FIFTH AMENDMENT TO NOTE PURCHASE
AGREEMENT
THIS FIFTH AMENDMENT , dated as of October 5, 2006 (this
“ Fifth Amendment ”), to the Note Purchase
Agreement, dated as of October 12, 2000 (as amended to date, the
“ Note Agreement ”), is between Nu Skin
Enterprises, Inc., a Delaware corporation (the “
Company ”), and The Prudential Insurance Company of
America (“ Prudential ”).
RECITALS
A.
Pursuant to the request of the Company, the Company and Prudential
now desire to amend the Note Agreement in the respects, but only in
the respects, hereinafter set forth.
B.
Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement unless herein defined or the
context shall otherwise require.
C.
All requirements of law have been fully complied with and all other
acts and things necessary to make this Fifth Amendment a valid,
legal and binding instrument according to its terms for the
purposes herein expressed have been done or performed.
NOW, THEREFORE, upon the full and complete satisfaction of
the conditions precedent to the effectiveness of this Fifth
Amendment set forth in Section 3 hereof, and in
consideration of good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Company and
Prudential do hereby agree as follows:
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Section
1
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Amendments
to and Limited Waiver Under Note Agreement.
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1.1 Section
10.4 of the Note Agreement is hereby amended and restated to read
as follows:
10.4 Minimum
Consolidated Net Worth.
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The
Company will not, at any time, permit Consolidated Net Worth to be
less than the sum of (i) $250,000,000, (ii) an aggregate amount
equal to 60% of Consolidated Net Income (in each case, to the
extent a positive number) for each complete fiscal quarter ending
on or after September 30, 2006, and (iii) 50% of the net proceeds
realized by the Company and its Restricted Subsidiaries after the
Fifth Amendment Effective Date from (a) the sale of Equity
Securities, excluding issuances of Equity Securities upon exercise
of employee stock options or rights under any employee benefit
plans (excluding such exercise by any Person that owns greater than
5% of the Equity Securities of the Company), (b) issuances of
Equity Securities in connection with acquisitions by the Company
and its Restricted Subsidiaries, and (c) reissuances of up to
$60,000,000 of treasury securities purchased by the
Company.
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1.2 Section
10.11 of the Note Agreement is hereby amended and restated to read
as follows:
10.11 Minimum
Cash.
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The
Company covenants that at no time from the Fifth Amendment
Effective Date through and including December 31, 2008 will
Available Cash be less than $75,000,000. For purposes hereof
“Available Cash” shall mean the difference between (i)
the amount of the consolidated cash and cash equivalents of the
Company and Restricted Subsidiaries and (ii) the aggregate amount
outstanding under revolving credit facilities on which the Company
or any Restricted Subsidiaries are obligated as borrowers or
guarantors.
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1.3
Schedule A of the Note Agreement is hereby further amended by
inserting therein in the proper alphabetical order the following
definitions of “Fifth Amendment” and “Fifth
Amendment Effective Date”, as follows:
“Fifth Amendment ” means that certain Fifth
Amendment to Note Purchase Agreement, dated as of October 5, 2006,
between the Company and The Prudential Insurance Company of
America.
“
Fifth Amendment Effective Date ” shall have the
meaning specified in the Fifth Amendment.
1.4 The
undersigned holders of Notes hereby waive any Default or Event of
Default that has occurred due to the failure of the Collateral
Agent to hold at all times the stock certificate(s) pledged by the
Company representing the equity interests in Nu Skin Japan Co. Ltd.
(“ Nu
