"Euro-Dollar Lending Office" shall mean, with respect to any
U.S. Lender and the U.S. Borrowing, (a) initially, such Lender's office
designated as such in Part B of Schedule I (or, in the case of any U.S.
Lender which becomes a U.S. Lender by an assignment pursuant to
Subparagraph 8.05(c), its office designated as such in the applicable
Assignment Agreement) and (b) subsequently, such other office or
offices as such Lender may designate to Agent as the office at which
such Lender's LIBOR Portions will thereafter be maintained and for the
account of which all payments of principal of, and interest on, such
Lender's LIBOR Portions will thereafter be made.
"Event of Default" shall have the meaning given to that term
in Paragraph 6.01.
"Extension Request" shall have the meaning given to that term
in Paragraph 2.03.
"Facility" shall mean the U.S. Facility or Japanese Facility.
"Federal Funds Rate" shall mean, for any day, the rate per
annum set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor publication, "H.15 (519)")
for such day opposite the caption "Federal Funds (Effective)". If on
any relevant day, such rate is not yet published in H.15 (519), the
rate for such day shall be the rate set forth in the daily statistical
release designated as the Composite 3:30 p.m. Quotations for U.S.
Government Securities, or any successor publication, published by the
Federal Reserve Bank of New York (including any such successor
publication, the "Composite 3:30 p.m. Quotations") for such day under
the caption "Federal Funds Effective Rate". If on any relevant day,
such rate is not yet published in either H.15 (519) or the Composite
3:30 p.m. Quotations, the rate for such day shall be the arithmetic
means, as determined by Agent, of the rates quoted to Agent for such
day by three (3) Federal funds brokers of recognized standing selected
by Agent for overnight federal funds transactions.
"Federal Reserve Board" shall mean the Board of Governors of
the Federal Reserve System.
"Financial Statements" shall mean, with respect to any
accounting period for any Person, statements of income, shareholders'
equity and cash flows of such Person for such period, and a balance
sheet of such Person as of the end of such period, setting forth in
each case in comparative form figures for the corresponding period in
the preceding fiscal year if such period is less than a full fiscal
year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail and
in accordance with GAAP.
"Fixed Charge Coverage Ratio" shall mean, with respect to
either Borrower for any period, the ratio, determined on a consolidated
basis in accordance with GAAP, of:
(a) EBITDA of such Borrower and its Subsidiaries for
such period;
to
(b) The sum of (i) all Interest Expenses of such
Borrower and its Subsidiaries for such period, plus (ii) the
current portion of the long-term Indebtedness of such Borrower
and its Subsidiaries for such period (excluding, in the case
of NSJ, long-term Indebtedness of NSJ and its Subsidiaries to
NSE and NSE's other Subsidiaries), plus, in the case of NSE
and its Subsidiaries only, (iii) all dividends paid by NSE and
its Subsidiaries (other than dividends paid to NSE) during
such period and (iv) the amount of the NSI Contingent Payments
paid by NSE during such period.
"Foreign Plan" shall mean any employee benefit plan maintained
by NSE, NSJ or any of their Subsidiaries which is mandated or governed
by any Governmental Rule of any Governmental Authority other than the
United States.
"Foreign Subsidiary" shall mean each Subsidiary of NSE which
is not a Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to
time, consistently applied.
"Governmental Authority" shall mean any domestic or foreign
national, state or local government, any political subdivision thereof,
any department, agency, authority or bureau of any of the foregoing, or
any other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including, without limitation, the Federal Deposit Insurance
Corporation, the Federal Reserve Board, the Comptroller of the
Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean, with respect to any Person,
all levies, assessments, fees, claims or other charges imposed by any
Governmental Authority upon such Person or any of its property or
otherwise payable by such Person.
"Governmental Rule" shall mean any law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive,
guidelines, policy or similar form of decision of any Governmental
Authority.
"Guaranty" shall mean the Subsidiary Guaranty or NSE Guaranty.
"Guaranty Obligation" shall mean, with respect to any Person,
any direct or indirect liability of that Person with respect to any
indebtedness, lease, dividend, letter of credit or other obligation
(the "primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person, whether or not contingent, (a)
to purchase, repurchase or otherwise acquire such primary obligations
or any property constituting direct or indirect security therefor, or
(b) to advance or provide funds (i) for the payment or discharge of any
such primary obligation, or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial
condition of the primary obligor, or (c) to purchase property,
securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to
make payment of such primary obligation, or (d) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof. The amount of any Guaranty Obligation shall be deemed
equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or
if indeterminable, the maximum reasonably anticipated liability in
respect thereof.
"Hazardous Materials" shall mean all pollutants, contaminants
and other materials, substances and wastes which are hazardous, toxic,
caustic, harmful or dangerous to human health or the environment,
including petroleum and petroleum and petroleum products and
byproducts, radioactive materials, asbestos and polychlorinated
biphenyls.
"Indebtedness" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments and all
other obligations of such Person for borrowed money (including
obligations to repurchase receivables and other assets sold
with recourse);
(b) All obligations of such Person for the deferred
purchase price of property or services (including obligations
under letters of credit and other credit facilities which
secure or finance such purchase price, obligations under
"synthetic" leases and, in the case of NSE, the obligation of
NSE to make the NSI Contingent Payments);
(c) All obligations of such Person under conditional
sale or other title retention agreements with respect to
property acquired by such Person (to the extent of the value
of such property if the rights and remedies of the seller or
lender under such agreement in the event of default are
limited solely to repossession or sale of such property);
(d) All obligations of such Person as lessee under or
with respect to Capital Leases;
(e) All obligations of such Person, contingent or
otherwise, under or with respect to Surety Instruments;
(f) All obligations of such Person, contingent or
otherwise, under or with respect to Rate Contracts;
(g) All Guaranty Obligations of such Person with
respect to the obligations of other Persons of the types
described in clauses (a) - (f) above and all other Contingent
Obligations of such Person; and
(h) All obligations of other Persons of the types
described in clauses (a) - (f) above to the extent secured by
(or for which any holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien in
any property (including accounts and contract rights) of such
Person, even though such Person has not assumed or become
liable for the payment of such obligations.
"Initial Closing Date" shall mean the earlier of the U.S.
Closing Date and the Japanese Closing Date. (If the U.S. Closing Date
and the Japanese Closing Date are the same date, the Initial Closing
Date and the Second Closing Date shall be the same date.)
"Interest Expenses" shall mean, with respect to any Person for
any period, the sum, determined on a consolidated basis in accordance
with GAAP, of (a) all interest paid, accrued or scheduled for payment
on the Indebtedness of such Person during such period (including
interest attributable to Capital Leases) plus (b) all fees in respect
of outstanding letters of credit paid, accrued or scheduled for payment
by such Person during such period.
"Interest Period" shall mean:
(a) With respect to any LIBOR Portion, the time
period selected by NSE pursuant to Subparagraph 2.01(b) or
Subparagraph 2.01(d) which commences on the U.S. Closing Date
or the effective date of any conversion and ends on the last
day of such time period, and thereafter, each subsequent time
period selected by NSE pursuant to Subparagraph 2.01(e) which
commences on the last day of the immediately preceding time
period and ends on the last day of that time period; and
(b) With respect to the Japanese Borrowing, the time
period selected by NSJ pursuant to Subparagraph 2.02(b) which
commences on the Japanese Closing Date and ends on the last
day of such time period, and thereafter, each subsequent time
period selected by NSJ pursuant to Subparagraph 2.02(d) which
commences on the last day of the immediately preceding time
period and ends on the last day of that time period.
"Investment" of any Person shall mean any loan or advance of
funds by such Person to any other Person (other than advances to
employees of such Person for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business),
any purchase or other acquisition of any Equity Securities or
Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person
(including any Guaranty Obligations of such Person and any indebtedness
of such Person of the type described in clause (h) of the definition of
"Indebtedness" on behalf of any other Person); provided, however, that
Investments shall not include (a) accounts receivable or other
indebtedness owed by customers of such Person which are current assets
and arose from sales of inventory in the ordinary course of such
Person's business or (b) prepaid expenses of such Person incurred and
prepaid in the ordinary course of business.
"IRC" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"Japanese Borrowing" shall mean the borrowing consisting of
the Japanese Loans made by the Japanese Lenders on the Japanese Closing
Date. Any reference to the Japanese Borrowing shall include the
Japanese Loans.
"Japanese Closing Date" shall mean the date designated by NSJ
in the Notice of Japanese Borrowing as the date on which the Japanese
Borrowing is to occur.
"Japanese Commitment" shall mean, with respect to each Lender,
the Yen Equivalent on the day four (4) Business Days prior to the
Japanese Closing Date of the Dollar amount set forth under the caption
"Japanese Commitment" opposite such Lender's name on Part A of Schedule
I, or, if changed, such Dollar amount as may be set forth for such
Lender in the Register.
"Japanese Commitment Fees" shall have the meaning given to
that term in Subparagraph 2.04(b).
"Japanese Facility" shall mean the Japanese Yen facility
provided to NSJ pursuant to Paragraph 2.02.
"Japanese Lender" shall mean (a) prior to the Japanese Closing
Date, a Lender having a Japanese Commitment and (b) thereafter, a
Lender having a Japanese Loan.
"Japanese Lending Office" shall mean, with respect to any
Japanese Lender and the Japanese Borrowing, (a) initially, such
Lender's office designated as such in Part B of Schedule I (or, in the
case of any Japanese Lender which becomes a Japanese Lender by an
assignment pursuant to Subparagraph 8.05(c), its office designated as
such in the applicable Assignment Agreement) and (b) subsequently, such
other office or offices as such Lender may designate to Agent as the
office at which such Lender's Japanese Loan will thereafter be
maintained and for the account of which all payments of principal of,
and interest on, such Lender's Japanese Loan will thereafter be made.
"Japanese Loan" shall have the meaning given to that term in
Subparagraph 2.02(a).
"Lenders" shall have the meaning given to that term in clause
(3) of the introductory paragraph hereof.
"Leverage Ratio" shall mean, with respect to either Borrower
at any time, the ratio, determined on a consolidated basis in
accordance with GAAP, of:
(a) The total Indebtedness of such Borrower and its
Subsidiaries at such time (excluding, in the case of NSJ,
Indebtedness of NSJ and its Subsidiaries to NSE and NSE's
other Subsidiaries);
to
(b) The total Capital of such Borrower and its
Subsidiaries at such time.
"LIBO Rate" shall mean, with respect to any Interest Period
for any LIBOR Portion of the U.S. Borrowing, a rate per annum equal to
the quotient (rounded upward if necessary to the nearest 1/100 of one
percent) of (a) the arithmetic mean (rounded upward if necessary to the
nearest 1/16 of one percent) of the rates per annum appearing on
Telerate Page 3750 (or any successor publication) on the second
Business Day prior to the first day of such Interest Period at or about
11:00 A.M. (London time) (for delivery on the first day of such
Interest Period) for a term comparable to such Interest Period, divided
by (b) one minus the Reserve Requirement for such Portion in effect
from time to time. If for any reason rates are not available as
provided in clause (a) of the preceding sentence, the rate to be used
in clause (a) shall be, at the Agent's discretion, (i) the rate per
annum at which Dollar deposits are offered to Agent in the London
interbank market or (ii) the rate at which Dollar deposits are offered
to Agent in, or by Agent to major banks in, any offshore interbank
market selected by Agent, in each case on the second Business Day prior
to the commencement of such Interest Period at or about 10:00 A.M. (New
York time) (for delivery on the first day of such Interest Period) for
a term comparable to such Interest Period and in an amount
approximately equal to the amount of the Portion to be made or funded
by Agent as part of the U.S. Borrowing. The LIBO Rate shall be adjusted
automatically as to all LIBOR Portions of the U.S. Borrowing then
outstanding as of the effective date of any change in the Reserve
Requirement.
"LIBOR Portion" shall mean, at any time, a Portion of the U.S.
Borrowing or a U.S. Loan, as the case may be, which then bears interest
at a rate specified in clause (ii) of Subparagraph 2.01(c).
"Lien" shall mean, with respect to any property, any security
interest, mortgage, pledge, lien, charge or other encumbrance in, of,
or on such property or the income therefrom, including, without
limitation, the interest of a vendor or lessor under a conditional sale
agreement, Capital Lease or other title retention agreement, or any
agreement to provide any of the foregoing, and the filing of any
financing statement or similar instrument under the Uniform Commercial
Code or comparable law of any jurisdiction.
"Loan" shall mean a U.S. Loan or Japanese Loan.
"Loan Account" shall have the meaning given to that term in
Subparagraph 2.07(a).
"Margin Stock" shall have the meaning given to that term in
Regulation U issued by the Federal Reserve Board, as amended from time
to time, and any successor regulation thereto.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, assets, operations or financial or other condition
of either Borrower and its Subsidiaries, taken as a whole; (b) the
ability of either Borrower to pay or perform the Obligations in
accordance with the terms of this Agreement and the other Credit
Documents; (c) the rights and remedies of Agent or any Lender under
this Agreement, the other Credit Documents or any related document,
instrument or agreement; or (d) the value of the Collateral, Agent's or
any Lender's security interest in the Collateral or the perfection or
priority of such security interests.
"Material Domestic Subsidiary" shall mean each Domestic
Subsidiary of NSE that also is a Material Subsidiary.
"Material Foreign Subsidiary" shall mean each Foreign
Subsidiary of NSE that also is a Material Subsidiary.
"Material Subsidiaries" shall mean, at any time, (a) NSJ; NSI;
Nu Skin Hong Kong, Inc., a Utah corporation; Nu Skin Taiwan, Inc., a
Utah corporation; and Nu Skin Korea, Inc., a South Korean corporation;
and (b) each other Subsidiary of NSE which had revenues during the
immediately preceding fiscal year equal to or greater than three
percent (3.0%) of the consolidated total revenues of NSE and all of its
Subsidiaries during such year.
"maturity" shall mean, with respect to any Loan, interest, fee
or other amount payable by either Borrower under this Agreement or the
other Credit Documents, the date such Loan, interest, fee or other
amount becomes due, whether upon the stated maturity or due date, upon
acceleration or otherwise.
"Maturity Date" shall mean March 31, 2001 (or, if extended
pursuant to Paragraph 2.03, the date to which so extended).
"Multiemployer Plan" shall mean any multiemployer plan within
the meaning of section 3(37) of ERISA maintained or contributed to by
NSE or any ERISA Affiliate.
"Net Proceeds" shall mean, with respect to any sale or
issuance of any Equity Security by any Person, the aggregate
consideration received by such Person from such sale or issuance less
the sum of the actual amount of the reasonable fees and commissions
payable to Persons other than such Person or any Affiliate of such
Person, the reasonable legal expenses and the other reasonable costs
and expenses directly related to such sale or issuance that are to be
paid by such Person.
"Note" shall have the meaning given to that term in
Subparagraph 2.07(b).
"Notice of Borrowing" shall mean the Notice of U.S. Borrowing
or Notice of Japanese Borrowing.
"Notice of Interest Period Selection" shall mean a Notice of
U.S. Borrowing Interest Period Selection or Japanese Borrowing Interest
Period Selection
"Notice of Japanese Borrowing" shall have the meaning given to
that term in Subparagraph 2.02(b).
"Notice of Japanese Borrowing Interest Period Selection" shall
have the meaning given to that term in Subparagraph 2.02(d).
"Notice of U.S. Borrowing" shall have the meaning given to
that term in Subparagraph 2.01(b).
"Notice of U.S. Borrowing Conversion" shall have the meaning
given to that term in Subparagraph 2.01(d).
"Notice of U.S. Borrowing Interest Period Selection" shall
have the meaning given to that term in Subparagraph 2.01(e).
"NSE" shall have the meaning given to that term in clause (1)
of the introductory paragraph hereof.
"NSE Guaranty" shall have the meaning given to that term in
Subparagraph 2.13(a).
"NSI" shall mean Nu Skin International, Inc., a Utah
corporation.
"NSI Acquisition" shall mean the acquisition by NSE of all of
the issued and outstanding common stock of the Acquired Entities
pursuant to the NSI Acquisition Agreement.
"NSI Acquisition Agreement" shall mean the Stock Acquisition
Agreement dated as of February 27, 1998 among NSE and the stockholders
of the Acquired Entities.
"NSI Acquisition Documents" shall mean the NSI Acquisition
Agreement; the Contribution and Distribution Agreement dated as of
December 31, 1997 between NSI and NSUSA; the Tax Sharing and
Indemnification Agreement dated as of December 31, 1997 among NSI,
NSUSA and the shareholders of NSI and NSUSA; the Assumption of
Liabilities and Indemnification Agreement dated as of December 31, 1997
between NSI and NSUSA; and all other documents, instruments and
agreements delivered to or by NSI in connection with the NSI
Acquisition.
"NSI Contingent Payments" shall mean the portion of the
consideration for the NSI Acquisition payable by NSE to the
stockholders of the Acquired Entities pursuant to Section 2.04 of the
NSI Acquisition Agreement that is contingent upon certain performance
tests for NSE and NSI.
"NSJ" shall have the meaning given to that term in clause (2)
of the introductory paragraph hereof.
"NSUSA" shall mean Nu Skin USA, Inc., a Delaware corporation.
"Obligations" shall mean and include all loans, advances,
debts, liabilities, and obligations, howsoever arising, owed by either
Borrower individually or both Borrowers jointly and severally to Agent
or any Lender of every kind and description (whether or not evidenced
by any note or instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of this Agreement
or any of the other Credit Documents, including all interest, fees,
charges, expenses, attorneys' fees and accountants' fees chargeable to
Borrowers or payable by Borrowers thereunder.
"Original Dollar Equivalent" shall mean, as to the Japanese
Borrowing, any Japanese Loan or any principal portion thereof, the
Dollar Equivalent on the Japanese Closing Date of the Yen amount of
such Borrowing, Loan or portion.
"Overnight Rate" shall mean, for any amount payable in Yen on
any day, the per annum interest rate at which overnight deposits in Yen
in an amount approximately equal to such amount would be offered for
such day by ABN AMRO's Japanese Lending Office to major banks in the
Tokyo interbank market.
"Participant" shall have the meaning given to that term in
Subparagraph 8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Permitted Indebtedness" shall have the meaning given to that
term in Subparagraph 5.02(a).
"Permitted Liens" shall have the meaning given to that term in
Subparagraph 5.02(b).
"Person" shall mean and include an individual, a partnership,
a corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint
venture, a trust or other entity or a Governmental Authority.
"Pledge Agreement" shall have the meaning given to that term
in Subparagraph 2.13(a).
"Portion" shall mean a portion of the principal amount of a
Borrowing or a Loan. Each Borrowing shall consist of one or more
Portions, and each Loan comprising such Borrowing shall consist of the
same number of Portions, with each such Loan Portion corresponding pro
rata to a Borrowing Portion. Any reference to a Portion of either
Borrowing shall include the corresponding Portion of each Loan
comprising such Borrowing.
"Pricing Grid" shall mean Schedule II.
"Pricing Period" shall mean (a) the period commencing on the
date of this Agreement and ending on September 30, 1998 and (b) each
consecutive calendar quarter thereafter which commences on the day
following the last day of the immediately preceding calendar quarter
and ends on the last day of that calendar quarter.
"Prime Rate" shall mean the per annum rate publicly announced
by ABN AMRO from time to time at its Chicago office. The Prime Rate is
determined by ABN AMRO from time to time as a means of pricing credit
extensions to some customers and is neither directly tied to any
external rate of interest or index nor necessarily the lowest rate of
interest charged by ABN AMRO at any given time for any particular class
of customers or credit extensions. Any change in the Base Rate
resulting from a change in the Prime Rate shall become effective on the
Business Day on which each change in the Prime Rate occurs.
"Proportionate Share" shall mean:
(a) With respect to any U.S. Lender and the U.S.
Borrowing at any time, the ratio (expressed as a percentage
rounded to the eighth digit to the right of the decimal point)
of (i) such Lender's U.S. Commitment to the Total U.S.
Commitment at any time on or prior to the U.S. Closing Date or
(ii) the principal amount of such Lender's U.S. Loan to the
aggregate principal amount of the U.S. Borrowing at any time
after the U.S. Closing Date;
(b) With respect to any Japanese Lender and Japanese
Borrowing at any time, the ratio (expressed as a percentage
rounded to the eighth digit to the right of the decimal point)
of (i) such Lender's Japanese Commitment to the Total Japanese
Commitment at any time on or prior to the Japanese Closing
Date or (ii) the principal amount of such Lender's Japanese
Loan to the aggregate principal amount of the Japanese
Borrowing at any time after the Japanese Closing Date; and
(c) With respect to any Lender at any time without
reference to a particular Borrowing, the ratio (expressed as a
percentage rounded to the eighth digit to the right of the
decimal point) of (i) the sum of such Lender's U.S. Commitment
and the Dollar Equivalent of such Lender's Japanese Commitment
to the sum of the Total U.S. Commitment and the Dollar
Equivalent of the Total Japanese Commitment at any time on or
prior to the Initial Closing Date, (ii) the weighted average
of the sums determined for such Lender pursuant to clauses (a)
and (b) above during the period between the Initial Closing
Date and the Second Closing Date or (iii) the sum of the
principal amount of such Lender's U.S. Loan and the Original
Dollar Equivalent of the principal amount of such Lender's
Japanese Loan to the sum of the aggregate principal amount of
the U.S. Borrowing and the Original Dollar Equivalent of the
aggregate principal amount of the Japanese Borrowing at any
time after the Second Closing Date.
"Rate Contracts" shall mean swap agreements (as that term is
defined in Section 101 of the Federal Bankruptcy Reform Act of 1978, as
amended) and any other agreements or arrangements designed to provide
protection against fluctuations in interest or currency exchange rates.
"Register" shall have the meaning given to that term in
Subparagraph 8.05(d).
"Reportable Event" shall have the meaning given to that term
in ERISA and applicable regulations thereunder.
"Required Lenders" shall mean, at any time, Lenders whose
Proportionate Shares equal or exceed fifty-one percent (51%).
"Requirement of Law" applicable to any Person shall mean (a)
the Articles or Certificate of Incorporation and By-laws, Partnership
Agreement or other organizational or governing documents of such
Person, (b) any Governmental Rule applicable to such Person, (c) any
license, permit, approval or other authorization granted by any
Governmental Authority to or for the benefit of such Person or (d) any
judgment, decision or determination of any Governmental Authority or
arbitrator, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Reserve Requirement" shall mean (a) with respect to any day
in an Interest Period for a LIBOR Portion of the U.S. Borrowing, the
aggregate of the reserve requirement rates (expressed as a decimal) in
effect on such day for eurodollar funding (currently referred to as
"Eurocurrency liabilities" in Regulation D of the Federal Reserve
Board) maintained by a member bank of the Federal Reserve System or (b)
with respect to any day in an Interest Period for any Portion of the
Japanese Borrowing, the aggregate of the reserve requirement rates, if
any (expressed as a decimal), in effect on such day for Yen funding in
Tokyo maintained by commercial banks in Tokyo. As used herein, the term
"reserve requirement" shall include, without limitation, any basic,
supplemental or emergency reserve requirements imposed on any Lender by
any Governmental Authority.
"Scheduled Payment Date" shall mean March 31, 1999, March 31,
2000 and the Maturity Date (or, if the Maturity Date is extended
pursuant to Paragraph 2.03, March 31, 1999, March 31, 2000, March 31,
2001, March 31, 2002 and the Maturity Date, as so extended).
"Second Closing Date" shall mean the later of the U.S. Closing
Date and the Japanese Closing Date. (If the U.S. Closing Date and the
Japanese Closing Date are the same date, the Initial Closing Date and
the Second Closing Date shall be the same date.)
"Security Documents" shall mean and include the Pledge
Agreement, the Guaranties and all other instruments, agreements,
certificates, opinions and documents (including Uniform Commercial Code
financing statements and fixture filings and landlord waivers)
delivered to Agent or any Lender in connection with any Collateral or
to secure the Obligations.
"Solvent" shall mean, with respect to any Person on any date,
that on such date (a) the fair value of the property of such Person is
greater than the fair value of the liabilities (including contingent,
subordinated, matured and unliquidated liabilities) of such Person, (b)
the present fair saleable value of the assets of such Person is greater
than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person's ability to pay as such debts
and liabilities mature and (d) such Person is not engaged or about to
engage in business or transactions for which such Person's property
would constitute an unreasonably small capital.
"Subsidiary" of any Person shall mean (a) any corporation of
which more than 50% of the issued and outstanding Equity Securities
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint
venture, limited liability company or other association of which more
than 50% of the equity interest having the power to vote, direct or
control the management of such partnership, joint venture or other
association is at the time owned and controlled by such Person, by such
Person and one or more of the other Subsidiaries or by one or more of
such Person's other Subsidiaries or (c) any other Person included in
the Financial Statements of such Person on a consolidated basis. (All
references in this Agreement and the other Credit Documents to
Subsidiaries of NSE shall, unless otherwise indicated, include NSJ and
its Subsidiaries.)
"Subsidiary Guaranty" shall have the meaning given to that
term in Subparagraph 2.13(a).
"Surety Instruments" shall mean all letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, shipside bonds, surety bonds and similar instruments.
"Tangible Net Worth" shall mean, with respect to NSE or NSJ at
any time, the remainder at such time, determined on a consolidated
basis in accordance with GAAP, of (a) the total assets of such Borrower
and its Subsidiaries at such time, minus (b) the sum (without
limitation and without duplication of deductions) of (i) the total
liabilities of such Borrower and its Subsidiaries at such time, (ii)
all reserves of such Borrower and its Subsidiaries at such time for
anticipated losses and expenses (to the extent not deducted in
calculating total assets in clause (a) above) and (iii) all intangible
assets of such Borrower and its Subsidiaries at such time (to the
extent included in calculating total assets in clause (a) above),
including goodwill (including any amounts, however designated on the
balance sheet, representing the cost of acquisition of businesses and
investments in excess of underlying tangible assets), trademarks,
trademark rights, trade name rights, copyrights, patents, patent
rights, licenses, unamortized debt discount, marketing expenses,
organizational expenses, non-compete agreements and deferred research
and development.
"Taxes" shall have the meaning given to such term in
Subparagraph 2.11(a).
"TIBO Rate" shall mean, with respect to any Interest Period
for any Portion of the Japanese Borrowing, a rate per annum equal to
the quotient (rounded upward if necessary to the nearest 1/100 of one
percent) of (a) the rate per annum appearing on the Xxxxxx Screen TIBM
Page (All Banks Average) (or any successor publication) on the second
Business Day prior to the first day of such Interest Period at or about
11:00 A.M. (Tokyo time) (for delivery on the first day of such Interest
Period) in an amount substantially equal to the corresponding Portion
of Agent's Japanese Loan and for a term comparable to such Interest
Period, divided by (b) one minus the Reserve Requirement for such
Portion in effect from time to time. If for any reason rates are not
available as provided in clause (a) of the preceding sentence, the rate
to be used in clause (a) shall be, at the Agent's discretion, (i) the
rate per annum at which Yen deposits are offered to Agent in the Tokyo
interbank market or (ii) the rate at which Yen deposits are offered to
Agent in, or by Agent to major banks in, any offshore interbank market
selected by Agent, in each case on the second Business Day prior to the
commencement of such Interest Period at or about 11:00 A.M. (Tokyo
time) (for delivery on the first day of such Interest Period) for a
term comparable to such Interest Period and in an amount approximately
equal to the amount of the Portion to be made or funded by Agent as
part of the Japanese Borrowing. The TIBO Rate shall be adjusted
automatically as to all Portions of the Japanese Borrowing then
outstanding as of the effective date of any change in the Reserve
Requirement.
"Total Commitment" shall mean One-Hundred Eighty Million
Dollars ($180,000,000).
"Total Japanese Commitment" shall mean the Yen Equivalent on
the day four (4) Business Days prior to the Japanese Closing Date of
Seventy Million Dollars ($70,000,000).
"Total U.S. Commitment" shall mean One-Hundred Ten Million
Dollars ($110,000,000).
"Type" shall mean, with respect to any Loan, Borrowing or
Portion at any time, the classification of such Loan, Borrowing or
Portion by the type of interest rate it then bears, whether an interest
rate based upon the Base Rate, the LIBO Rate or the TIBO Rate.
"U.S. Borrowing" shall mean the borrowing consisting of the
U.S. Loans made by the U.S. Lenders on the U.S. Closing Date. Any
reference to the U.S. Borrowing shall include the U.S. Loans.
"U.S. Closing Date" shall mean the date designated by NSE in
the Notice of U.S. Borrowing as the date on which the U.S. Borrowing is
to occur.
"U.S. Commitment" shall mean, with respect to each Lender, the
Dollar amount set forth under the caption "U.S. Commitment" opposite
such Lender's name on Part A of Schedule I, or, if changed, such Dollar
amount as may be set forth for such Lender in the Register.
"U.S. Commitment Fees" shall have the meaning given to that
term in Subparagraph 2.04(b).
"U.S. Facility" shall mean the U.S. Dollar facility provided
to NSE pursuant to Paragraph 2.01.
"U.S. Lender" shall mean (a) prior to the U.S. Closing Date, a
Lender having a U.S. Commitment and (b) thereafter, a Lender having a
U.S. Loan.
"U.S. Loan" shall have the meaning given to that term in
Subparagraph 2.01(a).
"Yen" and "(Y)" shall mean the lawful currency of Japan and,
in relation to any payment under this Agreement, same day or
immediately available funds.
"Yen Equivalent" shall mean, as to any amount denominated in
Dollars as of any date of determination, the equivalent amount in Yen
as determined by Agent on the basis of the Telegraphic Transfer Mid
Rate quoted by Bank of Tokyo Mitsubishi at or about 10:00 a.m. (Tokyo
time) on such date.
1.02. . Unless otherwise indicated in this Agreement or any other Credit
Document, all accounting terms used in this Agreement or any other Credit
Document shall be construed, and all accounting and financial computations
hereunder or thereunder shall be computed, in accordance with GAAP. If GAAP
changes during the term of this Agreement such that any covenants contained
herein would then be calculated in a different manner or with different
components, Borrowers, Lenders and Agent agree to negotiate in good faith to
amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP;
provided, however, that, until Borrowers, Lenders and Agent so amend this
Agreement, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
1.03. Headings. Headings in this Agreement and each of the other Credit
Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
1.04. Plural Terms. All terms defined in this Agreement or any other Credit
Document in the singular form shall have comparable meanings when used in the
plural form and vice versa.
1.05. Governing Law. Unless otherwise expressly provided in any Credit Document,
this Agreement and each of the other Credit Documents shall be governed by and
construed in accordance with the laws of the State of California without
reference to conflicts of law rules.
1.06. . This Agreement and the other Credit Documents are executed and shall be
construed in the English language. All instruments, agreements, certificates,
opinions and other documents to be furnished or communications to be given or
made under this Agreement or any other Credit Document shall be in the English
language, except that NSJ may deliver the Japanese language version of (a) any
NSJ corporate document initially prepared in the ordinary course of its business
in the Japanese language or (b) any certificate or other document prepared by a
Japanese Governmental Authority in the Japanese language, provided that, in each
such case, the Japanese language version of such document is delivered along
with an English language translation thereof which shall be binding upon
Borrowers.
1.07. Construction. This Agreement is the result of negotiations among, and has
been reviewed by, Borrowers, each Lender, Agent and their respective counsel.
Accordingly, this Agreement shall be deemed to be the product of all parties
hereto, and no ambiguity shall be construed in favor of or against either
Borrower, any Lender or Agent.
1.08. Entire Agreement. This Agreement and each of the other Credit Documents,
taken together, constitute and contain the entire agreement of Borrowers,
Lenders and Agent and supersede any and all prior agreements, negotiations,
correspondence, understandings and communications among the parties, whether
written or oral, respecting the subject matter hereof (excluding the Agent's Fee
Letter but including the commitment letter dated as of March 13, 1998 among
Borrowers and ABN AMRO).
1.09. Calculation of Interest and Fees. All calculations of interest and fees
under this Agreement and the other Credit Documents for any period (a) shall
include the first day of such period and exclude the last day of such period and
(b) shall be calculated on the basis of a year of 360 days for actual days
elapsed, except that during any period any Loan or Portion bears interest based
upon the Prime Rate, such interest shall be calculated on the basis of a year of
365 or 366 days, as appropriate, for actual days elapsed.
1.10. References.
(a) References in this Agreement to "Recitals," "Sections,"
"Paragraphs," "Subparagraphs," "Exhibits" and "Schedules" are to
recitals, sections, paragraphs, subparagraphs, exhibits and schedules
therein and thereto unless otherwise indicated.
(b) References in this Agreement or any other Credit Document
to any document, instrument or agreement (i) shall include all
exhibits, schedules and other attachments thereto, (ii) shall include
all documents, instruments or agreements issued or executed in
replacement thereof if such replacement is permitted hereby, and (iii)
shall mean such document, instrument or agreement, or replacement or
predecessor thereto, as amended, modified and supplemented from time to
time and in effect at any given time if such amendment, modification or
supplement is permitted hereby.
(c) References in this Agreement or any other Credit Document
to any Governmental Rule (i) shall include any successor Governmental
Rule, (ii) shall include all rules and regulations promulgated under
such Governmental Rule (or any successor Governmental Rule), and (iii)
shall mean such Governmental Rule (or successor Governmental Rule) and
such rules and regulations, as amended, modified, codified or reenacted
from time to time and in effect at any given time.
(d) References in this Agreement or any other Credit Document
to any Person in a particular capacity (i) shall include any permitted
successors to and assigns of such Person in that capacity and (ii)
shall exclude such Person individually or in any other capacity.
1.11. Other Interpretive Provisions. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement or any other
Credit Document shall refer to this Agreement or such other Credit Document, as
the case may be, as a whole and not to any particular provision of this
Agreement or such other Credit Document, as the case may be. The words "include"
and "including" and words of similar import when used in this Agreement or any
other Credit Document shall not be construed to be limiting or exclusive. In the
event of any inconsistency between the terms of this Agreement and the terms of
any other Credit Document, the terms of this Agreement shall govern.
SECTION II. CREDIT FACILITIES.
2.01. U.S. Facility.
(a) Availability. Subject to the terms and conditions of this
Agreement, each U.S. Lender severally agrees to advance to NSE in a
single advance on or prior to the Commitment Termination Date a term
loan in Dollars under this Paragraph 2.01 (individually, a "U.S.
Loan"); provided, however, that:
(i) The principal amount of the U.S. Loan made by
each U.S. Lender shall not exceed its U.S. Commitment on such
date; and
(ii) The aggregate principal amount of the U.S.
Borrowing shall not exceed the Total U.S. Commitment.
The U.S. Loans shall be made on a pro rata basis by U.S. Lenders in
accordance with their respective U.S. Commitments. NSE may not reborrow
the principal amount of a U.S. Loan after repayment or prepayment
thereof.
(b) Notice of Borrowing. NSE shall request the U.S. Borrowing
by delivering to Agent an irrevocable written notice in the form of
Exhibit A, appropriately completed (a "Notice of U.S. Borrowing"),
which specifies, among other things:
(i) The principal amount of the U.S. Borrowing, which
shall be in the minimum amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof;
(ii) (A) The Portion of the U.S. Borrowing which is
to be a Base Rate Portion and (B) the Portion(s) of the U.S.
Borrowing which is (are) to be a LIBOR Portion(s);
(iii) If any Portion of the U.S. Borrowing is
initially to be a LIBOR Portion, the initial Interest Period
selected by NSE for each such Portion in accordance with
Subparagraph 2.02(e); and
(iv) The U.S. Closing Date, which shall be a Business
Day not later than the Commitment Termination Date;
NSE shall give the Notice of U.S. Borrowing to Agent at least three (3)
Business Days before the U.S. Closing Date if any Portion of the U.S.
Borrowing is initially to be a LIBOR Portion and at least one (1)
Business Day before the U.S. Closing Date if the only Portion of the
U.S. Borrowing is initially to be a Base Rate Portion. The Notice of
U.S. Borrowing shall be delivered by first-class mail or facsimile to
Agent at the office or facsimile number and during the hours specified
in Paragraph 8.01; provided, however, that NSE shall promptly deliver
to Agent the original of the Notice of U.S. Borrowing if initially
delivered by facsimile. Agent shall promptly notify each U.S. Lender of
the contents of the Notice of U.S. Borrowing.
(c) Interest Rates. NSE shall pay interest on the unpaid
principal amount of each U.S. Loan from the date of such U.S. Loan
until the maturity thereof, at the following rates per annum:
(i) During such periods as any Portion of such U.S.
Loan is a Base Rate Portion, at a rate per annum on such
Portion equal to the Base Rate plus the Applicable Margin
therefor, such rate to change from time to time as the
Applicable Margin or Base Rate shall change; and
(ii) During such periods as any Portion of such U.S.
Loan is a LIBOR Portion, at a rate per annum on such Portion
equal at all times during each Interest Period for such
Portion to the LIBO Rate for such Interest Period plus the
Applicable Margin therefor, such rate to change from time to
time as the Applicable Margin shall change.
Each Base Rate Portion of the U.S. Borrowing shall be in a minimum
amount of $5,000,000 or an integral multiple of $500,000 in excess
thereof and each LIBOR Portion of the U.S. Borrowing shall be in a
minimum amount of $10,000,000 or an integral multiple of $1,000,000 in
excess thereof. The number of LIBOR Portions in the U.S. Borrowing
shall not exceed four (4) at any time.
(d) Conversion of Portions. NSE may convert any Portion of the
U.S. Borrowing from one Type of Portion to another Type; provided,
however, that any conversion of a LIBOR Portion into a Base Rate
Portion shall be made on, and only on, the last day of an Interest
Period for such LIBOR Portion. NSE shall request such a conversion by
an irrevocable written notice to Agent in the form of Exhibit B,
appropriately completed (a "Notice of U.S. Borrowing Conversion"),
which specifies, among other things:
(i) The Portion of the U.S. Borrowing which is to be
converted;
(ii) The amount and Type of each Portion of the U.S.
Borrowing into which it is to be converted;
(iii) If any Portion of the U.S. Borrowing is to be
converted into a LIBOR Portion, the initial Interest Period
selected by NSE for such Portion in accordance with
Subparagraph 2.01(e); and
(iv) The date of the requested conversion, which
shall be a Business Day.
NSE shall give each Notice of U.S. Borrowing Conversion to Agent at
least three (3) Business Days before the date of the requested
conversion. Each Notice of U.S. Borrowing Conversion shall be delivered
by first-class mail or facsimile to Agent at the office or to the
facsimile number and during the hours specified in Paragraph 8.01;
provided, however, that NSE shall promptly deliver to Agent the
original of any Notice of U.S. Borrowing Conversion initially delivered
by facsimile. Agent shall promptly notify each U.S. Lender of the
contents of each Notice of U.S. Borrowing Conversion.
(e) LIBOR Portion Interest Periods.
(i) The initial and each subsequent Interest Period
selected by NSE for a LIBOR Portion of the U.S. Borrowing
shall be one (1), two (2), three (3) or six (6) months;
provided, however, that (A) any Interest Period which would
otherwise end on a day which is not a Business Day shall be
extended to the next succeeding Business Day unless such next
Business Day falls in another calendar month, in which case
such Interest Period shall end on the immediately preceding
Business Day; (B) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; (C) no Interest Period shall
end after a Scheduled Payment Date unless, after giving effect
to such Interest Period, the aggregate principal amount of the
Base Rate Portion and all LIBOR Portions having Interest
Periods ending on or prior to such Scheduled Payment Date
equals or exceeds the principal payment due on such Scheduled
Payment Date; and (D) no Interest Period shall end after the
Maturity Date.
(ii) NSE shall notify Agent by an irrevocable written
notice in the form of Exhibit C, appropriately completed (a
"Notice of U.S. Borrowing Interest Period Selection"), at
least three (3) Business Days prior to the last day of each
Interest Period for each LIBOR Portion of the U.S. Borrowing
of the Interest Period selected by NSE for the next succeeding
Interest Period for such Portion. Each Notice of U.S.
Borrowing Interest Period Selection shall be given to Agent by
first-class mail or facsimile to the office or the facsimile
number and during the hours specified in Paragraph 8.01;
provided, however, that NSE shall promptly deliver to Agent
the original of any Notice of U.S. Borrowing Interest Period
Selection initially delivered by facsimile. If NSE fails to
notify Agent of the next Interest Period for any LIBOR Portion
of the U.S. Borrowing in accordance with this Subparagraph
2.01(e), such Portion shall automatically convert to a Base
Rate Portion on the last day of the current Interest Period
therefor.
(f) Scheduled Payments. Unless the Maturity Date is extended
pursuant to Paragraph 2.03, NSE shall repay the principal amount of the
U.S. Borrowing in three (3) annual installments on the following dates
and in the following amounts:
March 31, 1999 27.77778% of the original principal amount of the U.S.
Borrowing;
March 31, 2000 27.77778% of the original principal amount of the U.S.
Borrowing;
Maturity Date 44.44444% of the original principal amount of the U.S.
Borrowing;
Provided, however, that the principal payment due on the Maturity Date
shall be in the amount necessary to pay all remaining unpaid principal
on the U.S. Borrowing. NSE shall pay accrued interest on the unpaid
principal amount of each U.S. Loan in arrears (i) in the case of a Base
Rate Portion, on the last day in each March, June, September and
December (commencing with the first such day after the U.S. Closing
Date), (ii) in the case of a LIBOR Portion, on the last day of each
Interest Period (and if any such Interest Period is equal to or longer
than three (3) months, every three (3) months); and (iii) in the case
of all U.S. Loans, upon prepayment (to the extent thereof) and at
maturity.
(g) Purpose. NSE shall use the proceeds of the U.S. Borrowing
for general corporate purposes.
2.02. Japanese Facility.
(a) Availability. Subject to the terms and conditions of this
Agreement, each Japanese Lender severally agrees to advance to NSJ in a
single advance on or prior to the Commitment Termination Date a term
loan in Yen under this Paragraph 2.02 (individually, a "Japanese
Loan"); provided, however, that:
(i) The principal amount of the Japanese Loan made by
each Japanese Lender shall not exceed its Japanese Commitment
on such date; and
(ii) The aggregate principal amount of the Japanese
Borrowing shall not exceed the Total Japanese Commitment.
The Japanese Loans shall be made on a pro rata basis by Japanese
Lenders in accordance with their respective Japanese Commitments. NSJ
may not reborrow the principal amount of a Japanese Loan after
repayment or prepayment thereof.
(b) Notice of Borrowing. NSJ shall request the Japanese
Borrowing by delivering to Agent an irrevocable written notice in the
form of Exhibit D, appropriately completed (a "Notice of Japanese
Borrowing"), which specifies, among other things:
(i) The principal amount of the Japanese Borrowing,
which shall be in the minimum amount of (Y)1,000,000,000 or an
integral multiple of (Y)1,000,000,000 in excess thereof;
(ii) The Portions into which the Japanese Borrowing
is to be divided if the Japanese Borrowing is initially to
consist of more than one Portion;
(iii) The initial Interest Period selected by NSJ for
each Portion of the Japanese Borrowing in accordance with
Subparagraph 2.02(d); and
(iv) The Japanese Closing Date, which shall be a
Business Day not later than the Commitment Termination Date.
NSJ shall give the Notice of Japanese Borrowing to Agent at least four
(4) Business Days before the Japanese Closing Date. The Notice of
Japanese Borrowing shall be delivered by first-class mail or facsimile
to Agent at the office or facsimile number and during the hours
specified in Paragraph 8.01; provided, however, that NSJ shall promptly
deliver to Agent the original of the Notice of Japanese Borrowing if
initially delivered by facsimile. Agent shall promptly notify each
Japanese Lender of the contents of the Notice of Japanese Borrowing.
(c) Interest Rates. NSJ shall pay interest on the unpaid
principal amount of each Portion of each Japanese Loan from the date of
such Japanese Loan until the maturity thereof, at a rate per annum on
such Portion equal at all times during each Interest Period for such
Portion to the TIBO Rate for such Interest Period plus the Applicable
Margin therefor, such rate to change from time to time as the
Applicable Margin shall change. Each Portion of the Japanese Borrowing
shall be in the minimum amount of (Y)1,000,000,000 or an integral
multiple of (Y)1,000,000,000 in excess thereof. The number of Portions
in the Japanese Borrowing shall not exceed four (4) at any time.
(d) Japanese Borrowing Interest Periods.
(i) The initial and each subsequent Interest Period
selected by NSJ for a Portion of the Japanese Borrowing shall
be one (1), two (2), three (3) or six (6) months; provided,
however, that (A) any Interest Period which would otherwise
end on a day which is not a Business Day shall be extended to
the next succeeding Business Day unless such next Business Day
falls in another calendar month, in which case such Interest
Period shall end on the immediately preceding Business Day;
(B) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month; (C) no Interest Period shall end after a
Scheduled Payment Date unless, after giving effect to such
Interest Period, the aggregate principal amount of and all
Portions having Interest Periods ending on or prior to such
Scheduled Payment Date equals or exceeds the principal payment
due on such Scheduled Payment Date; and (D) no Interest Period
shall end after the Maturity Date.
(ii) NSJ shall notify Agent by an irrevocable written
notice in the form of Exhibit E, appropriately completed (a
"Notice of Japanese Borrowing Interest Period Selection"), at
least four (4) Business Days prior to the last day of each
Interest Period for each Portion of the Japanese Borrowing of
the Interest Period selected by NSJ for the next succeeding
Interest Period for such Portion. Each Notice of Japanese
Borrowing Interest Period Selection shall be given to Agent by
first-class mail or facsimile to the office or the facsimile
number and during the hours specified in Paragraph 8.01;
provided, however, that NSJ shall promptly deliver to Agent
the original of any Notice of Japanese Borrowing Interest
Period Selection initially delivered by facsimile. If NSJ
fails to notify Agent of the next Interest Period for any
Portion of the Japanese Borrowing in accordance with this
Subparagraph 2.02(d), such Portion shall automatically have an
Interest Period of one (1) month following the current
Interest Period.
(e) Scheduled Payments. Unless the Maturity Date is extended
pursuant to Xxxxxxxxx 0.00, XXX shall repay the principal amount of the
Japanese Borrowing in three (3) annual installments on the following
dates and in the following amounts:
March 31, 1999 27.77778% of the original principal amount of the
Japanese Borrowing;
March 31, 2000 27.77778% of the original principal amount of the
Japanese Borrowing;
Maturity Date 44.44444% of the original principal amount of the
Japanese Borrowing;
Provided, however, that the principal payment due on the Maturity Date
shall be in the amount necessary to pay all remaining unpaid principal
on the Japanese Borrowing. NSJ shall pay accrued interest on the unpaid
principal amount of each Japanese Loan in arrears on the last day of
each Interest Period (and if any such Interest Period is equal to or
longer than three (3) months, every three (3) months), upon prepayment
(to the extent thereof) and at maturity.
(f) Purpose. NSJ shall use the proceeds of the Japanese
Borrowing for its general corporate needs.
2.03. Maturity Date Extension.
(a) Extension Requests. On or before the last Business Day
which is sixty (60) days prior to the Maturity Date, Borrowers may
request Lenders to extend the Maturity Date for an additional two-year
period. Borrowers shall request such an extension by appropriately
completing, executing and delivering to Agent a written request in the
form of Exhibit F (an "Extension Request"). The Extension Request shall
be given to Agent by first-class mail or facsimile to the office or the
facsimile number and during the hours specified in Paragraph 8.01;
provided, however, that Borrowers shall promptly deliver to Agent the
original of the Extension Request if initially delivered by facsimile.
Agent shall promptly deliver to each Lender three (3) copies of any
Extension Request received by Agent.
(b) Lender Approval. Borrowers understand that this Paragraph
2.03 is included in this Agreement for Borrowers' convenience in
requesting an extension and acknowledge that neither Agent nor any
Lender has promised (either expressly or implicitly), or has any
obligation or commitment, to extend the Maturity Date at any time. If a
Lender, in its sole and absolute discretion, consents to an Extension
Request, such Lender shall evidence such consent by executing and
returning two (2) copies of the Extension Request to Agent not later
than the last Business Day which is thirty-five (35) days prior to the
Maturity Date. Any failure by any Lender so to execute and return an
Extension Request shall be deemed a denial thereof.
(c) Notice of Lender Action. If Borrowers deliver an Extension
Request to Agent pursuant to Subparagraph 2.03(a), then not later than
the last Business Day which is thirty (30) days prior to the Maturity
Date, Agent shall notify Borrowers and Lenders in writing of (i) the
Lenders that have consented to such Extension Request by returning to
Agent executed copies of such Extension Request and (ii) the Lenders
that have not. Agent shall deliver to Borrowers with any such notice, a
copy of each executed Extension Request returned to Agent by a Lender.
(d) Effect of Lender Action.
(i) If all Lenders consent to an Extension Request
pursuant to Subparagraph 2.03(b), this Agreement shall be
deemed amended as provided in clause (iv) below and each
Lender shall remain a Lender under this Agreement (as so
amended).
(ii) If none of the Lenders consent to an Extension
Request, the Maturity Date shall remain unchanged.
(iii) If some but not all of the Lenders consent to
an Extension Request,
(A) Each Borrower shall pay to each
applicable non-consenting Lender, on the current
Maturity Date, all amounts payable to such Lender on
such date, and
(B) Subject to such payments, (1) each
non-consenting Lender shall cease to be a Lender
hereunder after such date, (2) this Agreement shall
be deemed amended as provided in clause (iv) below
and (3) each consenting Lender shall continue to be a
Lender under this Agreement (as so amended) after
such date;
Provided, however, that
(y) If any consenting U.S. Lender shall so
request, a non-consenting U.S. Lender shall assign to
such consenting U.S. Lender pursuant to Subparagraph
8.05(c), effective on the current Maturity Date, such
non-consenting U.S. Lender's U.S. Loan, subject to
the payment to such non-consenting U.S. Lender on
such date (I) by such consenting U.S. Lender of a
purchase price for such Loan equal to the outstanding
principal amount thereof on such date and (II) by NSE
of all other amounts payable by NSE to such
non-consenting U.S. Lender on such date; and
(z) If any consenting Japanese Lender shall
so request, a non-consenting Japanese Lender shall
assign to such consenting Japanese Lender pursuant to
Subparagraph 8.05(c), effective on the current
Maturity Date, such non-consenting Japanese Lender's
Japanese Loan, subject to the payment to such
non-consenting Japanese Lender on such date (I) by
such consenting Japanese Lender of a purchase price
for such Loan equal to the outstanding principal
amount thereof on such date and (II) by NSJ of all
other amounts payable by NSJ to such non-consenting
U.S. Lender on such date.
(iv) If all or some of the Lenders consent to an
Extension Request pursuant to Subparagraph 2.03(b), this
Agreement shall be deemed amended on the current Maturity Date
as follows:
(A) The definition of "Maturity Date" set
forth in Paragraph 1.01 shall be amended to read in
its entirety as follows:
"Maturity Date" shall mean March 31, 2003.
(B) The payment schedule set forth in
Subparagraph 2.01(f) shall be amended to read in its
entirety as follows:
March 31, 1999 27.77778% of the original principal amount
of the U.S. Borrowing;
March 31, 2000 27.77778% of the original principal amount
of the U.S. Borrowing;
March 31, 2001 22.22222% of the original principal amount
of the U.S. Borrowing;
March 31, 2002 11.11111% of the original principal amount
of the U.S. Borrowing;
Maturity Date 11.11111% of the original principal amount
of the U.S. Borrowing;
(C) The payment schedule set forth in
Subparagraph 2.02(e) shall be amended to read in its
entirety as follows:
March 31, 1999 27.77778% of the original principal amount
of the Japanese Borrowing;
March 31, 2000 27.77778% of the original principal amount
of the Japanese Borrowing;
March 31, 2001 22.22222% of the original principal amount
of the Japanese Borrowing;
March 31, 2002 11.11111% of the original principal amount
of the Japanese Borrowing;
Maturity Date 11.11111% of the original principal amount
of the Japanese Borrowing;
2.04. Fees.
(a) Agent's Fee. Borrowers shall pay to Agent, for its own
account, agent's fees and other compensation in the amounts and at the
times set forth in the Agent's Fee Letter.
(b) Commitment Fees.
(i) NSE shall pay to Agent, for the ratable benefit
of U.S. Lenders as provided in clause (iii) of Subparagraph
2.09(a), commitment fees (the "U.S. Commitment Fees") of
one-fourth of one percent (0.25%) per annum on the unused
Total U.S. Commitment for the period beginning on the date of
this Agreement and ending on the earlier of the U.S. Closing
Date and the Commitment Termination Date. NSE shall pay the
U.S. Commitment Fees in arrears on the earlier of the U.S.
Closing Date and the Commitment Termination Date.
(ii) NSJ shall pay to Agent, for the ratable benefit
of Japanese Lenders as provided in clause (iv) of Subparagraph
2.09(a), commitment fees (the "Japanese Commitment Fees") of
one-fourth of one percent (0.25%) per annum on the unused
Total Japanese Commitment for the period beginning on the date
of this Agreement and ending on the earlier of the Japanese
Closing Date and the Commitment Termination Date. NSJ shall
pay the Japanese Commitment Fees in arrears on the earlier of
the Japanese Closing Date and the Commitment Termination Date.
2.05. Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any
Portion of either Borrowing (whether such prepayment is an optional
prepayment under Subparagraph 2.05(b) or a mandatory prepayment
required by any provision of this Agreement or the other Credit
Documents, including a prepayment upon acceleration), the Borrower
making such prepayment shall pay to the applicable Lenders (i) all
accrued interest to the date of such prepayment on the amount prepaid
and (ii) if such prepayment is the prepayment of a LIBOR Portion of the
U.S. Borrowing or the prepayment of any Portion of the Japanese
Borrowing on a day other than the last day of an Interest Period for
such Portion, all amounts payable to such Lenders pursuant to Paragraph
2.12.
(b) Optional Prepayments. At its option, NSE may, upon one (1)
Business Day notice to Agent in the case of a Base Rate Portion of the
U.S. Borrowing or three (3) Business Days notice to Agent in the case
of a LIBOR Portion of the U.S. Borrowing, prepay the U.S. Borrowing in
part, in an aggregate principal amount of $5,000,000 or more, or in
whole. At its option, NSJ may, upon four(4) Business Days notice to
Agent, prepay the Japanese Borrowing in part, in an aggregate principal
amount of (Y)1,000,000,000 or more, or in whole.
(c) Application of Prepayments. All prepayments which are
applied to reduce the principal amount of either Borrowing shall reduce
the aggregate principal amount payable by the applicable Borrower on
the then remaining Scheduled Payment Dates in inverse order commencing
with the Maturity Date. Without modifying the order of application of
prepayments set forth in the preceding sentence, all such prepayments
of the U.S. Borrowing shall, to the extent possible, be first applied
to prepay the Base Rate Portion, if any, and then if any funds remain,
to prepay LIBOR Portions.
2.06. Other Payment Terms.
(a) Place and Manner.
(i) NSE shall make all payments due to each U.S.
Lender or Agent related to U.S. Loans by payments to Agent at
Agent's New York office located at the address specified in
Paragraph 8.01, with each such payment due to a U.S. Lender to
be for the account of such Lender and such Lender's applicable
Domestic Lending Office or Euro-Dollar Lending Office.
(ii) NSJ shall make all payments due to each Japanese
Lender or Agent related to Japanese Loans by payments to Agent
at Agent's Tokyo office located at the address specified in
Paragraph 8.01, with each such payment due to a Japanese
Lender to be for the account of such Lender and such Lender's
Japanese Lending Office.
(iii) Borrowers shall, unless otherwise directed by
Agent, make all other payments due to each Lender or Agent
hereunder by payments to Agent's New York office located at
the address specified in Paragraph 8.01, with each such
payment due to a Lender to be for the account of such Lender
and such Lender's Applicable Lending Office.
(iv) Borrower shall make all payments hereunder in
the lawful currency required by Subparagraph 2.06(c) and in
same day or immediately available funds and without deduction
or offset not later than 11:00 a.m. (New York time, in the
case of any payment to be made to Agent's New York office, or
Tokyo time, in the case of any payment to be made to Agent's
Tokyo office) and on the date due. Agent shall promptly
disburse to each Lender each payment received by Agent for the
account of such Lender.
(b) Date. Whenever any payment due hereunder shall fall due on
a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included
in the computation of interest or fees, as the case may be.
(c) Currency of Payment.
(i) NSE shall pay principal of, interest on and all
other amounts related to U.S. Loans in Dollars, and NSJ shall
pay principal of, interest on and all other amounts related to
Japanese Loans in Yen. Borrowers shall pay all other amounts
payable under this Agreement and the other Credit Documents in
Dollars. If, for any reason, NSJ is prohibited by any
Governmental Rule from making any required Yen payment
hereunder in Yen, NSJ shall make such payment in Dollars in
the Dollar Equivalent of such Yen amount.
(ii) If any amounts required to be paid by Borrowers
under this Agreement, any other Credit Document or any order,
judgment or award given or rendered in relation hereto or
thereto has to be converted from the currency (the "first
currency") in which the same is payable hereunder or
thereunder into another currency (the "second currency") for
the purpose of (A) making or filing a claim or proof against
Borrowers with any Governmental Authority, (B) obtaining an
order or judgment in any court or other tribunal or (C)
enforcing any order or judgment given or made in relation
hereto, Borrowers shall, to the fullest extent permitted by
law, indemnify and hold harmless each of the Persons to whom
such amounts are payable from and against any loss suffered as
a result of any discrepancy between (1) the rate of exchange
used for such purpose to convert the amounts in question from
the first currency into the second currency and (2) the rate
or rates of exchange at which such Person may, using
reasonable efforts in the ordinary course of business,
purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in
part, of any such order, judgment, claim or proof. The
foregoing indemnity shall constitute a separate obligation of
Borrowers distinct from their other obligations hereunder and
shall survive the giving or making of any judgment or order in
relation to all or any of such obligations. The obligations of
Borrowers under this Subparagraph 2.06(c) shall survive the
payment and performance of the Obligations and the termination
of this Agreement.
(d) Late Payments. If any amount required to be paid by either
Borrower under this Agreement or the other Credit Documents (including,
without limitation, principal or interest payable on any Loan, any fees
or any other amount) remains unpaid after such amount is due, such
Borrower shall pay interest on the aggregate, outstanding balance of
such amount from the date due until such amount is paid in full at a
per annum rate equal to (i) in the case any amount payable in Dollars,
the Base Rate plus two percent (2.00%), such rate to change from time
to time as the Base Rate shall change, and (ii) in the case of any
amount payable in Yen, the Overnight Rate for such amount plus three
percent (3.00%), such rate to change from time to time as the Overnight
Rate shall change.
(e) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable
under this Agreement or the other Credit Documents, second to accrued
interest then due and payable under this Agreement or the other Credit
Documents and finally to reduce the principal amount of outstanding
Loans.
(f) Failure to Pay Agent. Unless Agent shall have received
notice from a Borrower at least one (1) Business Day prior to the date
on which any payment is due to Lenders hereunder that such Borrower
will not make such payment in full, Agent shall be entitled to assume
that such Borrower has made or will make such payment in full to Agent
on such date and Agent may, in reliance upon such assumption, cause to
be paid to the applicable Lenders on such due date an amount equal to
the amount then due such Lenders. If and to the extent such Borrower
shall not have so made such payment in full to Agent, each such Lender
shall repay to Agent forthwith on demand such amount distributed to
such Lender together with interest thereon, for each day from the date
such amount is distributed to such Lender until the date such Lender
repays such amount to Agent, at a per annum rate equal to (i) the
Federal Funds Rate for the first three (3) days and the Base Rate
thereafter for any amount in Dollars or (ii) the Overnight Rate for the
first three (3) days and the Overnight Rate plus one percent (1%)
thereafter for any amount in Yen. A certificate of Agent submitted to
any Lender with respect to any amount owing by such Lender under this
Subparagraph 2.06(e) shall constitute prima facie evidence of such
amount.
2.07. Loan Accounts; Notes.
(a) Loan Accounts. The obligation of each Borrower to repay
the Loans made to it by each Lender and to pay interest thereon at the
rates provided herein shall be evidenced by an account or accounts
maintained by such Lender on its books (individually, a "Loan
Account"), except that any Lender may request that its U.S. Loans be
evidenced by a note or notes pursuant to Subparagraph 2.07(b). Each
Lender shall record in its Loan Accounts (i) the date and amount of
each Loan made by such Lender, (ii) the interest rates applicable to
each such Loan and each Portion thereof and the effective dates of all
changes thereto, (iii) the Interest Period for each LIBOR Portion and
each Portion of a Japanese Loan, (iv) the date and amount of each
principal and interest payment on each Loan and Portion and (v) such
other information as such Lender may determine is necessary for the
computation of principal and interest payable to it by each Borrower
hereunder; provided, however, that any failure by a Lender to make, or
any error by any Lender in making, any such notation shall not affect
Borrowers' Obligations hereunder. The Loan Accounts shall constitute
prima facie evidence of the matters noted therein.
(b) Notes. If any Lender so requests, such Lender's U.S. Loans
shall be evidenced by a promissory note in the form of Exhibit G
(individually, a "Note"), each of which shall be (i) payable to the
order of such Lender, (ii) in the amount of such Lender's U.S. Loan,
(iii) dated the U.S. Closing Date, and (iv) otherwise appropriately
completed.
2.08. Loan Funding.
(a) Lender Funding and Disbursements to Borrowers.
(i) Each U.S. Lender shall, before 11:00 a.m. (New
York time) on the U.S. Closing Date, make available to Agent
at Agent's New York office specified in Paragraph 8.01, in
immediately available funds, such Lender's Proportionate Share
of the U.S. Borrowing. After Agent's receipt of such funds and
upon satisfaction of the applicable conditions set forth in
Section III, Agent shall promptly disburse such funds to NSE
no later than 1:00 p.m. (New York time) in immediately
available funds. Agent shall disburse the proceeds of the U.S.
Borrowing as directed by NSE in the Notice of U.S. Borrowing.
(ii) Each Japanese Lender shall, before 10:00 a.m.
(Tokyo time) on the Japanese Closing Date, make available to
Agent at Agent's Tokyo office specified in Paragraph 8.01, in
immediately available funds, such Lender's Proportionate Share
of the Japanese Borrowing. After Agent's receipt of such funds
and upon satisfaction of the applicable conditions set forth
in Section III, Agent shall promptly disburse such funds to
NSJ no later than 1:00 p.m. (Tokyo time) in immediately
available funds. Agent shall disburse the proceeds of the
Japanese Borrowing as directed by NSJ in the Notice of
Japanese Borrowing.
(b) Lender Failure to Fund. Unless Agent shall have received
notice from a Lender prior to the date of either Borrowing that such
Lender will not make available to Agent such Lender's Proportionate
Share of such Borrowing, Agent shall be entitled to assume that such
Lender has made or will make such portion available to Agent on the
date of such Borrowing in accordance with Subparagraph 2.08(a), and
Agent may on such date, in reliance upon such assumption, disburse or
otherwise credit to Borrower a corresponding amount. If any Lender does
not make the amount of its Proportionate Share of either Borrowing
available to Agent on or prior to the date of such Borrowing, such
Lender shall pay to Agent, on demand, interest which shall accrue on
such amount from the date of such Borrowing until such amount is paid
to Agent at rates equal to (i) the Federal Funds Rate for the first
three (3) days and the Base Rate thereafter for any amount in Dollars
or (ii) the Overnight Rate plus one percent (1%) for any amount in Yen.
A certificate of Agent submitted to any Lender with respect to any
amount owing by such Lender under this Subparagraph 2.08(b) shall
constitute prima facie evidence of such amount. If the amount of any
Lender's Proportionate Share of either Borrowing is not paid to Agent
by such Lender within three (3) Business Days after the date of such
Borrowing, the applicable Borrower shall repay such amount to Agent, on
demand, together with interest thereon, for each day from the date such
amount was disbursed to such Borrower until the date such amount is
repaid to Agent, at the interest rate applicable at the time to the
Loans comprising such Borrowing.
(c) Lenders' Obligations Several. The failure of any Lender to
make the Loan to be made by it as part of either Borrowing shall not
relieve any other Lender of its obligation hereunder to make its Loan
as part of such Borrowing, but no Lender shall be obligated in any way
to make any Loan which another Lender has failed or refused to make or
otherwise be in any way responsible for the failure or refusal of any
other Lender to make any Loan required to be made by such other Lender.
2.09. Pro Rata Treatment.
(a) Borrowings, Commitment Reductions, Etc. Except as
otherwise provided herein:
(i) The U.S. Borrowing shall be made by U.S. Lenders
pro rata according to their applicable respective U.S.
Commitments, and the Japanese Borrowing shall be made by
Japanese Lenders pro rata according to their applicable
respective Japanese Commitments;
(ii) Each payment of interest on Loans in either
Borrowing shall be shared among Lenders which made or funded
the Loans in such Borrowing pro rata according to (A) the
respective unpaid principal amounts of such Loans so made or
funded by such Lenders and (B) the dates on which such Lenders
so made or funded such Loans;
(iii) Each payment of U.S. Commitment Fees shall be
shared among U.S. Lenders (except for Defaulting Lenders) pro
rata according to (A) their respective Proportionate Shares of
the U.S. Facility and (B) in the case of each U.S. Lender
which becomes a U.S. Lender hereunder after the date hereof
and before the U.S. Closing Date, the date upon which such
U.S. Lender so became a U.S. Lender;
(iv) Each payment of Japanese Commitment Fees shall
be shared among Japanese Lenders (except for Defaulting
Lenders) pro rata according to (A) their respective
Proportionate Shares of the Japanese Facility and (B) in the
case of each Japanese Lender which becomes a Japanese Lender
hereunder after the date hereof and before the Japanese
Closing Date, the date upon which such Japanese Lender so
became a Japanese Lender;
(v) Each payment of interest (other than interest on
Loans) shall be shared among Lenders and Agent owed the amount
upon which such interest accrues pro rata according to (A) the
respective amounts so owed such Lenders and Agent and (B) the
dates on which such amounts became owing to such Lenders and
Agent; and
(vi) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person
or Persons specified.
(b) Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of the Loan owed to it as
part of either Borrowing in excess of its ratable share of payments on
account of all Loans in such Borrowing obtained by all applicable
Lenders entitled to such payments, such Lender shall forthwith purchase
from such other Lenders such participations in their Loans as shall be
necessary to cause such purchasing Lender to share the excess payment
ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase shall be rescinded and each other
applicable Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount equal to
such other Lender's ratable share (according to the proportion of (i)
the amount of such other Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the
total amount so recovered. Each Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Subparagraph 2.09(b) may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of setoff) with
respect to such participation as fully as if such Lender were the
direct creditor of such Borrower in the amount of such participation.
2.10. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first
day of any Interest Period for any LIBOR Portion of the U.S. Borrowing
or any Portion of the Japanese Borrowing, (i) any U.S. Lender or
Japanese Lender, as the case may be, shall advise Agent that the LIBO
Rate or TIBO Rate, as the case may be, for such Interest Period cannot
be adequately and reasonably determined due to the unavailability of
funds in or other circumstances affecting the London interbank market
or the Tokyo interbank market, as the case may be, or (ii) any U.S.
Lender or Japanese Lender, as the case may be, shall advise Agent that
the rate of interest for such Portion does not adequately and fairly
reflect the cost to such Lender of making or maintaining such Portion,
Agent shall immediately give notice of such condition to the applicable
Borrower and the other U.S. Lenders or Japanese Lenders, as the case
may be. After the giving of any such notice and until Agent shall
otherwise notify the applicable Borrower that the circumstances giving
rise to such condition no longer exist, such Borrower's right to
obtain, continue or convert to Portions of the affected Type shall be
suspended. Any LIBOR Portions outstanding at the commencement of any
such suspension affecting the LIBO Rate shall be converted at the end
of the then current Interest Period for such Portions into Base Rate
Portions unless such suspension has then ended. All Portions of the
Japanese Borrowing outstanding at the commencement of any such
suspension affecting the TIBO Rate shall bear interest at the Overnight
Rate plus one percent (1.0%), such rate to change from time to time as
the Overnight Rate shall change, until such suspension has ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by any Lender with any request or directive (whether or
not having the force of law) of any Governmental Authority (a "Change
of Law") shall make it unlawful or impossible for any U.S. Lender to
make or maintain any LIBOR Portion or any Japanese Lender to make or
maintain its Japanese Loan, such Lender shall immediately notify Agent
and the applicable Borrower of such Change of Law. Upon receipt of such
notice, (i) such Borrower's right to obtain, continue or convert to
Portions of the affected Type shall be suspended until such time as
Agent shall notify such Borrower and the applicable Lenders that the
circumstances giving rise to such suspension no longer exist, and (ii)
such Borrower shall, if so requested by such Lender, immediately repay
such Portions if such Lender shall notify such Borrower that such
Lender may not lawfully continue to fund and maintain such Portions.
Any conversion or prepayment of Portions made pursuant to the preceding
sentence prior to the last day of an Interest Period for such Portions
shall be deemed a prepayment thereof for purposes of Paragraph 2.12.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any U.S. Lender or Japanese Lender
to any tax, duty or other charge with respect to any LIBOR
Portion or its Japanese Loan, as the case may be, or shall
change the basis of taxation of payments by either Borrower to
any such Lender on such a LIBOR Portion or its Japanese Loan,
as the case may be, or in respect to such a LIBOR Portion or
its Japanese Loan, as the case may be, under this Agreement
(except for changes in the rate of taxation on the overall net
income of such Lender imposed by its jurisdiction of
incorporation or the jurisdiction of its Applicable Lending
Office); or
(ii) Shall impose, modify or hold applicable any
reserve (excluding any Reserve Requirement or other reserve to
the extent included in the calculation of the LIBO Rate or
TIBO Rate for any Loans or Portions), special deposit or
similar requirement against assets held by, deposits or other
liabilities in or for the account of, advances or loans by, or
any other acquisition of funds by any Lender for any LIBOR
Portion or its Japanese Loan; or
(iii) Shall impose on any Lender any other condition
related to any LIBOR Portion or its Japanese Loan or such
Lender's Commitments;
And the effect of any of the foregoing is to increase the cost to such
Lender of making, continuing or maintaining any such LIBOR Portion, its
Japanese Loan or its Commitments or to reduce any amount receivable by
such Lender hereunder; then the Borrowers shall from time to time,
within ten (10) Business Days after demand by such Lender, pay to such
Lender additional amounts sufficient to reimburse such Lender for such
increased costs or to compensate such Lender for such reduced amounts;
provided, however, that Borrowers shall have no obligation to make any
payment to any demanding party under this Subparagraph 2.10(c) on
account of any such increased costs or reduced amounts unless Borrowers
receive notice of such increased costs or reduced amounts from the
demanding party within six (6) months after they are incurred or
realized. A certificate setting forth in reasonable detail the amount
of such increased costs or reduced amounts, submitted by such Lender to
Borrowers shall constitute prima facie evidence of such costs or
amounts. The obligations of Borrowers under this Subparagraph 2.10(c)
shall survive the payment and performance of the Obligations and the
termination of this Agreement.
(d) Capital Requirements. If, after the date of this
Agreement, any Lender determines that (i) any Change of Law affects the
amount of capital required or expected to be maintained by such Lender
or any Person controlling such Lender (a "Capital Adequacy
Requirement") and (ii) the amount of capital maintained by such Lender
or such Person which is attributable to or based upon the Loans, the
Commitments or this Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Lender's or such
Person's policies with respect to capital adequacy), Borrowers shall
pay to such Lender or such Person, within ten (10) Business Days after
demand of such Lender, such amounts as such Lender or such Person shall
determine are necessary to compensate such Lender or such Person for
the increased costs to such Lender or such Person of such increased
capital; provided, however, that Borrowers shall have no obligation to
make any payment to any demanding party under this Subparagraph 2.10(d)
on account of any such increased costs unless Borrowers receive notice
of such increased costs from the demanding party within twelve (12)
months after they are incurred or realized. A certificate setting forth
in reasonable detail the amount of such increased costs, submitted by
any Lender to Borrowers shall constitute prima facie evidence of such
costs.. The obligations of Borrowers under this Subparagraph 2.10(d)
shall survive the payment and performance of the Obligations and the
termination of this Agreement.
(e) Mitigation. Any Lender which becomes aware of (i) any
Change of Law which will make it unlawful or impossible for such Lender
to make or maintain any LIBOR Portion or its Japanese Loan or (ii) any
Change of Law or other event or condition which will obligate Borrowers
to pay any amount pursuant to Subparagraph 2.10(c) or Subparagraph
2.10(d) shall notify Borrowers and Agent thereof as promptly as
practical. If any Lender has given notice of any such Change of Law or
other event or condition and thereafter becomes aware that such Change
of Law or other event or condition has ceased to exist, such Lender
shall notify Borrowers and Agent thereof as promptly as practical. Each
Lender affected by any Change of Law which makes it unlawful or
impossible for such Lender to make or maintain any LIBOR Portion or its
Japanese Loan or to which Borrowers are obligated to pay any amount
pursuant to Subparagraph 2.10(c) or Subparagraph 2.10(d) shall use
reasonable commercial efforts (including changing the jurisdiction of
its Applicable Lending Offices) to avoid the effect of such Change of
Law or to avoid or materially reduce any amounts which Borrowers are
obligated to pay pursuant to Subparagraph 2.10(c) or Subparagraph
2.10(d) if, in the reasonable opinion of such Lender, such efforts
would not be disadvantageous to such Lender or contrary to such
Lender's normal banking practices.
2.11. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrowers
under this Agreement and the other Credit Documents shall be made free
and clear of, and without deduction or withholding for or on account
of, all present and future income, stamp, documentary and other taxes
and duties, and all other levies, imposts, charges, fees, deductions
and withholdings, now or hereafter imposed, levied, collected, withheld
or assessed by any Governmental Authority (except net income taxes and
franchise taxes in lieu of net income taxes imposed on Agent or any
Lender by its jurisdiction of incorporation or the jurisdiction in
which its Applicable Lending Office is located) (all such non-excluded
taxes, duties, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable to Agent or any Lender
hereunder or under the other Credit Documents, the amounts so payable
to Agent or such Lender shall be increased to the extent necessary to
yield to Agent or such Lender (after payment of all Taxes) interest or
any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the other Credit Documents. Whenever
any Taxes are payable by Borrowers, as promptly as possible thereafter,
Borrowers shall send to Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
official receipt received by Borrowers showing payment thereof. If
Borrowers fail to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Agent the required receipts or other
required documentary evidence, Borrowers shall indemnify Agent and
Lenders for any taxes (including interest or penalties) that may become
payable by Agent or any Lender as a result of any such failure. The
obligations of Borrowers under this Subparagraph 2.11(a) shall survive
the payment and performance of the Obligations and the termination of
this Agreement.
(b) Withholding Exemption Certificates. On or prior to the
applicable Closing Date, each U.S. Lender which is not organized under
the laws of the United States of America or a state thereof and each
Japanese Lender which is not organized under the laws of Japan shall
deliver to NSE and NSJ, respectively, and Agent such certificates and
other evidence as such Borrower or Agent may reasonably request to
establish that such Lender is entitled to receive payments under this
Agreement on account of the U.S. Borrowing or Japanese Borrowing, as
the case may be, without deduction or withholding of any United States
federal income taxes or Japanese income taxes, respectively. Each such
Lender further agrees (i) promptly to notify the applicable Borrower
and Agent of any change of circumstances (including any change in any
treaty, law or regulation) which would prevent such Lender from
receiving payments hereunder without any deduction or withholding of
such taxes and (ii) on or before the date that any certificate or other
form delivered by such Lender under this Subparagraph 2.11(b) expires
or becomes obsolete or after the occurrence of any event requiring a
change in the most recent such certificate or form previously delivered
by such Lender, to deliver to the applicable Borrower and Agent a new
certificate or form, certifying that such Lender is entitled to receive
payments under this Agreement without deduction or such taxes. If any
Lender fails to provide to Borrowers or Agent pursuant to this
Subparagraph 2.11(b) (or, in the case of an Assignee Lender,
Subparagraph 8.05(c)) any certificates or other evidence required by
such provision to establish that such Lender is, at the time it becomes
a Lender hereunder, entitled to receive payments under this Agreement
on account of the U.S. Borrowing or Japanese Borrowing, as the case may
be, without deduction or withholding of any United States federal
income taxes or Japanese income taxes, respectively, such Lender shall
not be entitled to any indemnification under Subparagraph 2.11(a) for
any Taxes imposed on such Lender primarily as a result of such failure.
(c) Mitigation. If Agent or any Lender claims any additional
amounts to be payable to it pursuant to this Paragraph 2.11, such
Person shall use reasonable commercial efforts to file any certificate
or document requested in writing by the applicable Borrower reflecting
a reduced rate of withholding or to change the jurisdiction of its
Applicable Lending Office if the making of such a filing or such change
in the jurisdiction of its Applicable Lending Office would avoid the
need for or materially reduce the amount of any such additional amounts
which may thereafter accrue and if, in the reasonable opinion of such
Person, in the case of a change in the jurisdiction of its Applicable
Lending Office, such change would not be disadvantageous to such Person
or contrary to such Person's normal banking practices.
(d) Tax Returns. Nothing contained in this Paragraph 2.11
shall require Agent or any Lender to make available any of its tax
returns (or any other information relating to its taxes which it deems
to be confidential).
2.12. Funding Loss Indemnification. If either Borrower shall (a) repay, prepay
or convert any LIBOR Portion of the U.S. Borrowing or any Portion of the
Japanese Borrowing on any day other than the last day of an Interest Period
therefor (whether a scheduled payment, an optional prepayment or conversion, a
mandatory prepayment or conversion, a payment upon acceleration or otherwise),
(b) fail to borrow any LIBOR Portion of the U.S. Borrowing or any Portion of the
Japanese Borrowing after delivering the Notices of Borrowing therefor to Agent
(whether as a result of the failure to satisfy any applicable conditions or
otherwise) or (c) fail to convert any Portion of the U.S. Borrowing into a LIBOR
Portion in accordance with a Notice of U.S. Borrowing Conversion delivered to
Agent (whether as a result of the failure to satisfy any applicable conditions
or otherwise), such Borrower shall, within ten (10) Business Days after demand
of such Lender, reimburse such Lender for and hold such Lender harmless from all
reasonable costs and losses incurred by such Lender as a result of such
repayment, prepayment, conversion or failure; provided, however, that Borrowers
shall have no obligation to make any payment to any demanding party under this
Paragraph 2.12 on account of any such costs or losses unless Borrowers receive
notice of such costs or losses from the demanding party within six (6) months
after they are incurred or realized. Borrowers understand that such costs and
losses may include, without limitation, losses incurred by a Lender as a result
of funding and other contracts entered into by such Lender to fund a LIBOR
Portion of the U.S. Borrowing or any Portion of the Japanese Borrowing. Each
Lender demanding payment under this Paragraph 2.12 shall deliver to Borrowers,
with a copy to Agent, a certificate setting forth the amount of costs and losses
for which demand is made, which certificate shall set forth in reasonable detail
the calculation of the amount demanded. Such a certificate so delivered to
Borrowers shall constitute prima facie evidence of such costs and losses. The
obligations of Borrowers under this Paragraph 2.12 shall survive the payment and
performance of the Obligations and the termination of this Agreement.
2.13. Security.
(a) Guaranties, Etc.
(i) The Obligations of NSE shall be secured by a
Guaranty in the form of Exhibit H (the "Subsidiary Guaranty"),
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.
(A) If, at any time after the date of this
Agreement, any Material Domestic Subsidiary of NSE
that is a party to the Subsidiary Guaranty shall
become a Material Foreign Subsidiary of NSE, Agent
shall release such Subsidiary from its obligations
under the Subsidiary Guaranty, subject to the
completion by NSE and such Subsidiary of such actions
as may be necessary to grant to Agent, to the extent
provided in clause (ii) below, a perfected security
interest in the Equity Securities of such Subsidiary
owned by NSE.
(B) If, at any time after the date of this
Agreement, any Subsidiary of NSE that is not a party
to the Subsidiary Guaranty shall become a Material
Domestic Subsidiary of NSE, NSE shall deliver to
Agent (1) a Subsidiary Joinder in the form of
Attachment 1 to the Subsidiary Guaranty,
appropriately completed and duly executed by such
Subsidiary, and (2) such other instruments,
agreements, certificates, opinions and documents as
Agent may reasonably request to secure, maintain,
protect and evidence the obligations of such
Subsidiary under the Subsidiary Guaranty.
(ii) If, at any time after the date of this
Agreement, any direct Subsidiary of NSE shall become a
Material Foreign Subsidiary of NSE, NSE shall deliver to Agent
(A) a Pledge Agreement in the form of Exhibit I, appropriately
completed and duly executed by NSE (the "Pledge Agreement"),
and (B) such other instruments, agreements, certificates,
opinions and documents (including Uniform Commercial Code
financing statements) as Agent may reasonably request to
grant, perfect, maintain, protect and evidence security
interests in favor of Agent, for the benefit of Agent and
Lenders as security for the Obligations of NSE, in any and all
Equity Securities of such Subsidiary, to the extent (1) such
security interests do not increase the gross income of NSE
pursuant to Sections 951 or 956(c) of the IRC and (2)
requiring such security interests is not unreasonable.
(A) If, at any time after the grant to Agent
of a security interest in the Equity Securities of
any Material Foreign Subsidiary of NSE pursuant to
this Paragraph 2.13, such security interest increases
the gross income of NSE pursuant to Sections 951 or
956(c) of the IRC, Agent shall release such security
interest, subject to the compliance by NSE with
clause (i)(B) above to make such Subsidiary a party
to the Subsidiary Guaranty, unless such compliance
also would cause the gross income of NSE to increase
pursuant to Sections 951 or 956(c) of the IRC.
(B) If, at any time after the execution and
delivery to Agent of the Pledge Agreement, any
Subsidiary of NSE shall become a Material Foreign
Subsidiary of NSE, NSE shall deliver to Agent such
instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code
financing statements) as Agent may reasonably request
to grant, perfect, maintain, protect and evidence
security interests in favor of Agent, for the benefit
of Agent and Lenders as security for the Obligations
of NSE, in any and all Equity Securities of such
Subsidiary, to the extent (1) such security interests
do not increase the gross income of NSE pursuant to
Sections 951 or 956(c) of the IRC and (2) requiring
such security interests is not unreasonable.
(iii) The Obligations of NSJ shall be secured by a
Guaranty in the form of Exhibit J, duly executed by NSE (the
"NSE Guaranty").
(b) Further Assurances. Borrowers shall deliver, and shall
cause their Subsidiaries to deliver, to Agent such other pledge
agreements, guaranties, guaranty supplements and other instruments,
agreements, certificates, opinions and documents (including Uniform
Commercial Code financing statements) as Agent may reasonably request
to implement the provisions of Subparagraph 2.13(a) and otherwise to
establish, maintain, protect and evidence the rights provided to Agent,
for the benefit of Agents and Lenders, pursuant to the Security
Documents. Without limiting the foregoing, NSE shall cause Nu Skin
Korea, Inc. to seek any Governmental Approval required in order to
permit Nu Skin Korea, Inc. to remit payments under the Subsidiary
Guaranty outside the Republic of Korea.
(c) Borrowers shall fully cooperate with Agent and Lenders and
perform all additional acts reasonably requested by Agent or any Lender
to effect the purposes of this Paragraph 2.13. (Agent and the Lenders
recognize that (A) NSE's Foreign Subsidiaries may be organized under
the laws of jurisdictions that impose restrictions on the imposition of
Liens in such Subsidiaries' Equity Securities and (B) it may be costly
or impossible to comply with such restrictions in some cases. Agent and
the Lenders agree that, in determining whether requiring NSE to grant a
security interest in the Equity Securities of one of its Foreign
Subsidiaries is reasonable, they will in good faith consider (1)
whether any applicable restrictions prohibit such a security interest,
(2) whether, if not so prohibited, the financial and other costs to NSE
of granting such a security interest are material or unduly burdensome
to NSE, and (3) whether such costs to NSE outweigh the benefits to
Agent and the Lenders of such a security interest.)
2.14. Replacement of Lenders. If any Lender shall (a) become a Defaulting Lender
more than one (1) time in a period of twelve (12) consecutive months, (b)
continue as a Defaulting Lender for more than five (5) Business Days at any
time, (c) suspend its obligation to make or maintain LIBOR Portions of the U.S.
Borrowing or any Portion of the Japanese Borrowing pursuant to Subparagraph
2.10(b) for a reason which is not applicable to any other Lender or (d) demand
any payment under Subparagraph 2.10(c), 2.10(d) or 2.11(a) for a reason which is
not applicable to any other Lender, then Agent may (or upon the written request
of Borrowers, shall) replace such Lender (the "affected Lender"), or cause such
affected Lender to be replaced, with another lender (the "replacement Lender")
satisfying the requirements of an Assignee Lender under Subparagraph 8.05(c), by
having the affected Lender sell and assign all of its rights and obligations
under this Agreement and the other Credit Documents to the replacement Lender
pursuant to Subparagraph 8.05(c); provided, however, that if Borrowers seek to
exercise such right, they must do so within sixty (60) days after either
Borrower first knows or should have known of the occurrence of the event or
events giving rise to such right, and neither Agent nor any Lender shall have
any obligation to identify or locate a replacement Lender for Borrowers. Upon
receipt by any affected Lender of a written notice from Agent stating that Agent
is exercising the replacement right set forth in this Paragraph 2.14, such
affected Lender shall sell and assign all of its rights and obligations under
this Agreement and the other Credit Documents to the replacement Lender pursuant
to an Assignment Agreement and Subparagraph 8.05(c) for a purchase price equal
to the sum of the principal amount of the affected Lender's Loans so sold and
assigned, all accrued and unpaid interest thereon and its ratable share of all
fees to which it is entitled.
SECTION III. CONDITIONS PRECEDENT.
3.01. Initial Closing Date Conditions Precedent. The obligations of the
applicable Lenders to make the Loans to be made on the Initial Closing Date are
subject to receipt by Agent, on or prior to the Initial Closing Date, of each
item listed in Schedule 3.01, each in form and substance satisfactory to Agent
and each Lender, and with sufficient copies for, Agent and each Lender.
3.02. Second Closing Date Conditions Precedent. The obligations of the
applicable Lenders to make the Loans to be made on the Second Closing Date are
subject to (a) the satisfaction of the conditions precedent set forth in
Paragraph 3.01 and (b) the receipt by Agent, on or prior to the Second Closing
Date, of (i) the Commitment Fees and (ii) if such Loans are U.S. Loans, each
Note requested by such a Lender, each duly executed by the applicable Borrower.
3.03. Conditions Precedent to Each Credit Event. The occurrence of each Credit
Event (including the Borrowings) is subject to the further conditions that:
(a) Borrowers shall have delivered to Agent the Notice of
Borrowing, Notice of U.S. Borrowing Conversion or Notice of Interest
Period Selection, as the case may be, for such Credit Event in
accordance with this Agreement; and
(b) On the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(i) The representations and warranties of Borrowers
and their Subsidiaries set forth in Paragraph 4.01 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
shall be true as of such date); and
(ii) No Default has occurred and is continuing or
will result from such Credit Event.
The submission by either Borrower to Agent of each Notice of Borrowing, each
Notice of U.S. Borrowing Conversion (other than a notice for a conversion to a
Base Rate Portion) and each Notice of Interest Period Selection (other than a
notice selecting an Interest Period of one (1) month for any Portion of the
Japanese Borrowing) shall be deemed to be a representation and warranty by such
Borrower that each of the statements set forth above in this Subparagraph
3.03(b) is true and correct as of the date of such notice.
3.04. Covenant to Deliver. Borrowers agree (not as a condition but as a
covenant) to deliver to Agent each item required to be delivered to Agent as a
condition to the occurrence of any Credit Event if such Credit Event occurs.
Borrowers expressly agree that the occurrence of any such Credit Event prior to
the receipt by Agent of any such item shall not constitute a waiver by Agent or
any Lender of Borrowers' obligation to deliver such item.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrowers' Representations and Warranties. In order to induce Agent and
Lenders to enter into this Agreement, Borrowers hereby represent and warrant to
Agent and Lenders as follows:
(a) Due Incorporation, Qualification, etc. Each of Borrowers
and their Material Subsidiaries (i) is a corporation duly organized,
validly existing and, in any jurisdiction in which such legal concept
is applicable, in good standing under the laws of its jurisdiction of
organization; (ii) has the power and authority to own, lease and
operate its properties and carry on its business as now conducted; and
(iii) is duly qualified and licensed to do business as a foreign
corporation or branch in each jurisdiction where the failure to be so
qualified or licensed is reasonably likely to have a Material Adverse
Effect.
(b) Authority. The execution, delivery and performance by each
of Borrowers and their Subsidiaries of each Credit Document executed,
or to be executed, by such Person and the consummation of the
transactions contemplated thereby (i) are within the power of such
Person and (ii) have been duly authorized by all necessary actions on
the part of such Person.
(c) Enforceability. Each Credit Document executed, or to be
executed, by each of Borrowers and their Subsidiaries has been, or will
be, duly executed and delivered by such Person and constitutes, or will
constitute, a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights generally
and general principles of equity.
(d) Non-Contravention. The execution and delivery by each of
Borrowers and their Subsidiaries of the Credit Documents executed by
such Person and the performance and consummation of the transactions
contemplated thereby do not (i) violate any Requirement of Law
applicable to such Person; (ii) violate any provision of, or result in
the breach or the acceleration of, or entitle any other Person to
accelerate (whether after the giving of notice or lapse of time or
both), any Contractual Obligation of such Person; or (iii) result in
the creation or imposition of any Lien (or the obligation to create or
impose any Lien) upon any property, asset or revenue of such Person
(except such Liens as may be created in favor of Agent pursuant to this
Agreement or the other Credit Documents).
(e) Approvals. Except as set forth in Schedule 4.01(e), no
consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Authority or other Person
(including the shareholders of any Person) is required in connection
with the execution and delivery of the Credit Documents executed by
Borrowers and their Subsidiaries or the performance or consummation of
the transactions contemplated thereby, except for those which have been
made or obtained and are in full force and effect.
(f) No Violation or Default. Neither either Borrower nor any
of its Material Subsidiaries is in violation of or in default with
respect to (i) any Requirement of Law applicable to such Person or (ii)
any Contractual Obligation of such Person (nor is there any waiver in
effect which, if not in effect, would result in such a violation or
default), where, in each case, such violation or default is reasonably
likely to have a Material Adverse Effect. Without limiting the
generality of the foregoing, neither either Borrower nor any of its
Subsidiaries (A) has violated any Environmental Laws, (B) has any
liability under any Environmental Laws or (C) has received notice or
other communication of an investigation or is under investigation by
any Governmental Authority having authority to enforce Environmental
Laws, where such violation, liability or investigation is reasonably
likely to have a Material Adverse Effect. No Default has occurred and
is continuing.
(g) Litigation. Except as set forth in Schedule 4.01(g), no
actions (including derivative actions), suits, proceedings or
investigations are pending or, to the knowledge of either Borrower,
threatened against either Borrower or any of its Subsidiaries at law or
in equity in any court or before any other Governmental Authority which
(i) is reasonably likely (alone or in the aggregate) to have a Material
Adverse Effect or (ii) seeks to enjoin, either directly or indirectly,
the execution, delivery or performance by either Borrower or any of its
Subsidiaries of the Credit Documents, the NSI Acquisition Documents or
the transactions contemplated thereby.
(h) Title; Possession Under Leases. Each Borrower and its
Material Subsidiaries own and have good and marketable title, or a
valid leasehold interest in, all their respective properties and assets
as reflected in the most recent Financial Statements delivered to Agent
(except those assets and properties disposed of in the ordinary course
of business or otherwise in compliance with this Agreement since the
date of such Financial Statements) and all respective assets and
properties acquired by such Borrower and its Material Subsidiaries
since such date (except those disposed of in the ordinary course of
business or otherwise in compliance with this Agreement). Such assets
and properties are subject to no Lien, except for Permitted Liens. Each
Borrower and its Subsidiaries have complied with all material
obligations under all material leases to which they are parties and
enjoy peaceful and undisturbed possession under such leases.
(i) Financial Statements. The Financial Statements of each
Borrower and its Subsidiaries which have been delivered to Agent, (i)
are in accordance with the books and records of such Borrower and its
Subsidiaries, which have been maintained in accordance with good
business practice; (ii) have been prepared in conformity with GAAP; and
(iii) fairly present in all material respects the financial conditions
and results of operations of such Borrower and its Subsidiaries as of
the date thereof and for the period covered thereby. Neither either
Borrower nor any of its Subsidiaries has any Contingent Obligations,
liability for taxes or other outstanding obligations which are material
in the aggregate, except as disclosed in the audited Financial
Statements of such Borrower dated December 31, 1997, furnished by such
Borrower to Agent prior to the date hereof, or in the Financial
Statements delivered to Agent pursuant to clause (i) or (ii) of
Subparagraph 5.01(a).
(j) Employee Benefit Plans.
(i) Based on the latest valuation of each Employee
Benefit Plan that either NSE or any ERISA Affiliate maintains
or contributes to, or has any obligation under (which occurred
within twelve months of the date of this representation), the
aggregate benefit liabilities of such plan within the meaning
of ss. 4001 of ERISA did not exceed the aggregate value of the
assets of such plan. Neither NSE nor any ERISA Affiliate has
any liability with respect to any post-retirement benefit
under any Employee Benefit Plan which is a welfare plan (as
defined in section 3(1) of ERISA), other than liability for
health plan continuation coverage described in Part 6 of Title
I(B) of ERISA, which liability for health plan contribution
coverage is not reasonably likely to have a Material Adverse
Effect.
(ii) Each Employee Benefit Plan complies, in both
form and operation, in all material respects, with its terms,
ERISA and the IRC, and no condition exists or event has
occurred with respect to any such plan which would result in
the incurrence by either NSE or any ERISA Affiliate of any
material liability, fine or penalty. Each Employee Benefit
Plan, related trust agreement, arrangement and commitment of
NSE or any ERISA Affiliate is legally valid and binding and in
full force and effect. No Employee Benefit Plan is being
audited or investigated by any government agency or is subject
to any pending or threatened claim or suit. Neither NSE nor
any ERISA Affiliate nor any fiduciary of any Employee Benefit
Plan has engaged in a prohibited transaction under section 406
of ERISA or section 4975 of the IRC.
(iii) Neither NSE nor any ERISA Affiliate contributes
to or has any material contingent obligations to any
Multiemployer Plan. Neither NSE nor any ERISA Affiliate has
incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan under
Section 4201 of ERISA or as a result of a sale of assets
described in Section 4204 of ERISA. Neither NSE nor any ERISA
Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of
Section 4241 or Section 4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.
(iv) All employer and employee contributions required
by any applicable Governmental Rule in connection with all
Foreign Plans have been made, or, if applicable, accrued, in
accordance with the country-specific accounting practices. The
fair market value of the assets of each funded Foreign Plan,
the liability of each insurer for any Foreign Plan funded
through insurance or the book reserve established for any
Foreign Plan, together with any accrued contributions, is
sufficient to procure or provide for the accrued benefit
obligations, as of the date hereof, with respect to all
current and former participants in such Foreign Plan according
to the actuarial assumptions and valuations most recently used
to determine employer contributions to such Foreign Plan,
which actuarial assumptions are commercially reasonable. Each
Foreign Plan required to be registered has been registered and
has been maintained in good standing with applicable
Governmental Authorities. Each Foreign Plan reasonably
complies in all material respects with all applicable
Governmental Rules.
(k) Other Regulations. No Borrower or any Subsidiary thereof
is subject to regulation under the Investment Company Act of 1940, the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or any state public utilities code.
(l) Patent and Other Rights. Each Borrower and its
Subsidiaries own, license or otherwise have the full right to use,
under validly existing agreements, all material patents, licenses,
trademarks, trade names, trade secrets, service marks, copyrights and
all rights with respect thereto, which are required to conduct their
businesses as now conducted.
(m) Governmental Charges. Each Borrower and its Subsidiaries
have filed or caused to be filed all tax returns which are required to
be filed by them. Each Borrower and its Subsidiaries have paid, or made
provision for the payment of, all taxes and other Governmental Charges
which have or may have become due pursuant to said returns or otherwise
and all other indebtedness, except such Governmental Charges or
indebtedness, if any, which are being contested in good faith and as to
which adequate reserves (determined in accordance with GAAP) have been
provided or which are not reasonably likely to have a Material Adverse
Effect if unpaid.
(n) Margin Stock. Neither Borrower owns any Margin Stock
which, in the aggregate, would constitute a substantial part of the
assets of such Borrower, and no proceeds of any Loan will be used to
purchase or carry, directly or indirectly, any Margin Stock or to
extend credit, directly or indirectly, to any Person for the purpose of
purchasing or carrying any Margin Stock.
(o) Subsidiaries, Etc. Schedule 4.01(o) (as supplemented by
NSE from time to time in a written notice to Agent) sets forth each of
NSE's Subsidiaries, its jurisdiction of organization, whether it is a
Domestic Subsidiary or a Foreign Subsidiary, the classes of its Equity
Securities, the number of shares of each such class issued and
outstanding, the percentages of shares of each such class owned
directly or indirectly by NSE and whether NSE owns such shares directly
or, if not, the Subsidiary of NSE that owns such shares. Except for
such Subsidiaries, neither Borrower has any Subsidiaries. The only
Material Subsidiaries of NSE on the date of this Agreement are NSJ;
NSI; Nu Skin Hong Kong, Inc., a Utah corporation; Nu Skin Taiwan, Inc.,
a Utah corporation; and Nu Skin Korea, Inc., a South Korean
corporation. NSJ and Nu Skin Korea, Inc. also are domesticated under
the Delaware General Corporate Laws, and their respective Delaware
counterparts have only nominal assets.
(p) Solvency, Etc. Each of the Borrowers and their Material
Subsidiaries is Solvent and, after the execution and delivery of the
Credit Documents and NSI Acquisition Documents and the consummation of
the transactions contemplated thereby, will be Solvent.
(q) NSI Acquisition. NSE consummated the NSI Acquisition on
March 30, 1998. The consideration paid by NSE to acquire the Acquired
Entities consisted solely of (i) Equity Securities issued by NSE, (ii)
NSE's undertaking to pay the NSI Contingent Payments and (iii)
promissory notes issued by NSE in an aggregate principal amount equal
to the difference between $180,000,000 and the aggregate principal
amount of certain promissory notes issued by the Acquired Entities to
the former stockholders of the Acquired Entities, which promissory
notes of NSE will not exceed $25,000,000 in aggregate principal amount.
(r) No Material Adverse Effect. No event has occurred and no
condition exists which is reasonably likely to have a Material Adverse
Effect.
(s) Accuracy of Information Furnished. The Credit Documents
and the other certificates, statements and information (excluding
projections) furnished to Agent or any Lender by or on behalf of
Borrowers and their Subsidiaries in connection with the Credit
Documents and the transactions contemplated thereby, taken as a whole,
do not contain and will not contain any untrue statement of a material
fact and do not omit and will not omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. All projections have been
based upon reasonable assumptions and represent, as of their respective
dates of presentations, Borrowers' best estimates of the future
performance of Borrowers and their Subsidiaries.
4.02. Reaffirmation. Each Borrower shall be deemed to have reaffirmed, for the
benefit of Lenders and Agent, each representation and warranty contained in
Paragraph 4.01 on and as of the date of each Credit Event (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date).
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrowers of all Obligations, Borrowers will comply, and
will cause compliance, with the following affirmative covenants, unless Required
Lenders shall otherwise consent in writing:
(a) Financial Statements, Reports, etc. Each Borrower shall
furnish to Agent the following, each in such form and such detail as
Agent or the Required Lenders shall reasonably request:
(i) As soon as available and in no event later than
sixty (60) days after the last day of each fiscal quarter of
NSE, a copy of the Financial Statements of NSE and its
Subsidiaries (prepared on a consolidated and consolidating
basis) for such quarter and for the fiscal year to date,
certified by the chief financial officer or treasurer of NSE
to present fairly in all material respects the financial
condition, results of operations and other information
reflected therein and to have been prepared in accordance with
GAAP (subject to normal year-end audit adjustments);
(ii) As soon as available and in no event later than
one hundred, twenty (120) days after the close of each fiscal
year of NSE, (A) copies of the audited Financial Statements of
NSE and its Subsidiaries (prepared on a consolidated and
consolidating basis) for such year, audited by independent
certified public accountants of recognized national standing
reasonably acceptable to Agent, (B) copies of the unqualified
opinions (or qualified opinions reasonably acceptable to
Agent) and, to the extent delivered, management letters
delivered by such accountants in connection with all such
Financial Statements and (C) if available from such
accountants, certificates of such accountants to Agent stating
that in making the examination necessary for their opinion
they have reviewed this Agreement and have obtained no
knowledge of any Default which has occurred and is continuing,
or if, in the opinion of such accountants, a Default has
occurred and is continuing, a statement as to the nature
thereof;
(iii) Contemporaneously with the quarterly and
year-end Financial Statements required by the foregoing
clauses (i) and (ii), a compliance certificate of the chief
financial officer or treasurer of each Borrower (a "Compliance
Certificate") which (A) states that no Default has occurred
and is continuing, or, if any such Default has occurred and is
continuing, a statement as to the nature thereof and what
action Borrowers propose to take with respect thereto and (B)
sets forth, for the quarter or year covered by such Financial
Statements or as of the last day of such quarter or year (as
the case may be), the calculation of the financial ratios and
tests provided in Paragraph 5.03 for such Borrower;
(iv) As soon as available and in no event later than
sixty (60) days after the last day of the last fiscal quarter
in each fiscal year of NSE, a certificate of the chief
financial officer or treasurer of NSE which sets forth the
calculation of NSE's Debt/EBITDA Ratio for such year;
(v) As soon as possible and in no event later than
five (5) Business Days after any officer of such Borrower
knows of the occurrence or existence of (A) any Reportable
Event under any Employee Benefit Plan or Multiemployer Plan;
(B) any actual or threatened litigation, suits, claims or
disputes against either Borrower or any of its Subsidiaries
involving potential monetary damages payable by either
Borrower or its Subsidiaries of $10,000,000 or more (alone or
in the aggregate); (C) any other event or condition which is
reasonably likely to have a Material Adverse Effect; or (D)
any Default; the statement of the chief financial officer or
treasurer of such Borrower setting forth details of such
event, condition or Default and the action which such Borrower
proposes to take with respect thereto;
(vi) As soon as available and in no event later than
five (5) Business Days after they are sent, made available or
filed, copies of (A) all registration statements and reports
filed by NSE or any of its Subsidiaries with the United States
Securities and Exchange Commission (including, without
limitation, all 10-Q, 10-K and 8-Q reports); (B) all reports,
proxy statements and financial statements sent or made
available by NSE or any of its Subsidiaries to its security
holders; and (C) all press releases and other similar public
announcements concerning any material developments in the
business of either Borrower or any of its Subsidiaries made
available by either Borrower or any of its Subsidiaries to the
public generally;
(vii) As soon as available and in no event later than
thirty (30) days after the first day of each fiscal year of
each Borrower, the consolidated plan and forecast of such
Borrower and its Subsidiaries for such fiscal year, including
quarterly cash flow projections and quarterly projections of
such Borrower's compliance with each of the covenants set
forth in Paragraph 5.03;
(viii) As soon as possible and in no event later than
(A) sixty (60) days after the last day of each fiscal quarter,
written notice of any new Subsidiary acquired or established
by NSE during such quarter, any new Equity Securities of any
existing Subsidiary acquired by NSE during such quarter or any
other change in the information set forth in Schedule 4.01(o)
during such quarter and (B) one hundred, twenty (120) days
after the last day of each fiscal year, written notice of any
Subsidiary of NSE that has become a Material Subsidiary during
such year; and
(ix) Such other instruments, agreements,
certificates, opinions, statements, documents and information
relating to the operations or condition (financial or
otherwise) of such Borrower or its Subsidiaries, and
compliance by such Borrower with the terms of this Agreement
and the other Credit Documents as Agent may from time to time
reasonably request.
(b) Books and Records. Each Borrower and its Subsidiaries
shall at all times keep proper books of record and account which shall
be complete and correct in all material respects in accordance with
GAAP.
(c) Inspections. Each Borrower and its Subsidiaries shall
permit Agent and each Lender, or any agent or representative thereof,
upon reasonable notice and during normal business hours, to visit and
inspect any of the properties and offices of such Borrower and its
Subsidiaries, to examine the books and records of such Borrower and its
Subsidiaries and make copies thereof and to discuss the affairs,
finances and business of such Borrower and its Subsidiaries with, and
to be advised as to the same by, their officers, auditors and
accountants, all at such times and intervals as Agent or any Lender may
reasonably request (which visits and inspections shall be at the
expense of Agent or such Lender unless a Default has occurred and is
continuing).
(d) Insurance. Each Borrower and its Subsidiaries shall (i)
carry and maintain insurance of the types and in the amounts
customarily carried from time to time during the term of this Agreement
by others engaged in substantially the same business as such Person and
operating in the same geographic area as such Person, including fire,
public liability, property damage and worker's compensation, (ii) carry
and maintain each policy for such insurance with financially sound
insurers and (iii) deliver to Agent from time to time, as Agent may
request, schedules setting forth all insurance then in effect.
(e) Governmental Charges and Other Indebtedness. Each Borrower
and its Subsidiaries shall promptly pay and discharge when due (i) all
taxes and other Governmental Charges prior to the date upon which
penalties accrue thereon, (ii) all indebtedness which, if unpaid, could
become a Lien upon the property of such Borrower or its Subsidiaries
and (iii) subject to any subordination provisions applicable thereto,
all other Indebtedness, which in each case, if unpaid, is reasonably
likely to have a Material Adverse Effect, except such Indebtedness as
may in good faith be contested or disputed, or for which arrangements
for deferred payment have been made, provided that in each such case
appropriate reserves are maintained in accordance with GAAP.
(f) Use of Proceeds. NSE shall use the proceeds of the U.S.
Loans only for the purposes set forth in Subparagraph 2.01(g), and NSJ
shall use the proceeds of the Japanese Loans only for the purposes set
forth in Subparagraph 2.02(f). Neither Borrower shall use any part of
the proceeds of any Loan, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock or for the purpose of
purchasing or carrying or trading in any securities under such
circumstances as to involve such Borrower, any Lender or Agent in a
violation of Regulations T, U or X issued by the Federal Reserve Board.
(g) General Business Operations. Each of the Borrowers and
their Subsidiaries shall (i) preserve and maintain its corporate
existence and all of its rights, privileges and franchises reasonably
necessary to the conduct of its business, (ii) conduct its business
activities in compliance with all Requirements of Law and Contractual
Obligations applicable to such Person and (iii) keep all property
useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted, except, in each case, where
any failure is not reasonably likely to have a Material Adverse Effect.
NSE shall maintain its chief executive office and principal place of
business in the United States and shall not relocate its chief
executive office or principal place of business outside of Utah except
upon not less than sixty (60) days prior written notice to Agent.
(h) Pari Passu Ranking. Each Borrower shall take, or cause to
be taken, all actions necessary to ensure that the Obligations of such
Borrower are and continue to rank at least pari passu in right of
payment with all other unsecured and unsubordinated Indebtedness of
such Borrower.
(i) Year 2000 Compatibility. Borrowers shall, and shall cause
their Material Subsidiaries to, take all acts reasonably necessary to
ensure that all software, hardware, firmware, equipment, goods and
systems utilized by or material to their business operations or
financial condition will properly perform date sensitive functions
before, during and after the year 2000. At the request of Agent,
Borrowers shall provide to Agent such certifications or other evidence
of compliance with this Subparagraph 5.01(i) as Agent may from time to
time require.
5.02. Negative Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrowers of all Obligations, Borrowers will comply, and
will cause compliance, with the following negative covenants, unless Required
Lenders shall otherwise consent in writing:
(a) Indebtedness. NSE's Subsidiaries shall not create, incur,
assume or permit to exist any Indebtedness except for the following
("Permitted Indebtedness"):
(i) The Obligations of NSJ and NSE's other
Subsidiaries under the Credit Documents;
(ii) Indebtedness of NSJ and NSE's other Subsidiaries
listed in Schedule 5.02(a) and existing on the date of this
Agreement;
(iii) Indebtedness of NSJ and NSE's other
Subsidiaries arising from the endorsement of instruments for
collection in the ordinary course of their businesses;
(iv) Indebtedness of NSJ and NSE's other Subsidiaries
for trade accounts payable, provided that (A) such accounts
arise in the ordinary course of business and (B) no material
part of any such account is more than ninety (90) days past
due (unless subject to a bona fide dispute and for which
adequate reserves have been established);
(v) Indebtedness of NSJ and NSE's other Subsidiaries
under Rate Contracts, provided that all such Rate Contracts
are entered into in connection with bona fide hedging
operations and not for speculation;
(vi) Indebtedness of NSJ and NSE's other Subsidiaries
under purchase money loans and Capital Leases incurred by them
to finance their acquisition of real property, fixtures or
equipment provided that (A) in each case, (y) such
Indebtedness is incurred at the time of, or not later than
thirty (30) days after, the acquisition of the property so
financed and (z) such Indebtedness does not exceed the
purchase price of the property so financed and (B) the
aggregate amount of such Indebtedness outstanding at any time
does not exceed $5,000,000;
(vii) Indebtedness of NSJ and NSE's other
Subsidiaries under initial or successive refinancings of any
Indebtedness permitted by clause (ii) or (vi) above, provided
that (A) the principal amount of any such refinancing does not
exceed the principal amount of the Indebtedness being
refinanced (except to the extent any excess is otherwise
permitted by another clause of this Subparagraph 5.02(a)) and
(B) the material terms and provisions of any such refinancing
(including maturity, redemption, prepayment, default and
subordination provisions) are no less favorable to Lenders
than the Indebtedness being refinanced;
(viii) Indebtedness of NSJ and NSE's other
Subsidiaries with respect to surety, appeal, indemnity,
performance or other similar bonds in the ordinary course of
business (including surety or similar bonds issued in
connection with the stay of a proceeding of the type described
in Subparagraph 6.01(h));
(ix) Indebtedness of NSJ and NSE's other Subsidiaries
to and among each other and NSE;
(x) Indebtedness of any Subsidiary acquired by NSE or
any of its Subsidiaries after the date of this Agreement
pursuant to Subparagraph 5.02(d), provided that (A) such
Indebtedness exists at the time such Subsidiary is so acquired
and (B) such Indebtedness was not created in contemplation of
such acquisition;
(xi) Indebtedness of NSJ and NSE's other Subsidiaries
to one or more Lenders, provided that the aggregate principal
amount of such Indebtedness does not exceed $30,000,000 at any
time and no guaranty or security is provided for such
Indebtedness which is more extensive than the guaranties and
security required to be provided by Paragraph 2.13;
(xii) Indebtedness of NSJ and NSE's other
Subsidiaries to Affiliates (other than Borrowers and their
Subsidiaries), provided that (A) the terms of such
Indebtedness are at least as favorable to NSJ and NSE's other
Subsidiaries as an arms-length transaction with unaffiliated
Persons and (B) the aggregate principal amount of such
Indebtedness does not exceed $10,000,000 at any time; and
(xiii) Other Indebtedness of Borrowers and its
Subsidiaries, provided that the aggregate principal amount of
all such other Indebtedness does not exceed $1,000,000 at any
time.
(b) Liens. Neither Borrowers nor their Subsidiaries shall
create, incur, assume or permit to exist any Lien on or with respect to
any of their assets or property of any character, whether now owned or
hereafter acquired, except for the following ("Permitted Liens"):
(i) Liens in favor of Agent or any Lender securing
the Obligations;
(ii) Liens listed in Schedule 5.02(b) and existing on
the date of this Agreement;
(iii) Liens for taxes or other Governmental Charges
not at the time delinquent or thereafter payable without
penalty or being contested in good faith, provided that
adequate reserves for the payment thereof have been
established in accordance with GAAP;
(iv) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, and landlords and other similar Liens
imposed by law incurred in the ordinary course of business for
sums not overdue more than 45 days or being contested in good
faith, provided that adequate reserves for the payment thereof
have been established in accordance with GAAP;
(v) Deposits under workers' compensation,
unemployment insurance and social security laws or to secure
the performance of bids, tenders, contracts (other than for
the repayment of borrowed money) or leases, or to secure
statutory obligations of surety or appeal bonds or to secure
indemnity, performance or other similar bonds in the ordinary
course of business;
(vi) Zoning restrictions, easements, rights-of-way,
title irregularities and other similar encumbrances, which
alone or in the aggregate are not substantial in amount and do
not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business
of Borrower or any of its Subsidiaries;
(vii) Banker's Liens and similar Liens (including
set-off rights) in respect of bank deposits;
(viii) Liens on any property or assets acquired, or
on the property or assets of any Persons acquired, by Borrower
or any of its Subsidiaries after the date of this Agreement
pursuant to Subparagraph 5.02(d), provided that (A) such Liens
exist at the time such property or assets or such Persons are
so acquired and (B) such Liens were not created in
contemplation of such acquisitions;
(ix) Judgement Liens, provided that such Liens do not
constitute an Event of Default under Subparagraph 6.01(h);
(x) Liens in favor of customs and revenue authorities
arising as a matter of law to secure payment of customs duties
and in connection with the importation of goods in the
ordinary course of each Borrower's and its Subsidiaries'
businesses;
(xi) Liens securing Indebtedness which constitutes
Permitted Indebtedness under clause (vi) of Subparagraph
5.02(a) or Indebtedness of NSE under purchase money loans and
Capital Leases incurred to finance its acquisition of real
property, fixtures or equipment, provided that, in each case,
such Lien (A) covers only those assets, the acquisition of
which was financed by such Permitted Indebtedness, and (B)
secures only such Permitted Indebtedness;
(xii) Liens incurred in connection with the
extension, renewal or refinancing of the Indebtedness secured
by the Liens described in clause (ii) or (xi) above, provided
that any extension, renewal or replacement Lien (A) is limited
to the property covered by the existing Lien and (B) secures
Indebtedness which is no greater in amount and has material
terms no less favorable to Lenders than the Indebtedness
secured by the existing Lien; and
(xiii) Other Liens, provided that the aggregate
amount of Indebtedness secured by such other Liens does not
exceed $5,000,000 at any time;
Provided, however, that the foregoing exceptions shall not permit any
Lien in any of the Collateral or in any other Equity Securities issued
by any Subsidiary of NSE and owned by NSE or any of its other
Subsidiaries, except for Liens in favor of Agent securing the
Obligations.
(c) Asset Dispositions. Neither Borrowers nor their
Subsidiaries shall sell, lease, transfer or otherwise dispose of any of
their assets or property, whether now owned or hereafter acquired,
except for the following:
(i) Sales of inventory by Borrowers and their
Subsidiaries in the ordinary course of their businesses;
(ii) Sales of surplus, damaged, worn or obsolete
assets by Borrowers and their Subsidiaries in the ordinary
course of their businesses;
(iii) Sales or assignments of defaulted receivables
to a collection agency in the ordinary course of business; and
(iv) Other sales, leases, transfers and disposals of
assets and property, provided that (A) no Default has occurred
and is continuing on the date of, or will result after giving
effect to, any such sale, lease, transfer or disposal and (B)
the aggregate book value of all such assets and property so
sold, leased, transferred or otherwise disposed of in any
fiscal year does not exceed $10,000,000 per year;
Provided, however, that the foregoing exceptions shall not permit any
sale, lease, transfer or other disposition of any Collateral or of any
other Equity Securities issued by any Material Subsidiary of NSE and
owned by NSE or any of its other Subsidiaries.
(d) Mergers, Acquisitions, Etc. Neither Borrowers nor their
Subsidiaries shall consolidate with or merge into any other Person or
permit any other Person to merge into them, acquire any Person as a new
Subsidiary or acquire all or substantially all of the assets of any
other Person, except for the following:
(i) Borrowers and their Subsidiaries may merge with
each other, provided that (A) in any such merger involving
either Borrower, such Borrower is the surviving corporation
and (B) no Default has occurred and is continuing on the date
of, or will result after giving effect to, any such merger;
(ii) Acquisitions described in Schedule 5.02(d),
provided that:
(A) No Default has occurred and is
continuing on the date of, or will result after
giving effect to, any such acquisition; and
(B) The aggregate consideration paid by
Borrowers and their Subsidiaries for all such
acquisitions (excluding consideration consisting of
the Equity Securities of Borrowers or their
Subsidiaries) paid in any fiscal year does not exceed
$35,000,000 (provided that any portion of such amount
limitation not used in any year may be carried
forward in subsequent years to increase the amount of
such limitation in such subsequent years until used);
and
(iii) Other acquisitions of any Person as a new
Subsidiary or of all or substantially all of the assets of any
other Person, provided that:
(A) No Default has occurred and is
continuing on the date of, or will result after
giving effect to, any such acquisition; and
(B) The aggregate consideration paid by
Borrowers and their Subsidiaries for all such
acquisitions (excluding consideration consisting of
the Equity Securities of Borrowers or their
Subsidiaries) paid in any fiscal year does not exceed
$15,000,000 (provided that any portion of such amount
limitation not used in any year may be carried
forward in subsequent years to increase the amount of
such limitation in such subsequent years until used).
(e) Investments. Neither Borrowers nor their Subsidiaries
shall make any Investment except for the following:
(i) Investments permitted by the investment policy of
NSE set forth in Schedule 5.02(e) or, if any changes to the
investment policy of NSE are hereafter duly approved by the
Board of Directors of NSE, in any subsequent investment policy
which is the most recent investment policy delivered by NSE to
Agent with a certificate of NSE`s chief financial officer to
the effect that such investment policy has been duly approved
by NSE's Board of Directors and is then in effect;
(ii) Investments listed in Schedule 5.02(e) existing
on the date of this Agreement;
(iii) Investments received by Borrowers and their
Subsidiaries in connection with the bankruptcy or
reorganization of customers and suppliers and in settlement of
delinquent obligations of, and other disputes with, customers
and suppliers arising in the ordinary course of business;
(iv) Investments by Borrowers and their consolidated
Subsidiaries in each other;
(v) Investments consisting of loans to employees and
officers for travel, relocation and other similar expenses
incurred in the ordinary course of business;
(vi) Investments of Borrower and its Subsidiaries in
interest rate protection, currency swap and foreign exchange
arrangements, provided that all such arrangements are entered
into in connection with bona fide hedging operations and not
for speculation;
(vii) Deposit accounts;
(viii) Investments permitted by Subparagraph 5.02(d);
and
(ix) Other Investments, provided that:
(A) No Default has occurred and is
continuing on the date of, or will result after
giving effect to, any such Investment; and
(B) The aggregate consideration paid by
Borrowers and their Subsidiaries for (1) all such
Investments in joint ventures in any fiscal year do
not exceed $5,000,000 or (2) all other such
Investments in any fiscal year do not exceed
$5,000,000 (provided that, in the case of both the
preceding clause (1) and clause (2), any portion of
such amount limitation not used in any year may be
carried forward in subsequent years to increase the
amount of such limitation in such subsequent years
until used).
(f) Dividends, Redemptions, Etc. Neither Borrowers nor their
Subsidiaries shall pay any dividends or make any distributions on its
Equity Securities; purchase, redeem, retire, defease or otherwise
acquire for value any of its Equity Securities; return any capital to
any holder of its Equity Securities as such; make any distribution of
assets, Equity Securities, obligations or securities to any holder of
its Equity Securities as such; or set apart any sum for any such
purpose; except as follows:
(i) Either Borrower or any of its Subsidiaries may
pay dividends on its capital stock payable solely in such
Person's own capital stock, provided that, in the case of any
such dividend payable by a Foreign Subsidiary that is a
Material Subsidiary to NSE or another Subsidiary, such
dividend is delivered and pledged to Agent to the extent
required by Subparagraph 2.13(b);
(ii) Any Subsidiary of either Borrower may pay
dividends to or repurchase its capital stock from such
Borrower; and
(iii) NSE may pay dividends on its capital stock
payable in cash or repurchase its capital stock for cash,
provided that, in each case, no Default has occurred and is
continuing on the date of, or will result after giving effect
to, any such payment or repurchase.
(g) Change in Business. Neither Borrowers nor their
Subsidiaries shall engage, either directly or indirectly, in any
business substantially different from their present business.
(h) Employee Benefit Plans.
(i) Neither NSE nor any ERISA Affiliate shall (A)
adopt or institute any Employee Benefit Plan that is an
employee pension benefit plan within the meaning of Section
3(2) of ERISA, (B) take any action which will result in the
partial or complete withdrawal, within the meanings of
sections 4203 and 4205 of ERISA, from a Multiemployer Plan,
(C) engage or permit any Person to engage in any transaction
prohibited by section 406 of ERISA or section 4975 of the IRC
involving any Employee Benefit Plan or Multiemployer Plan
which would subject NSE or any ERISA Affiliate to any tax,
penalty or other liability including a liability to indemnify,
(D) incur or allow to exist any accumulated funding deficiency
(within the meaning of section 412 of the IRC or section 302
of ERISA), (E) fail to make full payment when due of all
amounts due as contributions to any Employee Benefit Plan or
Multiemployer Plan, (F) fail to comply with the requirements
of section 4980B of the IRC or Part 6 of Title I(B) of ERISA,
or (G) adopt any amendment to any Employee Benefit Plan which
would require the posting of security pursuant to section
401(a)(29) of the IRC, where singly or cumulatively, the above
would be reasonably likely to have a Material Adverse Effect.
(ii) Neither Borrowers nor their Subsidiaries shall
(A) engage in any transaction prohibited by any Governmental
Rule applicable to any Foreign Plan, (B) fail to make full
payment when due of all amounts due as contributions to any
Foreign Plan or (C) otherwise fail to comply with the
requirements of any Governmental Rule applicable to any
Foreign Plan, where singly or cumulatively, the above would be
reasonably likely to have a Material Adverse Effect.
(i) Transactions With Affiliates. Neither Borrower nor any of
its Subsidiaries shall enter into any Contractual Obligation with any
Affiliate (other than one of the Borrowers or one of its Subsidiaries)
or engage in any other transaction with any such Affiliate except upon
terms at least as favorable to such Borrower or such Subsidiary as an
arms-length transaction with unaffiliated Persons.
(j) Accounting Changes. Neither Borrowers nor their
Subsidiaries shall change (i) their fiscal year (currently January 1
through December 31) or (ii) their accounting practices except as
required by GAAP.
(k) NSI Contingent Payments. NSE shall not make NSI Contingent
Payments that exceed in aggregate amount $100,000,000.
5.03. Financial Covenants. Until the termination of this Agreement and the
satisfaction in full by Borrowers of all Obligations, Borrowers will comply, and
will cause compliance, with the following financial covenants, unless Required
Lenders shall otherwise consent in writing:
(a) Leverage Ratio. Neither Borrower shall permit its Leverage
Ratio to be greater than (i) 0.50 to 1.00 on June 30, 1998, (ii) 0.47
to 1.00 on September 30, 1998 or December 31, 1998 or (iii) 0.40 to
1.00 on the last day of any fiscal quarter thereafter.
(b) Fixed Charge Coverage Ratio. Neither Borrower shall permit
its Fixed Charge Coverage Ratio to be less than 2.50 to 1.00 for any
consecutive four-quarter period ending on the last day of any fiscal
quarter.
(c) Debt/EBITDA Ratio. Neither Borrower shall permit its
Debt/EBITDA Ratio to be greater than 1.50 to 1.00 for any consecutive
four-quarter period ending on the last day of any fiscal quarter.
(d) Tangible Net Worth. Neither Borrower shall permit its
Tangible Net Worth on any date of determination (such date to be
referred to herein as a "determination date") which occurs after March
31, 1998 (such date to be referred to herein as the "base date") to be
less than the sum on such determination date of the following:
(i) Eighty-five percent (85%) of such Borrower's
Tangible Net Worth on the base date;
(ii) Eighty percent (80%) of the sum of such
Borrower's consolidated quarterly net income (ignoring any
quarterly losses and deducting, in the case of NSJ, dividends
paid by NSJ to NSE) for each quarter after the base date
through and including the quarter ending immediately prior to
the determination date;
(iii) Seventy-five percent (75%) of the Net Proceeds
of all Equity Securities issued by such Borrower and its
Subsidiaries during the period commencing on the base date and
ending on the determination date; and
(iv) Seventy-five percent (75%) of the principal
amount of all debt securities of such Borrower and its
Subsidiaries converted to Equity Securities during the period
commencing on the base date and ending on the determination
date.
(e) Capital Expenditures. Borrowers and their Subsidiaries
shall not pay or incur Capital Expenditures which exceed in aggregate
in any fiscal year $35,000,000.
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more of the
following shall constitute an "Event of Default" hereunder:
(a) Non-Payment. Either Borrower shall (i) fail to pay when
due any principal of any Loan or (ii) fail to pay within two (2)
Business Days after the same becomes due any interest, fee or other
payment required under the terms of this Agreement or any of the other
Credit Documents; or
(b) Specific Defaults. Either Borrower or any of its
Subsidiary shall fail to observe or perform any covenant, obligation,
condition or agreement set forth in Paragraph 5.02 or Paragraph 5.03;
or
(c) Other Defaults. Either Borrower or any of its Subsidiaries
shall fail to observe or perform any other covenant, obligation,
condition or agreement contained in this Agreement or the other Credit
Documents and such failure shall continue for fifteen (15) Business
Days after the earlier of (i) either Borrower's written acknowledgement
of such failure and (ii) Agent's or any Lender's written notice to
Borrowers of such failure; or
(d) Representations and Warranties. Any representation,
warranty, certificate, information or other statement (financial or
otherwise) made or furnished by or on behalf of either Borrower to
Agent or any Lender in or in connection with this Agreement or any of
the other Credit Documents, or as an inducement to Agent or any Lender
to enter into this Agreement, shall be false, incorrect, incomplete or
misleading in any material respect when made (or deemed made) or
furnished and either (i) Agent or any Lender has delivered to Borrowers
written notice thereof and such representation, warranty, certificate,
information or other statement cannot be remedied or (ii) such
representation, warranty, certificate, information or other statement
continues to be false, incorrect, incomplete or misleading in any
material respect ten (10) Business Days after the earlier of (A) either
Borrower's written acknowledgement that such representation, warranty,
certificate, information or other statement was false, incorrect,
incomplete or misleading in any material respect and (B) Agent's or any
Lender's written notice to Borrowers that such representation,
warranty, certificate, information or other statement was false,
incorrect, incomplete or misleading in any material respect; or
(e) Cross-Default. (i) Either Borrower or any of its
Subsidiaries shall fail to make any payment on account of any
Indebtedness of such Person (other than the Obligations) when due
(whether at scheduled maturity, by required prepayment, upon
acceleration or otherwise) and such failure shall continue beyond any
period of grace provided with respect thereto, if the amount of such
Indebtedness exceeds $1,000,000 or the effect of such failure is to
cause, or permit the holder or holders thereof to cause, Indebtedness
of Borrowers and their Subsidiaries (other than the Obligations) in an
aggregate amount exceeding $10,000,000 to become due (whether at
scheduled maturity, by required prepayment, upon acceleration or
otherwise) or (ii) either Borrower or any of its Subsidiaries shall
otherwise fail to observe or perform any agreement, term or condition
contained in any agreement or instrument relating to any Indebtedness
of such Person (other than the Obligations), or any other event shall
occur or condition shall exist, if the effect of such failure, event or
condition is to cause, or permit the holder or holders thereof to
cause, Indebtedness of Borrower and its Subsidiaries (other than the
Obligations) in an aggregate amount exceeding $10,000,000 to become due
(and/or to be secured by cash collateral); or
(f) Insolvency, Voluntary Proceedings. Either Borrower or any
of its Subsidiaries shall (i) apply for or consent to the appointment
of a receiver, trustee, liquidator or custodian of itself or of all or
a substantial part of its property, (ii) be unable, or admit in writing
its inability, to pay its debts generally as they mature, (iii) make a
general assignment for the benefit of its or any of its creditors, (iv)
be dissolved or liquidated in full or in part, (v) become insolvent (as
such term may be defined or interpreted under any applicable statute),
(vi) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or consent to any such relief or to the appointment of or
taking possession of its property by any official in an involuntary
case or other proceeding commenced against it, or (vi) take any action
for the purpose of effecting any of the foregoing; or
(g) Involuntary Proceedings. Proceedings for the appointment
of a receiver, trustee, liquidator or custodian of either Borrower or
any of its Subsidiaries or of all or a substantial part of the property
thereof, or an involuntary case or other proceedings seeking
liquidation, reorganization or other relief with respect to either
Borrower or any of its Subsidiaries or the debts thereof under any
bankruptcy, insolvency or other similar law now or hereafter in effect
shall be commenced and an order for relief entered or such proceeding
shall not be dismissed or discharged within sixty (60) days of
commencement; or
(h) Judgments. (i) One or more judgments, orders, decrees or
arbitration awards requiring Borrowers and/or their Subsidiaries to pay
an aggregate amount of $10,000,000 or more (exclusive of amounts
covered by insurance issued by an insurer not an Affiliate of Borrowers
and otherwise satisfying the requirements set forth in Subparagraph
5.01(d)) shall be rendered against Borrowers and/or their Subsidiaries
in connection with any single or related series of transactions,
incidents or circumstances and the same shall not be satisfied, vacated
or stayed for a period of sixty (60) consecutive days; (ii) any
judgment, writ, assessment, warrant of attachment, tax lien or
execution or similar process shall be issued or levied against a
substantial part of the property of either Borrower or any of its
Subsidiaries and the same shall not be released, stayed, vacated or
otherwise dismissed within sixty (60) days after issue or levy; or
(iii) any other judgments, orders, decrees, arbitration awards, writs,
assessments, warrants of attachment, tax liens or executions or similar
processes which, alone or in the aggregate, are reasonably likely to
have a Material Adverse Effect are rendered, issued or levied; or
(i) Credit Documents. Any Credit Document or any material term
thereof shall cease to be, or be asserted by Borrower or any of its
Subsidiaries not to be, a legal, valid and binding obligation of
Borrower or any of its Subsidiaries enforceable in accordance with its
terms; or
(j) Employee Benefit Plans. Any Reportable Event which
constitutes grounds for the termination of any Employee Benefit Plan by
the PBGC or for the appointment of a trustee by the PBGC to administer
any Employee Benefit Plan shall occur, or any Employee Benefit Plan
shall be terminated within the meaning of Title IV of ERISA or a
trustee shall be appointed by the PBGC to administer any Employee
Benefit Plan; or
(k) Change of Control. Any Change of Control shall occur; or
(l) Material Adverse Effect. Any event(s) or condition(s)
which is (are) reasonably likely to have a Material Adverse Effect
shall occur or exist.
6.02. Remedies. At any time after the occurrence and during the continuance of
any Event of Default (other than an Event of Default referred to in Subparagraph
6.01(f) or 6.01(g)), Agent may, with the consent of the Required Lenders, or
shall, upon instructions from the Required Lenders, by written notice to
Borrowers, (a) terminate the Commitments and the obligations of Lenders to make
Loans and/or (b) declare all outstanding Obligations payable by Borrowers to be
immediately due and payable without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding. Upon the occurrence or
existence of any Event of Default described in Subparagraph 6.01(f) or 6.01(g),
immediately and without notice, (1) the Commitments and the obligations of
Lenders to make Loans shall automatically terminate and (2) all outstanding
Obligations payable by Borrowers hereunder shall automatically become
immediately due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding. In addition to the
foregoing remedies, upon the occurrence or existence of any Event of Default,
Agent may exercise any other right, power or remedy available to it under any of
the Credit Documents or otherwise by law, either by suit in equity or by action
at law, or both.
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.
7.01. Appointment, Powers and Immunities. Each Lender hereby appoints and
authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Lender or have any fiduciary duty to
any Lender. Co-Agents shall not have any duties or responsibilities or any
liabilities under this Agreement or any other Credit Document. Notwithstanding
anything to the contrary contained herein Agent shall not be required to take
any action which is contrary to this Agreement or any other Credit Document or
any applicable Governmental Rule. Neither Agent nor any Lender shall be
responsible to any other Lender for any recitals, statements, representations or
warranties made by either Borrower or any of its Subsidiaries contained in this
Agreement or in any other Credit Document, for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Credit Document or for any failure by either Borrower or any of its
Subsidiaries to perform their respective obligations hereunder or thereunder.
Agent may employ agents and attorneys-in-fact and shall not be responsible to
any Lender for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither Agent nor any of
its directors, officers, employees, agents or advisors shall be responsible to
any Lender for any action taken or omitted to be taken by it or them hereunder
or under any other Credit Document or in connection herewith or therewith,
except for its or their own gross negligence or willful misconduct. Except as
otherwise provided under this Agreement, Agent shall take such action with
respect to the Credit Documents as shall be directed by the Required Lenders.
7.02. Reliance by Agent. Agent shall be entitled to rely upon any certificate,
notice or other document (including any cable, telegram, facsimile or telex)
believed by it in good faith to be genuine and correct and to have been signed
or sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by Agent with reasonable care. As to any other matters not expressly provided
for by this Agreement, Agent shall not be required to take any action or
exercise any discretion, but shall be required to act or to refrain from acting
upon instructions of the Required Lenders and shall in all cases be fully
protected by Lenders in acting, or in refraining from acting, hereunder or under
any other Credit Document in accordance with the instructions of the Required
Lenders, and such instructions of the Required Lenders and any action taken or
failure to act pursuant thereto shall be binding on all of Lenders.
7.03. Defaults. Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default unless Agent has received a written notice from a
Lender or either Borrower, referring to this Agreement, describing such Default
and stating that such notice is a "Notice of Default". If Agent receives such a
notice of the occurrence of a Default, Agent shall give prompt notice thereof to
Lenders. Agent shall take such action with respect to such Default as shall be
reasonably directed by the Required Lenders; provided, however, that until Agent
shall have received such directions, Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default as it shall deem advisable in the best interest of Lenders.
7.04. Indemnification. Without limiting the Obligations of Borrowers hereunder,
each Lender agrees to indemnify Agent, ratably in accordance with their
Proportionate Shares, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may at any time be imposed on, incurred by or
asserted against Agent in any way relating to or arising out of this Agreement
or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof; provided, however, that no Lender shall be liable for
any of the foregoing to the extent they arise from Agent's gross negligence or
willful misconduct. Agent shall be fully justified in refusing to take or in
continuing to take any action hereunder unless it shall first be indemnified to
its satisfaction by Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
obligations of each Lender under this Paragraph 7.04 shall survive the payment
and performance of the Obligations, the termination of this Agreement and any
Lender ceasing to be a party to this Agreement (with respect to events which
occurred prior to the time such Lender ceased to be a Lender hereunder).
7.05. Non-Reliance. Each Lender represents that it has, independently and
without reliance on Agent, or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
business, prospects, management, financial condition and affairs of Borrowers
and their Subsidiaries and its own decision to enter into this Agreement and
agrees that it will, independently and without reliance upon Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own appraisals and decisions in taking or not
taking action under this Agreement. Neither Agent nor any of its affiliates nor
any of their respective directors, officers, employees, agents or advisors shall
(a) be required to keep any Lender informed as to the performance or observance
by either Borrower or any of its Subsidiaries of the obligations under this
Agreement or any other document referred to or provided for herein or to make
inquiry of, or to inspect the properties or books of either Borrower or any of
its Subsidiaries; (b) have any duty or responsibility to provide any Lender with
any credit or other information concerning either Borrower or any of its
Subsidiaries which may come into the possession of Agent, except for notices,
reports and other documents and information expressly required to be furnished
to Lenders by Agent hereunder; or (c) be responsible to any Lender for (i) any
recital, statement, representation or warranty made by either Borrower or any
officer, employee or agent of either Borrower in this Agreement or in any of the
other Credit Documents, (ii) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any Credit Document, (iii)
the value or sufficiency of the Collateral or the validity or perfection of any
of the liens or security interests intended to be created by the Credit
Documents, or (iv) any failure by either Borrower to perform its obligations
under this Agreement or any other Credit Document.
7.06. Resignation or Removal of Agent. Agent may resign at any time by giving
thirty (30) days prior written notice thereof to Borrowers and Lenders, and
Agent may be removed at any time with or without cause by the Required Lenders.
Upon any such resignation or removal, the Required Lenders shall have the right
to appoint a successor Agent, which Agent, if not a Lender, shall be reasonably
acceptable to Borrowers; provided, however, that Borrowers shall have no right
to approve a successor Agent if a Default has occurred and is continuing. Upon
the acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from the duties and obligations thereafter arising
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section VII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
7.07. Agent in its Individual Capacity. Agent and its affiliates may make loans
to, accept deposits from and generally engage in any kind of banking or other
business with Borrowers and their Subsidiaries and affiliates as though Agent
were not Agent hereunder. With respect to Loans, if any, made by Agent in its
capacity as a Lender, Agent in its capacity as a Lender shall have the same
rights and powers under this Agreement and the other Credit Documents as any
other Lender and may exercise the same as though it were not Agent, and the
terms "Lender" or "Lenders" shall include Agent in its capacity as a Lender.
SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices, requests,
demands, consents, instructions or other communications to or upon either
Borrower, any Lender or Agent under this Agreement or the other Credit Documents
shall be in writing and faxed, mailed or delivered, if to either Borrower or
Agent, at its respective facsimile number or address set forth below or, if to
any Lender, at the address or facsimile number specified for such Lender in Part
B of Schedule I (or to such other facsimile number or address for any party as
indicated in any notice given by that party to the other parties). All such
notices and communications shall be effective (a) when sent by an overnight
courier service of recognized standing, on the second Business Day following the
deposit with such service; (b) when mailed, first class postage prepaid and
addressed as aforesaid through the United States Postal Service or registered
mail through the Japanese Post Office, upon receipt; (c) when delivered by hand,
upon delivery; and (d) when faxed, upon confirmation of receipt; provided,
however, that any notice delivered to Agent under Section II shall not be
effective until received by Agent.
Agent: For notices related to the Japanese Borrowing:
ABN AMRO Bank N.V.
Tokyo Branch
13F, Shiroyama XX Xxxx Xxxxxxxx
0-0-0, Xxxxxxxxx, Xxxxxx-xx
Xxxxx 000
Xxxxx
Attn: Kiyoharu Michiwaki
Tel. No: 00-0-0000-0000
Fax No: 00-0-0000-0000 or 6903
For notices related to the U.S. Borrowing,
all other notices and copies of notices
related to the Japanese Borrowing:
ABN AMRO Bank N.V.
Syndications Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
U.S.A.
Attn: Xxxxx Xxxxxxxx
Tel. No: (000) 000-0000
Fax. No: (000) 000-0000
With a copy in each case to:
ABN AMRO Bank N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxxx-Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
NSE: Nu Skin Enterprises, Inc.
Xxx Xx Xxxx Xxxxx
00 Xxxx Xxxxxx
Xxxxx, Xxxx 00000
Attn: Chief Financial Officer
Tel. No: (000) 000-0000
Fax No. (000) 000-0000
NSJ: Nu Skin Japan Co., Ltd.
Shinjuku I-Land Tower 00X
0-0-0 Xxxxx Xxxxxx-xx
Xxxxx, Xxxxx 163-13
Attn: [___________]
Tel. No: 00-0-0000-0000
Fax No. 00-0-0000-0000
with a copy to NSE as provided above.
Each Notice of U.S. Borrowing, Notice of U.S. Borrowing Conversion, Notice of
U.S. Borrowing Interest Period Selection and Extension Request shall be given by
NSE to Agent's New York office located at the address referred to above during
such office's normal business hours; provided, however, that any such notice
received by Agent after 11:00 a.m. (New York time) on any Business Day shall be
deemed received by Agent on the next Business Day. Each Notice of Japanese
Borrowing, Notice of Japanese Borrowing Interest Period Selection and Extension
Request shall be given by NSJ to Agent's Tokyo office at the address referred to
above during such office's normal business hours; provided, however, that any
such notice received by Agent after 10:00 a.m. (Tokyo time) on any Business Day
shall be deemed received by Agent on the next Business Day. In any case where
this Agreement authorizes notices, requests, demands or other communications by
Borrowers to Agent or any Lender to be made by telephone or facsimile, Agent or
any Lender may conclusively presume that anyone purporting to be a person
designated in any incumbency certificate or other similar document received by
Agent or a Lender is such a person.
8.02. Expenses. Borrowers jointly and severally agree to pay on demand, whether
or not any Loan is made hereunder, (a) all reasonable and documented fees and
expenses, including reasonable attorneys' fees and expenses, incurred by Agent
in connection with the syndication of the Facilities, the preparation,
negotiation, execution and delivery of, and the exercise of its duties under,
this Agreement and the other Credit Documents, and the preparation, negotiation,
execution and delivery of amendments and waivers hereunder and thereunder and
(b) all reasonable and documented fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Agent and Lenders in the enforcement
or attempted enforcement of any of the Obligations or in preserving any of
Agent's or Lenders' rights and remedies (including, without limitation, all such
fees and expenses incurred in connection with any "workout" or restructuring
affecting the Credit Documents or the Obligations or any bankruptcy or similar
proceeding involving either Borrower or any of its Subsidiaries). As used
herein, the term "reasonable attorneys' fees and expenses" shall include,
without limitation, allocable costs and expenses of Agent's and Lenders'
in-house legal counsel and staff. The obligations of Borrowers under this
Paragraph 8.02 shall survive the payment and performance of the Obligations and
the termination of this Agreement.
8.03. Indemnification. To the fullest extent permitted by law, Borrowers jointly
and severally agree to protect, indemnify, defend and hold harmless Agent,
Lenders and their Affiliates and their respective directors, officers,
employees, agents and advisors ("Indemnitees") from and against any and all
liabilities, losses, damages or expenses of any kind or nature and from any
suits, claims or demands (including in respect of or for reasonable attorney's
fees and other expenses) arising on account of or in connection with any matter
or thing or action or failure to act by Indemnitees, or any of them, arising out
of or relating to the Credit Documents or any transaction contemplated thereby,
including without limitation any use by either Borrower of any proceeds of the
Loans, except to the extent such liability arises from the willful misconduct or
gross negligence of such Indemnitee. Upon receiving knowledge of any suit, claim
or demand asserted by a third party that Agent or any Lender believes is covered
by this indemnity, Agent or such Lender shall give Borrowers notice of the
matter and an opportunity to defend it, at Borrowers' sole cost and expense,
with legal counsel satisfactory to Agent or such Lender, as the case may be.
Agent or such Lender may also require Borrowers to defend the matter. Any
failure or delay of Agent or any Lender to notify Borrowers of any such suit,
claim or demand shall not relieve Borrowers of their obligations under this
Paragraph 8.03 but shall reduce such obligations to the extent of any increase
in those obligations caused solely by any such failure or delay which is
unreasonable. The obligations of Borrowers under this Paragraph 8.03 shall
survive the payment and performance of the Obligations and the termination of
this Agreement.
8.04. Waivers; Amendments. Any term, covenant, agreement or condition of this
Agreement or any other Credit Document may be amended or waived, and any consent
under this Agreement or any other Credit Document may be given, if such
amendment, waiver or consent is in writing and is signed by Borrowers and the
Required Lenders (or Agent on behalf of the Required Lenders with the written
approval of the Required Lenders); provided, however that:
(a) Any amendment, waiver or consent which would (i) extend
the Maturity Date (except for extensions as provided in Paragraph
2.03), (ii) reduce the Commitment Fees or any other fees or other
amounts payable for the account of all Lenders hereunder or extend the
scheduled date for payment of any such fees or amounts, (iii) amend
this Paragraph 8.04, (iv) amend the definition of Required Lenders or
(v) release any substantial part of the Collateral or any Guaranty
(except for releases as provided in Paragraph 2.13), must be in writing
and signed or approved in writing by all Lenders;
(b) Any amendment, waiver or consent which would (i) increase
the Total U.S. Commitment or (ii) reduce the principal of or interest
on the U.S. Loans or any fees or other amounts payable for the account
of all U.S. Lenders hereunder or extend the scheduled date for payment
of any such principal, interest, fees or amounts, must be in writing
and signed or approved in writing by all U.S. Lenders;
(c) Any amendment, waiver or consent which would (i) increase
the Total Japanese Commitment or (ii) reduce the principal of or
interest on the Japanese Loans or any fees or other amounts payable for
the account of all Japanese Lenders hereunder or extend the scheduled
date for payment of any such principal, interest, fees or amounts, must
be in writing and signed or approved in writing by all Japanese
Lenders;
(d) Any amendment, waiver or consent which would (i) increase
or decrease the U.S. Commitment of any U.S. Lender (except for a pro
rata decrease in the U.S. Commitments of all U.S. Lenders) or (ii)
increase or decrease the Japanese Commitment of any Japanese Lender
(except for a pro rata decrease in the Japanese Commitments of all
Japanese Lenders) must be in writing and signed by such Lender; and
(e) Any amendment, waiver or consent which affects the rights
or obligations of Agent must be in writing and signed by Agent.
No failure or delay by Agent or any Lender in exercising any right under this
Agreement or any other Credit Document shall operate as a waiver thereof or of
any other right hereunder or thereunder nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any other
right hereunder or thereunder. Unless otherwise specified in such waiver or
consent, a waiver or consent given hereunder shall be effective only in the
specific instance and for the specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Credit
Documents shall be binding upon and inure to the benefit of Borrowers,
Lenders, Agent, all future holders of the Notes and their respective
successors and permitted assigns, except that neither Borrower may
assign or transfer any of its rights or obligations under any Credit
Document without the prior written consent of Agent and each Lender.
(b) Participations. Any Lender may at any time sell to one or
more banks or other financial institutions ("Participants")
participating interests in any Loan owing to such Lender, any Note held
by such Lender, any Commitment of such Lender or any other interest of
such Lender under this Agreement and the other Credit Documents. In the
event of any such sale by a Lender of participating interests, such
Lender's obligations under this Agreement shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof,
such Lender shall remain the holder of its Notes for all purposes under
this Agreement and Borrowers and Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement. Any agreement pursuant to which
any such sale is effected may require the selling Lender to obtain the
consent of the Participant in order for such Lender to agree in writing
to any amendment, waiver or consent of a type specified in clause
(a)(i), (a)(v), (b)(ii), (c)(ii) or Subparagraph (d) of Paragraph 8.04
but may not otherwise require the selling Lender to obtain the consent
of such Participant to any other amendment, waiver or consent
hereunder. Borrowers also agree that any Lender which has transferred
any participating interest in its Commitments or Loans shall,
notwithstanding any such transfer, be entitled to the full benefits
accorded such Lender under Paragraph 2.10, Paragraph 2.11, and
Paragraph 2.12, as if such Lender had not made such transfer.
(c) Assignments. Any Lender may, at any time, sell and assign
to any other Lender or any Eligible Assignee (individually, an
"Assignee Lender") all or a portion of its rights and obligations under
this Agreement and the other Credit Documents (such a sale and
assignment to be referred to herein as an "Assignment") pursuant to an
assignment agreement in the form of Exhibit K(an "Assignment
Agreement"), executed by each Assignee Lender and such assignor Lender
(an "Assignor Lender") and delivered to Agent for its acceptance and
recording in the Register; provided, however, that:
(i) Without the written consent of Agent and, if no
Default has occurred and is continuing, NSE (which consent of
Agent and NSE shall not be unreasonably withheld), no U.S.
Lender may make any Assignment of its U.S. Commitment or U.S.
Loan to any Assignee Lender which is not, immediately prior to
such Assignment, a U.S. Lender hereunder or an Affiliate
thereof acting through an office or branch located in the
United States;
(ii) Without the written consent of Agent and, if no
Default has occurred and is continuing, NSJ (which consent of
Agent and NSJ shall not be unreasonably withheld), no Japanese
Lender may make any Assignment of its Japanese Commitment or
Japanese Loan to any Assignee Lender which is not, immediately
prior to such Assignment, a Japanese Lender hereunder or an
Affiliate thereof acting through an office or branch located
in Japan;
(iii) Without the written consent of Agent and, if no
Default has occurred and is continuing, NSE (which consent of
Agent and NSE shall not be unreasonably withheld), no U.S.
Lender may make any Assignment of its U.S. Commitment or U.S.
Loan to any Assignee Lender if, after giving effect to such
Assignment, the U.S. Commitment or U.S. Loan of such Lender or
such Assignee Lender would be less than Ten Million Dollars
($10,000,000) (except that a U.S. Lender may make an
Assignment which reduces its U.S. Commitment or U.S. Loan to
zero without the written consent of NSE and Agent);
(iv) Without the written consent of Agent and, if no
Default has occurred and is continuing, NSJ (which consent of
Agent and NSJ shall not be unreasonably withheld), no Japanese
Lender may make any Assignment of its Japanese Commitment or
Japanese Loan to any Assignee Lender if, after giving effect
to such Assignment, the Japanese Commitment or Japanese Loan
of such Lender or such Assignee Lender would be less than One
Billion Yen ((Y)1,000,000,000) (except that a Japanese Lender
may make an Assignment which reduces its Japanese Commitment
or Japanese Loan to zero without the written consent of NSE
and Agent);
(v) Without the written consent of Agent and, if no
Default has occurred and is continuing, NSE (which consent of
Agent and NSE shall not be unreasonably withheld), no U.S.
Lender may make any Assignment of its U.S. Commitment or U.S.
Loan which does not assign and delegate an equal pro rata
interest in all rights, duties and obligations of such Lender
under this Agreement and the other Credit Documents (except
for its rights and duties, if any, relating to the Japanese
Facility); and
(vi) Without the written consent of Agent and, if no
Default has occurred and is continuing, NSJ (which consent of
Agent and NSJ shall not be unreasonably withheld), no Japanese
Lender may make any Assignment of its Japanese Commitment or
Japanese Loan which does not assign and delegate an equal pro
rata interest in all rights, duties and obligations of such
Lender under this Agreement and the other Credit Documents
(except for its rights and duties, if any, relating to the
U.S. Facility).
Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (A) each Assignee
Lender thereunder shall be a Lender hereunder with Commitments or Loans
as set forth on Attachment 1 to such Assignment Agreement (under the
caption "Commitments or Loans After Assignment") and shall have the
rights, duties and obligations of such a Lender under this Agreement
and the other Credit Documents, and (B) the Assignor Lender thereunder
shall be a Lender with Commitments or Loans as set forth on Attachment
1 to such Assignment Agreement (under the caption "Commitments or Loans
After Assignment"), or, if the Commitments or Loans of the Assignor
Lender have been reduced to zero, the Assignor Lender shall cease to be
a Lender and to have any obligation to make any Loan; provided,
however, that any such Assignor Lender which ceases to be a Lender
shall continue to be entitled to the benefits of any provision of this
Agreement which by its terms survives the termination of this
Agreement. Each Assignment Agreement shall be deemed to amend Schedule
I to the extent, and only to the extent, necessary to reflect the
addition of each Assignee Lender, the deletion of each Assignor Lender
which reduces its Commitments or Loans to zero, and the resulting
adjustment of Commitments or Loans arising from the purchase by each
Assignee Lender of all or a portion of the rights and obligations of an
Assignor Lender under this Agreement and the other Credit Documents. On
or prior to the Assignment Effective Date determined pursuant to each
Assignment Agreement, Borrowers, at their own expense, shall, if
requested by Assignee Lenders, execute and deliver to Agent, in
exchange for the surrendered Notes, if any, of the Assignor Lender
thereunder, new Notes to the order of each Assignee Lender thereunder
and, if the Assignor Lender is continuing as a Lender hereunder, new
Notes to the order of the Assignor Lender. The Notes surrendered by the
Assignor Lender shall be returned by Agent to Borrowers marked
"replaced". Each Assignee Lender which becomes a U.S. Lender and was
not previously a U.S. Lender hereunder and which is not incorporated
under the laws of the United States of America or a state thereof
shall, within three (3) Business Days of becoming a U.S. Lender,
deliver to NSE and Agent such certificates and other evidence as NSE or
Agent may reasonably request to establish that such Lender is entitled
to receive payments under this Agreement on account of its U.S. Loan
without deduction or withholding of any United States federal income
taxes. Each Assignee Lender which becomes a Japanese Lender and was not
previously a Japanese Lender hereunder and which is not incorporated
under the laws of Japan shall, within three (3) Business Days of
becoming a Japanese Lender, deliver to NSJ and Agent such certificates
and other evidence as NSJ or Agent may reasonably request to establish
that such Lender is entitled to receive payments under this Agreement
on account of its Japanese Loan without deduction or withholding of any
Japanese income taxes.
(d) Register. Agent shall maintain at its address referred to
in Paragraph 8.01 a copy of each Assignment Agreement delivered to it
and a register (the "Register") for the recordation of the names and
addresses of Lenders and the Commitments or Loans of each Lender from
time to time. The entries in the Register shall be conclusive in the
absence of manifest error, and Borrowers, Agent and Lenders may treat
each Person whose name is recorded in the Register as the owner of the
Commitments or Loans recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by either
Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Lender and an Assignee Lender (and, to the
extent required by Subparagraph 8.05(c), by Borrowers and Agent)
together with payment to Agent by Assignor Lender of a registration and
processing fee of $3,000, Agent shall (i) promptly accept such
Assignment Agreement and (ii) on the Effective Date determined pursuant
thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to Lenders and
Borrowers. Agent may, from time to time at its election, prepare and
deliver to Lenders and Borrowers a revised Schedule I reflecting the
names, addresses and respective Commitments or Loans of all Lenders
then parties hereto.
(f) Confidentiality. Subject to Paragraph 8.12, Agent and
Lenders may disclose the Credit Documents and any financial or other
information relating to Borrowers or any Subsidiary to each other or to
any potential Participant or Assignee Lender.
(g) Pledges to Federal Reserve Banks. Notwithstanding any
other provision of this Agreement, any Lender may at any time assign
all or a portion of its rights under this Agreement and the other
Credit Documents to a Federal Reserve Bank. No such assignment shall
relieve the assigning Lender from its obligations under this Agreement
and the other Credit Documents.
8.06. Setoff; Security Interest.
(a) Setoff. In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, with the prior
consent of Agent but without prior notice to or consent of Borrowers,
any such notice and consent being expressly waived by Borrowers to the
extent permitted by applicable law, upon the occurrence and during the
continuance of an Event of Default, to set-off and apply against the
Obligations of either Borrower any amount owing from such Lender to
such Borrower. The aforesaid right of set-off may be exercised by such
Lender against a Borrower or against any trustee in bankruptcy, debtor
in possession, assignee for the benefit of creditors, receiver or
execution, judgment or attachment creditor of such Borrower or against
anyone else claiming through or against such Borrower or such trustee
in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off may not have been
exercised by such Lender at any prior time. Each Lender agrees promptly
to notify the applicable Borrower after any such set-off and
application made by such Lender, provided that the failure to give such
notice shall not affect the validity of such set-off and application.
(b) Security Interest. As security for the Obligations, each
Borrower hereby grants to Agent and each Lender, for the benefit of all
Lenders, a continuing security interest in any and all deposit accounts
or moneys of such Borrower now or hereafter maintained with such
Lender. Each Lender shall have all of the rights of a secured party
with respect to such security interest.
8.07. No Third Party Rights. Nothing expressed in or to be implied from this
Agreement is intended to give, or shall be construed to give, any Person, other
than the parties hereto and their permitted successors and assigns hereunder,
any benefit or legal or equitable right, remedy or claim under or by virtue of
this Agreement or under or by virtue of any provision herein.
8.08. Partial Invalidity. If at any time any provision of this Agreement is or
becomes illegal, invalid or unenforceable in any respect under the law or any
jurisdiction, neither the legality, validity or enforceability of the remaining
provisions of this Agreement nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction shall in any way be
affected or impaired thereby.
8.09. Jury Trial. EACH OF BORROWERS, LENDERS AND AGENT, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.
8.10. Counterparts. This Agreement 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.
8.11. . NSE is individually liable for the payment of the U.S. Commitment Fees
and the principal of, interest on and all other amounts related to the U.S.
Loans, and NSJ is individually liable for the payment of the Japanese Commitment
Fees and the principal of, interest on and all other amounts related to the
Japanese Loans. Each Borrower is jointly and severally liable for the payment
and performance of all other Obligations under this Agreement and the other
Credit Documents, and NSE also is liable for the payment and performance of all
Obligations of NSJ under this Agreement and the other Credit Documents as
provided in the NSE Guaranty.
8.12. . Neither any Lender nor Agent shall disclose to any Person any
information with respect to Borrowers or any of their Subsidiaries which is
furnished pursuant to this Agreement or under the other Credit Documents, except
that any Lender or Agent may disclose any such information (a) to its own
directors, officers, employees, auditors, counsel and other advisors and to its
Affiliates to the extent reasonably determined by such Lender or Agent to be
necessary for the administration or enforcement of the Credit Documents; (b) to
any other Lender or Agent; (c) which is otherwise available to the public; (d)
if required or appropriate in any report, statement or testimony submitted to
any Governmental Authority having or claiming to have jurisdiction over such
Lender or Agent; (e) if required in response to any summons or subpoena; (f) in
connection with any enforcement by Lenders and Agent of their rights under this
Agreement or the other Credit Documents or any litigation among the parties
relating to the Credit Documents or the transactions contemplated thereby; (g)
to comply with any Requirement of Law applicable to such Lender or Agent; (h) to
any Assignee Lender or Participant or any prospective Assignee Lender or
Participant, provided that such Assignee Lender or Participant or prospective
Assignee Lender or Participant agrees to be bound by this Paragraph 8.12; or (i)
otherwise with the prior consent of Borrowers; provided, however, that (i) any
Lender or Agent served with any summons or subpoena demanding the disclosure of
any such information shall use reasonable efforts to notify Borrowers promptly
of such summons or subpoena if not prohibited by any Requirement of Law and, if
requested by Borrowers and not disadvantageous to such Lender or Agent, to
cooperate with Borrowers in obtaining a protective order restricting such
disclosure, and (ii) any disclosure made in violation of this Agreement shall
not affect the obligations of Borrowers and their Subsidiaries under this
Agreement and the other Credit Documents.
8.13. . Each Borrower irrevocably submits to the non-exclusive jurisdiction of
the courts of the State of California and the courts of the United States of
America located in the Northern District of California and agrees that any legal
action, suit or proceeding arising out of or relating to this Agreement or any
of the other Credit Documents may be brought against such party in any such
courts. Final judgment against either Borrower in any such action, suit or
proceeding shall be conclusive and may be enforced in any other jurisdiction by
suit on the judgment, a certified or exemplified copy of which shall be
conclusive evidence of the judgment, or in any other manner provided by law.
Nothing in this Subparagraph 8.13 shall affect the right of Agent or any Lender
to commence legal proceedings or otherwise xxx either Borrower in any other
appropriate jurisdiction, or concurrently in more than one jurisdiction, or to
serve process, pleadings and other papers upon either Borrower in any manner
authorized by the laws of any such jurisdiction. Each Borrower agrees that
process served either personally or by registered mail shall, to the extent
permitted by law, constitutes adequate service of process in any such suit.
Without limiting the foregoing, each Borrower hereby appoints, in the case of
any such action or proceeding brought in the courts of or in the State of
California, CT Corporation, with offices on the date hereof at 000 Xxxx Xxxxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, to receive for it and on its behalf,
service of process in the State of California with respect thereto, provided
each Borrower may appoint any other person, reasonably acceptable to Agent, with
offices in the State of California to replace such agent for service of process
upon delivery to Agent of a reasonably acceptable agreement of such new agent
agreeing so to act. Each Borrower irrevocably waives to the fullest extent
permitted by applicable law (a) any objection which it may have now or in the
future to the laying of the venue of any such action, suit or proceeding in any
court referred to in the first sentence above; (b) any claim that any such
action, suit or proceeding has been brought in an inconvenient forum; (c) its
right of removal of any matter commenced by any other party in the courts of the
State of California to any court of the United States of America; (d) any
immunity which it or its assets may have in respect of its obligations under
this Agreement or any other Credit Document from any suit, execution, attachment
(whether provisional or final, in aid of execution, before judgment or
otherwise) or other legal process; and (e) any right it may have to require the
moving party in any suit, action or proceeding brought in any of the courts
referred to above arising out of or in connection with this Agreement or any
other Credit Document to post security for the costs of such Borrower or to post
a bond or to take similar action.
[The first signature page follows.]
IN WITNESS WHEREOF, Borrowers, Lenders and Agent have caused this
Agreement to be executed as of the day and year first above written.
BORROWERS: NU SKIN ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title:President and CEO
NU SKIN JAPAN CO., LTD.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title:Representative Director
AGENT: ABN AMRO BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx-Xxxxxxx
Name: Xxxxxx Xxxxxxxx-Xxxxxxx
Title:Vice President & Director
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title:Assistant Vice President
LENDERS: ABN AMRO BANK N.V.
By: /s/ Xxxxxx Xxxxxxxx-Xxxxxxx
Name: Xxxxxx Xxxxxxxx-Xxxxxxx
Title:Vice President & Director
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title:Assistant Vice President
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxx X. Leader
Name: Xxxxx X. Leader
Title:Vice President
By:
Name:
Title:
BANK ONE, UTAH, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ D. Xxx Xxxx
Name: D. Xxx Xxxx
Title:Vice President
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title:Assistant Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title:Commercial Banking Officer
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title:Assistant Vice President
NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title:Vice President
By:
Name:
Title:
U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title:Vice President
By:
Name:
Title:
ZIONS FIRST NATIONAL BANK
By:
Name:
Title:
By:
Name:
Title:
CO-AGENTS: BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ Xxxxx X. Leader
Name: Xxxxx X. Leader
Title:Vice President
By:
Name:
Title:
NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title:Vice President
By:
Name:
Title:
SCHEDULE I
LENDERS
PART A - COMMITMENTS
U.S. JAPANESE
LENDER COMMITMENT COMMITMENT
----------------------------------- ---------------- ---------------------
ABN AMRO Bank N.V. 0 $33,400,000.00
Bank of America National Trust and $10,000,000.00 $20,000,000.00
Savings Association
Bank One, Utah, National $10,000,000.00 0
Association
Banque Nationale de Paris $8,400,000.00 $6,600,000.00
KeyBank National Association $20,000,000.00 0
NationsBank, N.A. $21,600,000.00 0
Union Bank of California, N.A. $10,000,000.00 $10,000,000.00
U.S. Bank, National Association $15,000,000.00 0
Zions First National Bank $15,000,000.00 0
TOTAL $110,000,000.00 $70,000,000.00
PART B - ADDRESSES FOR NOTICES, ETC.
ABN AMRO BANK N.V.
Domestic Lending Office and Euro-Dollar Lending Office:
ABN AMRO Bank N.V.
San Francisco International Branch
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Japanese Lending Office:
ABN AMRO Bank N.V.
Tokyo Branch
00X, Xxxxxxxxx XX Xxxx Xxxxxxxx
0-0-0, Xxxxxxxxx, Xxxxxx-xx
Xxxxx 000
Xxxxx
Address for Notices related to the U.S. Borrowing:
ABN AMRO Bank N.V.
San Francisco International Branch
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx-Xxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Address for Notices related to the Japanese Borrowing:
ABN AMRO Bank N.V.
Tokyo Branch
13F, Shiroyama XX Xxxx Xxxxxxxx
0-0-0, Xxxxxxxxx, Xxxxxx-xx
Xxxxx 000
Xxxxx
Attn: Kiyoharu Michiwaki
Tel. No: 00-0-0000-0000
Fax No: 00-0-0000-0000 or 6903
With a copy of all notices to:
ABN AMRO North America, Inc.
Syndications Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Wiring Instructions for the U.S. Borrowing:
ABN AMRO Bank N.V.
New York, New York
RT/ABA No.: 000000000
Account Name: ABN AMRO Bank N.V. - Chicago CPU
Account No.: 650-001-1789-41
Reference: Nu Skin Enterprises, Inc.
Wiring Instructions for the Japanese Borrowing:
Paying Bank: Sakura Bank, Tokyo Eigyo-bu
Beneficiary: Oranda Ginko Tokyo Shiten
(Japanese Account Name for ABN AMRO Bank Tokyo Branch)
Type of Account: Current
Account No.: 0000000
Reference: Nu Skin Japan
-or-
BOJ Net (Bank of Japan Financial Network System)
Tohzo Yokin Furikae
Account No.: 0422-001
Transfer Code: 055
Settlement: Kokan Jiri
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Domestic Lending Office and Euro-Dollar Lending Office:
Bank of America National Trust and Savings Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Japanese Lending Office:
Bank of America National Trust and Savings Association
Ark Mori Building
Xx. 00-00, Xxxxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx 000
Xxxxx
Address for Notices related to the U.S. Borrowing:
Bank of America National Trust and Savings Association
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Leader, Vice President
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Telex: 34346
Answerback: BANKAMER SFO
Address for Notices related to the Japanese Borrowing:
Bank of America National Trust and Savings Association
Ark Mori Building
Xx. 00-00, Xxxxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx 000
Xxxxx
Attn: Atshushi Tauchi
Tel. No: 00-0-0000-0000
Fax No: 00-0-0000-0000
Wiring Instructions for the U.S. Borrowing:
Bank of America National Trust and Savings Association
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000 or 7532
TELEX: 34346
ANSWERBACK: BANKAMER SFO
ABA No: 000000000
Account No: 12331-83980
Attn: Xxxxxx Xxxx
Reference: Nu Skin Enterprises
Wiring Instructions for the Japanese Borrowing:
Bank of Japan
For Account of: Bank of America Tokyo Branch
Account No.: 0403-001
Attn: Xxxxx Xxxxxxxxx
BANK ONE, UTAH, NATIONAL ASSOCIATION
Domestic Lending Office and Euro-Dollar Lending Office:
Bank One, Utah, N.A.
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Address for Notices related to the U.S. Borrowing:
Bank One, Utah, N.A.
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tel. No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Bank One, Utah, N.A.
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Wiring Instructions for the U.S. Borrowing:
Bank One, Utah, N.A.
00 Xxxx Xxxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
ABA No.: 000000000
For Further Credit to: Account No. 1547-8015
BANQUE NATIONALE DE PARIS
Domestic Lending Office and Euro-Dollar Lending Office:
Banque Nationale de Paris
San Xxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Japanese Lending Office:
Banque Nationale de Paris
Tokyo Branch
Shiroyama XX Xxxx Xxxx. 00X
0-0, Xxxxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx
Xxxxx
Address for Notices related to the U.S. Borrowing:
Banque Nationale de Paris
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx, Vice President-Treasury
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Telex No: RCA 278900
Answerback: BNPS UR
with a copy to:
Banque Nationale de Paris
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: D. Xxx Xxxx, Vice President
Tel. No: (000) 000-0000, Ext. 206
Fax No: (000) 000-0000
Telex No: RCA 278900
Answerback: BNPS UR
Address for Notices related to the Japanese Borrowing:
Banque Nationale de Paris
Tokyo Branch
Shiroyama XX Xxxx Xxxx. 00X
0-0, Xxxxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx
Xxxxx
Attn: Xxxxxxxx Xxxxx
Tel. No: 00-0-0000-0000
Fax No: 00-0-0000-0000
with a copy to:
Banque Nationale de Paris
Tokyo Branch
Shiroyama XX Xxxx Xxxx. 00X
0-0, Xxxxxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx
Xxxxx
Attn: Xxxxx Xxxxx
Tel. No: 00-0-0000-0000
Fax No: 00-0-0000-0000
Wiring Instructions for the U.S. Borrowing:
Banque Nationale de Paris
ABA No: 000000000
Beneficiary: BNP San Francisco
Account No.: 14334000176
Reference: [commitment fee, interest payment,
principal paydown, etc.]
By Order: Nu Skin Enterprises, Inc.
Attn: Xxxxx Xxxxx
Wiring Instructions for the Japanese Borrowing:
Banque Nationale de Paris
c/o Bank of Japan
Tokyo
Account No: 0443
KEYBANK NATIONAL ASSOCIATION
Domestic Lending Office and Euro-Dollar Lending Office:
KeyBank National Association
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Address for Notices related to the U.S. Borrowing:
KeyBank National Association
000 X. Xxxxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn: Specialty Services Team
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Wiring Instructions for the U.S. Borrowing:
KeyBank National Association
ABA No: 000000000
Attn: Specialty Services
Account No: 00000000
Reference: Nu Skin
NATIONSBANK, N.A.
Domestic Lending Office and Euro-Dollar Lending Office:
NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Address for Notices related to the U.S. Borrowing:
NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
with a copy to:
NationsBank, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Tel. No: (000) 000-0000 or 0-000-000-0000
Fax No: (000) 000-0000 or (000) 000-0000
Wiring Instructions for the U.S. Borrowing:
NationsBank, N.A.
Dallas, Texas
ABA No: 000000000
For Further Credit To: Corporate Credit Services
Account No: 1292000883
Attn: Xxxxx Xxxxx
UNION BANK OF CALIFORNIA, N.A.
Domestic Lending Office and Euro-Dollar Lending Office:
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Japanese Lending Office:
Union Bank of California, N.A.
Tokyo Branch
0-0-0 Xxxxxxxxxx, Xxxx Xx
Xxxxx 000 0000
Xxxxx
Address for Notices related to the U.S. Borrowing:
Union Bank of California, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Address for Notices related to the Japanese Borrowing:
Union Bank of California, N.A.
Tokyo Branch
0-0-0 Xxxxxxxxxx, Xxxx Xx
Xxxxx 000 0000
Xxxxx
Attn: Xxxxxxx Xxxxx
Tel. No: 00-0-0000-0000
Fax No: 00-0-0000-0000
With a copy of all notices to:
Union Bank of California, N.A.
Corporate Markets Group
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Wiring Instructions for the U.S. Borrowing:
Union Bank of California, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
FED ABA No: 0000-0000-0
Account No: 070196431
Reference: Nu Skin Enterprises
Wiring Instructions for the Japanese Borrowing:
Paying Bank: The Bank of Tokyo-Mitsubishi, Ltd.
-Head Office
Beneficiary: Union Bank of California, Tokyo Branch
Account No: 001-0000000
Reference: Nu Skin Japan
Credit Contact//Business Matters/Documentation/Bid Option/Financial Information
should be sent to:
Union Bank of California, N.A.
Corporate Markets Group
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
U.S. BANK, NATIONAL ASSOCIATION
Domestic Lending Office and Euro-Dollar Lending Office:
U.S. Bank, National Association
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Address for Notices related to the U.S. Borrowing:
U.S. Bank, National Association
X.X. Xxx 000
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxx, Vice President
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Telex: 6733211
Answerback: USB UW
with a copy to:
U.S. Bank, National Association
X.X. Xxx 000
0000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Telex: 6733211
Answerback: USB UW
Wiring Instructions for the U.S. Borrowing:
U.S. Bank, National Association
Portland, Oregon
ABA No: 000000000
For Further Credit To: Commercial Loan Servicing
Account No: 000-0000-000
Attn: Participation Specialist
ZIONS FIRST NATIONAL BANK
Domestic Lending Office and Euro-Dollar Lending Office:
Zions First National Bank
Central Utah Commercial Banking Center
0000 Xxxxx 000 Xxxx
Xxxx, XX 00000-0000
Address for Notices related to the U.S. Borrowing:
Zions First National Bank
Central Utah Commercial Banking Center
0000 Xxxxx 000 Xxxx
Xxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Vice President
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
with a copy to:
Zions First Xxxxxxxx Xxxx
#0 Xxxxx Xxxx
Xxxx Xxxx Xxxx, XX 00000
-or-
X.X. Xxx 00000
Xxxx Xxxx Xxxx, XX 00000-000
Attn: Xxxxxxxx X. Xxxxxxxx
Tel. No: (000) 000-0000
Fax No: (000) 000-0000
Wiring Instructions for the U.S. Borrowing:
Zions First National Bank
Salt Lake City, Utah
ABA No.: 000000000
Attn: Note Teller, 187-K2
SCHEDULE II
PRICING GRID
APPLICABLE
APPLICABLE APPLICABLE MARGIN
NSE'S MARGIN MARGIN FOR
DEBT/ PRICING FOR FOR JAPANESE
EBITDA PERIOD BASE RATE LIBOR LOAN
RATIO LEVEL PORTIONS PORTIONS PORTIONS
------ ----- -------- -------- ----------
less than 0.50 1 0% 0.600% 0.600%
greater than
or equal to 0.50,
less than 1.00 2 0% 0.750% 0.750%
greater than
or equal to 1.00 3 0% 1.000% 1.000%
EXPLANATION
1. The Applicable Margin For Base Rate Portions, LIBOR Portions and
Japanese Loan Portions will be set for each Pricing Period and will
vary depending upon whether such period is a Level 1 Period, a Level 2
Period or a Level 3 Period.
2. The first Pricing Period, which commences on the date of this Agreement
and ends on September 30, 1998, will be a Xxxxx 0 Period.
3. The second Pricing Period, which commences on October 1, 1998 and ends
on December 31, 1998, will be a Xxxxx 0 Period, a Level 2 Period, or a
Level 3 Period depending upon NSE's Debt/EBITDA Ratio for the
consecutive four-quarter period ending on June 30, 1998.
4. Each Pricing Period thereafter will be a Level 1 Period, a Level 2
Period, or a Level 3 Period depending upon NSE's Debt/EBITDA Ratio for
the consecutive four-quarter period ending on the last day of the
quarter that ended one quarter prior to the first day of such Pricing
Period.
5. Examples:
(a) NSE's Debt/EBITDA Ratio is 0.46 for the consecutive
four-quarter period ending on September 30, 1998. The Pricing Period of
January 1, 1999 through March 31, 1999 will be a Level 1 Period.
(b) NSE's Debt/EBITDA Ratio is 1.10 for the consecutive
four-quarter period ending on December 31, 1998. The Pricing Period of
April 1, 1999 through June 30, 1999 will be a Xxxxx 0 Xxxxxx.
XXXXXXXX 3.01
INITIAL CLOSING DATE CONDITIONS PRECEDENT
A. Principal Credit Documents.
(1) The Credit Agreement, duly executed by each Borrower, each
Lender, Agent and each Co-Agent;
(2) A Note payable to each applicable Lender requesting such a
Note for its U.S. Loan, each duly executed by the applicable Borrower;
(3) The Subsidiary Guaranty, duly executed by each Material
Domestic Subsidiary of NSE; and
(4) The NSE Guaranty, duly executed by NSE.
B. NSE Corporate Documents.
(1) The Certificate of Incorporation of NSE, certified as of a
recent date prior to the Initial Closing Date by the Secretary of State
of Delaware;
(2) A Certificate of Good Standing (or comparable certificate)
for NSE, certified as of a recent date prior to the Initial Closing
Date by the Secretary of State of Delaware;
(3) A certificate of the Secretary or an Assistant Secretary
of NSE, dated the Initial Closing Date, certifying (a) that attached
thereto is a true and correct copy of the Bylaws of NSE as in effect on
the Initial Closing Date; (b) that attached thereto are true and
correct copies of resolutions duly adopted by the Board of Directors of
NSE and continuing in effect, which (i) authorize the execution,
delivery and performance by NSE of this Agreement and the other Credit
Documents executed or to be executed by NSE and the consummation of the
transactions contemplated hereby and thereby and (ii) designate the
officers authorized so to execute, deliver and perform on behalf of
NSJ; and (c) that there are no proceedings for the dissolution or
liquidation of NSE;
(4) A certificate of the Secretary or an Assistant Secretary
of NSE, dated the Initial Closing Date, certifying the incumbency,
signatures and authority of the officers of Borrower authorized to
execute, deliver and perform this Agreement, the other Credit Documents
and all other documents, instruments or agreements related thereto
executed or to be executed by NSE; and
(5) Certificates of Good Standing (or comparable certificates)
for NSE, certified as of a recent date prior to the Initial Closing
Date by the Secretaries of State (or comparable official) of each
jurisdiction in which NSE is qualified to do business.
C. NSJ Corporate Documents.
(1) The Articles of Association (Teikan) of NSJ, certified as
of a recent date prior to the Initial Closing Date by a Statutory
Auditor of NSJ, together with an English translation thereof (if
appropriate);
(2) A copy of the commercial registry (Syougyou Tookibotoohon)
for NSJ, issued as of a recent date prior to the Initial Closing Date
by the registrar of the Tokyo Legal Affairs Bureau of the Ministry of
Justice, together with an English translation thereof (if appropriate);
(3) A certificate of a Statutory Auditor of NSJ, dated the
Initial Closing Date, certifying (a) that attached thereto are true and
correct copies of resolutions duly adopted by the Board of Directors of
NSJ and continuing in effect, which (i) authorize the execution,
delivery and performance by NSJ of this Agreement and the other Credit
Documents executed or to be executed by NSJ and the consummation of the
transactions contemplated hereby and (ii) designate the officers,
directors and attorneys authorized so to execute, deliver and perform
on behalf of NSJ; and (b) that there are no proceedings for the
dissolution or liquidation of NSJ, together with an English translation
thereof (if appropriate);
(4) A certificate of a Statutory Auditor of NSJ, dated the
Initial Closing Date, certifying the incumbency, signatures and
authority of the officers, directors or attorneys of NSJ authorized to
execute, deliver and perform this Agreement, the other Credit Documents
and all other documents, instruments or agreements related thereto
executed or to be executed by NSJ, together with an English translation
thereof (if appropriate).
D. Other Subsidiary Corporate Documents.
(1) The Certificate of Incorporation (or comparable
certificate) of each Material Subsidiary of NSE, certified as of a
recent date prior to the Initial Closing Date by the Secretary of State
(or comparable public official) of its jurisdiction of incorporation
(or, if any such Subsidiary is organized under the laws of any
jurisdiction outside the United States, such other evidence as Agent
may request to establish that such Subsidiary is duly organized and
existing under the laws of such jurisdiction), together with an English
translation thereof (if appropriate);
(2) To the extent such jurisdiction has the legal concept of a
corporation being in good standing and a Governmental Authority in such
jurisdiction issues any evidence of such good standing, a Certificate
of Good Standing (or comparable certificate) for each Material
Subsidiary of NSE, certified as of a recent date prior to the Initial
Closing Date by the Secretary of State (or comparable public official)
of its jurisdiction of incorporation (or, if any such Subsidiary is
organized under the laws of any jurisdiction outside the United States,
such other evidence as Agent may request to establish that such
Subsidiary is duly qualified to do business and in good standing under
the laws of such jurisdiction), together with an English translation
thereof (if appropriate);
(3) A certificate of the Secretary or an Assistant Secretary
(or comparable officer) of each Material Subsidiary of NSE executing
the Subsidiary Guaranty, dated the Initial Closing Date, certifying (a)
that attached thereto is a true and correct copy of the Bylaws of such
Subsidiary as in effect on the Closing Date (or, if any such Subsidiary
is organized under the laws of any jurisdiction outside the United
States, any comparable document provided for in the respective
corporate laws of that jurisdiction); (b) that attached thereto are
true and correct copies of resolutions duly adopted by the Board of
Directors of such Subsidiary (or other comparable enabling action) and
continuing in effect, which (i) authorize the execution, delivery and
performance by such Subsidiary of the Credit Documents to be executed
by such Subsidiary and the consummation of the transactions
contemplated thereby and (ii) designate the officers, directors and
attorneys authorized so to execute, deliver and perform on behalf of
such Subsidiary; and (c) that there are no proceedings for the
dissolution or liquidation of such Subsidiary, together with a
certified English translation thereof (if appropriate);
(4) A certificate of the Secretary or an Assistant Secretary
(or comparable officer) of each Material Subsidiary of NSE executing
the Subsidiary Guaranty, dated the Initial Closing Date, certifying the
incumbency, signatures and authority of the officers, directors and
attorneys of such Subsidiary authorized to execute, deliver and perform
the Credit Documents to be executed by such Subsidiary, together with a
certified English translation thereof (if appropriate); and
(5) In the case of any Material Subsidiary that is 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), the documents described in paragraphs (1) through (4)
above shall also be provided with respect to the Delaware (or other
state) counterparts of such Subsidiaries, together with a Certification
of Domestication for such Subsidiary.
E. Financial Statements, Financial Condition, Etc.
(1) A copy of the audited consolidated Financial Statements of
NSE for the fiscal year ended December 31, 1997, prepared by Price
Waterhouse LLP, together with a copy of the unqualified opinion and
management letter delivered by such accountants in connection with such
Financial Statements;
(2) A copy of the 10-K report filed by NSE with the Securities
and Exchange Commission for the fiscal year ended December 31, 1997;
(3) A copy of the audited consolidated Financial Statements of
NSJ for the fiscal year ended December 31, 1997, prepared by Price
Waterhouse LLP, together with a copy of the unqualified opinion and
management letter delivered by such accountants in connection with such
Financial Statements;
(4) A final sources and uses statement for the NSI Acquisition
(including transaction costs);
(5) A balance sheet of NSE dated March 31, 1998 (which
incorporates all preclosing adjustments), reflecting the consummation
of the NSI Acquisition and the other transactions contemplated by the
NSI Acquisition Documents, certified by the chief financial officer or
treasurer of NSE as having been prepared based upon reasonable
assumptions and in good faith;
(6) A certificate of the chief financial officer or treasurer
of NSE setting forth, in such detail as Agent may reasonably request,
the calculation of NSE's Tangible Net Worth on March 31, 1998;
(7) A certificate of the Statutory Auditor of NSJ setting
forth, in such detail as Agent may reasonably request, the calculation
of NSJ's Tangible Net Worth on March 31, 1998;
(8) A Solvency Certificate in the form of Exhibit L for each
Borrower and its Material Subsidiaries, dated the Initial Closing Date
and executed by the chief financial officer or treasurer of each
Borrower;
(9) The consolidated plan and forecast of NSE and its
Subsidiaries for the fiscal year to end December 31, 1998 (reflecting
among other events the NSI Acquisition and the anticipated Borrowings
under this Agreement), including quarterly cash flow projections and
quarterly projections of NSE's and NSJ's compliance with each of the
covenants set forth in Paragraph 5.03 of this Agreement; and
(10) Such other financial, business and other information
regarding Borrowers or any of their Subsidiaries as Agent or any Lender
may reasonably request, including information as to the NSI Acquisition
and possible contingent liabilities, tax matters, environmental matters
and obligations for employee benefits and compensation.
F. UCC Searches.
(1) Uniform Commercial Code search certificates from the
jurisdictions in the United States in which any Borrower or Material
Subsidiary has a place of business which do not evidence any Liens
which is not a Permitted Lien, except for which Agent has received a
termination statement pursuant to item F.(2) below;
(2) Such Uniform Commercial Code termination statements
(appropriately completed and executed) for filing in such jurisdictions
as Agent may request to terminate any financing statement evidencing
Liens of any Borrower or Material Subsidiary which do not constitute
Permitted Liens.
G. Opinions. Favorable written opinions from each of the following counsel for
Borrowers and their Subsidiaries, each dated the Initial Closing Date, addressed
to Agent for the benefit of Agent and Lenders, covering such legal matters as
Agent may reasonably request and otherwise in form and substance satisfactory to
Agent:
(1) Xxxxxx Xxxx, Esq., counsel for NSE and its Subsidiaries;
(2) Shearman & Sterling, special California counsel for
Borrowers and Guarantors;
(3) Tokyo Aoyama Law Office-Xxxxx & XxXxxxxx, Japanese counsel
for NSJ;
(4) Xxx & Xxxxx, Korean counsel for Nu Skin Korea, Inc.;
(5) Xxxxx & XxXxxxxx, Hong Kong counsel for Nu Skin Hong Kong,
Inc.; and
(6) Xxx and Li, Taiwanese counsel for Nu Skin Taiwan, Inc..
H. Other Items.
(1) A duly completed and timely delivered Notice of Borrowing
for the applicable Borrowing;
(2) Copies of the NSI Acquisition Agreement; the Contribution
and Distribution Agreement dated as of December 31, 1997 between NSI
and NSUSA; the Tax Sharing and Indemnification Agreement dated as of
December 31, 1997 among NSI, NSUSA and the shareholders of NSI and
NSUSA; the Assumption of Liabilites and Indemnification Agreement dated
as of December 31, 1997 between NSI and NSUSA; together with all
amendments thereto through the Initial Closing Date; and, to the extent
requested by Agent or any Lender, copies of any other NSI Acquisition
Documents;
(3) Copies of all filings made by NSE with the Securities and
Exchange Commission in connection with the NSI Acquisition, together
with all exhibits and all amendments thereto through the Initial
Closing Date;
(4) An organization chart for Borrowers and their
Subsidiaries, setting forth the relationship among such Persons,
certified by the Secretary or an Assistant Secretary of NSE;
(5) A certificate of the Chief Financial Officer of NSE and a
Statutory Auditor of NSJ, respectively, addressed to Agent and dated
the Initial Closing Date, certifying that:
(a) The representations and warranties set forth in
Paragraph 4.01 and in the other Credit Documents are true and
correct in all material respects as of such date (except for
such representations and warranties made as of a specified
date, which shall be true as of such date); and
(b) No Default has occurred and is continuing as of
such date;
(6) All fees and expenses payable to Agent and Lenders on or
prior to the Initial Closing Date (including any Commitment Fees
payable on such Closing Date and all fees payable to Agent pursuant to
the Agent's Fee Letter);
(7) All fees and expenses of Agent's counsels through the
Initial Closing Date;
(8) Such other evidence as Agent or any Lender may reasonably
request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Agreement and the other Credit Documents;
and
(9) Such documentation as ABN AMRO may require in order for
NSJ to open an account with its Tokyo branch, including, without
limitation, an Agreement on Bank Transactions and an Agreement on
Overdraft in Current Account.
