SUBSIDIARY GUARANTY
THIS GUARANTY, dated as of May [A], 1998, is executed by each of the
undersigned (each such entity and each entity which hereafter executes and
delivers a Subsidiary Joinder in substantially the form of Attachment 1 hereto
to be referred to herein as a "Guarantor"), in favor of ABN AMRO BANK N.V.,
acting as agent (in such capacity, and each successor thereto in such capacity,
"Agent") for the financial institutions which are from time to time parties to
the Credit Agreement referred to in Recital A below (collectively, "Lenders").
RECITALS
A. Pursuant to a Credit Agreement dated as of May 8, 1998 (as amended
from time to time, the "Credit Agreement"), among Nu Skin Enterprises, Inc.
("NSE"), Nu Skin Japan Co., Ltd. ("NSJ"), Lenders and Agent, Lenders have agreed
to extend certain credit facilities to NSE and NSJ (collectively, "Borrowers")
upon the terms and subject to the conditions set forth therein. Each Guarantor
is a direct or indirect Subsidiary of NSE and expects to derive substantial
direct and indirect benefit from the transactions contemplated by the Credit
Agreement.
B. Lenders' obligations to extend the credit facilities to Borrowers
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of (1) this Guaranty, duly executed by each existing Material Domestic
Subsidiary of NSE, and (2) Subsidiary Joinders, duly executed by each future
Material Domestic Subsidiary of NSE.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each Guarantor hereby agrees with Agent, for the ratable benefit
of Lenders and Agent, as follows:
1. Definitions and Interpretation.
(a) Definitions. When used in this Guaranty, the following
terms shall have the following respective meanings:
"Agent" shall have the meaning given to that term in
the introductory paragraph hereof.
"Aggregate Guaranty Payments" shall mean, with
respect to any Guarantor at any time, the aggregate net amount
of all payments made by such Guarantor under this Guaranty
(including, without limitation, under Paragraph 5 hereof) at
or prior to such time.
"Borrowers" shall have the meaning given to that term
in the Recital A hereof.
"Credit Agreement" shall have the meaning given to
that term in the Recital A hereof.
"Debtor Relief Proceeding" shall mean any suit,
action, case or other proceeding commenced by, against or for
NSJ or NSE or its property seeking the dissolution,
liquidation, reorganization, rearrangement or other relief of
NSJ or NSE or its debts under any applicable bankruptcy,
insolvency or debtor relief law or other similar Governmental
Rule now or hereafter in effect or seeking the appointment of
a receiver, trustee, liquidator, custodian or other similar
official for NSJ or NSE or any substantial part of its
property or any general assignment by NSJ or NSE for the
benefit of its creditors, whether or not any such suit,
action, case or other proceeding is voluntary or involuntary.
"Disallowed Post-Commencement Interest and Expenses"
shall mean interest computed at the rate provided in the
Credit Agreement and claims for reimbursement, costs, expenses
or indemnities under the terms of any of the Credit Documents
accruing or claimed at any time after the commencement of any
Debtor Relief Proceeding, if the claim for such interest,
reimbursement, costs, expenses or indemnities is not
allowable, allowed or enforceable against NSE in such Debtor
Relief Proceeding.
"Fair Share" shall mean, with respect to any
Guarantor at any time, an amount equal to (i) a fraction, the
numerator which is the Maximum Guaranty Amount of such
Guarantor and the denominator of which is the aggregate
Maximum Guaranty Amounts of all Guarantors, multiplied by (ii)
the aggregate amount paid by all Funding Guarantors under this
Guaranty at or prior to such time.
"Fair Share Shortfall" shall mean, with respect to
any Guarantor at any time, the amount, if any, by which the
Fair Share of such Guarantor at such time exceeds the
Aggregate Guaranty Payments of such Guarantor at such time.
"Funding Guarantor" shall have the meaning given to
that term in Paragraph 5 hereof.
"Guaranteed Obligations" shall mean and include all
loans, advances, debts, liabilities, and obligations,
howsoever arising, owed by NSE to Agent or any Lender of every
kind and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money)
individual or joint and several, direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter
arising pursuant to the terms of the Credit Documents,
including all interest, fees, charges, expenses, attorneys'
fees and accountants' fees chargeable to NSE or payable by NSE
thereunder.
"Guarantor" shall have the meaning given to that term
in the introductory paragraph hereof.
"Lenders" shall have the meaning given to that term
in the introductory paragraph hereof.
"Maximum Guaranty Amount" shall mean, with respect to
any Guarantor at any time, (i) the full amount of the
Guaranteed Obligations at such time or (ii) if any court of
competent jurisdiction determines in any action to enforce
this Guaranty that enforcement against such Guarantor for the
full amount of the Guaranteed Obligations is not lawful under
or would be subject to avoidance under Section 548 of the
United States Bankruptcy Code or any applicable provision of
any comparable law of any state or other jurisdiction, then
the maximum amount lawful and not subject to such avoidance.
"NSE" shall have the meaning given to that term in
the Recital A hereof.
"NSJ" shall have the meaning given to that term in
the Recital A hereof.
"Subordinated Obligations" shall have the meaning
given to that term in Paragraph 4 hereof.
"Subsidiary Joinder" shall mean an instrument
substantially in the form of Attachment 1 hereto.
"Taxes" shall have the meaning given to such term in
Subparagraph 6(h).
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Credit Agreement shall have the respective
meanings given to those terms in the Credit Agreement.
(b) Other Interpretive Provisions. The rules of construction
set forth in Section I of the Credit Agreement shall, to the extent not
inconsistent with the terms of this Guaranty, apply to this Guaranty
and are hereby incorporated by reference. Each Guarantor acknowledges
receipt of copies of the Credit Agreement and the other Credit
Documents.
2. Guaranty.
(a) Payment Guaranty. Each Guarantor unconditionally
guarantees and promises to pay and perform as and when due, whether at
stated maturity, upon acceleration or otherwise, any and all of the
Guaranteed Obligations. If any Debtor Relief Proceeding relating to NSE
is commenced, each Guarantor further unconditionally guarantees and
promises to pay and perform, upon the demand of Agent, any and all of
the Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) in accordance with the terms
of the Credit Documents, whether or not such obligations are then due
and payable by NSE and whether or not such obligations are modified,
reduced or discharged in such Debtor Relief Proceeding. This Guaranty
is a guaranty of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of Lenders to extend credit to NSE have
terminated and all of the Guaranteed Obligations have been fully paid.
If any payment on any Guaranteed Obligation is set aside, avoided or
rescinded or otherwise recovered from Agent or any Lender, such
recovered payment shall constitute a Guaranteed Obligation hereunder
and, if this Guaranty was previously released or terminated, it
automatically shall be fully reinstated, as if such payment was never
made.
(c) Joint, Several and Independent Obligations. The liability
of each Guarantor hereunder is joint and several and is independent of
the Guaranteed Obligations. A separate action or actions may be brought
and prosecuted against each Guarantor for the full amount of the
Guaranteed Obligations irrespective of whether action is brought
against NSE, any other Guarantor or any other guarantor of the
Guaranteed Obligations or whether NSE, any other Guarantor or any other
guarantor of the Guaranteed Obligations is joined in any such action or
actions.
(d) Fraudulent Transfer Limitation. If, in any action to
enforce this Guaranty, any court of competent jurisdiction determines
that enforcement against any Guarantor for the full amount of the
Guaranteed Obligations is not lawful under or would be subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
applicable provision of any comparable law of any state or other
jurisdiction, the liability of such Guarantor under this Guaranty shall
be limited to the maximum amount lawful and not subject to such
avoidance.
(e) Termination. Notwithstanding any termination of this
Guaranty in accordance with Paragraph 3 hereof, this Guaranty shall
continue to be in full force and effect and applicable to any
Guaranteed Obligations arising thereafter which arise because prior
payments of Guaranteed Obligations are rescinded or otherwise required
to be surrendered by Agent or any Lender after receipt.
3. Authorizations, Waivers, Etc.
(a) Authorizations. Each Guarantor authorizes Agent and
Lenders, in their discretion, without notice to such Guarantor,
irrespective of any change in the financial condition of NSE, NSJ, such
Guarantor, any other Guarantor or any other guarantor of the Guaranteed
Obligations since the date hereof, and without affecting or impairing
in any way the liability of such Guarantor hereunder, from time to time
to:
(i) Create new Guaranteed Obligations and renew,
compromise, extend, accelerate or otherwise change the time
for payment or performance of, or otherwise amend or modify
the Credit Documents or change the terms of the Guaranteed
Obligations or any part thereof, including increase or
decrease of the rate of interest thereon;
(ii) Take and hold security for the payment or
performance of the Guaranteed Obligations and exchange,
enforce, waive or release any such security; apply such
security and direct the order or manner of sale thereof; and
purchase such security at public or private sale;
(iii) Otherwise exercise any right or remedy they may
have against NSE, NSJ, such Guarantor, any other Guarantor,
any other guarantor of the Guaranteed Obligations or any
security, including, without limitation, the right to
foreclose upon any such security by judicial or nonjudicial
sale;
(iv) Settle, compromise with, release or substitute
any one or more makers, endorsers or guarantors of the
Guaranteed Obligations; and (v) Assign the Guaranteed
Obligations, this Guaranty or the other Credit Documents in
whole or in part to the extent provided in the Credit
Agreement and the other Credit Documents.
(b) Waivers. Each Guarantor hereby waives:
(i) Any right to require Agent or any Lender to (A)
proceed against NSE, NSJ, any other Guarantor or any other
guarantor of the Guaranteed Obligations, (B) proceed against
or exhaust any security received from NSE, NSJ, such
Guarantor, any other Guarantor or any other guarantor of the
Guaranteed Obligations or otherwise marshall the assets of
NSE, NSJ, such Guarantor, any other Guarantor or any other
guarantor of the Guaranteed Obligations or (C) pursue any
other remedy in Agent's or any Lender's power whatsoever;
(ii) Any defense arising by reason of the application
by NSE or NSJ of the proceeds of any borrowing;
(iii) Any defense resulting from the absence,
impairment or loss of any right of reimbursement, subrogation,
contribution or other right or remedy of Guarantor against
NSE, NSJ, any other Guarantor, any other guarantor of the
Guaranteed Obligations or any security, whether resulting from
an election by Agent or any Lender to foreclose upon security
by nonjudicial sale, or otherwise;
(iv) Any setoff or counterclaim of NSE or any defense
which results from any disability or other defense of NSE or
the cessation or stay of enforcement from any cause whatsoever
of the liability of NSE (including, without limitation, the
lack of validity or enforceability of any of the Credit
Documents);
(v) Any defense based upon any law, rule or
regulation which provides that the obligation of a surety must
not be greater or more burdensome than the obligation of the
principal;
(vi) Until all obligations of Agent or any Lender to
extend credit to NSE have terminated and all of the Guaranteed
Obligations have been fully paid, any right of subrogation,
reimbursement, indemnification or contribution and other
similar right to enforce any remedy which Agent, Lenders or
any other Person now has or may hereafter have against NSE on
account of the Guaranteed Obligations, and any benefit of, and
any right to participate in, any security now or hereafter
received by Agent, any Lender or any other Person on account
of the Guaranteed Obligations;
(vii) All presentments, demands for performance,
notices of non-performance, notices delivered under the Credit
Documents, protests, notice of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation or
incurring of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
(viii) The benefit of any statute of limitations to
the extent permitted by law;
(ix) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for
marshalling;
(x) Any right to be informed by Agent or any Lender
of the financial condition of NSE, NSJ, any other Guarantor or
any other guarantor of the Guaranteed Obligations or any
change therein or any other circumstances bearing upon the
risk of nonpayment or nonperformance of the Guaranteed
Obligations;
(xi) Until all obligations of Agent or any Lender to
extend credit to NSE have terminated and all of the Guaranteed
Obligations have been fully paid, any right to revoke this
Guaranty;
(xii) Any defense arising from an election for the
application of Section 1111(b)(2) of the United States
Bankruptcy Code which applies to the Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant
of a security interest under Section 364 of the United States
Bankruptcy Code; and
(xiv) Any right it may have to a fair value hearing
to determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this
Paragraph 3, each Guarantor hereby further waives (A) all rights and
defenses arising out of an election of remedies by Agent or any Lender,
even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a Guaranteed Obligation, has
destroyed such Guarantor's rights of subrogation and reimbursement
against NSE by the operation of Section 580d of the Code of Civil
Procedure or otherwise, (B) all rights and defenses such Guarantor may
have by reason of protection afforded to NSE with respect to the
Guaranteed Obligations pursuant to the antideficiency or other laws of
California limiting or discharging the Guaranteed Obligations,
including, without limitation, Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure, and (C) all other rights and
defenses available to such Guarantor by reason of Sections 2787 to
2855, inclusive, Section 2899 or Section 3433 of the California Civil
Code or Section 3605 of the California Commercial Code.
(c) Financial Condition of NSE, Etc. Each Guarantor is fully
aware of the financial condition and affairs of NSE. Each Guarantor has
executed this Guaranty without reliance upon any representation,
warranty, statement or information concerning NSE furnished to such
Guarantor by Agent or any Lender and has, independently and without
reliance on Agent or any Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of NSE and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations. Each Guarantor is in a position to obtain, and assumes
full responsibility for obtaining, any additional information about the
financial condition and affairs of NSE and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations and will, independently and without reliance upon Agent or
any Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own appraisals and
decisions in taking or not taking action in connection with this
Guaranty.
4. Subordination. Each Guarantor hereby subordinates any and all debts,
liabilities and obligations owed to such Guarantor by NSE (the
"Subordinated Obligations") to the Guaranteed Obligations as provided
in this Paragraph 4.
(a) Prohibited Payments, Etc. Except during the continuance of
a Default (including the commencement and continuation of any Debtor
Relief Proceeding relating to NSE), each Guarantor may receive
regularly scheduled payments from NSE on account of Subordinated
Obligations. After the occurrence and during the continuance of any
Default (including the commencement and continuation of any Debtor
Relief Proceeding relating to NSE), however, unless Agent otherwise
agrees, no Guarantor shall demand, accept or take any action to collect
any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any Debtor
Relief Proceeding relating to NSE, each Guarantor agrees that Agent and
Lenders shall be entitled to receive payment of all Guaranteed
Obligations (including any and all Disallowed Post-Commencement
Interest and Expenses) before such Guarantor receives payment of any
Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Default (including the commencement and continuation of any
Debtor Relief Proceeding relating to NSE), each Guarantor shall, if
Agent so requests, collect, enforce and receive payments on account of
the Subordinated Obligations as trustee for Agent and Lenders and
deliver such payments to Agent on account of the Guaranteed Obligations
(including any and all Disallowed Post-Commencement Interest and
Expenses), together with any necessary endorsements or other
instruments of transfer, but without reducing or affecting in any
manner the liability of such Guarantor under the other provisions of
this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Default (including the commencement and continuation
of any Debtor Relief Proceeding relating to NSE), Agent is authorized
and empowered (but without any obligation to so do), in its discretion,
(i) in the name of each Guarantor, to collect and enforce, and to
submit claims in respect of, Subordinated Obligations and to apply any
amounts received thereon to the Guaranteed Obligations (including any
and all Disallowed Post-Commencement Interest and Expenses), and (ii)
to require each Guarantor (A) to collect and enforce, and to submit
claims in respect of, Subordinated Obligations and (B) to pay any
amounts received on such obligations to Agent for application to the
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses).
5. Contribution among Guarantors. Guarantors desire to allocate among
themselves, in a fair and equitable manner, their rights of
contribution from each other when any payment is made by any Guarantor
under this Guaranty. Accordingly, if any payment is made by any
Guarantor under this Guaranty (a "Funding Guarantor") that exceeds its
Fair Share, the Funding Guarantor shall be entitled to a contribution
from each other Guarantor in the amount of such other Guarantor's Fair
Share Shortfall, so that all such contributions shall cause each
Guarantor's Aggregate Guaranty Payments to equal its Fair Share. The
amounts payable as contributions hereunder shall be determined by the
Funding Guarantor as of the date on which the related payment or
distribution is made by the Funding Guarantor, and such determination
shall be binding on the other Guarantors absent manifest error. The
allocation and right of contribution among Guarantors set forth in this
Paragraph 5 shall not be construed to limit in any way the liability of
any Guarantor under this Guaranty or the amount of the Guaranteed
Obligations.
6. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon any Guarantor or Agent under this Guaranty or the other Credit
Documents shall be in writing and faxed, mailed or delivered, if to
Agent, at its facsimile number or address set forth below, or, if to
any Guarantor, at its facsimile number or address set forth below its
signature below or in the respective Subsidiary Joinder for such
Guarantor (or to such other facsimile number or address for any party
as indicated in any notice given by that party to the other parties).
All such notices and communications shall be effective (i) when sent by
any overnight courier service of recognized standing, on the second
Business Day following the deposit with such service; (ii) when mailed,
first class postage prepaid and addressed through the United States
Postal Service or registered mail through the Japanese Post Office,
upon receipt; (iii) when delivered by hand, upon delivery; and (iv)
when faxed, upon confirmation of receipt.
Agent: ABN AMRO Bank N.V.
Syndications Group
1325 Avenue of the Americas, 9th Floor
New York, NY 10019
U.S.A.
Attn: Linda Boardman
Tel. No: (212) 314-1724
Fax. No: (212) 314-1712
With copies to:
ABN AMRO Bank N.V.
Tokyo Branch
13F, Shiroyama JT Mori Building
4-3-1, Toranomon, Minato-ku
Tokyo 105
Japan
Attn: Kiyoharu Michiwaki
Tel. No: 81-3-5405-6575
Fax No: 81-3-5405-6902 or 6903
ABN AMRO Bank N.V.
101 California Street, Suite 4550
San Francisco, CA 94111-5812
Attn: Tamira Treffers-Herrera
Tel: (415) 984-3709
Fax: (415) 362-3524
(b) Payments.
(i) Each Guarantor shall make all payments of the
Guaranteed Obligations to Agent , or its order, at the office
of Agent and at the times specified in the Credit Documents
for the payment of such Guaranteed Obligations. Each Guarantor
shall make all other payments hereunder at such office as
Agent may designate. Each payment shall be made in same day or
immediately available funds not later than 11:00 a.m.(local
time of the office of Agent at which such payment is to be
made) on the date due.
(ii) Each Guarantor shall make all payments of the
Guaranteed Obligations hereunder in the currency in which such
Guaranteed Obligations are required to be paid by NSE pursuant
to the Credit Documents and shall make all other payments
hereunder in Dollars; provided, however, that, if Agent shall
request a Guarantor to pay any amount hereunder which would
otherwise be payable in another currency in the lawful
currency of the United States, such Guarantor shall pay to
Agent the Dollar Equivalent of such amount.
(iii) If any sum due from any Guarantor under this
Guaranty or any other Credit Document to which such Guarantor
is a party or any order, judgment or award given or rendered
in relation hereto or thereto has to be converted from the
currency (the "first currency") in which the same is payable
hereunder or thereunder into another currency (the "second
currency") for the purpose of (A) making or filing a claim or
proof against such Guarantor with any Governmental Authority,
(B) obtaining an order or judgment in any court or other
tribunal or (C) enforcing any order or judgment given or made
in relation hereto, such Guarantor shall, to the fullest
extent permitted by law, indemnify and hold harmless each of
the Persons to whom such sum is due from and against any loss
suffered as a result of any discrepancy between (1) the rate
of exchange used for such purpose to convert the amounts in
question from the first currency into the second currency and
(2) the rate or rates of exchange at which such Person may,
using reasonable efforts in the ordinary course of business,
purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in
part, of any such order, judgment, claim or proof. The
foregoing indemnity shall constitute a separate obligation of
each Guarantor distinct from its other obligations hereunder
and shall survive the giving or making of any judgment or
order in relation to all or any of such obligations.
(iv) If any amounts required to be paid by any
Guarantor under this Guaranty or any order, judgment or award
given or rendered in relation hereto remain unpaid after such
amounts are due, such Guarantor shall pay interest on the
aggregate, outstanding balance of such amounts from the date
due until those amounts are paid in full at a per annum rate
equal to:
(A) In the case of amounts payable in
Dollars, the Base Rate plus two percent (2.00%), such
rate to change from time to time as the Base Rate
shall change.
(B) In the case of amounts payable in Yen,
the Overnight Rate plus two percent (2.0%), such rate
to change from time to time as the Overnight Rate
shall change.
(c) Expenses. Each Guarantor shall pay on demand (i) all
reasonable and documented fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Agent in connection with the
preparation, execution and delivery of, and the exercise of its duties
under, this Guaranty and the preparation, execution and delivery of
amendments and waivers hereunder and (ii) all reasonable and documented
fees and expenses, including reasonable attorneys' fees and expenses,
incurred by Agent and Lenders in connection with the enforcement or
attempted enforcement of this Guaranty or any of the Guaranteed
Obligations or in preserving any of Agent's or Lenders' rights and
remedies (including, without limitation, all such fees and expenses
incurred in connection with any "workout" or restructuring affecting
the Credit Documents or the Guaranteed Obligations or any bankruptcy or
similar proceeding involving Guarantor, any other Guarantor, NSE, NSJ
or any of their affiliates).
(d) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by each Guarantor and Agent. Each waiver or consent
under any provision hereof shall be effective only in the specific
instances for the purpose for which given. No failure or delay on
Agent's or any Lender's part in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single
or partial exercise of any such right preclude any other further
exercise thereof or of any other right.
(e) Successors and Assigns. This Guaranty shall be binding
upon and inure to the benefit of Agent, Lenders, Guarantors and their
respective successors and assigns; provided, however, that no Guarantor
may assign or transfer any of its rights and obligations under this
Guaranty without the prior written consent of Agent and Lenders, and,
provided, further, that Agent or any Lender may sell, assign and
delegate their respective rights and obligations hereunder only as
permitted by the Credit Agreement. All references in this Guaranty to
any Person shall be deemed to include all permitted successors and
assigns of such Person.
(f) Cumulative Rights, etc. The rights, powers and remedies of
Agent and Lenders under this Guaranty shall be in addition to all
rights, powers and remedies given to Agent and Lenders by virtue of any
applicable law, rule or regulation of any Governmental Authority, the
Credit Agreement, any other Credit Document or any other agreement, all
of which rights, powers, and remedies shall be cumulative and may be
exercised successively or concurrently without impairing Agent's or any
Lender's rights hereunder. Each Guarantor waives any right to require
Agent or any Lender to proceed against any Person or to exhaust any
Collateral or to pursue any remedy in Agent's or such Lender's power.
(g) Setoff; Security Interest.
(i) In addition to any rights and remedies of Lenders
provided by law, each Lender shall have the right, with the
prior consent of Agent but without prior notice to or consent
of any Guarantor, any such notice and consent being expressly
waived by each Guarantor to the extent permitted by applicable
law, upon the occurrence and during the continuance of an
Event of Default, to set-off and apply against the obligations
of each Guarantor any amount owing from such Lender to such
Guarantor. The aforesaid right of set-off may be exercised by
such Lender against a Guarantor or against any trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment
creditor of such Guarantor or against anyone else claiming
through or against such Guarantor or such trustee in
bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off
may not have been exercised by such Lender at any prior time.
Each Lender agrees promptly to notify the applicable Guarantor
after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect
the validity of such set-off and application.
(ii) As security for the obligations of each
Guarantor hereunder, each Guarantor hereby grants to Agent and
each Lender, for the benefit of all Lenders, a continuing
security interest in any and all deposit accounts or moneys of
such Guarantor now or hereafter maintained with such Lender.
Each Lender shall have all of the rights of a secured party
with respect to such security interest.
(h) Payments Free of Taxes. All payments made by each
Guarantor under this Guaranty shall be made free and clear of, and
without deduction or withholding for or on account of, all present and
future income, stamp, documentary and other taxes and duties, and all
other levies, imposts, charges, fees, deductions and withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority (except net income taxes and franchise taxes in
lieu of net income taxes imposed on Agent or any Lender by its
jurisdiction of incorporation or the jurisdiction in which its
Applicable Lending Office is located) (all such non-excluded taxes,
duties, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable to Agent or any -----
Lender hereunder, the amounts so payable to Agent or such Lender shall
be increased to the extent necessary to yield to Agent or such Lender
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Guaranty or
the other Credit Documents, as applicable. Whenever any Taxes are
payable by any Guarantor, as promptly as possible thereafter, such
Guarantor shall send to Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
official receipt received by such Guarantor showing payment thereof. If
Guarantors fail to pay any Taxes when due to the appropriate taxing
authority or fail to remit to Agent the required receipts or other
required documentary evidence, Guarantors shall indemnify Agent and
Lenders for any taxes (including interest or penalties) that may become
payable by Agent or any Lender as a result of any such failure. The
obligations of Guarantors under this Subparagraph 6(h) shall survive
the payment and performance of the Guaranteed Obligations and the
termination of this Guaranty. Nothing contained in this Subparagraph
6(h) shall require Agent or any Lender to make available any of its tax
returns (or any other information relating to its taxes which it deems
to be confidential).
(i) Partial Invalidity. If at any time any provision of this
Guaranty is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guaranty nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired
thereby.
(j) Jury Trial. EACH OF GUARANTORS, LENDERS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY.
(k) Counterparts. This Guaranty may be executed in any number
of identical counterparts, any set of which signed by all the
Guarantors shall be deemed to constitute a complete, executed original
for all purposes.
(l) Governing Law, Consent to Jurisdiction, Etc.
(i) This Guaranty shall be governed by and construed
in accordance with the laws of the State of California without
reference to conflicts of law rules.
(ii) Each Guarantor irrevocably submits to the
non-exclusive jurisdiction of the courts of the State of
California and the courts of the United States of America
located in the Northern District of California and agrees that
any legal action, suit or proceeding arising out of or
relating to this Guaranty or any of the other Credit Documents
may be brought against such party in any such courts. Final
judgment against a Guarantor in any such action, suit or
proceeding shall be conclusive and may be enforced in any
other jurisdiction by suit on the judgment, a certified or
exemplified copy of which shall be conclusive evidence of the
judgment, or in any other manner provided by law. Nothing in
this Subparagraph 6(k) shall affect the right of Agent or any
Lender to commence legal proceedings or otherwise sue any
Guarantor in any other appropriate jurisdiction, or
concurrently in more than one jurisdiction, or to serve
process, pleadings and other papers upon any Guarantor in any
manner authorized by the laws of any such jurisdiction. Each
Guarantor agrees that process served either personally or by
registered mail shall, to the extent permitted by law,
constitutes adequate service of process in any such suit.
Without limiting the foregoing, each Guarantor hereby
appoints, in the case of any such action or proceeding brought
in the courts of or in the State of California, CT
Corporation, with offices on the date hereof at 818 West
Seventh Street, Los Angeles, California 90017, to receive for
it and on its behalf, service of process in the State of
California with respect thereto, provided each Guarantor may
appoint any other person, reasonably acceptable to Agent, with
offices in the State of California to replace such agent for
service of process upon delivery to Agent of a reasonably
acceptable agreement of such new agent agreeing so to act.
Each Guarantor irrevocably waives to the fullest extent
permitted by applicable law (A) any objection which it may
have now or in the future to the laying of the venue of any
such action, suit or proceeding in any court referred to in
the first sentence above; (B) any claim that any such action,
suit or proceeding has been brought in an inconvenient forum;
(C) its right of removal of any matter commenced by any other
party in the courts of the State of California to any court of
the United States of America; (D) any immunity which it or its
assets may have in respect of its obligations under this
Agreement or any other Credit Document from any suit,
execution, attachment (whether provisional or final, in aid of
execution, before judgment or otherwise) or other legal
process; and (E) any right it may have to require the moving
party in any suit, action or proceeding brought in any of the
courts referred to above arising out of or in connection with
this Agreement or any other Credit Document to post security
for the costs of any Guarantor or to post a bond or to take
similar action.
[The first signature page follows.]
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed as of the day and year first above written.
[GUARANTOR]
By: /s/ Steven J. Lund
Name:Steven J. Lund
Title:Vice President
Address:
One Nu Skin Plaza,
75 West Center,
Provo, UT 84601
Attn: Chief Financial Officer
Telephone: (801) 345-3000
Facsimile: (801) 345-3099
[GUARANTOR]
By: /s/ Blake M. Roney
Name: Blake M. Roney
Title:Representative Director
Address:
890-12
Daechi-dong
Kangnam-ku, Seoul
Attn: Chief Fianacial Officer
Telephone: (822) 538-1441
Facsimile: (822) 552-9728
ATTACHMENT 1
SUBSIDIARY JOINDER
THIS SUBSIDIARY JOINDER (this "Agreement"), dated as of ____________,
____, is executed by [NEW SUBSIDIARY], a _________ [corporation] [partnership]
[etc.] ("New Subsidiary") in favor of ABN AMRO BANK N.V., acting as agent (in
such capacity, and each successor thereto in such capacity, "Agent") for the
financial institutions which are from time to time parties to the Credit
Agreement referred to in Recital A below (collectively, the "Lenders").
RECITALS
A. Pursuant to a Credit Agreement dated as of May 8, 1998 (as amended
from time to time, the "Credit Agreement"), among Nu Skin Enterprises, Inc.
("NSE"), Nu Skin Japan Co., Ltd. ("NSJ"), Lenders and Agent, Lenders have agreed
to extend certain credit facilities to NSE and NSJ (collectively,
"Borrower")upon the terms and subject to the conditions set forth therein.
B. Lenders' obligations to extend the credit facilities to Borrowers
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of (1) a Guaranty, dated as of May [A], 1998, duly executed by each
existing Domestic Subsidiary of NSE, and (2) Subsidiary Joinders, duly executed
by each future Domestic Subsidiary of NSE.
C. New Subsidiary is a new Domestic Subsidiary of NSE and expects to
derive substantial direct and indirect benefit from the transactions
contemplated by the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, New Subsidiary hereby agrees with Agent, for the ratable benefit
of Lenders and Agent, as follows:
1. Definitions and Interpretation. Unless otherwise defined herein, all
capitalized terms used herein and defined in the Guaranty shall have the
respective meanings given to those terms in the Guaranty. New Subsidiary
acknowledges receipt of copies of the Guaranty, the Credit Agreement and the
other Credit Documents.
2. Representations and Warranties. On and as of the date of this Agreement (the
"Effective Date") and for the ratable benefit of the Agent and Lenders, New
Subsidiary hereby makes each of the representations and warranties made by each
Guarantor in the Guaranty.
3. Agreement to be Bound. New Subsidiary agrees that, on and as of the Effective
Date, it shall become a Guarantor under the Guaranty and shall be bound by all
the provisions of the Guaranty to the same extent as if New Subsidiary had
executed the Guaranty on the Closing Date. 4. Waiver. Without limiting the
generality of the waivers in the Guaranty, New Subsidiary specifically agrees to
be bound by the Guaranty and waives any right to notice of acceptance of its
execution of this Agreement and of its agreement to be bound by the Guaranty. 5.
Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California.
IN WITNESS WHEREOF, New Subsidiary has caused this Agreement to be
executed by its duly authorized officer.
[NEW SUBSIDIARY]
By:
Name:
Title:
Address:
[-------------------------]
[-------------------------]
[-------------------------]
Attn: [___________________]
Telephone: [(___) ___-____]
Facsimile: [(___) ___-____]