| (iv) | without the written consent of all of the Purchasers which shall have become obligated to purchase Accepted Notes of any Series, no provision of Sections 2B or 3 may be amended or waived if such amendment or waiver would affect the rights or obligations with respect to the purchase and sale of the Accepted Notes of such Series or the terms and provisions of such Accepted Notes. |
Each holder of any Note at the time or thereafter outstanding shall be bound by any consent authorized by this Section 17, whether or not such Note shall have been marked to indicate such consent. No course of dealing between the Company and the holder of any Note nor any delay in exercising any rights hereunder or under any Note shall operate as a waiver of any rights of any holder of such Note.
As used herein, the term "this Agreement" and "Notes" and references thereto shall mean this Agreement and such Notes, respectively, as they may from time to time be amended or supplemented.
17.2 Notes held by Company, etc.
Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes or any Series thereof then outstanding have approved or consented to any amendment, waiver or consent to be given under this Agreement or the Notes or any Series thereof or any other Transaction Documents, or have directed the taking of any action provided herein, in the Notes or any Series thereof or in any other Transaction Documents to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes or any Series thereof then outstanding, Notes or any Series thereof directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.
18. NOTICES.
All notices and communications provided for hereunder (other than communication provided for in Section 2, which shall be provided as contemplated therein) shall be in writing and sent (a) by telefacsimile if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with charges prepaid). Any such notice must be sent:
(a) if to a Purchaser or its nominee, to such Person at the address specified for such communications, (i) in the case of any Existing Notes, in the applicable Purchaser Schedule attached hereto, and (ii) in the case of any Shelf Notes, in the Purchaser Schedule attached to the applicable Confirmation of Acceptance, or (iii) at such other address as such Person shall have specified to the Company in writing,
(b) if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Company in writing, or
(c) if to the Company, to the Company at One Nu Skin Plaza, 75 West Center Street, Provo, Utah 84601 to the attention of the Chief Financial Officer, or at such other address as the Company shall have specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed to have been given and received when delivered at the address so specified. Any communication pursuant to Section 2 shall be made by a method specified for such communication in Section 2, and shall be effective to create any rights or obligations under this Agreement only if, in the case of a telephone communication, an Authorized Officer of the party conveying the information and of the party receiving the information are parties to the telephone call, and in the case of a telefacsimile communication, the communication is signed by an Authorized Officer of the party conveying the information, addressed to the attention of an Authorized Officer of the party receiving the information, and in fact received at the telefacsimile terminal the number of which is listed for the party receiving the communication on the Information Schedule hereto or at such other telefacsimile terminal as the party receiving the information shall have specified in writing to the party sending such information.
19. REPRODUCTION OF DOCUMENTS.
This Agreement, the other Transaction Documents and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents by Prudential or any Purchaser may receive on any Closing Day (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to Prudential or any Purchaser, may be reproduced by Prudential or such Purchaser by any photographic, photostatic, microfilm, microcard, miniature photographic or other similar process and Prudential or such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 19 shall not prohibit the Company or any other holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.
20. CONFIDENTIAL INFORMATION.
For the purposes of this Section 20, "Confidential Information" means information delivered to any Purchaser by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser as being confidential information of the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any person acting on its behalf, (c) otherwise becomes known to such Purchaser other than through disclosure (x) by the Company or any Subsidiary, or (y) by another Person known by such Purchaser to be bound by a confidentiality agreement with the Company, or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by it in good faith to protect confidential information of third parties delivered to it, provided that each Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by any Notes), (ii) its financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Section 20, (iii) any other holder of any Note, (iv) any Institutional Investor to which such Purchaser sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 20), (v) any Person from which such Purchaser offers to purchase any security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Section 20), (vi) any federal or state regulatory authority having jurisdiction over such Purchaser, (vii) the National Association of Insurance Commissioners or any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser's investment portfolio or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process (provided that such Purchaser give prompt notice to the Company of such subpoena or legal process to the extent such Purchaser is legally permitted to do so), (y) in connection with any litigation to which such Purchaser is a party, or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under its Notes, this Agreement and the other Transaction Documents. Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying the provisions of this Section 20.
21. [INTENTIONALLY OMITTED.]
22. JUDICIAL PROCEEDINGS.
22.1 Consent to Jurisdiction.
The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or United States federal court sitting in New York City, and irrevocably waives its own forum, over any suit, action or proceeding arising out of or relating to this Agreement or any Note. The Company irrevocably waives, to the fullest extent it may effectively do so under applicable law, any objection which it may have or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. The Company agrees, to the fullest extent it may effectively do so under applicable law, that a final judgment in any such suit, action or proceeding brought in such court shall be conclusive and binding upon the Company may be enforced in the courts of the United States, the State of New York (or any other courts to the jurisdiction of which the Company is or may be subject) by a suit upon such judgment, provided that service of process is effected on the Company in one of the manners specified below or as otherwise permitted by law.
22.2 Service of Process.
The Company hereby consents to process being served in any suit, action or proceeding of the nature referred to in Section 22.1 by the mailing of a copy thereof by registered or certified air mail, postage prepaid, return receipt requested, to the address of the Company set forth in Section 18. The Company irrevocably waives, to the fullest extent it may effectively do so under applicable law, all claim of error by reason of any such service and agrees that such service (a) shall be deemed in every respect effective service of process upon the Company in any such suit, action or proceeding, and (b) shall, to the fullest extent permitted by law, be taken and held to be valid personal service upon the Company.
22.3 No Limitation on Service or Suit.
Nothing in this Section 22 shall affect the right of any holder of the Notes to serve process in any manner permitted by law or limit the right of any holder of the Notes to bring proceedings against the Company in the courts of any jurisdiction or jurisdictions or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
23. MISCELLANEOUS.
23.1 Successors and Assigns.
All covenants and other agreements contained in this Agreement and the other Transaction Documents by or on behalf of any of the parties hereto or thereto bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent holder of a Note) whether so expressed or not.
23.2 Accounting Principles.
All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP and (ii) all accounts and financial statements shall be prepared in accordance with GAAP. Notwithstanding the foregoing, for purposes of the determination of compliance with any covenant in Section 10, or the determination of financial terms contained in this Agreement, (i) the effects of Accounting Standards Codification 825-10-25 or any similar or successor accounting standard to the extent it relates to fair value accounting shall be disregarded and (ii) the effects of Accounting Standards Codification 470-20 or any similar or successor accounting standard to the extent it would measure an item of Indebtedness in respect of convertible debt in a reduced or bifurcated manner as described therein shall be disregarded, it being agreed that for purposes of all such determinations, indebtedness shall be valued at the full stated principal amount thereof (at par).
23.3 Payments Due on Non-Business Days.
Anything in this Agreement, the Notes or the other Transaction Documents to the contrary notwithstanding, any payment of principal of or Make-Whole Amount or interest on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Note is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
23.4 Severability.
Any provision of this Agreement or the other Transaction Documents that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.
23.5 Construction.
Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
23.6 Counterparts.
This Agreement and the other Transaction Documents may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.
23.7 Governing Law.
This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State (other than Section 5-1401 of the New York General Obligations Law) that would require the application of the laws of a jurisdiction other than such State.
23.8 Transaction References.
The Company agrees that Prudential Capital Group may (a) refer to its role in establishing this Agreement, the Notes and/or the Facility, as well as the identity of the Company and the aggregate principal amount of the Notes and the date on which the Agreement, the Notes and/or the Facility was established (as well as the date and the amount of any issuance of any of the Notes), on its internet site or in marketing materials, press releases, published "tombstone" announcements or any other print or electronic medium, and (b) display the corporate logo of Nu Skin in conjunction with any such reference
23.9 Binding Agreement.
Subject to Section 3A, when this Agreement is executed and delivered by the Company, each of the Purchasers signatory hereto and Prudential, it shall become a binding agreement among the Company, such Purchasers and Prudential. This Agreement shall also inure to the benefit of each Purchaser which shall have executed and delivered a Confirmation of Acceptance after the date hereof, and each such Purchaser shall be bound by this Agreement to the extent provided in such Confirmation of Acceptance.
23.10 No Novation.
This Agreement amends, restates and replaces the Original Agreements and is not intended to constitute a novation of the provisions thereunder as in effect prior to the effectiveness of this Agreement.
* * * * *
Very truly yours,
NU SKIN ENTERPRISES, INC.
By: /s/Ritch N. Wood
Name: Ritch N. Wood
Title: Chief Financial Officer
[SIGNATURE PAGE TO AMENDED AND RESTATED NOTE PURCHASE1 AND PRIVATE SHELF AGREEMENT]
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, as a Purchaser
By: /s/Iris Krause
Title: Vice President
PRUDENTIAL RETIREMENT INSURANCE
AND ANNUITY COMPANY, as a Purchaser
By: Prudential Investment Management, Inc.,
as investment manager
By: /s/Iris Krause
Title: Vice President
PRUCO LIFE INSURANCE COMPANY OF
NEW JERSEY, as a Purchaser
By: /s/Iris Krause
Title: Vice President
PRUCO LIFE INSURANCE COMPANY,
as a Purchaser
By: /s/Iris Krause
Title: Vice President
[SIGNATURE PAGE TO AMENDED AND RESTATED NOTE PURCHASE1 AND PRIVATE SHELF AGREEMENT]
MTL INSURANCE COMPANY, as a Purchaser
By: Prudential Private Placement Investors, L.P.,
as investment advisor
By: Prudential Private Placement Investors, Inc.,
as its general partner
By: /s/Iris Krause
Vice President
GIBRALTAR LIFE INSURANCE CO., LTD.
By: Prudential Investment Management (Japan),
as investment manager
By: Prudential Investment Management, Inc.,
as sub-adviser
By: /s/Iris Krause
Vice President
PRUDENTIAL INVESTMENT MANAGEMENT, INC.
By: /s/Iris Krause
Title: Vice President
[SIGNATURE PAGE TO AMENDED AND RESTATED NOTE PURCHASE1 AND PRIVATE SHELF AGREEMENT]
| Name in Which Notes are to be Registered | THE PRUDENTIAL INSURANCE COMPANY OF AMERICA |
Note Registration Numbers; Original Principal Amounts | C-1 ¥ 1,985,464,000 (Japanese Yen) D-1 $12,750,000 D-2 $20,000,000 E-2 $7,300,000 E-8 $3,267,648 EE-1 ¥ 2,170,000,000 (Japanese Yen) F-1 ¥ 1,300,698,000 (Japanese Yen) |
Payment on Account of Notes -
Dollar Denominated Notes | Payments shall be made by wire transfer of immediately available funds for credit to:
JPMorgan Chase Bank
New York, NY
ABA No.: In the case of payments on account of Notes D-1 and E-6:
Account Name:
Account No.:
In the case of payments on account of Note D-2 and E-2:
Account Name:
Account No.:
Re: (See "Accompanying information" below) |
Payment on Account of Notes -
Japanese Yen Denominated Notes | Payments shall be made by wire transfer of immediately available funds for credit to: JP Morgan Chase Bank, Tokyo Account Name: Account No.: Swift: FFC: IBAN #: Re: (See "Accompanying information" below) |
| Accompanying Information | Name of Company: Nu Skin Enterprises, Inc. Description of Security: 1.7225% Series C Senior Notes due April 30, 2014 PPN: Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.19% Series D Senior Notes due July 5, 2016 PPN: Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.14% Series E Senior Notes due January 20, 2017 PPN: Name of Company: Nu Skin Enterprises, Inc. Description of Security: 3.275% Series EE Senior Notes due January 20, 2017 PPN: Name of Company: Nu Skin Enterprises, Inc. Description of Security: 2.59% Series F Senior Notes due September 28, 2017 PPN: Each such wire transfer shall also set forth the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made. |
| Address for Notices Related to Payments | The Prudential Insurance Company of America c/o Investment Operations Group Gateway Center Two, 10th Floor 100 Mulberry Street Newark, NJ 07102-4077 Attn: Manager, Billings and Collections with telephonic prepayment notices to: Manager, Trade Management Group Tel: Fax: |
| Address for All Other Notices | The Prudential Insurance Company of America c/o Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, California 94111-4180 Attn: Managing Director Fax: |
| Other Instructions | THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: ________________________________ Name: Title: Vice President |
| Instructions re Delivery of Notes | Send physical security by nationwide overnight delivery service to:
Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, CA 94111-4180 Attn:
Telephone: |
| Tax Identification Number | |
| Name in Which Notes are to be Registered | PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY |
Note Registration Numbers; Original Principal Amounts | C-2 ¥ 1,134,536,000 (Japanese Yen) D-4 $3,000,000 E-4 $1,100,000
F-2¥ 967,302,000 (Japanese Yen) |
Payment on Account of Notes -
Dollar Denominated Notes | Payments shall be made by wire transfer of immediately available funds for credit to: JPMorgan Chase Bank New York, NY ABA No.: Account Name: Account No.: Re: (See "Accompanying information" below) |
Payment on Account of Notes -
Japanese Yen Denominated Notes | Payments shall be made by wire transfer of immediately available funds for credit to: JP Morgan Chase Bank, Tokyo Account Name: Account No.: Swift: FFC: IBAN #: Re: (See "Accompanying information" below) |
| Accompanying Information | Name of Company: Nu Skin Enterprises, Inc. Description of Security: 1.7225% Series C Senior Notes due April 30, 2014 PPN: Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.19% Series D Senior Notes due July 5, 2016 PPN: Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.14% Series E Senior Notes due January 20, 2017 PPN: Name of Company: Nu Skin Enterprises, Inc. Description of Security: 2.59% Series F Senior Notes due September 28, 2017 PPN: Each such wire transfer shall also set forth the due date and application (as among principal, interest and Make-Whole Amount) of the payment being made. |
| Address for Notices Related to Payments | Prudential Retirement Insurance and Annuity Company c/o Prudential Investment Management, Inc. Private Placement Trade Management PRIAC Administration Gateway Center Four, 7th Floor 100 Mulberry Street Newark, NJ 07102 with telephonic prepayment notices to: Manager, Trade Management Group Tel: Fax: |
| Address for All Other Notices | Prudential Retirement Insurance and Annuity Company c/o Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, California 94111-4180 Attn: Managing Director Fax: |
| Other Instructions | PRUDENTIAL RETIREMENT INSURANCE AND ANNUITY COMPANY By: Prudential Investment Management, Inc., investment manager By: ________________________________ Name: Title: Vice President |
| Instructions re Delivery of Notes | Send physical security by nationwide overnight delivery service to:
Prudential Capital Group
Four Embarcadero Center, Suite 2700 San Francisco, CA 94111-4180 Attn:
Telephone: |
| Tax Identification Number | |
| Name in Which Notes are to be Registered | PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY |
Note Registration Numbers; Original Principal Amounts | D-3 $4,250,000 |
| Payment on Account of Notes | Payments shall be made by wire transfer of immediately available funds for credit to: JPMorgan Chase Bank New York, NY ABA No.: Account No.: Account Name: Re: (see "Accompanying Information" below) |
| Accompanying Information | Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.19% Series D Senior Notes due July 5, 2016 PPN: Each such wire transfer shall also set forth the due date and application (as among principal, interest, and Make-Whole Amount) of the payment being made. |
| Address for Notices Related to Payments | Pruco Life Insurance Company of New Jersey c/o The Prudential Insurance Company of America c/o Investment Operations Group Gateway Center Two, 10th Floor 100 Mulberry Street Newark, NJ 07102-4077 Attn: Manager, Billings and Collections with telephonic prepayment notices to: Manager, Trade Management Group Tel: Fax: |
| Address for All Other Notices | Pruco Life Insurance Company of New Jersey c/o Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, California 94111-4180 Attn: Managing Director Fax: |
| Other Instructions | PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY By: ________________________________ Name: Title: Vice President |
| Instructions re Delivery of Notes | Send physical security by nationwide overnight delivery service to: Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, CA 94111-4180 Attn:
Telephone: |
| Tax Identification Number | |
| Name in Which Notes are to be Registered | PRUCO LIFE INSURANCE COMPANY |
Note Registration Numbers; Original Principal Amounts | E-3 $3,100,000 |
| Payment on Account of Notes | Payments shall be made by wire transfer of immediately available funds for credit to: JPMorgan Chase Bank New York, NY ABA No.: Account No.: Account Name:
Re: (see "Accompanying Information" below) |
| Accompanying Information | Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.14% Series E Senior Notes due January 20, 2017 PPN: Each such wire transfer shall also set forth the due date and application (as among principal, interest, and Make-Whole Amount) of the payment being made. |
| Address for Notices Related to Payments | Pruco Life Insurance Company c/o The Prudential Insurance Company of America c/o Investment Operations Group Gateway Center Two, 10th Floor 100 Mulberry Street Newark, NJ 07102-4077 Attn: Manager, Billings and Collections with telephonic prepayment notices to: Manager, Trade Management Group Tel: Fax: ( |
| Address for All Other Notices | Pruco Life Insurance Company c/o Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, California 94111-4180 Attn: Managing Director Fax: |
| Other Instructions | PRUCO LIFE INSURANCE COMPANY By: ________________________________ Name: Title: Vice President |
| Instructions re Delivery of Notes | Send physical security by nationwide overnight delivery service to: Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, CA 94111-4180 Attn:
Telephone: |
| Tax Identification Number | |
| Name in Which Notes are to be Registered | MTL INSURANCE COMPANY |
Note Registration Numbers; Original Principal Amounts | E-5 $3,000,000 |
| Payment on Account of Notes | Payments shall be made by wire transfer of immediately available funds for credit to: Northern Chgo/Trust ABA No.: Credit Wire Account No.: FFC: Insurance Company - Prudential Re: (See "Accompanying information" below) |
| Accompanying Information | Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.14% Series E Senior Notes due January 20, 2017 PPN: Each such wire transfer shall also set forth the due date and application (as among principal, interest, and Make-Whole Amount) of the payment being made. |
Address for Notices Related to Payments
and Written Confirmations of such Wire Transfers: | MTL Insurance Company 1200 Jorie Blvd. Oak Brook, IL 60522-9060 Attention: |
| Address for All Other Notices | Prudential Private Placement Investors, L.P. c/o Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, California 94111-4180 Attn: Managing Director Fax: |
| Other Instructions | MTL INSURANCE COMPANY By: Prudential Private Placement Investors, L.P., as investment advisor By: Prudential Private Placement Investors, Inc., as its general partner By: ________________________________ Name: Title: Vice President |
| Instructions re Delivery of Notes | (a) Send physical security by nationwide overnight delivery service to: The Northern Trust Company of New York Harborside Financial Center 10, Suite 1401 3 Second Street Northern Acct. Insurance Company - Prudential Jersey City, NJ 07311 Attn: Please include in the cover letter accompanying the Note a reference to the Purchaser's account number (MTL Insurance Company-Prudential; Account Number: ) (b) Send copy by nationwide overnight delivery service to: Prudential Capital Group Gateway Center 4 100 Mulberry, 7th Floor Newark, NJ 07102 Attention: Trade Management, Manager Telephone: |
| Tax Identification Number | |
| Name in Which Notes are to be Registered | THE GIBRALTAR LIFE INSURANCE CO., LTD. |
Note Registration Numbers; Original Principal Amounts | E-9 $2,232,352 |
All principal, interest and Make-Whole Amount payments on account of Notes | Payments shall be made by wire transfer of immediately available funds for credit to:
JPMorgan Chase Bank
New York, NY
ABA No.:
Account Name:
Account No.: Re: (See "Accompanying information" below) |
All payments, other than principal, interest or Make-Whole Amount, on account of Notes | Payments shall be made by wire transfer of immediately available funds for credit to:
JPMorgan Chase Bank New York, NY ABA No. Account No. Account Name: Re: (See "Accompanying information" below) |
| Accompanying Information | Name of Company: Nu Skin Enterprises, Inc. Description of Security: 6.14% Series E Senior Notes due January 20, 2017 PPN: Each such wire transfer shall also set forth the due date and application (e.g., as among principal, interest and Make-Whole Amount, or type of fee, as applicable) of the payment being made. |
| Address for Notices Related to Payments | The Gibraltar Life Insurance Co., Ltd. 2-13-10, Nagata-cho Chiyoda-ku, Tokyo 100-8953, Japan Telephone: Facsimile: E-mail: Attention: |
| Address for All Other Notices | Prudential Private Placement Investors, L.P. c/o Prudential Capital Group Four Embarcadero Center, Suite 2700 San Francisco, California 94111-4180 Attn: Managing Director Fax: |
| Other Instructions | GIBRALTAR LIFE INSURANCE CO., LTD. By: Prudential Investment Management (Japan), as Investment Manager By: Prudential Investment Management, Inc., as Sub-Adviser By:____________________________
Name:
Title:Vice President |
| Instructions re Delivery of Notes | Send physical security by nationwide overnight delivery service to:
Prudential Capital Group
Four Embarcadero Center, Suite 2700 San Francisco, CA 94111-4180 Attn:
Telephone: |
| Tax Identification Number | |
SCHEDULE A
DEFINED TERMS
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:
"2003 Agreement" is defined in Section 1A.
"2009 Agreement" is defined in Section 1A.
"Acceptance" is defined in Section 2B(5).
"Acceptance Day" is defined in Section 2B(5).
"Accepted Note" is defined in Section 2B(5).
"Acceptance Window" means, with respect to any Quotation, the time period designated by Prudential during which the Company and Prudential shall be in live communication and the Company may elect to accept such Quotation.
"Affiliate" means, at any time, (a) with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person, and (b) with respect to the Company and its Subsidiaries, any Person beneficially owning or holding, directly or indirectly, 5% or more of any class of voting or equity interests of the Company or any of its Subsidiaries or any corporation of which the Company and its Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly, 5% or more of any class of voting or equity interests. Unless the context otherwise clearly requires, any reference to an "Affiliate" is a reference to an Affiliate of the Company.
"Affiliated Entity" means any of the Subsidiaries of the Company and any of their or the Company's respective Controlled Affiliates.
"Anti-Money Laundering Laws" is defined in Section 5.16(c).
"Available Cash" is defined in Section 10.11.
"Authorized Officer" means (i) in the case of the Company, its President, Chief Financial Officer, and Treasurer thereof designated as an "Authorized Officer" of the Company in the Information Schedule or designated as an "Authorized Officer" of the Company for purposes of this Agreement in an Officer's Certificate executed by the Company's President, Chief Financial Officer or Treasurer, and (ii) in the case of Prudential, any officer of Prudential designated as its "Authorized Officer" in the Information Schedule or any officer of Prudential designated as its "Authorized Officer" for the purpose of this Agreement in a certificate executed by one of its Authorized Officers. Any action taken under this Agreement on behalf of the Company by any individual who on or after the date of this Agreement shall have been an Authorized Officer of the Company and whom Prudential in good faith believes to be an
Authorized Officer of the Company at the time of such action shall be binding on the Company even though such individual shall have ceased to be an Authorized Officer of the Company, and any action taken under this Agreement on behalf of Prudential by any individual who on or after the date of this Agreement shall have been an Authorized Officer of Prudential, and whom the Company in good faith believes to be an Authorized Officer of Prudential at the time of such action shall be binding on Prudential even though such individual shall have ceased to be an Authorized Officer of Prudential.
"Available Currencies" means British Pounds, Canadian Dollars, Dollars, Euros, and Yen.
"Available Facility Amount" is defined in Section 2B(1).
"Bank Credit Agreement" is defined in Section 3A.
"Blocked Person" is defined in Section 5.16.
"Bloomberg" is defined in Section 8.6.
"British Pounds" and the symbol "£" means the lawful currency of the United Kingdom.
"Business Day" means (i) other than as provided in clauses (ii) and (iii) below, any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are authorized or required to be closed, (ii) for purposes of Section 2B(3) only, any day which is both a New York Business Day and a day on which Prudential is open for business and (iii) for purposes of Sections 8.6 and 23.3 only, (a) if with respect to Notes denominated in British Pounds, any day which is both a New York Business Day and a day on which commercial banks are not required or authorized to be closed in London, (b) if with respect to Notes denominated in Canadian Dollars, any day which is both a New York Business Day and a day on which commercial banks are not required or authorized to be closed in Toronto, (c) if with respect to Notes denominated in Dollars, a New York Business Day, (d) if with respect to Notes denominated in Euros, any day which is both a New York Business Day and a day on which commercial banks are not required or authorized to be closed in Frankfurt and Brussels, and (e) if with respect to Notes denominated in Yen, any day which is both a New York Business Day and a day on which commercial banks are not required or authorized to be closed in Tokyo, Japan.
"Canadian Dollars" means the lawful currency of Canada.
"Cancellation Date" is defined in Section 2B(8)(iv).
"Cancellation Fee" is defined in Section 2B(8)(iv).
"Capital Lease" means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.
"Change of Control" means an event or series of events by which:
(a) any "person" or "group" (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person shall be deemed to have "beneficial ownership" of all securities that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of 30% or more of the equity interests of the Company; or
(b) during any period of 12 consecutive months, a majority of the members of the Board of Directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body.
"Closing Day" means, with respect to any Accepted Note, the Business Day specified for the closing of the purchase and sale of such Accepted Note in the Confirmation of Acceptance with respect to such Accepted Note, provided that (i) if the Company and the Purchaser which is obligated to purchase such Accepted Note agree on an earlier Business Day for such closing, the "Closing Day" for such Accepted Note shall be such earlier Business Day, and (ii) if the closing of the purchase and sale of such Accepted Note is rescheduled pursuant to Section 2B(7), the Closing Day for such Accepted Note, for all purposes of this Agreement except references to "original Closing Day" in Section 2B(8)(iii), shall mean the Rescheduled Closing Day with respect to such Accepted Note.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.
"Company" means Nu Skin Enterprises, Inc., a Delaware corporation.
"Confidential Information" is defined in Section 20.
"Confirmation of Acceptance" is defined in Section 2B(5).
"Consolidated Income Available for Fixed Charges" means, with respect to any period, Consolidated Net Income for such period plus all amounts deducted in the computation thereof on account of (a) Fixed Charges, and (b) taxes imposed on or measured by income or excess profits of the Company and the Restricted Subsidiaries.
"Consolidated Net Income" means, with respect to any period, the net income (or loss) of the Company and the Restricted Subsidiaries for such period (taken as a cumulative whole), as determined in accordance with GAAP, after eliminating all offsetting debits and credits between the Company and the Restricted Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Company and the Restricted Subsidiaries in accordance with GAAP.
"Consolidated Net Worth" means, at any time, (a) the consolidated stockholders' equity of the Company and the Restricted Subsidiaries, as determined according to GAAP, less (b) the sum of (i) to the extent included in clause (a), all amounts attributable to minority interests, if any, in the securities of Restricted Subsidiaries, and (ii) the amount by which Restricted Investments exceed 20% of the amount determined in clause (a).
"Consolidated Total Assets" means, at any date of determination, on a consolidated basis for the Company and the Restricted Subsidiaries, total assets, determined in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Credit Facility" means any credit facility providing for the borrowing of money or the issuance of letters of credit (a) for the Company or (b) for any Restricted Subsidiary, if its obligations under such credit facility are guaranteed by the Company.
"Default" means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
"Default Rate" means (i) in the case of any Note denominated in Dollars, the greater of 2% over the interest rate expressed in such Note and 2% over the rate announced from time to time in New York City by the Bank of New York as its "base" or "prime" rate and (ii) in the case of any Note denominated in a currency other than Dollars, 2% over the interest rate expressed in such Note.
"Delayed Delivery Fee" is defined in Section 2B(8)(iii).
"Document Delivery Date" means (i) the applicable Closing Day in the case of any Accepted Notes to be denominated in Dollars, (ii) one New York Business Days prior to the applicable Closing Day in the case of any Accepted Notes to be denominated in British Pounds, Canadian Dollars or Euros and (iii) two New York Business Days prior to the applicable Closing Day in the case of any Accepted Notes to be denominated in Yen.
"Dollars" and the symbol "$" mean the lawful money of the United States of America unless, in the case of "Dollars" or "$", if immediately preceded by the name of another country (e.g. "Canadian Dollars").
"Domestic Subsidiary" means, at any time, each Subsidiary of the Company (a) which is created, organized or domesticated in the United States or under the laws of the United States or any state or territory thereof, (b) which was included as a member of the Company's affiliated group in the Company's most recent consolidated United States federal income tax return, or (c) the earnings of which were includable in the taxable income of the Company or any other Domestic Subsidiary (to the extent of the Company's and/or such other Domestic Subsidiary's ownership interest of such Subsidiary) in the Company's most recent consolidated United States federal income tax return.
"EBITDA" means, with respect to any period, the sum of (i) Consolidated Net Income for such period without giving effect to extraordinary gains and losses, gains and losses resulting from changes in GAAP or one time non-recurring income and expenses resulting from acquisitions, plus (ii) to the extent deducted in the calculation of Consolidated Net Income, the amount of all interest expense, depreciation expense, amortization expense, and income tax expense; provided that EBITDA will include or exclude, as applicable, acquisitions and divestitures of Restricted Subsidiaries or other business units on a pro forma basis as if such acquisitions or divestitures occurred on the first day of the applicable period.
"Environmental Laws" means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including but not limited to those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.
"Equity Securities" of any Person means (a) all common stock, Preferred Stock, participations, shares, partnership interest, membership interest or other equity interest 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" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
"ERISA Affiliate" means any trade or business (whether or not incorporated) that is treated as a single employer together with the Company under section 414 of the Code.
"Euros" and the symbol "€"means the single currency of participating member states of the European Union.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing China Pledge" means the Pledge Agreement, dated as of January 31, 2005, by and among Nu Skin Asia Investment, Inc., each other Existing Pledgor party thereto (if any) and the Existing Collateral Agreement, as may be amended, supplemented or otherwise modified through the date hereof.
"Existing Collateral" means "Collateral" as defined in the Existing Intercreditor Agreement.
"Existing Collateral Agent" means U.S. Bank National Association, as successor to State Street Bank and Trust Company of California, N.A., acting in its capacity as collateral agent under the Existing Intercreditor Agreement, together with its successors and assigns.
"Existing Collateral Documents" means (a) the Existing Pledge Agreement, (b) the Existing China Pledge Agreement, (c) each of the Existing Subsidiary Guaranties, (d) the Existing Intercreditor Agreement, and all other documents existing on the date hereof securing the Notes, the payment of the indebtedness evidenced by the Notes and all other amounts due from the Company or any Restricted Subsidiary under the Original Agreements, the Existing Notes or the Existing Collateral Documents.
"Existing Intercreditor Agreement" means the Amended and Restated Collateral Agency and Intercreditor Agreement, dated as of August 26, 2003, by and among the Existing Collateral Agent, certain of the Purchasers and each of the other "Benefitted Parties" and "Additional Benefitted Parties" (as such terms are defined therein), and acknowledged by the Company and the Subsidiary guarantors, as such agreement may be amended, supplemented or otherwise modified through the date hereof.
"Existing Notes" means each of the Notes described in Section 1B, existing on the date hereof.
"Existing Pledge Agreement" means the Pledge Agreement, dated as of October 12, 2000, by and between the Existing Pledgors and the Existing Collateral Agent, as may be amended, supplemented or otherwise modified through the date hereof.
"Existing Pledged Securities" means (a) the Equity Securities described in (i) Schedule I attached to the Existing Pledge Agreement or (ii) the Existing China Pledge, as the case may be, and (b) the Equity Securities (together with their attendant rights, interests, documents, certificates, instruments, dividends, distributions, returns, cash, warrants, option, proceeds and other property) of each Person pledged under the Existing Pledge Agreement or the Existing China Pledge, as the case may be, pursuant to any of the Original Agreements or Existing Collateral Documents.
"Existing Pledgor" means each Person who has pledged Existing Pledged Securities under the Existing Pledge Agreement or the Existing China Pledge, as the case may be.
"Existing Subordination Agreement" means the Second Amended and Restated Subordination Agreement, dated as of October 1, 2009, by and among the subordinated creditors and senior creditors named therein, as may be amended, supplemented or otherwise modified through the date hereof.
"Existing Subsidiary Guaranties" means each "Subsidiary Guaranty" (as defined in each of the Original Agreements) executed and delivered prior to the date hereof by the respective Existing Subsidiary Guarantors, in favor of certain of the Purchasers, in connection with, and pursuant to, its respective Original Agreement, in each case, as may be amended, supplemented or otherwise modified through the date hereof.
"Existing Subsidiary Guarantors" means, as the context may require, the "Subsidiary Guarantors" (as defined in each of the Original Agreements), existing on the date hereof.
"Facility" is defined in Section 2B(1).
"Fixed Charges" means, with respect to any period, the sum of (i) Interest Expense for such period, and (ii) Lease Rentals for such period.
"Foreign Subsidiary" means, at any time, each Subsidiary of the Company that is not a Domestic Subsidiary.
"GAAP" means generally accepted accounting principles as in effect from time to time in the United States of America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any State or other political subdivision thereof, or
(ii) Japan or any political subdivision thereof, or
(ii) any jurisdiction in which the Company or any Subsidiary conducts all or any part of its business, or which asserts jurisdiction over any properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
"Guaranty" means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.
"Hazardous Material" means any and all pollutants, toxic or hazardous wastes or any other substances that might pose a hazard to health or safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage, or filtration of which is or shall be restricted, prohibited or penalized by any applicable law (including, without limitation, asbestos, urea formaldehyde foam insulation and polychlorinated biphenyls).
"Hedge Treasury Note(s)" means, with respect to any Accepted Note, the United States Treasury Note or Notes whose cash flow duration (as determined by Prudential) most closely matches the duration of such Accepted Note.
"holder" means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1.
"Hostile Tender Offer" means, with respect to the use of proceeds of any Note, any offer to purchase, or any purchase of, shares of capital stock of any corporation or equity interests in any other entity, or securities convertible into or representing the beneficial ownership of, or rights to acquire, any such shares or equity interests, if such shares, equity interests, securities or rights are of a class which is publicly traded on any securities exchange or in any over-the-counter market, other than purchases of such shares, equity interests, securities or rights representing less than 5% of the equity interests or beneficial ownership of such corporation or other entity for portfolio investment purposes, and such offer or purchase has not been duly approved by the board of directors of such corporation or the equivalent governing body of such other entity prior to the date on which the Company makes the Request for Purchase of such Note.
"Indebtedness" with respect to any Person means, at any time, without duplication,
(a) its liabilities for borrowed money and its redemption obligations in respect of mandatorily redeemable Preferred Stock;
(b) its liabilities for the deferred purchase price of property acquired by such Person (excluding accounts payable arising in the ordinary course of business but including all liabilities created or arising under any conditional sale or other title retention agreement with respect to any such property);
(c) all liabilities appearing on its balance sheet in accordance with GAAP in respect of Capital Leases;
(d) all liabilities for borrowed money secured by any Lien with respect to any property owned by such Person (whether or not it has assumed or otherwise become liable for such liabilities);
(e) Securitization Debt; and
(f) any Guaranty of such Person with respect to liabilities of a type described in any of clauses (a) through (e) hereof.
Indebtedness of any Person shall include all obligations of such Person of the character described in clauses (a) through (f) to the extent such Person remains legally liable in respect thereof notwithstanding that any such obligation is deemed to be extinguished under GAAP.
"INHAM Exemption" is defined in Section 6.2(e).
"Institutional Investor" means (a) any original purchaser of a Note, and (b) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, holding more than $2,000,000 (or its equivalent in another Available Currency) in of the aggregate principal amount of the Notes then outstanding or more than 20% of the aggregate principal amount of the Notes then outstanding.
"Interest Expense" means, with respect to the Company and the Restricted Subsidiaries 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 the Company and the Restricted Subsidiaries 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 the Company and the Restricted Subsidiaries during such period.
"Investment" means any investment, made in cash or by delivery of property, by the Company or any Restricted Subsidiary (a) in any Person, whether by acquisition of stock, Indebtedness or other obligation or Security, or by loan, Guaranty, advance, capital contribution or otherwise; or (b) in any property.
"Issuance Period" is defined in Section 2B(2).
"Issuance Fee" is defined in Section 2B(8)(ii).
"Lease Rentals" means, with respect to any period, the sum of the rental and other obligations required to be paid during such period by the Company or any Restricted Subsidiary as lessee under all leases of real or personal property (other than Capital Leases) as determined on a consolidated basis for the Company and the Restricted Subsidiaries in accordance with GAAP.
"Lien" means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Material" or "Materially" means material or materially, as the case may be, in relation to the business, operations, affairs, financial condition, assets, properties or prospects of the Company and the Restricted Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the business, operations, affairs, financial condition, assets or properties of the Company and the Restricted Subsidiaries taken as a whole, or (b) the ability of the Company to perform its obligations under this Agreement, the Notes or the other Transaction Documents, or (c) the validity or enforceability of this Agreement, the Notes or any of the other Transaction Documents.
"Material Credit Facility" means (a) the Bank Credit Agreement, (b) any debt securities of the Company or of any Restricted Subsidiary (if such Restricted Subsidiary's obligations thereunder are guaranteed by the Company) that are publically offered or privately placed in the United States if the aggregate amount available to be borrowed and/or outstanding under such debt securities exceeds $25,000,000 at any time, and (c) any Credit Facility entered into by the Company or any Restricted Subsidiary organized under the laws of any state or territory of the United States if the aggregate amount available to be borrowed and/or outstanding under such Credit Facility exceeds $25,000,000 at any time.
"Material Domestic Subsidiary" means each Domestic Subsidiary of the Company that also is a Material Subsidiary.
"Material Subsidiaries" means, at any time, each Subsidiary of the Company which (i) had revenues during the four most recently ended fiscal quarters equal to or greater than 5.0% of the consolidated total revenues of the Company and its Subsidiaries during such period, or (ii) is an obligor under any Guaranty with respect to the Indebtedness of the Company under any Material Credit Facility.
"Multiemployer Plan" means any Plan that is a "multiemployer plan" (as such term is defined in section 4001(a)(3) of ERISA).
"NAIC Annual Statement" is defined in Section 6.2(a).
"New York Business Day" means any day other than a Saturday, a Sunday or a day on which commercial banks in New York are required or authorized to be closed.
"Notes" is defined in Section 1C.
"OFAC" is defined in Section 5.16.
"OFAC Listed Person" is defined in Section 5.16.
"Officer's Certificate" means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.
"Original Agreements" is defined in Section 1A.
"Overnight Interest Rate" means with respect to an Accepted Note denominated in a currency other than Dollars, the actual rate of interest, if any, received by the Purchaser which intends to purchase such Accepted Note on the overnight deposit of the funds intended to be used for the purchase of such Accepted Note, it being understood that reasonable efforts will be made by or on behalf of the Purchaser to make any such deposit in an interest bearing account.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
"Permitted Liens" is defined in Section 10.3.
"Permitted Securitization Program" means any transaction or series of transactions that may be entered into by the Company or any Restricted Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell, convey or otherwise transfer to (i) a Securitization Entity (in the case of a transfer by the Company or any Restricted Subsidiary) and (ii) any other Person (in the case of a transfer by a Securitization Entity), or may grant a security interest in, any receivables (whether now existing or arising or acquired in the future) of the Company or any Restricted Subsidiary, and any assets related thereto including (A) all collateral securing such receivables, (B) all contracts and contract rights and all guarantees or other obligations in respect of such receivables, (C) proceeds of such receivables, and (D) other assets (including contract rights) that are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving receivables; provided that the resultant Securitization Debt, together with all other Priority Indebtedness then outstanding, shall not exceed the amount of Priority Indebtedness permitted by Section 10.5(a)(ii).
"Person" means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, or a government or agency or political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding five years, has been established or maintained, or to which contributions are or, within the preceding five years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.
"Preferred Stock" means any class of capital stock of a corporation that is preferred over any other class of capital stock of such corporation as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such corporation.
"Priority Indebtedness" means (without duplication) the sum of (a) any unsecured Indebtedness of the Restricted Subsidiaries other than Indebtedness owed to the Company or any other Restricted Subsidiary, and (b) any Indebtedness of the Company and its Restricted Subsidiaries secured by a Lien not permitted by paragraphs (a) through (m) of Section 10.3, and (c) Securitization Debt.
"property" or "properties" means and includes each and every interest in any property or asset, whether tangible or intangible and whether real, personal or mixed.
"Prudential" means Prudential Investment Management, Inc., and any successor thereto.
"Prudential Affiliate" means (i) any corporation or other entity controlling, controlled by, or under common control with, Prudential and (ii) any managed account or investment fund which is managed by Prudential or a Prudential Affiliate described in clause (i) of this definition. For purposes of this definition the terms "control", "controlling" and "controlled" shall mean the ownership, directly or through subsidiaries, of a majority of a corporation's or other Person's voting stock or equivalent voting securities or interests.
"PTE" is defined in Section 6.2(a).
"Purchasers" means (i) each of the Persons listed in the Purchaser Schedule as an existing holder of Notes, (ii) with respect to any Accepted Notes, Prudential and/or the Prudential Affiliate(s) which are purchasing such Accepted Notes, and (iii) the permitted transferees of such Persons described in the foregoing clauses (i) and (ii).
"QPAM Exemption" is defined in Section 6.2(d).
"Quotation" is defined in Section 2B(4).
"Request for Purchase" is defined in Section 2B(3).
"Required Holder(s)" means the holder or holders of at least 51% of the aggregate principal amount of the Notes or of a Series of Notes, as the context may require, from time to time outstanding (exclusive of Notes then owned by the Company, any Subsidiary or any of their respective Affiliates) and, if no Notes are outstanding, shall mean Prudential. In the absence of an explicit specification to the contrary, the "Required Holders" shall refer to the holder or holders of a majority of the aggregate principal amount of the Notes.
"Rescheduled Closing Day" shall have the meaning specified in Section 2B(7)
.
"Responsible Officer" means any Senior Financial Officer and any other officer of the Company or its Subsidiaries with responsibility for the administration of the relevant portion of this Agreement or the other Transaction Documents.
"Restricted Investments" means all Investments except any of the following: (i) property to be used in the ordinary course of business; (ii) assets arising from the sale of goods and services in the ordinary course of business; (iii) Investments in one or more Restricted Subsidiaries or any Person that immediately becomes a Restricted Subsidiary; (iv) Investments existing at the date of this Agreement; (v) Investments in obligations, maturing within one year, issued by or guaranteed by the United States of America, or an agency thereof, or Canada, or any province thereof; (vi) Investments in tax-exempt obligations, maturing within one year, which are rated in one of the top two rating classifications by at least one national rating agency; (vii) Investments in certificates of deposit or banker's acceptances maturing within one year issued by Bank of America or other commercial banks which are rated in one of the top two rating classifications by at least one national rating agency; (viii) Investments in commercial paper, maturing within 270 days, rated in one of the top two rating classifications by at least one national rating agency; (ix) Investments in repurchase agreements; (x) treasury stock; (xi) Investments in money market instrument programs which are classified as current assets in accordance with GAAP; (xii) Investments in foreign currency risk hedging contracts used in the ordinary course of business; and (xiii) Investments in Securitization Entities.
"Restricted Subsidiary" means any Subsidiary (a) at least a majority of the voting securities of which are owned by the Company and/or one or more Wholly-Owned Restricted Subsidiaries, and (b) which the Company has not designated as an Unrestricted Subsidiary in accordance with Section 10.8; provided that upon any Unrestricted Subsidiary becoming a Material Subsidiary, it shall immediately be deemed to be a Restricted Subsidiary (and shall remain a Restricted Subsidiary so long as it a Material Subsidiary).
"Securities Act" means the Securities Act of 1933, as amended from time to time.
"Security" has the meaning set forth in section 2(l) of the Securities Act.
"Securitization Debt" for the Company and the Restricted Subsidiaries shall mean, in connection with any Permitted Securitization Program, (a) any amount as to which any Securitization Entity or other Person has recourse to the Company or any Restricted Subsidiary with respect to such Permitted Securitization Program by way of a Guaranty and (b) the amount of any reserve account or similar account or asset shown as an asset of the Company or a Restricted Subsidiary under GAAP that has been pledged to any Securitization Entity or any other Person in connection with such Permitted Securitization Program.
"Securitization Entity" means a wholly-owned Subsidiary (other than a Restricted Subsidiary) of the Company (or another Person in which the Company or any of its Subsidiaries makes an investment and to which the Company or any of its Subsidiaries transfers receivables and related assets) that engages in no activities other than in connection with the
financing of receivables and that is designated by the Board of Directors of the Company (as provided below) as a Securitization Entity (i) no portion of the Indebtedness or any other obligations (contingent or otherwise) of which (A) is guaranteed by the Company or any of its Subsidiaries (excluding guarantees of obligations (other than the principal of, and interest on, Indebtedness) pursuant to Standard Securitization Undertakings), (B) is recourse to or obligates the Company or any of its Subsidiaries in any way other than pursuant to Standard Securitization Undertakings, or (C) subjects any property or asset of the Company or any other Subsidiary of the Company, directly or indirectly, continently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings, (ii) with which neither the Company nor any of its Subsidiaries has any material contract, agreement, arrangement or understanding other than on terms no less favorable to the Company or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company, other than fees payable in the ordinary course of business in connection with servicing receivables of such entity, and (iii) to which neither the Company nor any of its Subsidiaries has any obligation to maintain or preserve such entity's financial condition or cause such entity to achieve certain levels of operating results.
"Senior Financial Officer" means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.
"Series" shall have the meaning specified in Section 1C.
"Series C Note" and "Series C Notes" is defined in Section 1B.
"Series D Note" and "Series D Notes" is defined in Section 1B.
"Series E Note" and "Series E Notes" is defined in Section 1B.
"Series EE Note" and "Series EE Notes" is defined in Section 1B.
"Series F Note" and "Series F Notes" is defined in Section 1B.
"Shelf Note" and "Shelf Notes" is defined in Section 1C.
"Source" is defined in Section 6.2.
"Standard Securitization Undertakings" means representations, warranties, covenants and indemnities entered into by the Company or any of its Subsidiaries that are reasonably customary in a receivables securitization transaction.
"Structuring Fee" is defined in Section 2B(8)(i).
"Subsidiary" means, as to any Person, (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 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, limited liability company 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. Unless the context otherwise clearly requires, any reference to a "Subsidiary" is a reference to a Subsidiary of the Company.
"Swap Agreement" means (a) any and all rate swap transactions, basis swaps, forward rate transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), provided that any such transaction is governed by or subject to a Master Agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., or any other master agreement published by any successor organization thereto (any such master agreement, together with any related schedules, as amended, restated, extended, supplemented or otherwise modified in writing from time to time, a "Master Agreement"), including any such obligations or liabilities under any Master Agreement.
"Taxes" is defined in Section 14.4(a).
"Termination Agreement of Existing Collateral Documents and Guarantees" is defined in Section 3A.
"Total Indebtedness" means, at any date of determination, the total of all Indebtedness of the Company and the Restricted Subsidiaries outstanding on such date, after eliminating all offsetting debits and credits between the Company and the Restricted Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Company and the Restricted Subsidiaries in accordance with GAAP.
"Transaction Documents" means this Agreement, the Notes and any and all other agreements, documents, certificates and instruments from time to time executed and delivered by or on behalf of the Company related thereto.
"Unrestricted Subsidiary" means any Subsidiary which is designated as an Unrestricted Subsidiary on Schedule B or is designated as such in writing by the Company to each of the holders of the Notes pursuant to Section 10.8; provided that no Material Subsidiary shall be an Unrestricted Subsidiary.
"Wholly-Owned Restricted Subsidiary" means, at any time, (a) with respect to Domestic Subsidiaries, any Restricted Subsidiary one hundred percent (100%) of all of the equity interests (except directors' qualifying shares) and voting interests of which are owned by any one or more of the Company and the Company's other wholly-owned Restricted Subsidiaries at such time, and (b) with respect to Foreign Subsidiaries, any Restricted Subsidiary ninety-five percent (95%) of all of the equity interests (except directors' qualifying shares) and voting interests of which are owned by any one or more of the Company and the Company's other Wholly-Owned Restricted Subsidiaries at such time.
"Yen" and the symbol "¥" mean the lawful currency of Japan.
SCHEDULE B
UNRESTRICTED SUBSIDIARIES
Nu Skin Argentina, Inc.
Nu Skin Israel, Inc.
Nu Skin Pharmanex (B) Sdn. Bhd.
Nu Skin Enterprises Ukraine, LLC
SCHEDULE 10.3
LIENS
None.
EXHIBIT A-1
[FORM OF SERIES C NOTE]
NU SKIN ENTERPRISES, INC.
SERIES C SENIOR NOTE
No. C-[__]
CURRENCY AND ORIGINAL PRINCIPAL AMOUNT: [_____________] Japanese Yen
ORIGINAL ISSUE DATE: [______________]
INTEREST RATE: 1.7225%
INTEREST PAYMENT DATES: April 30 and October 31
FINAL MATURITY DATE: April 30, 2014
PRINCIPAL PREPAYMENT DATES AND AMOUNTS: [_____________] Japanese Yen on April 30 of 2008, 2009, 2010, 2011, 2012 and 2013
FOR VALUE RECEIVED, the undersigned, NU SKIN ENTERPRISES, INC. (herein called the "Company"), a corporation organized and existing under the laws of Delaware, hereby promises to pay to [__________________], or registered assigns, the principal sum of [__________________] Japanese Yen, payable on the Principal Payment Dates and in the amounts specified above, and on the Final Maturity Date as specified above in an amount equal to the unpaid balance of the principal hereof, with interest (computed on the basis of a 365-day year and actual days elapsed) (a) on the unpaid balance thereof at the Interest Rate per annum specified above, payable on each Interest Payment Date specified above and on the Final Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) on any overdue payment (including any overdue prepayment) of principal, any overdue payment of any Make-Whole Amount and any overdue payment of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the Default Rate.
Payments of principal, Make-Whole Amount, if any, and interest are to be made at JPMorgan Chase Bank in New York City or at such other place as the holder hereof shall designate to the Company in writing, in lawful money of Japan.
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to a Private Shelf Agreement, dated as of August 26, 2003 (as from time to time amended, herein called the "Agreement"), between Nu Skin Enterprises, Inc. (the "Company") and each Issuer Subsidiary which becomes party thereto, on the one hand, and Prudential Investment Management, Inc. and each Prudential Affiliate which becomes party thereto, on the other hand, and is entitled to the benefits thereof. Capitalized terms used and not otherwise defined herein shall have the meanings provided in the Agreement. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Agreement, and (ii) to have made the representations set forth in Section 6 of the
Agreement. This Note is secured by the Collateral Documents and is guaranteed by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty.
This Note is subject to optional prepayment, in whole or from time to time in part, on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof of such holder's attorney duly authorized in writing, a new Note for the then outstanding principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company shall not be affected by any notice to the contrary.
In case an Event of Default shall occur and be continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount), and with the effect provided in the Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State (other than Section 5-1401 of the New York General Obligations Law) that would require the application of the laws of a jurisdiction other than such State.
NU SKIN ENTERPRISES, INC.
By:______________________________________
Name:
Title:
EXHIBIT A-2
[FORM OF SERIES D NOTE]
NU SKIN ENTERPRISES, INC.
SERIES D SENIOR NOTE
No. D-[__]
CURRENCY AND ORIGINAL PRINCIPAL AMOUNT: $[_____________] (Dollars)
ORIGINAL ISSUE DATE: [_____________]
INTEREST RATE: 6.19%
INTEREST PAYMENT DATES: January 5 and July 5
FINAL MATURITY DATE: July 5, 2016
PRINCIPAL PREPAYMENT DATES AND AMOUNTS: $[_____________] (Dollars)
on July 5 of 2010, 2011, 2012, 2013, 2014 and 2015
FOR VALUE RECEIVED, the undersigned, NU SKIN ENTERPRISES, INC. (herein called the "Company"), a corporation organized and existing under the laws of Delaware, hereby promises to pay to [__________________], or registered assigns, the principal sum of [__________________] DOLLARS, payable on the Principal Payment Dates and in the amounts specified above, and on the Final Maturity Date as specified above in an amount equal to the unpaid balance of the principal hereof, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the Interest Rate per annum specified above, payable on each Interest Payment Date specified above and on the Final Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) on any overdue payment (including any overdue prepayment) of principal, any overdue payment of any Make-Whole Amount and any overdue payment of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the Default Rate.
Payments of principal, Make-Whole Amount, if any, and interest are to be made at JPMorgan Chase Bank in New York City or at such other place as the holder hereof shall designate to the Company in writing, in lawful money of the United States of America.
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to a Private Shelf Agreement, dated as of August 26, 2003 (as from time to time amended, herein called the "Agreement"), between Nu Skin Enterprises, Inc. (the "Company") and each Issuer Subsidiary which becomes party thereto, on the one hand, and Prudential Investment Management, Inc. and each Prudential Affiliate which becomes party thereto, on the other hand, and is entitled to the benefits thereof. Capitalized terms used and not otherwise defined herein shall have the meanings provided in the Agreement. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Agreement, and (ii) to have made the representations set forth in Section 6 of the Agreement. This Note is secured by the Collateral Documents and is guaranteed by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty.
This Note is subject to optional prepayment, in whole or from time to time in part, on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder's attorney duly authorized in writing, a new Note for the then outstanding principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company shall not be affected by any notice to the contrary.
In case an Event of Default shall occur and be continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount), and with the effect provided in the Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such state (other than Section 5-1401 of the New York General Obligations Law) that would require the application of the laws of a jurisdiction other than such state.
NU SKIN ENTERPRISES, INC.
By
Name:
Title:
EXHIBIT A-3
[FORM OF SERIES E NOTE]
NU SKIN ENTERPRISES, INC.
SERIES E SENIOR NOTE
No. E-[__]
CURRENCY AND ORIGINAL PRINCIPAL AMOUNT: $[_____________] (Dollars)
ORIGINAL ISSUE DATE: [_____________]
INTEREST RATE: 6.14%
INTEREST PAYMENT DATES: January 20 and July 20
FINAL MATURITY DATE: January 20, 2017
PRINCIPAL PREPAYMENT DATES AND AMOUNTS: $[_____________] (Dollars)
on January 20 of 2011, 2012, 2013, 2014, 2015 and 2016
FOR VALUE RECEIVED, the undersigned, NU SKIN ENTERPRISES, INC. (herein called the "Company"), a corporation organized and existing under the laws of Delaware, hereby promises to pay to [__________________], or registered assigns, the principal sum of [__________________] DOLLARS, payable on the Principal Payment Dates and in the amounts specified above, and on the Final Maturity Date as specified above in an amount equal to the unpaid balance of the principal hereof, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance thereof at the Interest Rate per annum specified above, payable on each Interest Payment Date specified above and on the Final Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) on any overdue payment (including any overdue prepayment) of principal, any overdue payment of any Make-Whole Amount and any overdue payment of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the Default Rate.
Payments of principal, Make-Whole Amount, if any, and interest are to be made at JPMorgan Chase Bank in New York City or at such other place as the holder hereof shall designate to the Company in writing, in lawful money of the United States of America.
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to a Private Shelf Agreement, dated as of August 26, 2003 (as from time to time amended, herein called the "Agreement"), between Nu Skin Enterprises, Inc. (the "Company") and each Issuer Subsidiary which becomes party thereto, on the one hand, and Prudential Investment Management, Inc. and each Prudential Affiliate which becomes party thereto, on the other hand, and is entitled to the benefits thereof. Capitalized terms used and not otherwise defined herein shall have the meanings provided in the Agreement. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Agreement, and (ii) to have made the representations set forth in Section 6 of the Agreement. This Note is secured by the Collateral Documents and is guaranteed by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty
.
This Note is subject to optional prepayment, in whole or from time to time in part, on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder's attorney duly authorized in writing, a new Note for the then outstanding principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company shall not be affected by any notice to the contrary.
In case an Event of Default shall occur and be continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount), and with the effect provided in the Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such state (other than Section 5-1401 of the New York General Obligations Law) that would require the application of the laws of a jurisdiction other than such state.
NU SKIN ENTERPRISES, INC.
By
Name:
Title:
EXHIBIT A-4
[FORM OF SERIES EE NOTE]
NU SKIN ENTERPRISES, INC.
SERIES EE SENIOR NOTE
No. EE-[__]
CURRENCY AND ORIGINAL PRINCIPAL AMOUNT: [_____________] Japanese Yen
ORIGINAL ISSUE DATE: [_____________]
INTEREST RATE: 3.275%
INTEREST PAYMENT DATES: January 20 and July 20
FINAL MATURITY DATE: January 20, 2017
PRINCIPAL PREPAYMENT DATES AND AMOUNTS: [_____________] Japanese Yen on January 20 of 2011, 2013, 2014 and 2016; and [_____________] Japanese Yen on January 20 of 2012 and 2015
FOR VALUE RECEIVED, the undersigned, NU SKIN ENTERPRISES, INC. (herein called the "Company"), a corporation organized and existing under the laws of Delaware, hereby promises to pay to [__________________], or registered assigns, the principal sum of [__________________] JAPANESE YEN, payable on the Principal Prepayment Dates and in the amounts specified above, and on the Final Maturity Date as specified above in an amount equal to the unpaid balance of the principal hereof, with interest (computed on the basis of a 365-day year and actual days elapsed) (a) on the unpaid balance thereof at the Interest Rate per annum specified above, payable on each Interest Payment Date specified above and on the Final Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) on any overdue payment (including any overdue prepayment) of principal, any overdue payment of any Make-Whole Amount and any overdue payment of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the Default Rate.
Payments of principal, Make-Whole Amount, if any, and interest are to be made at JPMorgan Chase Bank in Tokyo, Japan or at such other place as the holder hereof shall designate to the Company in writing, in lawful money of Japan.
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to a Private Shelf Agreement, dated as of August 26, 2003 (as from time to time amended, herein called the "Agreement"), between Nu Skin Enterprises, Inc. (the "Company") and each Issuer Subsidiary which becomes party thereto, on the one hand, and Prudential Investment Management, Inc. and each Prudential Affiliate which becomes party thereto, on the other hand, and is entitled to the benefits thereof. Capitalized terms used and not otherwise defined herein shall have the meanings provided in the Agreement. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Agreement, and (ii) to have made the representations set forth in Section 6 of the Agreement. This Note is secured by the Collateral Documents and is guaranteed by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty.
This Note is subject to optional prepayment, in whole or from time to time in part, on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder's attorney duly authorized in writing, a new Note for the then outstanding principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company shall not be affected by any notice to the contrary.
In case an Event of Default shall occur and be continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount), and with the effect provided in the Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such state (other than Section 5-1401 of the New York General Obligations Law) that would require the application of the laws of a jurisdiction other than such state.
NU SKIN ENTERPRISES, INC.
By
Name:
Title:
EXHIBIT A-5
[FORM OF SERIES F NOTE]
NU SKIN ENTERPRISES, INC.
SERIES F SENIOR NOTE
No. F-[__]
CURRENCY AND ORIGINAL PRINCIPAL AMOUNT: [_____________] Japanese Yen
ORIGINAL ISSUE DATE: [_____________]
INTEREST RATE: 2.59%
INTEREST PAYMENT DATES: March 28 and September 28
FINAL MATURITY DATE: September 28, 2017
PRINCIPAL PREPAYMENT DATES AND AMOUNTS: [_____________] Japanese Yen on September 28 of 2011, 2012, 2013, 2014, 2015 and 2016
FOR VALUE RECEIVED, the undersigned, NU SKIN ENTERPRISES, INC. (herein called the "Company"), a corporation organized and existing under the laws of Delaware, hereby promises to pay to [__________________], or registered assigns, the principal sum of [__________________] JAPANESE YEN, payable on the Principal Prepayment Dates and in the amounts specified above, and on the Final Maturity Date as specified above in an amount equal to the unpaid balance of the principal hereof, with interest (computed on the basis of a 365-day year and actual days elapsed) (a) on the unpaid balance thereof at the Interest Rate per annum specified above, payable on each Interest Payment Date specified above and on the Final Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) on any overdue payment (including any overdue prepayment) of principal, any overdue payment of any Make-Whole Amount and any overdue payment of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the Default Rate.
Payments of principal, Make-Whole Amount, if any, and interest are to be made at JPMorgan Chase Bank in Tokyo, Japan or at such other place as the holder hereof shall designate to the Company in writing, in lawful money of Japan.
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to a Private Shelf Agreement, dated as of August 26, 2003 (as from time to time amended, herein called the "Agreement"), between Nu Skin Enterprises, Inc. (the "Company") and each Issuer Subsidiary which becomes party thereto, on the one hand, and Prudential Investment Management, Inc. and each Prudential Affiliate which becomes party thereto, on the other hand, and is entitled to the benefits thereof. Capitalized terms used and not otherwise defined herein shall have the meanings provided in the Agreement. Each holder of this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Agreement, and (ii) to have made the representations set forth in Section 6 of the
Agreement. This Note is secured by the Collateral Documents and is guaranteed by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty.
This Note is subject to optional prepayment, in whole or from time to time in part, on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder's attorney duly authorized in writing, a new Note for the then outstanding principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company shall not be affected by any notice to the contrary.
In case an Event of Default shall occur and be continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount), and with the effect provided in the Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such state (other than Section 5-1401 of the New York General Obligations Law) that would require the application of the laws of a jurisdiction other than such state.
NU SKIN ENTERPRISES, INC.
By
Name:
Title:
EXHIBIT A-6
[FORM OF SHELF NOTE]
NU SKIN ENTERPRISES, INC.
SERIES __ SENIOR NOTE
No. _____________
CURRENCY AND ORIGINAL PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE:
INTEREST RATE:
INTEREST PAYMENT DATES:
FINAL MATURITY DATE:
PRINCIPAL PREPAYMENT DATES AND AMOUNTS:
FOR VALUE RECEIVED, the undersigned, NU SKIN ENTERPRISES, INC. (herein called the "Company"), a corporation organized and existing under [the laws of Delaware] [__________], hereby promises to pay to [___________], or registered assigns, the principal sum of _____________ [specify principal amount and currency] [on the Final Maturity Date specified above] [, payable on the Principal Payment Dates and in the amounts specified above, and on the Final Maturity Date as specified above in an amount equal to the unpaid balance of the principal hereof,] with interest (computed on the basis of a [360-day year of twelve 30-day months)]1 [365-day year and actual days elapsed)]2 (a) on the unpaid balance thereof at the Interest Rate per annum specified above, payable on each Interest Payment Date specified above and on the Final Maturity Date specified above, commencing with the Interest Payment Date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) on any overdue payment (including any overdue prepayment) of principal, any overdue payment of any Make-Whole Amount and any overdue payment of interest, payable on each Interest Payment Date as aforesaid (or, at the option of the registered holder hereof, on demand), at a rate per annum from time to time equal to the Default Rate.
Payments of principal, Make-Whole Amount, if any, and interest are to be made at JPMorgan Chase Bank[, New York, New York] or at such other place as the holder hereof shall designate to the Company in writing, in lawful money of [specify country or European Union].
This Note is one of a series of Senior Notes (herein called the "Notes") issued pursuant to an Amended and Restated Note Purchase and Private Shelf Agreement, dated as of May 25, 2012 (as from time to time amended, herein called the "Agreement"), between Nu Skin Enterprises, Inc. (the "Company"), on the one hand, and Prudential Investment Management, Inc., the Purchasers signatory thereto and each Prudential Affiliate which becomes party thereto, on the other hand, and is entitled to the benefits thereof. Capitalized terms used and not otherwise defined herein shall have the meanings provided in the Agreement. Each holder of
1 This option to be used for Notes denominated in Dollars and Euros.
2 This option to be used for Notes denominated in British Pounds, Canadian Dollars and Yen
this Note will be deemed, by its acceptance hereof, (i) to have agreed to the confidentiality provisions set forth in Section 20 of the Agreement, and (ii) to have made the representations set forth in Section 6 of the Agreement.
This Note is subject to optional prepayment, in whole or from time to time in part, on the terms specified in the Agreement.
This Note is a registered Note and, as provided in the Agreement, upon surrender of this Note for registration of transfer, duly endorsed, or accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder's attorney duly authorized in writing, a new Note for the then outstanding principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company shall not be affected by any notice to the contrary.
In the case an Event of Default shall occur and be continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount), and with the effect provided in the Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State (other than Section 5-1401 of the New York General Obligations Law) that would require the application of the laws of a jurisdiction other than such State.
NU SKIN ENTERPRISES, INC.
By
Name:
Title:
EXHIBIT B
[FORM OF REQUEST FOR PURCHASE]
NU SKIN ENTERPRISES, INC.
Reference is made to the Amended and Restated Note Purchase and Private Shelf Agreement (as from time to time amended, the "Agreement") dated as of May 25, 2012 between Nu Skin Enterprises, Inc. (the "Company"), on the one hand, and Prudential Investment Management, Inc. ("Prudential"), the Purchasers signatory thereto and each Prudential Affiliate which becomes party thereto, on the other hand. Capitalized terms used and not otherwise defined herein shall have the respective meanings specified in the Agreement.
Pursuant to Section 2B(3) of the Agreement, the Company hereby makes the following Request for Purchase:
1. Aggregate principal amount of
the Notes and Available Currency….......... _______________3 (amount)
_____________________4 (currency)
2. Individual specifications of the Notes:
Principal Amount
|
Final Maturity Date
| Principal
Prepayment Dates
and Amounts |
Interest Payment
Period5
|
3. Use of proceeds of the Notes:
4. Proposed day for the closing of the purchase and sale of the Notes:
5. The purchase price of the Notes is to be transferred to:
Name, Address and Wiring
Instructions of Bank |
Number of Account
|
6. The Company certifies (a) that the representations and warranties contained in Section 5 of the Agreement are true on and as of the date of this Request for Purchase and (b) no Default or Event of Default exists as of the date of this Request for Purchase.
DATED: NU SKIN ENTERPRISES, INC.
By:
Its:
3 With respect to the initial draw, minimum principal amount of equivalent of U.S. $10,000,000, and with respect to all subsequent draws, minimum principal amount of equivalent of U.S. $10,000,000.
4 Dollars, British Pounds, Canadian Dollars, Euros or Yen.
5 Specify quarterly or semi-annually.
EXHIBIT C
[FORM OF CONFIRMATION OF ACCEPTANCE]
NU SKIN ENTERPRISES, INC.
Reference is made to the Amended and Restated Note Purchase and Private Shelf Agreement (as from time to time amended, the "Agreement"), dated as of May 25, 2012 between Nu Skin Enterprises, Inc. (the "Company"), on the one hand, and Prudential Investment Management, Inc. ("Prudential"), the Purchasers signatory thereto and each Prudential Affiliate which becomes party thereto, on the other hand. All terms used herein that are defined in the Agreement have the respective meanings specified in the Agreement.
Prudential or the Prudential Affiliate which is named below as a Purchaser of Notes hereby confirms the representations as to such Notes set forth in Section 6 of the Agreement, and agrees to be bound by the provisions of Sections 2B(5) and 2B(7) of the Agreement relating to the purchase and sale of such Notes.
Pursuant to Section 2B(5) of the Agreement, an Acceptance with respect to the following Accepted Notes is hereby confirmed:
| I. | Accepted Notes: Aggregate principal
amount ________________________ |
A. (a)Name of Purchaser:
(b) Principal amount and Available Currency:
(c) Final Maturity date:
(d) Principal prepayment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
(g) Payment and notice instructions:
B. (a)Name of Purchaser:
(b) Principal amount and Available Currency:
(c) Final Maturity date:
(d) Principal prepayment dates and amounts:
(e) Interest rate:
(f) Interest payment period:
(g) Payment and notice instructions:
[(C), (D)….same information as above.]
II. Closing Day:
| DATED: | NU SKIN ENTERPRISES, INC. By: Its: |
| | [PRUDENTIAL INVESTMENT MANAGEMENT, INC.] By: Vice President |
| | [PRUDENTIAL AFFILIATE] By: Vice President |
EXHIBIT D
[FORM OF OPINION OF GENERAL COUNSEL TO THE COMPANY]
[Letterhead of Nu Skin Enterprises, Inc.]
[Date of Closing Day]
[Name of Each Purchaser]
c/o Prudential Capital Group
Four Embarcadero Center, Suite 2700
San Francisco, California 94111-4180
Re: Nu Skin Enterprises, Inc. - Series [__] Note Issuance
Ladies and Gentlemen:
I am the General Counsel of Nu Skin Enterprises, Inc., a Delaware corporation (the "Company"), and in such capacity have represented the Company in connection with (i) the issuance and sale by the Company on today's date of [describe Notes] ( the "Notes") to the Purchaser[s] pursuant to the Amended and Restated Note Purchase and Private Shelf Agreement dated as of May 25, 2012[, as amended or otherwise modified through the date hereof] (the "Agreement") by and among the Company, on the one hand, and Prudential Investment Management, Inc. ("Prudential"), the Purchasers signatory thereto and each Prudential Affiliate which has become bound by certain provisions thereof, on the other hand[, and [(ii)] the execution and delivery of [specify other principal Transaction Documents, if relevant]]. The Agreement, together with the Notes[, and [specify other principal Transaction Documents, if relevant]] are collectively referred to in this opinion as the "Transaction Documents".
This opinion is delivered to you pursuant to Section 3B of the Agreement and with the understanding that you are purchasing the Notes in reliance hereon. Capitalized terms not otherwise defined herein are used herein with the meanings ascribed to such terms in the Agreement. "Applicable Laws" shall mean those laws, rules and regulations that in my experience, based on the nature of the transactions contemplated by the Transaction Documents and the nature of the business of the Company are normally applicable to the transactions contemplated by the Transaction Documents (provided that the term "Applicable Laws" does not include (i) state securities laws, (ii) anti-fraud laws, or (iii) any law, rule or regulation that may have become applicable to the transactions contemplated by the Transaction Documents because of any fact specifically pertaining to the Purchasers) but without having made any special investigation concerning the applicability of any other law, rule or regulation. "Charter Documents" shall mean the Articles or Certificate of Incorporation, as the case may be, and the Bylaws, of a corporate entity [and __________ [specify if relevant]].
In connection with this opinion, I have examined the following documents:
(a) counterparts of the Agreement, together with all schedules and exhibits thereto, executed by each of the parties thereto;
[(_) counterparts of [specify other principal Transaction Documents, if relevant], together with all schedules and exhibits thereto, executed by each of the parties thereto;]
(b) originals of the Notes, executed by the Company;
(c) certificates of public officials from the States of Delaware and Utah [and ___________ [if applicable]] as I have deemed necessary for the purpose of rendering this opinion;
(d) the Charter Documents of the Company as amended to date;
(e) certified copies of resolutions of the Board of Directors of the Company relating to the Transaction Documents; and
(f) such other documents, instruments and certificates as I have deemed necessary for the purpose of rendering this opinion.
In my examination of the Transaction Documents, to the extent my opinions set forth below are dependent thereon, I have assumed without independent investigation that (i) each party to each Transaction Document (other than the Company) is a corporation or other entity duly incorporated or otherwise organized and validly existing under the laws of the jurisdiction of its incorporation or organization, (ii) each party to each Transaction Document (other than the Company) has full corporate power and authority to execute, deliver and perform each Transaction Document to which it is a party, (iii) the execution, delivery and performance by each party (other than the Company) of each Transaction Document to which it is a party has been duly authorized by all necessary corporate action, (iv) the genuineness of all signatures (other than those of the Company), (v) the authenticity of all documents submitted to me as originals, (vi) the conformity to originals of all such documents submitted to me as copies, and (vii) each Transaction Document has been duly executed and delivered by each of the parties thereto (other than the Company).
As to all questions of fact material to my opinions below, I have relied upon, without independent investigation, and assumed the accuracy and completeness of, the representations and warranties of the parties to the Transaction Documents contained in the Transaction Documents and the certificates of such parties or their officers, partners, or managers, as the case may be, or of public officials. I have made no independent investigation of any of the facts stated in any of the representations.
Based upon and subject to the foregoing and subject to the limitations and qualifications set forth below, I am of the opinion that:
1. The Company has been duly incorporated and is validly existing and in good standing as a corporation under the laws of the State of Delaware and is duly qualified as a foreign corporation to do business and is in good standing in the State of Utah.
2. The execution, delivery and performance by the Company of each Transaction Document to which it is a party are within its corporate powers and have been duly authorized by all necessary corporate action. The execution, delivery and performance by the Company of each Transaction Document to which it is a party do not, and will not, contravene its Charter Documents or any Applicable Laws.
3. No order, filing, consent or approval of any Governmental Authority under Applicable Laws or filing with any Governmental Authority is required on the part of the Company in connection with the execution, delivery or performance by the Company of any Transaction Document to which it is a party, except as expressly contemplated by the Transaction Documents and except such as have been made or obtained and are in full force and effect and routine governmental filings required in the ordinary course of business.
4. Each Transaction Document has been duly executed and delivered by the Company to which it is a party.
5. Each Transaction Document constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms.
6. Neither the extension of credit evidenced by the Notes nor the use of proceeds thereof will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System.
7. Assuming the accuracy of (i) the Company's representations in the first sentence of Section 5.13 of the Agreement and (ii) your representations in Section 6.1 of the Agreement, it is not necessary in connection with the execution and delivery of the Notes under the circumstances contemplated by the Agreement to register the Notes under the Securities Act of 1933, as amended or to qualify an indenture in respect thereof under the Trust Indenture Act of 1939, as amended.
8. The Company is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
9. Assuming that the State of New York has a sufficient relationship to the parties to the Transaction Documents or the transactions contemplated in the Transaction Documents, in any proceedings duly taken in the courts of the State of Utah or a United States court sitting in the State of Utah to enforce any Transaction Document, the choice of New York law as the substantive law governing such Transaction Document would be recognized and such law would be applied.
At your request, I also confirm to you the following:
(i) The execution and delivery by the Company of each Transaction Document to which it is a party do not, and the performance by the Company of each Transaction Document to which it is a party will not, (i) violate, breach or result in default under, or result in the imposition of any Lien upon any property of the Company or any Subsidiary pursuant to, the [describe all material credit agreements] or, to my knowledge, any existing obligation or restriction on the Company or any Subsidiary under any other agreement, instrument or indenture applicable to it, or (ii) to my knowledge, breach or otherwise violate any existing obligation of or restriction on the Company or any Subsidiary under any order, judgment or decree applicable to it.
(ii) To my knowledge, except as disclosed in the Transaction Documents, no actions, suits, proceedings or investigations are pending or threatened against the Company or any Subsidiary before any Governmental Authority or arbitrator that (a) could reasonably be expected (alone or in the aggregate) to have a Material Adverse Effect or (b) seek to enjoin, either directly or indirectly, the execution, delivery or performance by the Company of any Transaction Documents to which it is a party or the transactions contemplated thereby.
The opinions and confirmations set forth herein are predicated upon, limited by and subject to the following assumptions, qualifications, limitations and exceptions in addition to those set forth elsewhere herein:
A. I am an attorney admitted to practice in the State of Utah. Except as set forth below, the opinions expressed above are limited to the laws of the State of Utah, the State of New York (as to the opinions expressed in paragraph 5) and the federal laws of the United States, and I do not express any opinion herein concerning any other law. In rendering the opinions set forth in paragraphs 1 and 2, to the extent such opinions concern the corporations incorporated under Delaware law, such opinions are limited to the published compilations of the Delaware General Corporation Law. In rendering the opinions set forth in paragraph 1, to the extent such opinions concern Delaware corporations, I have relied solely on (i) my review of the certificates of incorporation certified by the Secretary of State of Delaware, (ii) my review of the current published compilations of the Delaware General Corporation Law regarding the required content and execution of a certificate of incorporation, (iii) Certificates of Good Standing issued by the Secretary of State of Delaware, and (iv) Section 105 of the Delaware General
Corporation Law which provides that a certificate of incorporation duly certified by the Secretary of State shall be received in all courts, public offices, and official bodies, as prima facie evidence of: (a) due execution, acknowledgment, filing and recording of the instrument; (b) observance and performance of all acts and conditions necessary to have been observed and performed precedent to the instrument becoming effective; and (c) any other facts required or permitted by law to be stated in the instrument. I note that the Transaction Documents are governed by the laws of the State of New York, and for purposes of the opinions expressed in paragraph 5, I have assumed that the laws of the State of New York are the same as the laws of the State of Utah.
B. The qualification of the confirmations requested by the words "to my knowledge" or "of which I have knowledge" is intended to indicate that I do not have current and actual knowledge of the inaccuracy of such statement. However, except as expressly indicated in the following sentence, I have not undertaken any independent investigation to determine the accuracy of such statement. I have, however, made inquiry of each of the in-house counsel of the Company with respect to each matter and have also made inquiry to the Chief Executive Officer and Chief Financial Officer of the Company with respect to each matter.
C. My opinion in paragraph 5 is subject to the effect of any applicable bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar law affecting creditors' rights generally.
D. My opinion in paragraph 5 is also subject to the effect of general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether considered in a proceeding in equity or at law) and the availability of specific performance or any other equitable remedy. Such principles of equity are of general application, and in applying such principles a court, among other things, might not allow a creditor to accelerate the maturity of a debt, or might decline to order the Company to perform covenants. Such principles applied by a court might include a requirement that creditors act with reasonableness and in good faith. Such a requirement might be applied, among other situations, to the provisions of any Transaction Document purporting to authorize conclusive determinations by any Purchaser.
E. I express no opinion as to any provision in the Transaction Documents providing for the payment or reimbursement of costs or expenses or indemnifying a party or the waiver of rights, to the extent such provisions may be held unenforceable as contrary to public policy.
F. I express no opinion as to the enforceability of Section 14.3 of the Agreement providing for the Company's payments of obligations to the Purchaser in the Available Currency in which the Notes are denominated after a court judgment in another currency.
G. I advise you that Section 22.1 of the Agreement, which provides for non-exclusive jurisdiction of the courts of the State of New York and federal courts sitting in New York City, may not be binding on federal courts sitting in New York (or any federal appellate court).
H. In addition to any other limitation by operation of law upon the scope, meaning, or purpose of this letter, this letter speaks only as of the date hereof. I have no obligation to advise the recipients of this letter of changes of law or fact that may occur after the date hereof even though the change may affect the legal analysis, a legal conclusion or any informational confirmation herein.
The opinions expressed in this letter are solely for the use of the Purchasers, and their successors and permitted transferees and assigns, in matters directly related to the Agreement and the transactions contemplated thereunder, and these opinions may not be relied on by any other persons or for any other purpose; provided, however, that a copy of this opinion may be made available to persons or entities with regulatory authority over you, including, without limitation, the National Association of Insurance Commissioners.
Very truly yours,
D. Matthew Dorny
General Counsel
EXHIBIT E
[FORM OF TERMINATION AGREEMENT OF
EXISTING COLLATERAL DOCUMENTS AND GUARANTEES]
May 25, 2012
Nu Skin Enterprises, Inc.
One Nu Skin Plaza
75 West Center Street
Provo, Utah 84601
Attention: Chief Financial Officer
U.S. National Association, as Collateral Agent
633 West Fifth Street, 24th Floor
Los Angeles, Ca. 90071
Attention: Bradley E. Scarbrough, Vice President
| Re: | Release of Liens and Guarantors; Termination of Collateral Documents and Guarantees |
Ladies and Gentlemen:
Reference is made to (a) the Credit Agreement dated as of May 10, 2001 (as amended or otherwise modified on or prior to the date hereof, the "Credit Agreement") among Nu Skin Enterprises, Inc. (the "Company"), JPMorgan Chase Bank, N.A. ("JPMorgan") and the various financial institutions party thereto (the "Senior Lenders") and JPMorgan (as successor to Bank One, NA), as administrative agent (in such capacity, the "Administrative Agent"); (b) the Subsidiary Guaranty dated as of May 10, 2001 (as amended or otherwise modified on or prior to the date hereof, the "Bank Obligation Guaranty") executed by the Subsidiary Guarantors (as defined in the Credit Agreement) in favor of the Senior Lenders and certain affiliates thereof; (c) the Subsidiary Guaranty dated as of December 29, 2010 (as amended or otherwise modified on or prior to the date hereof, the "Mortgage Loan Guaranty") executed by certain subsidiaries of the Company in favor of JPMorgan Chase Bank, N.A., London Branch ("JPM London") and certain affiliates thereof; (d) the Note Purchase Agreement, dated October 12, 2000 (as amended or otherwise modified on or prior to the date hereof, the "2000 Note Purchase Agreement"), by and between the Company and The Prudential Insurance Company of America ("Prudential"); (e) the Subsidiary Guaranty dated as of October 12, 2000 (as amended or otherwise modified on or prior to the date hereof, the "2000 Note Obligation Guaranty") executed by the Subsidiary Guarantors (as defined in the 2000 Note Purchase Agreement) in favor of the holders of notes under the 2000 Note Purchase Agreement (the "2000 Senior Noteholders"), (f) the Private Shelf Agreement, dated August 26, 2003 (as amended or otherwise modified on or prior to the date hereof, the "2003 Private Shelf Agreement"), by and among the Company, Prudential Investment Management, Inc. ("PIM") and certain affiliates of PIM; (g) the Subsidiary Guaranty dated as of August 26, 2003 (as amended or otherwise modified on or prior to the date hereof, the "2003 Note Obligation Guaranty") executed by the Subsidiary Guarantors (as defined in the 2003 Private Shelf Agreement) in favor of PIM and the holders of notes under the 2003 Private Shelf Agreement (the "2003 Senior Noteholders"); (h) the Private Shelf Agreement, dated October 1, 2009, by and between the Company and PIM (as amended or otherwise modified on or prior to the date hereof, the "2009 Private
Shelf Agreement"; and together with the Credit Agreement, the 2000 Note Purchase Agreement and the 2003 Private Shelf Agreement, collectively, the "Senior Credit Agreements"); (i) the Subsidiary Guaranty dated as of October 1, 2009 (as amended or otherwise modified on or prior to the date hereof, the "2009 Note Obligation Guaranty"; and together with the Bank Obligation Guaranty, the 2000 Note Obligation Guaranty, the 2003 Note Obligation Guaranty and the Senior Credit Agreements, collectively, the "Senior Credit Documents") executed by the Subsidiary Guarantors (as defined in the 2009 Private Shelf Agreement) in favor of PIM and the holders of notes under the 2009 Private Shelf Agreement (the "2009 Senior Noteholders"; and together with the 2000 Senior Noteholders and the 2003 Senior Noteholders, collectively, the "Senior Noteholders"; and the Senior Noteholders together with the Senior Lenders and the Administrative Agent, collectively, the "Senior Creditor Parities"); (j) the Pledge Agreement dated as of October 12, 2000 (as amended or otherwise modified on or prior to the date hereof, the "Pledge Agreement") among the Company, various subsidiaries thereof and U.S. Bank National Association, as successor to State Street Bank and Trust Company of California, N.A., as collateral agent (in such capacity, the "Collateral Agent"); (k) the Pledge Agreement dated as of January 31, 2005 between Nu Skin Asia Investment, Inc. and the Collateral Agent (as amended or otherwise modified on or prior to the date hereof, the "Nu Skin Asia Pledge Agreement"); (l) the Second Amended and Restated Subordination Agreement dated as of October 1, 2009 among the Company, the subordinated creditors named therein and senior creditors named therein (as amended or otherwise modified on or prior to the date hereof, the "Subordination Agreement"); and (m) the Amended and Restated Collateral Agency and Intercreditor Agreement dated as of August 26, 2003 (as amended or otherwise modified on or prior to the date hereof, the "Intercreditor Agreement") among various holders of notes, various lenders, the Administrative Agent and the Collateral Agent. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Intercreditor Agreement.
1. Release of Guarantors; Termination of Guaranties. Upon the effectiveness of this letter agreement in accordance with Section 5 below:
(a) the undersigned Senior Lender, constituting all of the Senior Lenders, and the undersigned Administrative Agent (each such party having the requisite authority for purposes of this clause (a)), hereby (i) release each Subsidiary Guarantor (as defined in the Credit Agreement) from all of its obligations, liabilities and duties under the Bank Obligation Guaranty, and (ii) agree that the Bank Obligation Guaranty is terminated;
(b) the undersigned JPM London, having the requisite authority for purposes of this clause (b), hereby releases each subsidiary of the Company that is a guarantor under the Mortgage Loan Guaranty from all of its obligations, liabilities and duties under such guaranty, and (ii) agrees that the Mortgage Loan Guaranty is terminated;
(c) the undersigned 2000 Senior Noteholder, constituting all of the Senior Noteholders, hereby (i) releases each Subsidiary Guarantor (as defined in the 2000 Note Purchase Agreement) from all of its obligations, liabilities and duties under the 2000 Note Obligation Guaranty, and (ii) agrees that the 2000 Note Obligation Guaranty is terminated;
(d) the undersigned 2003 Senior Noteholders, constituting all of the 2003 Senior Noteholders, hereby (i) release each Subsidiary Guarantor (as defined in the 2003 Private Shelf Agreement) from all of its obligations, liabilities and duties under the 2003 Note Obligation Guaranty, and (ii) agree that the 2003 Note Obligation Guaranty is terminated;
(e) the undersigned 2009 Senior Noteholder, constituting all of the 2009 Senior Noteholders, hereby (i) releases each Subsidiary Guarantor (as defined in the 2009 Private Shelf Agreement) from all of its obligations, liabilities and duties under the 2009 Note Obligation Guaranty, and (ii) agrees that the 2009 Note Obligation Guaranty is terminated; and
(f) each of the undersigned Senior Credit Parties, constituting all of the existing "Required Creditors" and "Benefitted Parties" (including "Additional Benefitted Parties") under and as defined in the Intercreditor Agreement, hereby (i) releases each Subsidiary Guarantor (as defined in the Intercreditor Agreement) from all of its obligations, liabilities and duties under any other Subsidiary Guaranty (as defined in the Intercreditor Agreement) in favor of such Senior Credit Party, and (ii) agrees that any other Subsidiary Guaranty (as defined in the Intercreditor Agreement) in favor of such Senior Credit Party is terminated.
2. Release of Collateral; Termination of Collateral Documents. Upon the effectiveness of this letter agreement in accordance with Section 5 below, the undersigned Senior Creditor Parties, constituting all of the existing (i) "Required Creditors" and "Benefitted Parties" (including "Additional Benefitted Parties") under and as defined in the Intercreditor Agreement, and (ii) the "Senior Creditors" under and as defined in the Subordination Agreement, hereby:
(a) agree that the Intercreditor Agreement, the Subordination Agreement and the Existing Collateral Documents (as defined below) are terminated; and
(b) authorize the Collateral Agent to release its lien on, and security interest in, (i) all "Pledged Collateral" under and as defined in the Pledge Agreement and the Nu Skin Asia Pledge Agreement, and (ii) all other collateral granted by the Company or any Subsidiary to the Collateral Agent pursuant to any other agreement (together with the Pledge Agreement and the Nu Skin Asia Pledge Agreement, the "Existing Collateral Documents") to secure the obligations of the Company or any Subsidiary under or in connection with the Senior Credit Documents.
3. Limitation of Agreements. The foregoing agreements in Sections 1 and 2 above shall be limited precisely as written and shall not be deemed to be (i) an amendment, waiver, release or other modification of any other terms or conditions of any Senior Credit Agreements or any other agreement or document related to such agreements, or (ii) a consent to any future amendment, consent, waiver, release or other modification. Except as expressly set forth in this letter agreement, each of the Senior Credit Agreements and the other agreements and documents related to such Senior Credit Agreements shall continue in full force and effect.
4. Representations, Warranties and Covenants. In order to induce the undersigned Lenders to enter into this letter agreement, the Company hereby represents, warrants and covenants that:
(a) each of the representations and warranties of the Company set forth each of the Senior Credit Agreements is true, correct and complete in all material respects, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty is true, correct and complete in all material respects as of such earlier date; and
(b) no "Default", "Event of Default" or "Unmatured Event of Default" (as defined in each of the Senior Credit Agreements, as applicable) is in existence.
5. Effectiveness. This letter agreement and the releases, terminations, agreements and authorizations set forth herein shall be effective, subject to the accuracy of the above representations and warranties, when the Administrative Agent and the Senior Noteholders have received counterparts of this letter agreement executed by the Company and each of the Senior Creditor Parties identified on the signature pages hereto.
6. Counterparts. This document may be executed in multiple counterparts, which together shall constitute a single document.
7. Governing Law. This letter agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the internal laws of the State of New York, excluding choice-of-law principles of the law of such state that would require the application of the laws of a jurisdiction other than such state.
[Signature pages follow.]
Sincerely,
SENIOR CREDITOR PARTIES:
SENIOR LENDERS:
JPMORGAN CHASE BANK, N.A. (as successor to Bank One, NA), as Administrative Agent and as Senior Lender
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
2000 SENIOR NOTEHOLDERS:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
2003 SENIOR NOTEHOLDERS:
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
PRUDENTIAL RETIREMENT INSURANCE
AND ANNUITY COMPANY
By: Prudential Investment Management, Inc.,
as investment manager
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
2003 SENIOR NOTEHOLDERS (cont.):
PRUCO LIFE INSURANCE COMPANY OF
NEW JERSEY
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
PRUCO LIFE INSURANCE COMPANY
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
MTL INSURANCE COMPANY
By: Prudential Private Placement Investors, L.P.,
as investment advisor
By: Prudential Private Placement Investors, Inc.,
as its general partner
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
GIBRALTAR LIFE INSURANCE CO., LTD.
By: Prudential Investment Management (Japan),
as investment manager
By: Prudential Investment Management, Inc.,
as sub-adviser
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
2003 SENIOR NOTEHOLDERS (cont.):
PRUDENTIAL INVESTMENT MANAGEMENT, INC.
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
2009 SENIOR NOTEHOLDERS:
PRUDENTIAL INVESTMENT MANAGEMENT, INC.
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
COMPANY:
Accepted and agreed to effective
the date first appearing above:
NU SKIN ENTERPRISES, INC.,
a Delaware corporation
By:
Name: ________________________
Title: _________________________
JPM LONDON:
JPMORGAN CHASE BANK, N.A.,
LONDON BRANCH
By: ______________________________________
Name: ____________________________________
Title: _____________________________________
