NSE GUARANTY
THIS GUARANTY, dated as of May [A], 1998, is executed by NU SKIN
ENTERPRISES, INC., a Delaware corporation ("NSE"), in favor of ABN AMRO BANK
N.V., acting as agent (in such capacity, and each successor thereto in such
capacity, "Agent") for the financial institutions which are from time to time
parties to the Credit Agreement referred to in Recital A below (collectively,
"Lenders").
RECITALS
A. Pursuant to a Credit Agreement dated as of May 8, 1998 (as amended
from time to time, the "Credit Agreement"), among NSE, Nu Skin Japan Co., Ltd.
("NSJ"), Lenders and Agent, Lenders have agreed to extend certain credit
facilities to NSE and NSJ (collectively, "Borrowers") upon the terms and subject
to the conditions set forth therein. NSJ is a wholly-owned Subsidiary of NSE.
B. Lenders' obligations to extend the credit facilities to Borrowers
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of this Guaranty, duly executed by NSE.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, NSE hereby agrees with Agent, for the ratable benefit of Lenders
and Agent, as follows:
1. Definitions and Interpretation.
(a) Definitions. When used in this Guaranty, the
following terms shall have the following respective meanings:
"Agent" shall have the meaning given to that term in
the introductory paragraph hereof.
"Borrowers" shall have the meaning given to that term
in the Recital A hereof.
"Credit Agreement" shall have the meaning given to
that term in the Recital A hereof.
"Debtor Relief Proceeding" shall mean any suit,
action, case or other proceeding commenced by, against or for
NSJ or NSE or its property seeking the dissolution,
liquidation, reorganization, rearrangement or other relief of
NSJ or NSE or its debts under any applicable bankruptcy,
insolvency or debtor relief law or other similar Governmental
Rule now or hereafter in effect or seeking the appointment of
a receiver, trustee, liquidator, custodian or other similar
official for NSJ or NSE or any substantial part of its
property or any general assignment by NSJ or NSE for the
benefit of its creditors, whether or not any such suit,
action, case or other proceeding is voluntary or involuntary.
"Disallowed Post-Commencement Interest and Expenses"
shall mean interest computed at the rate provided in the
Credit Agreement and claims for reimbursement, costs, expenses
or indemnities under the terms of any of the Credit Documents
accruing or claimed at any time after the commencement of any
Debtor Relief Proceeding, if the claim for such interest,
reimbursement, costs, expenses or indemnities is not
allowable, allowed or enforceable against NSJ in such Debtor
Relief Proceeding.
"Guaranteed Obligations" shall mean and include all
loans, advances, debts, liabilities, and obligations,
howsoever arising, owed by NSJ 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),
individual or joint and several, direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter
arising pursuant to the terms of the Credit Documents,
including all interest, fees, charges, expenses, attorneys'
fees and accountants' fees chargeable to NSJ or payable by NSJ
thereunder.
"Lenders" shall have the meaning given to that term
in the introductory paragraph hereof.
"NSE" shall have the meaning given to that term in
the introductory paragraph hereof.
"NSJ" shall have the meaning given to that term in
the Recital A hereof.
"Subordinated Obligations" shall have the meaning
given to that term in Paragraph 4 hereof.
"Taxes" shall have the meaning given to such term in
Subparagraph 5(h).
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Credit Agreement shall have the respective
meanings given to those terms in the Credit Agreement.
(b) Other Interpretive Provisions. The rules of construction
set forth in Section I of the Credit Agreement shall, to the extent not
inconsistent with the terms of this Guaranty, apply to this Guaranty
and are hereby incorporated by reference.
2. Guaranty.
(a) Payment Guaranty. NSE unconditionally guarantees and
promises to pay and perform as and when due, whether at stated
maturity, upon acceleration or otherwise, any and all of the Guaranteed
Obligations. If any Debtor Relief Proceeding relating to NSJ is
commenced, NSE further unconditionally guarantees and promises to pay
and perform, upon the demand of Agent, any and all of the Guaranteed
Obligations (including any and all Disallowed Post-Commencement
Interest and Expenses) in accordance with the terms of the Credit
Documents, whether or not such obligations are then due and payable by
NSJ and whether or not such obligations are modified, reduced or
discharged in such Debtor Relief Proceeding. This Guaranty is a
guaranty of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of Lenders to extend credit to NSJ have
terminated and all of the Guaranteed Obligations have been fully paid.
If any payment on any Guaranteed Obligation is set aside, avoided or
rescinded or otherwise recovered from Agent or any Lender, such
recovered payment shall constitute a Guaranteed Obligation hereunder
and, if this Guaranty was previously released or terminated, it
automatically shall be fully reinstated, as if such payment was never
made.
(c) Independent Obligation. The liability of NSE hereunder is
independent of the Guaranteed Obligations, and a separate action or
actions may be brought and prosecuted against NSE irrespective of
whether action is brought against NSJ or any other guarantor of the
Guaranteed Obligations or whether NSJ or any other guarantor of the
Guaranteed Obligations is joined in any such action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to
enforce this Guaranty, any court of competent jurisdiction determines
that enforcement against NSE for the full amount of the Guaranteed
Obligations is not lawful under or would be subject to avoidance under
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code or any applicable
provision of any comparable law of any state or other jurisdiction, the
liability of NSE under this Guaranty shall be limited to the maximum
amount lawful and not subject to such avoidance.
(e) Termination. Notwithstanding any termination of this
Guaranty in accordance with Paragraph 3 hereof, this Guaranty shall
continue to be in full force and effect and applicable to any
Guaranteed Obligations arising thereafter which arise because prior
payments of Guaranteed Obligations are rescinded or otherwise required
to be surrendered by Agent or any Lender after receipt.
3. Authorizations, Waivers, Etc.
(a) Authorizations. NSE authorizes Agent and Lenders, in their
discretion, without notice to NSE, irrespective of any change in the
financial condition of NSJ, NSE or any other guarantor of the
Guaranteed Obligations since the date hereof, and without affecting or
impairing in any way the liability of NSE hereunder, from time to time
to:
(i) Create new Guaranteed Obligations and renew,
compromise, extend, accelerate or otherwise change the time
for payment or performance of, or otherwise amend or modify
the Credit Documents or change the terms of the Guaranteed
Obligations or any part thereof, including increase or
decrease of the rate of interest thereon;
(ii) Take and hold security for the payment or
performance of the Guaranteed Obligations and exchange,
enforce, waive or release any such security; apply such
security and direct the order or manner of sale thereof; and
purchase such security at public or private sale;
(iii) Otherwise exercise any right or remedy they may
have against NSJ, NSE, any other guarantor of the Guaranteed
Obligations or any security, including, without limitation,
the right to foreclose upon any such security by judicial or
nonjudicial sale;
(iv) Settle, compromise with, release or substitute
any one or more makers, endorsers or guarantors of the
Guaranteed Obligations; and
(v) Assign the Guaranteed Obligations, this Guaranty
or the other Credit Documents in whole or in part to the
extent provided in the Credit Agreement and the other Credit
Documents.
(b) Waivers. NSE hereby waives:
(i) Any right to require Agent or any Lender to (A)
proceed against NSJ or any other guarantor of the Guaranteed
Obligations, (B) proceed against or exhaust any security
received from NSJ, NSE or any other guarantor of the
Guaranteed Obligations or otherwise xxxxxxxx the assets of
NSJ, NSE or any other guarantor of the Guaranteed Obligations
or (C) pursue any other remedy in Agent's or any Lender's
power whatsoever;
(ii) Any defense arising by reason of the
application by NSJ of the proceeds of any borrowing;
(iii) Any defense resulting from the absence,
impairment or loss of any right of reimbursement, subrogation,
contribution or other right or remedy of NSE against NSJ, any
other guarantor of the Guaranteed Obligations or any security,
whether resulting from an election by Agent or any Lender to
foreclose upon security by nonjudicial sale, or otherwise;
(iv) Any setoff or counterclaim of NSJ or any defense
which results from any disability or other defense of NSJ or
the cessation or stay of enforcement from any cause whatsoever
of the liability of NSJ (including, without limitation, the
lack of validity or enforceability of any of the Credit
Documents);
(v) Any defense based upon any law, rule or
regulation which provides that the obligation of a surety must
not be greater or more burdensome than the obligation of the
principal;
(vi) Until all obligations of Agent or any Lender to
extend credit to NSJ have terminated and all of the Guaranteed
Obligations have been fully paid, any right of subrogation,
reimbursement, indemnification or contribution and other
similar right to enforce any remedy which Agent, Lenders or
any other Person now has or may hereafter have against NSJ on
account of the Guaranteed Obligations, and any benefit of, and
any right to participate in, any security now or hereafter
received by Agent, any Lender or any other Person on account
of the Guaranteed Obligations;
(vii) All presentments, demands for performance,
notices of non-performance, notices delivered under the Credit
Documents, protests, notice of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation or
incurring of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
(viii) The benefit of any statute of limitations to
the extent permitted by law;
(ix) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for
marshalling;
(x) Any right to be informed by Agent or any Lender
of the financial condition of NSJ or any other guarantor of
the Guaranteed Obligations or any change therein or any other
circumstances bearing upon the risk of nonpayment or
nonperformance of the Guaranteed Obligations;
(xi) Until all obligations of Agent or any Lender to
extend credit to NSJ have terminated and all of the Guaranteed
Obligations have been fully paid, any right to revoke this
Guaranty;
(xii) Any defense arising from an election for the
application of Section 1111(b)(2) of the United States
Bankruptcy Code which applies to the Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant
of a security interest under Section 364 of the United States
Bankruptcy Code; and
(xiv) Any right it may have to a fair value hearing
to determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this
Paragraph 3, NSE hereby further waives (A) all rights and defenses
arising out of an election of remedies by Agent or any Lender, even
though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a Guaranteed Obligation, has destroyed
NSE's rights of subrogation and reimbursement against NSJ by the
operation of Section 580d of the Code of Civil Procedure or otherwise,
(B) all rights and defenses NSE may have by reason of protection
afforded to NSJ with respect to the Guaranteed Obligations pursuant to
the antideficiency or other laws of California limiting or discharging
the Guaranteed Obligations, including, without limitation, Section
580a, 580b, 580d, or 726 of the California Code of Civil Procedure, and
(C) all other rights and defenses available to NSE by reason of
Sections 2787 to 2855, inclusive, Section 2899 or Section 3433 of the
California Civil Code or Section 3605 of the California Commercial
Code.
(c) Financial Condition of NSJ, Etc. NSE is fully aware of the
financial condition and affairs of NSJ. NSE has executed this Guaranty
without reliance upon any representation, warranty, statement or
information concerning NSJ furnished to NSE by Agent or any Lender and
has, independently and without reliance on Agent or any Lender, and
based on such documents and information as it has deemed appropriate,
made its own appraisal of the financial condition and affairs of NSJ
and of other circumstances affecting the risk of nonpayment or
nonperformance of the Guaranteed Obligations. NSE is in a position to
obtain, and assumes full responsibility for obtaining, any additional
information about the financial condition and affairs of NSJ and of
other circumstances affecting the risk of nonpayment or nonperformance
of the Guaranteed Obligations and will, independently and without
reliance upon Agent or any 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 in
connection with this Guaranty.
4. Subordination. NSE hereby subordinates any and all debts, liabilities and
obligations owed to NSE by NSJ (the "Subordinated Obligations") to the
Guaranteed Obligations as provided in this Paragraph 4.
(a) Prohibited Payments, Etc. Except during the continuance of
a Default (including the commencement and continuation of any Debtor
Relief Proceeding relating to NSJ), NSE may receive regularly scheduled
payments from NSJ on account of Subordinated Obligations. After the
occurrence and during the continuance of any Default (including the
commencement and continuation of any Debtor Relief Proceeding relating
to NSJ), however, unless Agent otherwise agrees, NSE shall not demand,
accept or take any action to collect any payment on account of the
Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any Debtor
Relief Proceeding relating to NSJ, NSE agrees that Agent and Lenders
shall be entitled to receive payment of all Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses) before NSE receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Default (including the commencement and continuation of any
Debtor Relief Proceeding relating to NSJ), NSE shall, if Agent so
requests, collect, enforce and receive payments on account of the
Subordinated Obligations as trustee for Agent and Lenders and deliver
such payments to Agent on account of the Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any
manner the liability of NSE under the other provisions of this
Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation
of any Debtor Relief Proceeding relating to NSJ), Agent is authorized
and empowered (but without any obligation to so do), in its discretion,
(i) in the name of NSE to collect and enforce, and to submit claims in
respect of, Subordinated Obligations and to apply any amounts received
thereon to the Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses), and (ii) to require NSE (A)
to collect and enforce, and to submit claims in respect of,
Subordinated Obligations and (B) to pay any amounts received on such
obligations to Agent for application to the Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses).
5. Miscellaneous.
(a) Notices. Except as otherwise specified herein, all
notices, requests, demands, consents, instructions or other
communications to or upon NSE or Agent under this Agreement shall be
given as provided in Paragraph 8.01 of the Credit Agreement.
(b) Payments.
(i) NSE shall make all payments of the Guaranteed
Obligations to Agent , or its order, at the office of Agent
and at the times specified in the Credit Documents for the
payment of such Guaranteed Obligations. NSE shall make all
other payments hereunder at such office as Agent may
designate. Each payment shall be made in same day or
immediately available funds not later than 11:00 a.m.(local
time of the office of Agent at which such payment is to be
made) on the date due.
(ii) NSE shall make all payments of the Guaranteed
Obligations hereunder in the currency in which such Guaranteed
Obligations are required to be paid by NSJ pursuant to the
Credit Documents and shall make all other payments hereunder
in Dollars; provided, however, that, if Agent shall request
NSE to pay any amount hereunder which would otherwise be
payable in another currency in the lawful currency of the
United States, NSE shall pay to Agent the Dollar Equivalent of
such amount.
(iii) If any sum due from NSE under this Guaranty or
any other Credit Document to which NSE is a party 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
NSE 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, NSE shall,
to the fullest extent permitted by law, indemnify and hold
harmless each of the Persons to whom such sum is due 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 NSE distinct from its
other obligations hereunder and shall survive the giving or
making of any judgment or order in relation to all or any of
such obligations.
(iv) If any amounts required to be paid by NSE under
this Guaranty or any order, judgment or award given or
rendered in relation hereto remain unpaid after such amounts
are due, NSE shall pay interest on the aggregate, outstanding
balance of such amounts from the date due until those amounts
are paid in full at a per annum rate equal to:
(A) In the case of amounts 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.
(B) In the case of amounts payable in Yen,
the Overnight Rate plus two percent (2.00%), such
rate to change from time to time as the Overnight
Rate shall change.
(c) Expenses. NSE shall pay on demand (i) all reasonable and
documented fees and expenses, including reasonable attorneys' fees and
expenses, incurred by Agent in connection with the preparation,
execution and delivery of, and the exercise of its duties under, this
Guaranty and the preparation, execution and delivery of amendments and
waivers hereunder and (ii) all reasonable and documented fees and
expenses, including reasonable attorneys' fees and expenses, incurred
by Agent and Lenders in connection with the enforcement or attempted
enforcement of this Guaranty or any of the Guaranteed 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 Guaranteed Obligations or any bankruptcy or similar proceeding
involving NSE, NSJ or any of their affiliates).
(d) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by NSE and Agent. Each waiver or consent under any
provision hereof shall be effective only in the specific instances for
the purpose for which given. No failure or delay on Agent's or any
Lender's part in exercising any right hereunder shall operate as a
waiver thereof or of any other right nor shall any single or partial
exercise of any such right preclude any other further exercise thereof
or of any other right.
(e) Successors and Assigns. This Guaranty shall be binding
upon and inure to the benefit of Agent, Lenders, NSE and their
respective successors and assigns; provided, however, that NSE may not
assign or transfer any of its rights and obligations under this
Guaranty without the prior written consent of Agent and Lenders, and,
provided, further, that Agent or any Lender may sell, assign and
delegate their respective rights and obligations hereunder only as
permitted by the Credit Agreement. All references in this Guaranty to
any Person shall be deemed to include all permitted successors and
assigns of such Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of
Agent and Lenders under this Guaranty shall be in addition to all
rights, powers and remedies given to Agent and Lenders by virtue of any
applicable law, rule or regulation of any Governmental Authority, the
Credit Agreement, any other Credit Document or any other agreement, all
of which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing Agent's or any
Lender's rights hereunder. NSE waives any right to require Agent or any
Lender to proceed against any Person or to exhaust any Collateral or to
pursue any remedy in Agent's or such Lender's power.
(g) Setoff; Security Interest.
(i) 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 NSE, any such notice and consent being expressly waived by
NSE 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 NSE any amount
owing from such Lender to NSE. The aforesaid right of set-off
may be exercised by such Lender against NSE or against any
trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment or
attachment creditor of NSE or against anyone else claiming
through or against NSE 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 NSE 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.
(ii) As security for the obligations of NSE
hereunder, NSE 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 NSE 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.
(h) Payments Free of Taxes. All payments made by NSE under
this Guaranty 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, ----- 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 Guaranty or the other Credit
Documents, as applicable. Whenever any Taxes are payable by NSE, as
promptly as possible thereafter, NSE 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 NSE showing
payment thereof. If NSE fails 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, NSE 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 NSE under this Subparagraph 5(h) shall
survive the payment and performance of the Guaranteed Obligations and
the termination of this Guaranty. Nothing contained in this
Subparagraph 5(h) 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).
(i) Partial Invalidity. If at any time any provision of this
Guaranty 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 Guaranty 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.
(j) Jury Trial. EACH OF NSE, 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 THIS
GUARANTY.
(k) Governing Law, Consent to Jurisdiction, Etc.
(i) This Guaranty shall be governed by and construed
in accordance with the laws of the State of California without
reference to conflicts of law rules.
(ii) NSE 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 Guaranty or
any of the other Credit Documents may be brought against such
party in any such courts. Final judgment against NSE 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 5(k) shall affect the right
of Agent or any Lender to commence legal proceedings or
otherwise xxx NSE in any other appropriate jurisdiction, or
concurrently in more than one jurisdiction, or to serve
process, pleadings and other papers upon NSE in any manner
authorized by the laws of any such jurisdiction. NSE 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, NSE 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 NSE 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. NSE
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
NSE or to post a bond or to take similar action.
[The first signature page follows.]
IN WITNESS WHEREOF, NSE has caused this Guaranty to be executed as of
the day and year first above written.
NU SKIN ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxx
Name: Xxxxxx X. Xxxx
Title: President and CEO
