as Administrative Agent, Swing Line Lender
and
L/C Issuer,
“RABOBANK INTERNATIONAL”, NEW YORK BRANCH
as Documentation Agent
and J.P. MORGAN SECURITIES LLC
as Joint Lead Arrangers and Joint Book Managers
Page | ||||
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS | 1 | |||
1.01 Defined Terms | 1 | |||
1.02 Other Interpretive Provisions | 28 | |||
1.03 Accounting Terms | 29 | |||
1.04 Rounding | 29 | |||
1.05 Exchange Rates; Currency Equivalents | 29 | |||
1.06 Additional Alternative Currencies | 30 | |||
1.07 Change of Currency | 31 | |||
1.08 Times of Day | 31 | |||
1.09 Letter of Credit Amounts | 31 | |||
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS | 32 | |||
2.01 Committed Loans | 32 | |||
2.02 Borrowings, Conversions and Continuations of Committed Loans | 32 | |||
2.03 Letters of Credit | 34 | |||
2.04 Swing Line Loans | 44 | |||
2.05 Prepayments | 47 | |||
2.06 Termination or Reduction of Commitments | 48 | |||
2.07 Repayment of Loans | 48 | |||
2.08 Interest | 49 | |||
2.09 Fees | 49 | |||
2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate | 50 | |||
2.11 Evidence of Debt | 51 | |||
2.12 Payments Generally; Administrative Agent’s Clawback | 51 | |||
2.13 Sharing of Payments by Lenders | 53 | |||
2.14 Designated Borrowers | 54 | |||
2.15 Reserved | 55 | |||
2.16 Release of Collateral Upon Change in Debt Rating | 55 | |||
2.17 Cash Collateral | 55 | |||
2.18 Defaulting Lenders | 56 |
i
(continued)
Page | ||||
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY | 58 | |||
3.01 Taxes | 58 | |||
3.02 Illegality | 63 | |||
3.03 Inability to Determine Rates | 63 | |||
3.04 Increased Costs; Reserves on Eurocurrency Rate Loans | 64 | |||
3.05 Compensation for Losses | 66 | |||
3.06 Mitigation Obligations; Replacement of Lenders | 67 | |||
3.07 Survival | 67 | |||
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS | 67 | |||
4.01 Conditions of Initial Credit Extension | 67 | |||
4.02 Conditions to all Credit Extensions | 70 | |||
ARTICLE V. REPRESENTATIONS AND WARRANTIES | 71 | |||
5.01 Existence, Qualification and Power | 71 | |||
5.02 Authorization; No Contravention | 71 | |||
5.03 Governmental Authorization; Other Consents | 71 | |||
5.04 Binding Effect | 72 | |||
5.05 Financial Statements; No Material Adverse Effect | 72 | |||
5.06 Litigation | 72 | |||
5.07 No Default | 72 | |||
5.08 Ownership of Property; Liens | 73 | |||
5.09 Environmental Compliance | 73 | |||
5.10 Insurance | 73 | |||
5.11 Taxes | 73 | |||
5.12 ERISA Compliance | 73 | |||
5.13 Subsidiaries; Equity Interests | 74 | |||
5.14 Margin Regulations; Investment Company Act | 74 | |||
5.15 Disclosure | 74 | |||
5.16 Compliance with Laws | 75 | |||
5.17 Taxpayer Identification Number; Other Identifying Information | 75 | |||
5.18 Representations as to Foreign Obligors | 75 | |||
5.19 Collateral Documents | 76 | |||
5.20 Solvency | 77 | |||
5.21 USA PATRIOT Act | 77 |
ii
(continued)
Page | ||||
ARTICLE VI. AFFIRMATIVE COVENANTS | 77 | |||
6.01 Financial Statements | 77 | |||
6.02 Certificates; Other Information | 78 | |||
6.03 Notices | 79 | |||
6.04 Payment of Obligations | 80 | |||
6.05 Preservation of Existence, Etc | 80 | |||
6.06 Maintenance of Properties | 80 | |||
6.07 Maintenance of Insurance | 80 | |||
6.08 Compliance with Laws | 81 | |||
6.09 Books and Records | 81 | |||
6.10 Inspection Rights | 81 | |||
6.11 Use of Proceeds | 81 | |||
6.12 Approvals and Authorizations | 81 | |||
6.13 Additional Guarantors; Additional Collateral | 82 | |||
6.14 Further Assurances | 83 | |||
6.15 Ratings Decrease Following Release of Collateral | 84 | |||
6.16 Good Standing | 84 | |||
ARTICLE VII. NEGATIVE COVENANTS | 85 | |||
7.01 Liens | 85 | |||
7.02 Investments | 88 | |||
7.03 Indebtedness | 89 | |||
7.04 Fundamental Changes | 91 | |||
7.05 Dispositions | 91 | |||
7.06 Restricted Payments | 92 | |||
7.07 Change in Nature of Business | 92 |
iii
(continued)
Page | ||||
7.08 Transactions with Affiliates | 92 | |||
7.09 Burdensome Agreements | 93 | |||
7.10 Use of Proceeds | 93 | |||
7.11 Financial Covenants | 94 | |||
7.12 Capital Expenditures | 94 | |||
7.13 Accounting Changes | 94 | |||
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES | 94 | |||
8.01 Events of Default | 94 | |||
8.02 Remedies Upon Event of Default | 97 | |||
8.03 Application of Funds | 98 | |||
ARTICLE IX. ADMINISTRATIVE AGENT | 99 | |||
9.01 Appointment and Authority | 99 | |||
9.02 Rights as a Lender | 99 | |||
9.03 Exculpatory Provisions | 99 | |||
9.04 Reliance by Administrative Agent | 100 | |||
9.05 Delegation of Duties | 101 | |||
9.06 Resignation of Administrative Agent | 101 | |||
9.07 Non-Reliance on Administrative Agent and Other Lenders | 102 | |||
9.08 No Other Duties, Etc | 102 | |||
9.09 Administrative Agent May File Proofs of Claim | 102 | |||
9.10 Collateral and Guaranty Matters | 103 | |||
9.11 Secured Cash Management Agreements and Secured Hedge Agreements | 104 | |||
ARTICLE X. MISCELLANEOUS | 104 | |||
10.01 Amendments, Etc | 104 | |||
10.02 Notices; Effectiveness; Electronic Communication | 106 | |||
10.03 No Waiver; Cumulative Remedies; Enforcement | 108 | |||
10.04 Expenses; Indemnity; Damage Waiver | 109 | |||
10.05 Payments Set Aside | 110 | |||
10.06 Successors and Assigns | 111 |
iv
(continued)
Page | ||||
10.07 Treatment of Certain Information; Confidentiality | 115 | |||
10.08 Right of Setoff | 116 | |||
10.09 Interest Rate Limitation | 117 | |||
10.10 Counterparts; Integration; Effectiveness | 117 | |||
10.11 Survival of Representations and Warranties | 117 | |||
10.12 Severability | 118 | |||
10.13 Replacement of Lenders | 118 | |||
10.14 Governing Law; Jurisdiction; Etc | 118 | |||
10.15 Waiver of Jury Trial | 119 | |||
10.16 No Advisory or Fiduciary Responsibility | 120 | |||
10.17 Electronic Execution of Assignments and Certain Other Documents | 120 | |||
10.18 USA PATRIOT Act | 120 | |||
10.19 Judgment Currency | 121 | |||
SIGNATURES | S-1 |
v
SCHEDULES | ||||
E-1 Excluded Domestic Subsidiaries and Excluded Foreign Subsidiaries | ||||
G-1 Initial Guarantors | ||||
1.01 Mandatory Cost Formulae | ||||
2.01 Commitments and Applicable Percentages | ||||
5.03 Authorizations and Consents | ||||
5.06 Litigation | ||||
5.11 Tax Assessments | ||||
5.13 Subsidiaries; Other Equity Investments | ||||
5.17 Identification Numbers for Foreign Borrowers | ||||
7.01 Existing Liens | ||||
7.03 Existing Indebtedness | ||||
10.02 Administrative Agent’s Office; Certain Addresses for Notices | ||||
EXHIBITS | ||||
Form of | ||||
A Committed Loan Notice | ||||
B Swing Line Loan Notice | ||||
C Note | ||||
D Compliance Certificate | ||||
E-1 Assignment and Assumption | ||||
E-2 Administrative Questionnaire | ||||
F Security Agreement | ||||
G-1 Company Guaranty | ||||
G-2 Holdings Guaranty | ||||
G-3 HIL Guaranty | ||||
G-4 Domestic Subsidiary Guaranty | ||||
G-5 Foreign Subsidiary Guaranty | ||||
H Designated Borrower Request and Assumption Agreement | ||||
I Designated Borrower Notice | ||||
J-1 Opinion of Gibson, Dunn & Crutcher | ||||
J-2 Opinions of Maples and Calder | ||||
J-3 Opinion of Arendt & Medernach | ||||
J-4 Opinion of Brownstein Hyatt Farber Schreck LLP | ||||
K Perfection Certificate |
vi
DEFINITIONS AND ACCOUNTING TERMS
Applicable Rate | ||||||||||||||
Eurocurrency | ||||||||||||||
Rate +, Peso | ||||||||||||||
Pricing | Consolidated Total | Rate +, Letters | ||||||||||||
Level | Leverage Ratio | Commitment Fee | of Credit + | Base Rate + | ||||||||||
1 | <0.50:1 | 0.25 | % | 1.50 | % | 0.50 | % | |||||||
2 | >0.50:1 but <1.00:1 | 0.30 | % | 1.75 | % | 0.75 | % | |||||||
3 | >1.00:1 but <1.50:1 | 0.40 | % | 2.00 | % | 1.00 | % | |||||||
4 | >1.50:1 but<2.00:1 | 0.40 | % | 2.25 | % | 1.25 | % | |||||||
5 | >2.00:1 | 0.50 | % | 2.50 | % | 1.50 | % |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
THE COMMITMENTS AND CREDIT EXTENSIONS
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
57
TAXES, YIELD PROTECTION AND ILLEGALITY
58
59
60
61
62
63
64
65
66
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
67
68
69
70
REPRESENTATIONS AND WARRANTIES
71
72
73
74
75
76
AFFIRMATIVE COVENANTS
77
78
79
80
81
82
83
84
NEGATIVE COVENANTS
85
86
87
88
89
90
91
92
93
EVENTS OF DEFAULT AND REMEDIES
94
95
96
97
98
ADMINISTRATIVE AGENT
99
100
101
102
103
MISCELLANEOUS
104
105
106
107
108
109
110
111
112
113
114
115
116
117
118
119
120
121
HERBALIFE LTD.,a Cayman Islands exempted company incorporated with limited liability, as Holdings | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
HERBALIFE INTERNATIONAL, INC.,a Nevada corporation, as the Company | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
HERBALIFE INTERNATIONAL LUXEMBOURG S.Á.R.L.,a Luxembourg private limited liability company, as a Borrower | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
BANK OF AMERICA, N.A.,as Administrative Agent | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
BANK OF AMERICA, N.A.,as a Lender, L/C Issuer and Swing Line Lender | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
[OTHER LENDERS] | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
1. | Herbalife (China) Health Products Ltd. | |
2. | Herbalife Dominicana, S.A. | |
3. | Herbalife Del Ecuador, S.A. | |
4. | Herbalife Products Malaysia SDN BHD | |
5. | Herbalife International Products N.V. | |
6. | Herbalife Natural Products, LP | |
7. | Herbalife Asia Pacific Services Limited | |
8. | Herbalife NatSource (Hunan) Natural Products Co., Ltd. | |
9. | Herbalife International India Private Limited | |
10. | HIIP Investment Co., LLC | |
11. | Herbalife Internacional de Mexico, S.A. de C.V. | |
12. | Herbalife Mexicana, S.A. de C.V. | |
13. | Herbalife Products De Mexico, S.A. de C.V. | |
14. | Herbavida International de Mexico, S.A. de C.V. | |
15. | Servicios Integrales HIM, S.A. de C.V. | |
16. | HIL Swiss International GmbH | |
17. | HBL Products, SA | |
18. | PT Herbalife Indonesia | |
19. | Herbalife International Philippines, Inc. | |
20. | Vida Herbal Suplementos Alimenticios, C.A. |
1. | Herbalife International of America, Inc., a Nevada corporation. | |
2. | Herbalife International Communications, Inc., a California corporation. | |
3. | Herbalife International Do Brasil Ltda, a corporation dually organized in Brazil and Delaware. | |
4. | Herbalife Korea Co., Ltd., a corporation dually organized in the Republic of Korea and Delaware. | |
5. | Herbalife Taiwan, Inc., a California corporation. | |
6. | WH Intermediate Holdings Ltd., a Cayman Islands exempted company with limited liability. | |
7. | WH Luxembourg Holdings S.à.R.L., a Luxembourg private limited liability company. |
1. | The Mandatory Cost (to the extent applicable) is an addition to the interest rate to compensate Lenders for the cost of compliance with: |
2. | On the first day of each Interest Period (or as soon as possible thereafter) the Administrative Agent shall calculate, as a percentage rate, a rate (the “Additional Cost Rate”) for each Lender, in accordance with the paragraphs set out below. The Mandatory Cost will be calculated by the Administrative Agent as a weighted average of the Lenders’ Additional Cost Rates (weighted in proportion to the percentage participation of each Lender in the relevant Loan) and will be expressed as a percentage rate per annum. The Administrative Agent will, at the request of any Borrower or any Lender, deliver to such Borrower or such Lender, as the case may be, a statement setting forth the calculation of any Mandatory Cost. |
3. | The Additional Cost Rate for any Lender lending from a Lending Office in a Participating Member State will be the percentage notified by that Lender to the Administrative Agent. This percentage will be certified by such Lender in its notice to the Administrative Agent to be its reasonable determination of the cost (expressed as a percentage of such Lender’s participation in all Loans made from such Lending Office) of complying with the minimum reserve requirements of the European Central Bank in respect of Loans made from that Lending Office. |
4. | The Additional Cost Rate for any Lender lending from a Lending Office in the United Kingdom will be calculated by the Administrative Agent as follows: |
AB+C(B-D)+E x 0.01 | per cent per annum |
E x 0.01 | per cent per annum |
5. | For the purposes of this Schedule: |
6. | In application of the above formulae, A, B, C and D will be included in the formulae as percentages (i.e.5% will be included in the formula as 5 and not as 0.05). A negative result obtained by subtracting D from B shall be taken as zero. The resulting figures shall be rounded to four decimal places. |
7. | If requested by the Administrative Agent or any Borrower, each Lender with a Lending Office in the United Kingdom or a Participating Member State shall, as soon as practicable after publication by the Financial Services Authority, supply to the Administrative Agent and Borrowers, the rate of charge payable by such Lender to the Financial Services Authority pursuant to the Fees Rules in respect of the relevant financial year of the Financial Services Authority (calculated for this purpose by such Lender as being the average of the Fee Tariffs applicable to such Lender for that financial year) and expressed in pounds per £1,000,000 of the Tariff Base of such Lender. |
8. | Each Lender shall supply any information required by the Administrative Agent for the purpose of calculating its Additional Cost Rate. In particular, but without limitation, each Lender shall supply the following information in writing on or prior to the date on which it becomes a Lender: |
9. | The percentages of each Lender for the purpose of A and C above and the rates of charge of each Lender for the purpose of E above shall be determined by the Administrative Agent based upon the information supplied to it pursuant toparagraphs 7 and8 above and on the assumption that, unless a Lender notifies the Administrative Agent to the contrary, each Lender’s obligations in relation to cash ratio deposits and Special Deposits are the same as those of a typical bank from its jurisdiction of incorporation with a lending office in the same jurisdiction as its Lending Office. |
10. | The Administrative Agent shall have no liability to any Person if such determination results in an Additional Cost Rate which over- or under-compensates any Lender and shall be entitled to assume that the information provided by any Lender pursuant toparagraphs 3,7 and8 above is true and correct in all respects. |
11. | The Administrative Agent shall distribute the additional amounts received as a result of the Mandatory Cost to the Lenders on the basis of the Additional Cost Rate for each Lender based on the information provided by each Lender pursuant toparagraphs 3,7 and8 above. |
12. | Any determination by the Administrative Agent pursuant to this Schedule in relation to a formula, the Mandatory Cost, an Additional Cost Rate or any amount payable to a Lender shall, in the absence of manifest error, be conclusive and binding on all parties hereto. |
13. | The Administrative Agent may from time to time, after consultation with the Borrowers and the Lenders, determine and notify to all parties any amendments which are required to be made to this Schedule in order to comply with any change in law, regulation or any requirements from time to time imposed by the Bank of England, the Financial Services Authority or the European Central Bank (or, in any case, any other authority which replaces all or any of its functions) and any such determination shall, in the absence of manifest error, be conclusive and binding on all parties hereto. |
Lender | Commitment | Applicable Percentage | ||||||
Bank of America, N.A. | 120,000,000 | 17.142857143 | % | |||||
JPMorgan Chase Bank, N.A. | 120,000,000 | 17.142857143 | % | |||||
COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK INTERNATIONAL”, NEW YORK BRANCH | 100,000,000 | 14.285714286 | % | |||||
KeyBank National Association | 75,000,000 | 10.714285714 | % | |||||
HSBC Bank USA, National Association | 75,000,000 | 10.714285714 | % | |||||
Union Bank, N.A. | 75,000,000 | 10.714285714 | % | |||||
Wells Fargo Bank, National Association | 75,000,000 | 10.714285714 | % | |||||
Comerica Bank | 30,000,000 | 4.285714286 | % | |||||
ING Bank NV, Dublin Branch | 30,000,000 | 4.285714286 | % | |||||
Total | 700,000,000 | 100 | % |
Immaterial | ||||
Subsidiary | ||||
Subsidiary | Percentage Owned | (Y/N) | ||
WH Intermediate Holdings Ltd. | 100% - Herbalife Ltd. | N | ||
HBL Ltd. | 100% - WH Intermediate Holdings Ltd | Y | ||
WH Luxembourg Holdings S.à R.L. | 100% - HBL Luxembourg Holdings S.à R.L. | N | ||
HLF Luxembourg Holdings S.à R.L. | 100% - WH Luxembourg Holdings S.à R.L. | Y | ||
WH Capital Corporation | 100% - HLF Luxembourg Holdings S.à R.L. | Y | ||
WH Luxembourg Intermediate Holdings S.à R.L. | 100% WH Capital Corporation | Y | ||
HV Holdings Ltd. | 100% - WH Intermediate Holdings Ltd | Y | ||
Herbalife International, Inc. (see below) | 100% - WH Luxembourg Intermediate Holdings LLC | N | ||
Herbalife International Luxembourg S.à R.L. (see below) | 100% - WH Luxembourg Holdings S.à R.L. | N | ||
Herbalife Australasia Pty., Ltd. | 100% - Herbalife International, Inc. | Y | ||
Herbalife China, LLC | 100% - Herbalife International, Inc. | Y | ||
Herbalife del Ecuador, S.A. | 99% - Herbalife International, Inc. by Brett R. Chapman | Y | ||
1% - Herbalife International of America, Inc. by Brett R. Chapman | ||||
Herbalife Denmark ApS | 100% - Herbalife International, Inc. | Y | ||
Herbalife Dominicana, S.A. | 61% - Herbalife International of America, Inc. | Y | ||
34% - Herbalife International, Inc. | ||||
1% - Herbalife International Distribution, Inc. | ||||
1% - Herbalife International Communication, Inc. | ||||
1% - Herbalife International South Africa, Inc. | ||||
1% - Herbalife International of Europe, Inc. | ||||
1% - Herbalife Taiwan. All represented by a special attorney | ||||
Herbalife Europe Limited | 100% - Herbalife (UK) Limited | Y | ||
Herbalife Foreign Sales Corporation (Barbados) Incorporated | 100% - Herbalife International, Inc. | Y | ||
Herbalife Internacional de Mexico, S.A. de C.V. | 99.98% - Herbalife International, Inc. by Luis Emilio Lujan Sauri | N | ||
0.02% - Herbalife International of America, Inc. by Jose Antonio Cervantes Acosta | ||||
Herbalife International Argentina, S.A. | 90% - Herbalife International, Inc. | Y | ||
10% - Herbalife International of America, Inc. | ||||
Herbalife International Belgium, S.A. | 99% - Herbalife International, Inc. by Brett R. Chapman | Y | ||
1% - Herbalife International of America, Inc. by Richard Goudis | ||||
Herbalife International Communications, Inc. | 100% - Herbalife International, Inc. | N | ||
Herbalife International del Colombia | 100% - Herbalife International, Inc. | Y | ||
Herbalife International del Ecuador | 100% - Herbalife International, Inc. | Y |
Immaterial | ||||
Subsidiary | ||||
Subsidiary | Percentage Owned | (Y/N) | ||
Herbalife International Deutschland GmbH | 100% - Herbalife International, Inc. | Y | ||
Herbalife International Distribution, Inc. | 100% - Herbalife International, Inc. | Y | ||
Herbalife International Do Brasil Ltda | 99.99% - Herbalife International, Inc. (Managing Partner) by Richard P. Goudis | N | ||
<0.01 - Herbalife International of America, Inc. by Brett R. Chapman | ||||
Herbalife International España, S.A. | 99.82% - Herbalife International, Inc. | Y | ||
0.09% - Herbalife International of America, Inc. | ||||
0.09% - Herbalife (U.K.) Limited | ||||
Herbalife International Finland OY | 100% - Herbalife International, Inc. | Y | ||
Herbalife International France, S.A. | 99.99% - Herbalife International, Inc. | Y | ||
<0.01% - Herbalife International of America, Inc., | ||||
<0.01% - Herbalife (U.K.) Limited | ||||
<0.01% - Herbalife International España, Inc. | ||||
<0.01% - Herbalife (NZ) Limited | ||||
<0.01% - Herbalife Australasia Pty. Ltd. | ||||
<0.01% - David Wynne Roberts | ||||
Herbalife International Greece S.A. | 100% - Herbalife International, Inc. | Y | ||
Herbalife International India Private Limited | 24% - HIIP Investment Co., LLC | Y | ||
76% - Herbalife International, Inc. | ||||
Herbalife International (Netherlands) B.V. | 100% - Herbalife International, Inc. | Y | ||
Herbalife International of America, Inc. | 100% - Herbalife International, Inc. | N | ||
Herbalife International of Hong Kong Limited. | 99% - Herbalife International, Inc. by Richard P. Goudis | Y | ||
1% - Herbalife International of America, Inc. by Brett R. Chapman | ||||
Herbalife International of Israel (1990) Ltd. | 99% - Herbalife International, Inc. | Y | ||
1% - Herbalife International of America, Inc. | ||||
Herbalife International Philippines, Inc. | 99.99% - Herbalife International, Inc. | Y | ||
<0.01% - Robert Levy | ||||
<0.01% - Gary Huang | ||||
<0.01% - Abelardo Tolentino | ||||
<0.01% - Harvey Ringler | ||||
<0.01% - Richard Goudis | ||||
Herbalife International Products N.V. | 100% - Herbalife International, Inc. | Y | ||
Herbalife International Russia 1995 Ltd. | 99% - Herbalife International, Inc. | Y | ||
1% - Herbalife International of America, Inc. | ||||
Herbalife International South Africa, ltd. | 100% - Herbalife International, Inc. | Y | ||
Herbalife International (Thailand), Ltd. | 100% - Herbalife International, Inc. | Y | ||
Herbalife International Urunleri Ticaret Limited (Turkey) | 50% - Herbalife International, Inc. 50% - Herbalife International of America, Inc. | Y | ||
Herbalife International, S.A. | 99.99% - Herbalife International, Inc. | Y | ||
<0.01% - Herbalife International of America, Inc. | ||||
<0.01% - Herbalife (UK) Limited | ||||
<0.01% - Herbalife International España, S.A. | ||||
<0.01% - Herbalife International France, S.A. | ||||
Herbalife Italia, S.p.A. | 95% - Herbalife International, Inc. | Y | ||
5% - Herbalife International of America, Inc. | ||||
Herbalife Korea Co., Ltd. | 100% - Herbalife International, Inc. | N | ||
Herbalife Manufacturing LLC | 100% - Herbalife International, Inc. | Y |
Immaterial | ||||
Subsidiary | ||||
Subsidiary | Percentage Owned | (Y/N) | ||
Herbalife Norway Products AS | 100% - Herbalife International, Inc. | Y | ||
Herbalife (NZ) Limited | 100% - Herbalife International, Inc. | Y | ||
Herbalife of Canada Ltd. | 100% - Herbalife International, Inc. | Y | ||
Herbalife of Japan K.K. | 100% - Herbalife International, Inc. | Y | ||
Herbalife Polska Sp. Z. o. o. | 100% - Herbalife International, Inc. | Y | ||
HBL Products, S.A. | 50% - Herbalife International, Inc. | Y | ||
50% - Herbalife International of America, Inc. | ||||
Herbalife Products de Mexico, S.A. de C.V. | 99 % - Herbalife International, Inc. by Luis Emilio Lujan Sauri | Y | ||
1% - Herbalife International of America, Inc. by Jose Antonio Cervantes Acosta | ||||
Herbalife Sweden Akiebolag | 100% - Herbalife International, Inc. | Y | ||
Herbalife Taiwan, Inc. | 100% - Herbalife International, Inc. | N | ||
Herbalife (UK) Limited | 100% - Herbalife International, Inc. | Y | ||
HIIP Investment Co., LLC | 100% - Herbalife International, Inc. | Y | ||
Inportadora y Distrbudora Herbalife International de Chile, Limitada | 99.99% - Herbalife International, Inc. 0.01% - Herbalife International of America, Inc. | Y | ||
Promotions One, Inc. | 100% - Herbalife International, Inc. | Y | ||
PT Herbalife Indonesia | 0.18% - Alpiter Steven Silaen | Y | ||
99.82% - PT Dian Gatra Mokmur | ||||
Servicios Integrales HIM, S.A. de C.V. | 99% - Herbalife International, Inc. | Y | ||
1% - Herbalife International of America, Inc. | ||||
Vida Herbal Supplementos Alimenticio, C.A., LLC | <0.01% - Herbalife International, Inc. | Y | ||
99.99% - Netherlands VidaHerbal Cooperatief | ||||
VidaHerbal Dutch LLC | 100% - Herbalife International, Inc. | Y | ||
HLF Intl of India Investment Co. | 100% - Herbalife International, Inc. | Y | ||
Netherlands VidaHerbal Cooperatief UA | 99% - Herbalife International, Inc. | Y | ||
1% - VidaHerbal Dutch LLC. | ||||
Herbalife Mexicana, S.A. de C.V. | 99.98% - Herbalife International, Inc. | Y | ||
0.02% - Herbalife International of America, Inc. | ||||
Herbalife Africa S.à R.L. | 100% - Herbalife International Luxembourg S.à R.L. | Y | ||
Herbalife Asia Pacific Services Ltd. | 100% - Herbalife Natural Products LP | Y | ||
Herbalife Central America LLC | 100% - Herbalife International Luxembourg S.à R.L. | Y | ||
Herbalife (China) Health Products Ltd. | 100% - Herbalife International Luxembourg, S.à R.L. | N | ||
Herbalife Croatia d.o.o. | 100% - Herbalife International Luxembourg, S.à R.L. | Y | ||
Herbalife Distribution Ltd. | 100% - Herbalife International Luxembourg S.à R.L. | Y | ||
Herbalife Hungary Trading, Limited | 97.6% -Herbalife International Luxembourg S.à R.L. | Y | ||
2.4% - WH Luxembourg Holdings S.à R.L. | ||||
Herbalife International Costa Rica, Sociedad de Responsibilidad Limitada | 100% - Herbalife International Luxembourg, S.à R.L. | Y | ||
Limited Liability Company Herbalife International RS | 99% - Herbalife International Luxembourg S.à R.L. 1% - WH Luxembourg Holdings S.à R.L. | Y | ||
Herbalife International Singapore Pte. Ltd. | 100% - Herbalife International Luxembourg, S.à R.L. | Y | ||
Herbalife Luxembourg Distribution S.à R.L. | 100% - Herbalife International Luxembourg S.à R.L. | Y | ||
Herbalife Natural Products LP | 89.9% Herbalife International Luxembourg S.à R.L. | Y | ||
0.1% - HLF Luxembourg Distribution S.à R.L. | ||||
10% - Qun Yi (S Corp) |
Immaterial | ||||
Subsidiary | ||||
Subsidiary | Percentage Owned | (Y/N) | ||
Herbalife NatSource (Hunan) Natural Products Co., Ltd. | 100% - Herbalife Asia Pacific Services Limited | Y | ||
Herbalife Paraguay S.R.L. | 99.99% - Herbalife International Luxembourg, S.à R.L. | Y | ||
<0.01% - WH Luxembourg Holdings, S.à R.L. | ||||
Herbalife Peru S.R.L. | 99 % - Herbalife International Luxembourg, S.à R.L. | Y | ||
1% - WH Luxembourg Holdings, S.à R.L. | ||||
Herbalife Products Malaysia SDN, BHD | 70% - Herbalife International Luxembourg S.à R.L. | Y | ||
15% - Noraliza Ayub | ||||
15% - Mohd Dehalan Ahmad | ||||
Herbalife RO SRL | 99% - Herbalife International Luxembourg S.Á R.L. | Y | ||
1% - HLF Luxembourg Distribution S.à R.L. | ||||
Herbalife Ukraine LLC | 99% - Herbalife International Luxembourg S.à R.L. | Y | ||
1% - HLF Luxembourg Distribution S.à R.L. | ||||
Herbalife Uruguay S.R.L. | 99% - Herbalife International Luxembourg S.à R.L. | Y | ||
99% - HLF Luxembourg Distribution S.à R.L. | ||||
Herbalife Vietnam SMLLC | 100% - Herbalife International Luxembourg, S.à R.L. | Y | ||
HIL Swiss International GmbH | 95% - Herbalife International Luxembourg S.à R.L. | Y | ||
5% - Robert A. Landolt | ||||
HLF Colombia Ltda. | 50% - Herbalife Luxembourg Distribution, S.à R.L. | Y | ||
50% - HLF Luxembourg Distribution, S.à R.L. | ||||
HLF Luxembourg Distribution S.à R.L. | 100% - Herbalife International Luxembourg S.à R.L. | Y | ||
WHBL Luxembourg Holdings S.à R.L. | 100% - Herbalife International Luxembourg S.à R.L. | Y | ||
HBL Luxembourg Holdings S.à R.L. | 100% - WH Intermediate Holdings Ltd | Y | ||
Herbalife Bulgaria EOOD | 100% - Herbalife International Luxembourg, S.à R.L. | Y | ||
WHBL Luxembourg S.à R.L. | 100% -WH Luxembourg Holdings S.à R.L. | Y |
Foreign Obligor | Jurisdiction | Organizational ID | ||
Herbalife Ltd. | Cayman Islands | CR-116838 | ||
Herbalife International Luxembourg S.à.R.L | Luxembourg | B 88006 | ||
WH Intermediate Holdings Ltd. | Cayman Islands | CR-117890 | ||
WH Luxembourg Holdings S.à.R.L. | Luxembourg | B 88007 |
E = Equipment
E(S) = Equipment (specified items only)
FILE NO./ | COLLATERAL | |||||||
DEBTOR(S) | SECURED PARTY | FILE DATE | DE SOSSCRIPTION | NOTES | ||||
Herbalife International, Inc. | General Electric Capital Corporation 10 Riverview Drive Danbury, CT 06810 | Initial 2006021175-8 07/03/06 | E(S) | |||||
Herbalife International of America, Inc. | General Electric Capital Corporation 3031 North Rocky Point Drive West, Suite 400 Tampa, FL 33607 | Initial 2006016613-1 05/24/06 | E(S) | |||||
General Electric Capital Corporation 10 Riverview Drive Danbury, CT 06810 | Initial 2006021359-8 07/05/06 | E(S) | ||||||
Herbalife International of America, Inc. | Macrolease Corporation 1 W. Ames Court, Suite 101 Plainview, NY 11803 | Initial 2006041293-2 12/15/06 | E(S) | |||||
Sovereign Bank 3 Huntington Quadrangle, Melville NY, NY 11747 | Assignment 2007004759-7 02/14/07 | Change to secured party | ||||||
Sovereign Bank 3 Huntington Quadrangle, Melville NY, NY 11803 | Assignment 2007016830-3 05/24/07 | Change to secured party information | ||||||
Herbalife International of America, Inc. | General Electric Capital Corporation 3031 North Rocky Point Drive West, Suite 400 Tampa, FL 33607 | Initial 2006041567-3 12/19/06 | E | |||||
Amendment 2008000071-7 01/02/08 | E(S) | Restated collateral |
FILE NO./ | COLLATERAL | |||||||
DEBTOR(S) | SECURED PARTY | FILE DATE | DE SOSSCRIPTION | NOTES | ||||
Herbalife International of America, Inc. | Cisco Systems Capital Corporation 1111 old Eagle School Road Wayne, PA 19087 | Initial 2007011074-4 04/06/07 | E(S) | |||||
Herbalife International of America, Inc. | General Electric Capital Corporation 3031 North Rocky Point Drive West, Suite 400 Tampa, FL 33607 | Initial 2007012552-9 04/20/07 | E | |||||
Amendment 2007042203-6 12/26/07 | E(S) | Restated collateral | ||||||
Herbalife International of America, Inc. | General Electric Capital Corporation 3031 North Rocky Point Drive West, Suite 400 Tampa, FL 33607 | Initial 2007031156-2 09/21/07 | E | |||||
Amendment 2008033677-0 11/03/08 | E(S) | Restated collateral | ||||||
Herbalife International of America, Inc. | General Electric Capital Corporation 3031 North Rocky Point Drive West, Suite 400 Tampa, FL 33607 | Initial 2007039017-6 11/26/07 | E(S) | |||||
Herbalife International of America, Inc. | General Electric Capital Corporation 3031 North Rocky Point Drive West, Suite 400 Tampa, FL 33607 | Initial 2007042616-1 12/28/07 | E(S) | |||||
Herbalife International of America, Inc. | Bank of the West 201 N. Civic Drive, Suite 360B Walnut Creek, CA 94595 | Initial 2008001572-0 01/15/08 | E(S) | |||||
Amendment 2009028984-6 12/02/09 | Disclaimer of security interest |
FILE NO./ | COLLATERAL | |||||||
DEBTOR(S) | SECURED PARTY | FILE DATE | DE SOSSCRIPTION | NOTES | ||||
Herbalife International of America, Inc. | Xerox Corporation 1301 Ridgeview Bldg 300 Lewisville, TX 75057 | Initial 2009016342-2 07/01/09 | E(S) | |||||
Herbalife International of America, Inc. | Banc of America Leasing & Capital, LLC 2059 Northlake Parkway, 3 North Tucker, GA 30084 | Initial 2009028989-6 12/02/09 | E(S) | |||||
Herbalife International of America, Inc. | Cisco Systems Capital Corporation 170 W. Tasman Drive MS SJ13-3 San Jose, CA 95134 | Initial 2010030654-4 12/07/10 | E(S) |
1. | Herbalife Australasia Pty Ltd office lease. Cash collateral for Bank Guarantee Facility with National Australia Bank Limited for A$308,000. |
2. | Herbalife Korea Co., Ltd. DSMAC guarantees. Cash collateral for bank guarantees with Kookmin and Shinhan Bank totaling KRW 7,400,000,000. |
3. | Herbalife Vietnam SMLLC direct selling license. Escrow Deposit based on Government decree 110/2005/ND totaling VND 1,000,000,000. |
4. | Herbalife (China) Health Products Ltd direct selling license. Escrow deposit totaling $2,500,000. |
5. | Herbalife of Japan K.K. customs duty guarantee to expedite clearing customs for JPY 20,000,000. |
6. | Herbalife International Do Brasil Ltda cash collateral of R$306,183.48 with court as guarantee for pending lawsuit; and pledge of inventory totaling R$190,883.81 with government authorities as guarantee for pending tax litigation. | |
7. | Herbalife International Argentina, S.A. office lease deposit of AR$133,000. | |
8. | Herbalife Norway Products AS office lease deposit of NOK 370,700. | |
9. | Herbalife (UK) Ltd cash collateral of ISK 8,383,263 as guarantee for Iceland customs. |
10. | Herbalife International (Netherlands) B.V. office lease deposit for€65,000. |
11. | Herbalife International España, S.A. office lease deposit for€160,080. |
12. | Herbalife Peru S.R.L. office and warehouse lease deposits totaling $73,897. |
13. | Herbalife International Deutschland GmbH office lease deposit for€200,000. |
14. | Liens in respect of the Company’s previous credit facilities, which facilities have been terminated and which indebtedness has been repaid, for which the Company is using commercially reasonable efforts to file the documents necessary to have such liens released in the relevant foreign jurisdictions. |
Lessee | Lessor | Items Leased | Outstanding | |||||
Herbalife International of America, Inc. | GE Capital | office furniture | 1,745,779 | |||||
Banc of America | office furniture | 912,283 | ||||||
Cisco | routers & equipment | 239,760 | ||||||
2,897,822 | ||||||||
Herbalife Manufacturing LLC | Tennant Company | power scrubbers | 19,997 | |||||
19,997 | ||||||||
Total | 2,917,819 |
Korea: | Outstanding guarantees with Massachusetts & Colorado (Direct Sales Mutual Aid Coop) Amounts: KRW 2,200,000,000 Details: Bank guarantees on behalf of Herbalife Korea for payments of returned goods and related cost paid by Massachusetts & Colorado. to end users. | |
Spain: | Outstanding letter of credit in favor of the Spanish tax authority Amounts: Euro 1,971,694.30 Details: Guarantee in favor of the Spanish tax authority for ongoing litigation over a 2003-2004 tax assessment. | |
Luxembourg: | HLF Luxembourg Holdings S.à R.L. bank guarantee for Dutch Post for€150,000. | |
Portugal: | Herbalife International, S.A. bank guarantee for€4,936 for electric company. |
Entity | Taxpayer Id# | |||
Herbalife International, Inc., a Nevada corporation | 22-2695420 | |||
Herbalife International of America, Inc., a Nevada corporation | 95-3954565 | |||
Herbalife International Communications, Inc., a California corporation | 95-4520868 | |||
Herbalife International Do Brasil Ltda, a corporation dually organized in Brazil and Delaware | 52-1951822 | |||
Herbalife Korea Co., Ltd., a corporation dually organized in the Republic of Korea and Delaware | 98-0165848 | |||
Herbalife Taiwan, Inc., a California corporation | 95-4534645 |
Phone: 925.675.8448
Fax: 888.969.2285
Electronic Mail:rosiland.meshack@baml.com
New York, NY
ABA #: 026-009-593
Account #: 3750836479
Attn: Credit Services West
Ref: Herbalife International Inc
1 Fleet Way
Mail Code: PA6-580-02-30
Scranton, PA 18507
Attention: Mary J. Cooper
Telephone: 570.330.4235
Telecopier: 570.330.4186
Electronic Mail:mary.j.cooper@baml.com
ABA #: 026-009-593 New York, NY
Account #: 04535-883980
Attn: Scranton Standby
Ref: Herbalife International Inc & LC #
Mail Code: NC1-002-15-36
101 S Tryon St, 15th Fl
Charlotte NC 28255-0001
Attention: Darleen R Parmelee
Telephone: 980.388.5001
Telecopier: 704.409.0645
Electronic Mail:darleen.r.parmelee@baml.com
To: | Bank of America, N.A., as Administrative Agent |
o A Borrowing of Committed Loans | o A conversion or continuation of Loans |
A-1
[HERBALIFE INTERNATIONAL, INC.] [HERBALIFE LTD.] [HERBALIFE INTERNATIONAL LUXEMBOURG S.Á.R.L.] | ||||
By: | ||||
Name: | ||||
Title: |
A-2
To: | Bank of America, N.A., as Swing Line Lender Bank of America, N.A., as Administrative Agent |
1. | On (a Business Day). | ||
2. | In the amount of $ . |
HERBALIFE INTERNATIONAL, INC. | ||||
By: | ||||
Name: | ||||
Title: |
B-1
C-1
[HERBALIFE INTERNATIONAL, INC.] [HERBALIFE LTD.] [HERBALIFE INTERNATIONAL LUXEMBOURG S.Á.R.L.] OR [APPLICABLE DESIGNATED BORROWER] | ||||
By: | ||||
Name: | ||||
Title: |
C-2
Currency | Amount of | |||||||||||
and | Principal | Outstanding | ||||||||||
Type of | Amount of | End of | or Interest | Principal | ||||||||
Loan | Loan | Interest | Paid This | Balance | Notation | |||||||
Date | Made | Made | Period | Date | This Date | Made By | ||||||
C-3
To: | Bank of America, N.A., as Administrative Agent |
1 | Chief executive officer, chief financial officer, treasurer or controller. |
D-1
HERBALIFE LTD. | ||||
By: | ||||
Name: | ||||
Title: |
D-2
to the Compliance Certificate
($ in 000’s)
I. Section 7.11 (a) — Consolidated Interest Coverage Ratio. | ||||
A. Consolidated EBITDA for four consecutive fiscal quarters ending on above date (“Subject Period”): | ||||
1. Consolidated Net Income for Subject Period: | $ | |||
2. Consolidated Interest Expense for Subject Period: | $ | |||
3. Provision for income taxes for Subject Period: | $ | |||
4. Depreciation for Subject Period: | $ | |||
5. Amortization expenses for Subject Period (including amortization of deferred fees and the accretion of original issue discount): | $ | |||
6. All other noncash items subtracted in determining Consolidated Net Income (including any noncash charges and noncash equity based compensation expenses related to any grant of stock, stock options or other equity-based awards (including, without limitation, restricted stock units or stock appreciation rights) of Holdings or any of its Subsidiaries recorded under GAAP, noncash charges related to warrants or other derivative instruments classified as equity instruments that will result in equity settlements and not cash settlements, and noncash losses or charges related to impairment of goodwill and other intangible assets and excluding any noncash charge that results in an accrual of a reserve for cash charges in any future period) for Subject period: | $ | |||
D-3
7. Nonrecurring expenses and charges for Subject Period: | $ | |||
8. Fees and expenses incurred in connection with the incurrence, prepayment, amendment, or refinancing of Indebtedness (including in connection with (i) the negotiation and documentation of the Agreement and the other Loan Documents and any amendments or waivers thereof and (ii) the on-going compliance with the Agreement and the other Loan Documents) for Subject Period: | $ | |||
9. aggregate amount of all noncash items, determined on a consolidated basis for Subject Period, to the extent such items were added in determining Consolidated Net Income: | $ | |||
10. Consolidated EBITDA (Lines I.A.1 + 2 + 3 + 4 + 5 + 6 + 7 + 8 — 9): | $ | |||
B. Consolidated Interest Expense for Subject Period: | $ | |||
C. Consolidated Interest Coverage Ratio (Line I.A.10 ÷ Line I.B): | to 1 | |||
Minimum required: 4.00 to 1 | ||||
II. Section 7.11 (b) — Consolidated Total Leverage Ratio. | ||||
A. Consolidated Indebtedness of Holdings at Statement Date: | $ | |||
B. Consolidated EBITDA for Subject Period (Line I.A.10 above): | $ | |||
C. Consolidated Leverage Ratio (Line III.A ÷ Line III.B): | to 1 | |||
Maximum permitted: 2.50 to 1 |
D-4
2 | For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language. | |
3 | For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language. | |
4 | Select as appropriate. | |
5 | Include bracketed language if there are either multiple Assignors or multiple Assignees. |
E-1-1
1. | Assignor[s]: | |||||
2. | Assignee[s]: | |||||
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] | ||
3. | Borrowers: Herbalife International, Inc., Herbalife Ltd. And Herbalife International Luxembourg S.á.r.l. | |
4. | Administrative Agent: Bank of America, N.A., as the administrative agent under the Credit Agreement | |
5. | Credit Agreement: Credit Agreement, dated as of March 9, 2011, among the Borrowers, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer, and Swing Line Lender | |
6. | Assigned Interest[s]: |
Aggregate | |||||||||||||
Amount of | Amount of | Percentage | |||||||||||
Commitment for | Commitment | Assigned of | |||||||||||
Assignor[s]6 | Assignee[s]7 | all Lenders8 | Assigned | Commitment9 | CUSIP Number | ||||||||
$ | $ | % | |||||||||||
$ | $ | % | |||||||||||
$ | $ | % |
[7. | Trade Date: | ]10 |
6 | List each Assignor, as appropriate. | |
7 | List each Assignee, as appropriate. | |
8 | Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date. | |
9 | Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder. | |
10 | To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date. |
E-1-2
ASSIGNOR [NAME OF ASSIGNOR] | ||||
By: | ||||
Title: |
ASSIGNEE [NAME OF ASSIGNEE] | ||||
By: | ||||
Title: |
[Consented to and] 11 Accepted: | ||||
BANK OF AMERICA, N.A., as | ||||
Administrative Agent | ||||
By: | ||||
Consented to: | ||||
BANK OF AMERICA, N.A., as | ||||
L/C Issuer and as Swing Line Lender | ||||
By: | ||||
11 | To be added only if the consent of the Administrative Agent is required by Section 10.06(b)(iii) of the Credit Agreement. |
E-1-3
[Consented to: 12 | ||||
HERBALIFE LTD., as Holdings | ||||
By: | ||||
HERBALIFE INTERNATIONAL, INC., as the Company | ||||
By: | ||||
HERBALIFE INTERNATIONAL LUXEMBOURG S.Á.R.L., as a Borrower | ||||
By: | ||||
12 | To be added only if the consent of the Borrowers is required by Section 10.06(b)(iii) of the Credit Agreement. |
E-1-4
ASSIGNMENT AND ASSUMPTION
E-1-5
E-1-6
E-2-1
• | Signing Credit Agreement o YES o NO | ||
• | Coming in via Assignment o YES o NO |
III. Type of Lender: | ||
IV. Domestic Address: | V. Eurodollar Address: | |
Primary | Secondary | |||||||||||
Credit Contact | Operations Contact | Operations Contact | ||||||||||
Name: | ||||||||||||
Title: | ||||||||||||
Address: | ||||||||||||
Telephone: | ||||||||||||
Facsimile: | ||||||||||||
E Mail Address: | ||||||||||||
IntraLinks E Mail Address: | ||||||||||||
![]() | 12/2007 |
1
Letter of Credit | Draft Documentation | |||||||||||
Contact | Contact | Legal Counsel | ||||||||||
Name: | ||||||||||||
Title: | ||||||||||||
Address: | ||||||||||||
Telephone: | ||||||||||||
Facsimile: | ||||||||||||
E Mail Address: | ||||||||||||
US DOLLAR | ||||||||||
Pay to: | ||||
(Bank Name) | ||||
(SWIFT) | (Country) | |||
(Account #) | (Account Name) | |||
(FFC Account #) | (FFC Account Name) | |||
(Attention) |
Pay to: | ||||
(Bank Name) | ||||
(SWIFT) | (Country) | |||
(Account #) | (Account Name) | |||
(FFC Account #) | (FFC Account Name) | |||
(Attention) |
![]() | 12/2007 |
2
Pay to: | ||||
(Bank Name) | ||||
(SWIFT) | (Country) | |||
(Account #) | (Account Name) | |||
(FFC Account #) | (FFC Account Name) | |||
(Attention) |
Pay to: | ||||
(Bank Name) | ||||
(SWIFT) | (Country) | |||
(Account #) | (Account Name) | |||
(FFC Account #) | (FFC Account Name) | |||
(Attention) |
Pay to: | ||||
(ABA #) | ||||
(Account #) | ||||
(Attention) |
Pay to: | ||||
(Bank Name) | ||||
(ABA#) | (City/State) | |||
(Account #) | (Account Name) | |||
(Attention) |
![]() | 12/2007 |
3
Tax Contact | ||||
Name: | ||||
Title: | ||||
Address: | ||||
Telephone: | ||||
Facsimile: | ||||
E Mail Address: | ||||
![]() | 12/2007 |
4
* | Additional guidance and instructions as to where to submit this documentation can be found at this link: |
![(WORD LOGO)](https://capedge.com/proxy/10-Q/0000950123-11-043005/c14607c1460702.gif)
Tax Form Tool Kit
(2006) (2).doc
Pay to: | Bank of America, N.A. | |
ABA # 026009593 | ||
New York, NY | ||
Acct. # 3750836479 | ||
Attn: Credit Services #5596 | ||
Ref: Herbalife International, Inc. |
![]() | 12/2007 |
5
F-1
THE SUBSIDIARY GUARANTORS PARTY HERETO,
as Pledgors
as Collateral Agent
Clause | Page | |||
ARTICLE I Definitions and Interpretation; Perfection Certificate | 2 | |||
SECTION 1.01. Definitions | 2 | |||
SECTION 1.02. Interpretation | 8 | |||
SECTION 1.03. Perfection Certificate | 8 | |||
ARTICLE II Grant of Security and Secured Obligations | 8 | |||
SECTION 2.01. Pledge | 8 | |||
SECTION 2.02. Certain Limited Exclusions | 9 | |||
SECTION 2.03. Secured Obligations; Continuing Liability | 10 | |||
ARTICLE III Perfection; Supplements; Further Assurances; Use of Security Agreement Collateral | 10 | |||
SECTION 3.01. Delivery of Certificated Pledged Equity Interests | 10 | |||
SECTION 3.02. Perfection of Uncertificated Pledged Equity Interests | 11 | |||
SECTION 3.03. Financing Statements and Other Filings | 11 | |||
SECTION 3.04. Other Actions | 11 | |||
SECTION 3.05. Supplements; Further Assurances | 12 | |||
ARTICLE IV Representations, Warranties and Covenants | 13 | |||
SECTION 4.01. Title | 13 | |||
SECTION 4.02. Organization; Authority; Enforceability | 13 | |||
SECTION 4.03. Authorizations and Approvals | 14 | |||
SECTION 4.04. Reserved | 14 | |||
SECTION 4.05. Limitation on Liens | 14 | |||
SECTION 4.06. Other Financing Statements | 14 | |||
SECTION 4.07. Chief Executive Office; Change of Name; Jurisdiction of Organization | 14 | |||
SECTION 4.08. Certain Provisions Concerning Securities Collateral | 15 | |||
SECTION 4.09. Certain Provisions Concerning Intellectual Property | 17 | |||
SECTION 4.10. Inspection and Verification | 19 | |||
SECTION 4.11. Payment of Taxes; Contesting Liens; Claims | 19 | |||
SECTION 4.12. Transfers and Other Liens | 19 |
i
Clause | Page | |||
ARTICLE V Remedies | 19 | |||
SECTION 5.01. Remedies | 19 | |||
SECTION 5.02. Notice of Sale | 21 | |||
SECTION 5.03. Waiver of Notice and Claims | 22 | |||
SECTION 5.04. Certain Sales of Security Agreement Collateral | 22 | |||
SECTION 5.05. No Waiver; Cumulative Remedies | 22 | |||
ARTICLE VI Obligations Absolute; Waivers | 23 | |||
SECTION 6.01. Liability of the Pledgors Absolute | 23 | |||
SECTION 6.02. General Waivers | 25 | |||
SECTION 6.03. California Waivers | 25 | |||
ARTICLE VII Miscellaneous | 26 | |||
SECTION 7.01. Concerning Collateral Agent | 26 | |||
SECTION 7.02. Collateral Agent May Perform; Collateral Agent Appointed Attorney-in-Fact | 27 | |||
SECTION 7.03. Expenses | 27 | |||
SECTION 7.04. Indemnity | �� | 28 | ||
SECTION 7.05. Continuing Security Interest; Assignment | 28 | |||
SECTION 7.06. Termination; Release | 29 | |||
SECTION 7.07. Modification in Writing | 29 | |||
SECTION 7.08. Notices | 29 | |||
SECTION 7.09. Governing Law; Jurisdiction; Consent to Service of Process | 29 | |||
SECTION 7.10. WAIVER OF JURY TRIAL | 30 | |||
SECTION 7.11. Severability of Provisions | 30 | |||
SECTION 7.12. Execution in Counterparts | 31 | |||
SECTION 7.13. Business Days | 31 | |||
SECTION 7.14. No Credit for Payment of Taxes or Imposition | 31 | |||
SECTION 7.15. No Claims Against Collateral Agent | 31 | |||
SECTION 7.16. No Release Under Agreements; No Liability of Collateral Agent or Secured Parties | 31 | |||
SECTION 7.17. Obligations Absolute | 32 | |||
SECTION 7.18. Marshaling; Payments Set Aside | 32 | |||
SECTION 7.19. Release of Pledgors | 32 |
ii
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3
4
5
6
7
8
9
SECURITY AGREEMENT COLLATERAL
10
11
12
13
14
15
16
17
18
19
20
21
22
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HERBALIFE INTERNATIONAL, INC., a Nevada corporation, as a Pledgor | ||||
By: | ||||
Name: | ||||
Title: |
HERBALIFE INTERNATIONAL OF AMERICA, INC., a Nevada corporation, as a Pledgor | ||||
By: | ||||
Name: | ||||
Title: |
HERBALIFE INTERNATIONAL COMMUNICATIONS, INC., a California corporation, as a Pledgor | ||||
By: | ||||
Name: | ||||
Title: |
HERBALIFE TAIWAN, INC., a California corporation, as a Pledgor | ||||
By: | ||||
Name: | ||||
Title: |
HERBALIFE INTERNATIONAL DO BRASIL, LTDA., a corporation dually organized in Brazil and Delaware, as a Pledgor | ||||
By: | ||||
Name: | ||||
Title: |
HERBALIFE KOREA CO., LTD., a corporation dually organized in Korea and Delaware, as a Pledgor | ||||
By: | ||||
Name: | ||||
Title: |
BANK OF AMERICA, N.A., as Collateral Agent | ||||
By: | ||||
Name: | ||||
Title: |
BANK OF AMERICA, N.A., as Administrative Agent | ||||
By: | ||||
Name: | ||||
Title: |
G-1
2
3
4
5
6
7
HERBALIFE INTERNATIONAL, INC. | ||||
By: | ||||
Name: | ||||
Title: |
Address: | ||||
8
2
3
4
5
6
7
HERBALIFE LTD. | ||||
By: | ||||
Name: | ||||
Title: |
Address: | ||||
8
2
3
4
5
6
7
8
HERBALIFE INTERNATIONAL LUXEMBOURG S.Á.R.L. | ||||
By: | ||||
Name: | ||||
Title: |
Address: | ||||
9
2
3
4
5
6
7
HERBALIFE INTERNATIONAL OF AMERICA, INC. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Address: | ||||||||
HERBALIFE INTERNATIONAL COMMUNICATIONS, INC. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Address: | ||||||||
HERBALIFE INTERNATIONAL DO BRASIL LTDA | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Address: | ||||||||
HERBALIFE KOREA CO., LTD. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Address: | ||||||||
8
HERBALIFE TAIWAN, INC. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Address: | ||||||||
9
2
3
4
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8
WH INTERMEDIATE HOLDINGS LTD. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Address: | ||||||||
WH LUXEMBOURG HOLDINGS S.Á.R.L. | ||||||||
By: | ||||||||
Name: | ||||||||
Title: | ||||||||
Address: | ||||||||
9
Identification Number | Jurisdiction of Organization | |
H-1
H-2
[DESIGNATED BORROWER] | ||||||||
By: | ||||||||
Title: | ||||||||
HERBALIFE LTD., as a Borrower | ||||||||
By: | ||||||||
Title: | ||||||||
HERBALIFE INTERNATIONAL, INC., as a Borrower | ||||||||
By: | ||||||||
Title: | ||||||||
HERBALIFE INTERNATIONAL LUXEMBOURG S.Á.R.L., as a Borrower | ||||||||
By: | ||||||||
Title: | ||||||||
H-3
To: | Herbalife International, Inc., Herbalife Ltd. and Herbalife International Luxembourg S.á.r.l. |
BANK OF AMERICA, N.A., as Administrative Agent | ||||||||
By: | ||||||||
Title: | ||||||||
I-1
[To be attached.]
[To be attached.]
[To be attached.]
J-1
and the Agent party to the
Credit Agreement referred to below
(collectively, the “Lender Parties”)
c/o Bank of America, N.A.
as Agent
Re: | Herbalife International, Inc. — Credit Agreement | |
dated as of March 9, 2011 |
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 2
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 3
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 4
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 5
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 6
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 7
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 8
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 9
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 10
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 11
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 12
c/o Bank of America, N.A.,
as Agent
March 9, 2011
Page 13
I-1
Collateral Grantor | Perfection State | Filing Office | ||
Herbalife International Communications, Inc. | California | Secretary of State | ||
Herbalife International Do Brasil Ltda | Delaware | Secretary of State | ||
Herbalife Korea Co., Ltd. | Delaware | Secretary of State | ||
Herbalife Taiwan, Inc. | California | Secretary of State |
Issuer | Owner | Shares | Cert. No. | |||||||
Herbalife Australasia Pty, Ltd. | Herbalife International Inc. | 6,500 | 22 | |||||||
Herbalife of Canada, Ltd. | Herbalife International, Inc. | 65 | 9 | |||||||
Herbalife International of Hong Kong Limited | Herbalife International, Inc. | 65 | 000007 | |||||||
Herbalife International of Hong Kong Limited | Herbalife International of America, Inc. | 1 | 6 | |||||||
Herbalife Internacional de Mexico, S.A. de C.V. | Herbalife International, Inc. | 3,250 | 1 | |||||||
Herbalife Internacional de Mexico, S.A. de C.V. | Herbalife International, Inc. | 1,749 | 1 | |||||||
Herbalife Internacional de Mexico, S.A. de C.V. | Herbalife International, Inc. | 1,749 | 02 | |||||||
Herbalife Internacional de Mexico, S.A. de C.V. | Herbalife International, Inc. | 1 | 03 | |||||||
Herbalife Products de Mexico, S.A. de C.V. | Herbalife International, Inc. | 6,435 | 1 | |||||||
Herbalife Products de Mexico, S.A. de C.V. | Herbalife International, Inc. | 3,465 | 02 | |||||||
Herbalife Products de Mexico, S.A. de C.V. | Herbalife International of America, Inc. | 100 | 3 | |||||||
Herbalife International Philippines, Inc. | Herbalife International, Inc. | 3,981,251 | 005 | |||||||
Herbalife International Philippines, Inc. | Herbalife International, Inc. | 568,749 | 013 | |||||||
HBL Products SA | Herbalife International, Inc., | 33 | 1 | |||||||
HBL Products SA | Herbalife International of America, Inc. | 32 | 3 | |||||||
Herbalife (U.K.) Limited | Herbalife International Inc. | 9,999 | 7 | |||||||
Herbalife (U.K.) Limited | Herbalife International Inc. | 1 | 9 | |||||||
Herbalife International Urunleri Ticaret Limited Sirketi | Herbalife International, Inc. | 4,100 | 1 | |||||||
Herbalife International Urunleri Ticaret Limited Sirketi | Herbalife International of America, Inc. | 4,100 | 2 | |||||||
Herbalife Sweden Aktiebolag | Herbalife International Inc. | 500 | None | |||||||
Herbalife Sweden Aktiebolag | Herbalife International Inc. | 150 | None | |||||||
Herbalife International Argentina S.A. | Herbalife International Inc. | 7,800 | 3 | |||||||
Herbalife Foreign Sales Corporation | Herbalife International Inc. | 650 | 2 | |||||||
Herbalife International India Private Limited | Herbalife International Inc. | 2651107 | 08 | |||||||
Herbalife International Russia 1995 Ltd. | Herbalife International Inc. | 65 | 3 | |||||||
Herbalife of Japan K.K. | Herbalife International Inc. | 50 | 1A-001 | |||||||
Herbalife (NZ) Limited | Herbalife International Inc. | 6667 | 6 | |||||||
Herbalife International Products N.V. | Herbalife International Inc. | 6,000 | 1 | |||||||
Herbalife International Argentina S.A. | Herbalife International of America, Inc. | 1.2 | 6 | |||||||
Herbalife Dominicana, S.A. | Herbalife International, Inc. | 61 | 1 | |||||||
Herbalife Dominicana, S.A. | Herbalife International, Inc. | 34 | 2 | |||||||
Herbalife Dominicana, S.A. | Herbalife International, Inc. | 1 | 3 | |||||||
Herbalife Dominicana, S.A. | Herbalife International, Inc. | 1 | 4 |
Issuer | Owner | Shares | Cert. No. | |||||||
Herbalife Dominicana, S.A. | Herbalife International, Inc. | 1 | 5 | |||||||
Herbalife Dominicana, S.A. | Herbalife International, Inc. | 1 | 6 | |||||||
Herbalife Dominicana, S.A. | Herbalife International, Inc. | 1 | 7 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 5000 | 1 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 1 | 000001 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 1 | 000002 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 1 | 000003 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000011 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000012 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000013 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000014 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000015 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000016 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000017 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000018 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 10 | 000019 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000101 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000102 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000103 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000104 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000105 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000106 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000107 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000108 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 100 | 000109 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 1000 | 001001 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 1000 | 001002 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 1000 | 001003 | |||||||
Herbalife International of America, Inc. | Herbalife International, Inc. | 1,171,278 | 2 | |||||||
Herbal International Communications, Inc. | Herbalife International, Inc. | 100 | 1 | |||||||
Herbalife International Distribution, Inc. | Herbalife International, Inc. | 100 | 1 | |||||||
Herbalife International of Europe, Inc. | Herbalife International, Inc. | 100 | 3 | |||||||
Herbalife Taiwan, Inc. | Herbalife International, Inc. | 100 | 1 | |||||||
Herbalife International (Thailand), Ltd. | Herbalife International, Inc. | 100 | 1 | |||||||
Herbalife International do Brasil Ltda. (Delaware) | Herbalife International of America, Inc. | 1 | 2 | |||||||
Herbalife International do Brasil Ltda. (Delaware) | Herbalife International, Inc. | 4,999 | 1 | |||||||
Herbalife International do Brasil Ltda. (Delaware) | Herbalife International, Inc. | 95,000 | 3 | |||||||
Promotions One, Inc. | Herbalife International, Inc. | 1,000 | 4 | |||||||
Herbalife International de Colombia, Inc. | Herbalife International, Inc. | 100 | 1 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 30,000 | 2 | |||||||
Herbalife International South Africa, Ltd. | Herbalife International, Inc. | 100 | 1 | |||||||
Herbalife International of South Africa, Inc. | Herbalife International, Inc. | 100 | 1 | |||||||
Herbalife Korea Co., Ltd. | Herbalife International, Inc. | 5,000 | 1 |
1 | Documents Reviewed |
1.1 | The Certificate of Incorporation and Memorandum and Articles of Association of the Company as registered or adopted on 1 December 2004. |
1.2 | The minutes of the meeting of the Board of Directors of the Company held on 18 February 2011 (the “Minutes”) and the corporate records of the Company maintained at its registered office in the Cayman Islands. |
1.3 | A Certificate of Good Standing dated 1 March 2011 issued by the Registrar of Companies (the“Certificate of Good Standing”). |
1.4 | A certificate from the General Counsel and Secretary of the Company a copy of which is annexed hereto (the“Secretary’s Certificate”). |
1.5 | The Credit Agreement among the Company, Herbalife International, Inc. and Herbalife International Luxembourg S.a.r.l. as Borrowers, Bank of America, N.A. as Administrative Agent, Swing Line Lender and L/C Issuer and the other Lenders party thereto (the“Credit Agreement”). |
1.6 | The Note (as defined in the Credit Agreement) entered into by the Company. |
1.7 | The Holdings Guaranty (as defined in the Credit Agreement) entered into by the Company in favour of Bank of America, N.A. as Administrative Agent. |
PO Box 309 Ugland House Grand Cayman KY1-1104 Cayman Islands
Tel +1 345 949 8088 Fax +1 345 949 8080 www.maplesandcalder.com
2 | Assumptions |
2.1 | The Transaction Documents have been or will be authorised and duly executed and unconditionally delivered by or on behalf of all relevant parties in accordance with all relevant laws (other than, with respect to the Company, the laws of the Cayman Islands). |
2.2 | The Transaction Documents are, or will be, legal, valid, binding and enforceable against all relevant parties in accordance with their terms under New York law and all other relevant laws (other than, with respect to the Company, the laws of the Cayman Islands). |
2.3 | The choice of New York law as the governing law of the Transaction Documents has been made in good faith and would be regarded as a valid and binding selection which will be upheld by the courts of New York and any other relevant jurisdiction (other than the Cayman Islands) as a matter of New York law and all other relevant laws (other than the laws of the Cayman Islands). |
2.4 | Copy documents, conformed copies or drafts of documents provided to us are true and complete copies of, or in the final forms of, the original documents. |
2.5 | All signatures, initials and seals are genuine. |
2.6 | The final execution version of each Transaction Document that is governed by the laws of the Cayman Islands and that has been, or is to be, executed as a deed existed, or will exist, at the moment of execution as a single physical document (whether in counterpart or not) including the entire body of each such document, the signature pages and any annexes and/or schedules thereto. |
2.7 | The power, authority and legal right of all parties under all relevant laws and regulations (other than, with respect to the Company, the laws of the Cayman Islands) to enter into, execute, unconditionally deliver and perform their respective obligations under the Transaction Documents. |
2.8 | There is nothing under any law (other than the law of the Cayman Islands) which would or might affect the opinions hereinafter appearing. Specifically, we have made no independent investigation of the laws of New York. |
3 | Opinions |
3.1 | The Company has been duly incorporated as an exempted company with limited liability and is validly existing and in good standing under the laws of the Cayman Islands. |
3.2 | The Company has full power and authority under its Memorandum and Articles of Association to enter into, execute, deliver and perform its obligations under the Transaction Documents. |
2
3.3 | The execution and delivery of the Transaction Documents and the performance by the Company of its obligations thereunder do not conflict with or result in a breach of any of the terms or provisions of the Memorandum and Articles of Association of the Company or any law, public rule or regulation applicable to the Company in the Cayman Islands currently in force. |
3.4 | The execution, delivery and performance of the Transaction Documents have been authorised by and on behalf of the Company and, assuming the Transaction Documents have been executed and unconditionally delivered by a Director or Officer of the Company, the Transaction Documents have been duly executed and delivered on behalf of the Company and constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms. |
3.5 | No authorisations, consents, approvals, licences, validations or exemptions are required by law from any governmental authorities or agencies or other official bodies in the Cayman Islands in connection with: |
(a) | the creation, execution or delivery of the Transaction Documents by the Company; |
(b) | subject to the payment of the appropriate stamp duty, enforcement or admissibility in evidence of the Transaction Documents against the Company; or |
(c) | the performance by the Company of its obligations under any of the Transaction Documents. |
3.6 | No taxes, fees or charges (other than stamp duty) are payable (either by direct assessment or withholding) to the government or other taxing authority in the Cayman Islands under the laws of the Cayman Islands in respect of: |
(a) | the execution or delivery of the Transaction Documents; | ||
(b) | the enforcement of the Transaction Documents; or | ||
(c) | payments made under, or pursuant to, the Transaction Documents. |
3.7 | The courts of the Cayman Islands will observe and give effect to the choice of New York law as the governing law of the Transaction Documents. |
3.8 | Based solely on our search of the Register of Writs and Other Originating Process (the“Court Register”) maintained by the Clerk of the Court of the Grand Court of the Cayman Islands from the date of incorporation of the Company to 7 March 2011 (the“Litigation Search”),the Court Register disclosed no writ, originating summons, originating motion, petition, counterclaim nor third party notice (“Originating Process”) nor any amended Originating Process pending before the Grand Court of the Cayman Islands, in which the Company is a defendant or respondent. |
3
3.9 | Although there is no statutory enforcement in the Cayman Islands of judgments obtained in New York, a judgment obtained in such jurisdiction will be recognised and enforced in the courts of the Cayman Islands at common law, without any re-examination of the merits of the underlying dispute, by an action commenced on the foreign judgment debt in the Grand Court of the Cayman Islands, provided such judgment: |
(a) | is given by a foreign court of competent jurisdiction; |
(b) | imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment has been given; |
(c) | is final; |
(d) | is not in respect of taxes, a fine or a penalty; and |
(e) | was not obtained in a manner and is not of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands. |
3.10 | It is not necessary to ensure the legality, validity, enforceability or admissibility in evidence of the Transaction Documents that any document be filed, recorded or enrolled with any governmental authority or agency or any official body in the Cayman Islands. |
3.11 | The Company is not entitled to any immunity under the laws of the Cayman Islands whether characterised as sovereign immunity or otherwise for any legal proceedings in the Cayman Islands to enforce or to collect upon the Transaction Documents. |
3.12 | None of the parties to the Transaction Documents (other than the Company) is or will be treated as resident, domiciled or carrying on or transacting business in the Cayman Islands solely by reason of the negotiation, preparation or execution of the Transaction Documents. |
4 | Qualifications |
4.1 | The term“enforceable”as used above means that the obligations assumed by the Company under the Transaction Documents are of a type which the courts of the Cayman Islands will enforce. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms. In particular: |
(a) | enforcement may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts or moratorium or other laws of general application relating to or affecting the rights of creditors; |
(b) | enforcement may be limited by general principles of equity. For example, equitable remedies such as specific performance may not be available, inter alia, where damages are considered to be an adequate remedy; |
(c) | some claims may become barred under the statutes of limitation or may be or become subject to defences of set off, counterclaim, estoppel and similar defences; |
(d) | where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of that jurisdiction; |
4
(e) | the courts of the Cayman Islands have jurisdiction to give judgment in the currency of the relevant obligation and statutory rates of interest payable upon judgments will vary according to the currency of the judgment. If the Company becomes insolvent and is made subject to a liquidation proceeding, the courts of the Cayman Islands will require all debts to be proved in a common currency, which is likely to be the “functional currency” of the Company determined in accordance with applicable accounting principles. Currency indemnity provisions have not been tested, so far as we are aware, in the courts of the Cayman Islands; |
(f) | arrangements that constitute penalties will not be enforceable; |
(g) | the courts of the Cayman Islands may decline to exercise jurisdiction in relation to substantive proceedings brought under or in relation to the Transaction Documents in matters where they determine that such proceedings may be tried in a more appropriate forum; and |
(h) | we reserve our opinion as to the enforceability of the relevant provisions of the Transaction Documents to the extent that they purport to grant exclusive jurisdiction to the courts of a particular jurisdiction as there may be circumstances in which the courts of the Cayman Islands would accept jurisdiction notwithstanding such provisions. |
4.2 | Applicable court fees will be payable in respect of the enforcement of the Transaction Documents. |
4.3 | Cayman Islands stamp duty may be payable if the original Transaction Documents are brought to or executed in the Cayman Islands. |
4.4 | To maintain the Company in good standing under the laws of the Cayman Islands, annual filing fees must be paid and returns made to the Registrar of Companies. |
4.5 | The Company must make an entry in its Register of Mortgages and Charges in respect of all mortgages and charges created under the Transaction Documents in order to comply with section 54 of the Companies Law (2010 Revision) of the Cayman Islands; failure by the Company to comply with this requirement does not operate to invalidate any mortgage or charge though it may be in the interests of the secured parties that the Company should comply with the statutory requirements. |
4.6 | The obligations of the Company may be subject to restrictions pursuant to United Nations sanctions as implemented under the laws of the Cayman Islands. |
4.7 | A certificate, determination, calculation or designation of any party to the Transaction Documents as to any matter provided therein might be held by a Cayman Islands court not to be conclusive final and binding if, for example, it could be shown to have an unreasonable or arbitrary basis, or in the event of manifest error. |
4.8 | The Litigation Search of the Court Register would not reveal, amongst other things, an Originating Process filed with the Grand Court which, pursuant to the Grand Court Rules or best practice of the Clerk of the Courts’ office, should have been entered in the Court Register but was not in fact entered in the Court Register (properly or at all). |
5
4.9 | In principle the courts of the Cayman Islands will award costs and disbursements in litigation in accordance with the relevant contractual provisions but there remains some uncertainty as to the way in which the rules of the Grand Court will be applied in practice. Whilst it is clear that costs incurred prior to judgment can be recovered in accordance with the contract, it is likely that post-judgment costs (to the extent recoverable at all) will be subject to taxation in accordance with Grand Court Rules Order 62. |
4.10 | We reserve our opinion as to the extent to which the courts of the Cayman Islands would, in the event of any relevant illegality, sever the offending provisions and enforce the remainder of the transaction of which such provisions form a part, notwithstanding any express provisions in this regard. |
4.11 | We make no comment with regard to the references to foreign statutes in the Transaction Documents. |
6
PO Box 309, Ugland House
Grand Cayman
KY1-1104
Cayman Islands
To: | Maples and Calder PO Box 309, Ugland House Grand Cayman KY1-1104 Cayman Islands |
1 | The Memorandum and Articles of Association of the Company as adopted or registered on 1 December 2004 remain in full force and effect and are unamended. |
2 | The Company has not entered into any mortgages or charges over its property or assets other than those entered in the register of mortgages and charges, or contemplated by the Transaction Documents. |
3 | The Minutes of the meeting of the board of directors held on February 18, 2011 (the“Meeting”) at which the Transaction Documents were approved are a true and correct record of the proceedings of the Meeting, which was duly convened and held, and at which a quorum was present throughout and at which each director disclosed his interest (if any), in the manner prescribed in the Articles of Association. |
4 | The shareholders of the Company have not restricted or limited the powers of the directors in any way. There is no contractual or other prohibition (other than as arising under Cayman Islands law) binding on the Company prohibiting it from entering into and performing its obligations under the Transaction Documents. |
5 | The resolutions set forth in the Minutes were duly adopted, are in full force and effect at the date hereof and have not been amended, varied or revoked in any respect. |
6 | The directors of the Company at the date of the Meeting and at the date hereof were and are as follows: |
Leroy Barnes, Jr.
Richard Bermingham
Pedro Cardoso
Jeffrey Dunn
Murray Dashe
Lawrence Higby
Colombe Nicholas
John Tartol
7 | You have been provided with complete and accurate copies of all minutes of meetings or written resolutions or consents of the shareholders and directors (or any committee thereof) of the Company (which were duly convened, passed and/or (as the case may be) signed and delivered in accordance with the Articles of Association of the Company) and the Certificate of Incorporation, Memorandum and Articles of Association (as adopted on incorporation and as subsequently amended) and statutory registers of the Company. |
8 | Prior to, at the time of, and immediately following the execution of the Transaction Documents the Company was, or will be, able to pay its debts as they fell, or fall, due and has entered, or will enter, into the Transaction Documents for proper value and not with an intention to defraud or wilfully defeat an obligation owed to any creditor or with a view to giving a creditor a preference. |
9 | Each director considers the transactions contemplated by the Transaction Documents to be of commercial benefit to the Company and has acted bona fide in the best interests of the Company, and for a proper purpose of the Company, in relation to the transactions which are the subject of the Opinion. |
10 | To the best of my knowledge and belief, having made due inquiry, the Company is not the subject of legal, arbitral, administrative or other proceedings in any jurisdiction. Nor have the directors or shareholders taken any steps to have the Company struck off or placed in liquidation, nor have any steps been taken to wind up the Company. Nor has any receiver been appointed over any of the Company’s property or assets. |
11 | The Company is not a central bank, monetary authority or other sovereign entity of any state and is not a subsidiary, direct or indirect, of any sovereign entity or state. |
2
Signature: | |||
3
![(ARENDT LOGO)](https://capedge.com/proxy/10-Q/0000950123-11-043005/c14607c1460703.gif)
Agent under the Credit Agreement (as
defined in Appendix A) and the Lenders
46011-4973840v5
WH Luxembourg Holdings S.à r.l.
(a) | We express no opinion (i) on public international law or on the rules of or promulgated under any treaty or by any treaty organisation or on any taxation laws of any jurisdiction (including Luxembourg), except as specifically set out herein, if applicable, (ii) that the future or continued performance of a party’s obligations or the consummation of the transaction contemplated by the Contractual Documents will not contravene Luxembourg Law, its application or interpretation in each case to the extent that such laws, their application or interpretation, are altered in the future, and (iii) with regard to the effect of any systems of law (other than Luxembourg Law) even in cases where, under Luxembourg Law, any foreign law should be applied, and we therefore assume that any applicable law (other than Luxembourg Law) would not affect or qualify the opinions as set out below. |
1
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(b) | We express no opinion as to the correctness of any representation or warranty given by any of the parties (express or implied) under or by virtue of the Contractual Documents, save if and insofar as the matters represented or warranted are the subject matter of a specific opinion herein nor do we express any opinion on the transaction considered by the Contractual Documents. | ||
(c) | We have not been responsible for investigating or verifying the accuracy of the facts (or statements of foreign law) or the reasonableness of any statements of opinion or intention contained in any Documents, or for verifying that no material facts or provisions have been omitted therefrom. |
(i) | the genuineness of all signatures, seals and stamps on all Documents submitted to us and the legal capacity of all individuals who have signed such documents; | ||
(ii) | the completeness and conformity to originals thereof of all Documents submitted to us as certified, photostatic, faxed or e-mailed copies and the authenticity of the originals of such documents; | ||
(iii) | that the Contractual Documents constitute legal, valid, binding and enforceable obligations of the parties thereto for all purpose of the law to which they are expressly made subject; | ||
(iv) | the absence of any other arrangements between any of the parties to the Contractual Documents which modify or supersede any of the terms of the Contractual Documents; | ||
(v) | that the Documents submitted to us for examination have not been rescinded or amended in any way since the date hereof; | ||
(vi) | that any agreement or document referred to in the Contractual Documents constitute the legal, valid, binding and enforceable obligations of the parties thereto (except for those items opined on herein); | ||
(vii) | that, in respect of the Contractual Documents and each of the transactions contemplated by, referred to in, provided for or effected by the Contractual Documents, (i) the parties to the Contractual Documents entered into the same in good faith and for the purpose of carrying out their business, (ii) the parties to the Contractual Documents entered into the same on arms’ length commercial terms and (iii) the parties to the Contractual Documents entered into the same without any intention to defraud or deprive of any legal benefit any other parties (such as third parties and in particular creditors) or to circumvent any applicable mandatory laws or regulations of any jurisdiction; |
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(viii) | that all representations and warranties given by any of the parties (express or implied) under or by virtue of the Contractual Documents, save if and insofar as the matters represented are the subject matter of a specific opinion herein, are and will be true and accurate when made; | ||
(ix) | that the principal place of business (principal établissement),the place of effective management (siège de direction effective) and (for the purposes of the Insolvency Regulation) the centre of main interests (centre des intérêts principaux) of the Companies are located at the place of their registered office (siège statutaire) in Luxembourg and the Company does not have any establishment (within the meaning of the Insolvency Regulation) outside Luxembourg; | ||
(x) | that the Board Resolutions were properly and validly passed, that the managers have properly performed their duties and that all provisions relating to the declaration of the managers’ interests or the power of the interested managers to vote were fully observed; | ||
(xi) | that the Contractual Documents have in fact been signed by the person(s) authorized to sign the Contractual Documents for and on behalf of the Companies as indicated in the Board Resolutions; | ||
(xii) | that during the full search at the Luxembourg trade and companies register, the records of the Luxembourg trade and companies register with respect to the Companies were complete and accurate at the time of such search and disclosed all information which is material for the purpose of this Opinion and such information has not since been materially altered; | ||
(xiii) | that the choice of the laws of the State of New York to govern the Contractual Documents and the submission to the Courts of the State of New York are valid and binding under the laws of any applicable jurisdiction (other than Luxembourg) and that such choice of law and submission to jurisdiction would be recognised and given effect by the courts of any jurisdiction (other than Luxembourg); | ||
(xiv) | that the Companies have complied with all legal requirements of the Luxembourg law of 31 May 1999 regarding the domiciliation of companies; | ||
(xv) | that no provisions of any foreign law shall have any bearing on the opinions set out herein; | ||
(xvi) | that all consents, approvals, authorisations or orders required from any governmental or other regulatory authorities outside Luxembourg and all other requirements outside Luxembourg for the legality, validity and enforceability of the Contractual Documents have been duly obtained or fulfilled and are and will remain in full force and effect and that any conditions to which they are subject have been satisfied; and | ||
(xvii) | that each of the Companies has a proper and proportionate corporate interest to enter into the Contractual Documents and to perform its obligations thereunder. |
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1) | the Company 1 is asociété à responsabilitélimitée (private limited liability company) duly incorporated before a Luxembourg notary and validly existing for an unlimited duration under the laws of Luxembourg. | ||
2) | The Company 2 is asociété à responsabilité limitée(private limited liability company) duly incorporated before a Luxembourg notary and validly existing for an unlimited duration under the laws of Luxembourg. | ||
3) | The Company 1 has the necessary authority, corporate power and capacity under the Articles of Incorporation 1 to execute the Contractual Documents to which it is a party, to perform its obligations under the Contractual Documents to which it is a party and has taken all necessary corporate action required by the Articles of Incorporation 1 and Luxembourg Law to authorize the entry into, the execution of and the performance of the Contractual Documents to which it is a party. | ||
4) | The Company 2 has the necessary authority, corporate power and capacity under the Articles of Incorporation 2 to execute the Contractual Documents to which it is a party, to perform its obligations under the Contractual Documents to which it is a party and has taken all necessary corporate action required by the Articles of Incorporation 2 and Luxembourg Law to authorize the entry into, the execution of and the performance of the Contractual Documents to which it is a party. | ||
5) | The Contractual Documents to which the Company 1 is a party have been duly executed by and on behalf of the Company 1 in accordance with Luxembourg Law, the Articles of Incorporation 1 and the Board Resolutions 1. | ||
6) | The Contractual Documents to which the Company 2 is a party have been duly executed by and on behalf of the Company 2 in accordance with Luxembourg Law, the Articles of Incorporation 2 and the Board Resolutions 2. | ||
7) | According to, and based solely on, the Non-Registration Certificates, none of the following judicial decisions has been recorded with the Luxembourg Trade and Companies Register with respect to the Companies: (i) judgements or decisions pertaining to the opening of insolvency proceedings (faillite), (ii) judgements or court orders approving a voluntary arrangement with creditors (concordat préventif de faillite), (iii) court orders pronouncing a suspension of payments (sursis de paiement), (iv) judicial decisions regarding controlled management (gestion contrôlée), (v) judicial decisions pronouncing its dissolution or deciding on its liquidation, (vi) judicial decisions regarding the appointment of an interim administrator (administrateur provisoire), or (vii) judicial decisions taken by foreign judicial authorities concerning insolvency (faillite), voluntary arrangement (concordat) or any similar procedure in accordance with the Insolvency Regulation. |
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8) | The execution by the Company 1 of the Contractual Documents does not conflict with, or result in, a breach of the Articles of Incorporation 1 or Luxembourg Law. | ||
9) | The execution by the Company 2 of the Contractual Documents does not conflict with, or result in, a breach of the Articles of Incorporation 2 or Luxembourg Law. | ||
10) | In any proceedings instituted in Luxembourg for the enforcement of any provisions of the Contractual Agreements which are stipulated to be governed by the law of the State of New York, the choice of the law of the state of New York, as the case may be, as the governing law thereof will be recognized and enforced by the courts of Luxembourg, in accordance with and subject to the provisions of the Rome I Regulation. | ||
11) | The submission by the Company in the Contractual Documents to the jurisdiction of the courts of the State of New York is legal, valid, binding and enforceable against the Company and will be recognized and given effect to by a court of competent jurisdiction in Luxembourg in accordance with Article 678 etseq.of the LuxembourgNouveau Code de Procédure Civile. | ||
12) | A judgment upon the Contractual Agreements obtained from a court of competent jurisdiction of the Court of the State of New York sitting in New York County and of the United States District Court of Southern District of New York in respect of the Contractual Agreements which are enforceable in the State of New York in accordance with the law of the State of New York, may be entered and enforced through a court of competent jurisdiction of Luxembourg subject to compliance with the enforcement procedures set out in Article 678 ff. of the LuxembourgNouveau Code de Procédure Civilebeing (i) the foreign court must properly have had jurisdiction to hear and determine the matter, (ii) the decision of the foreign court must be final and enforceable in the country in which it was rendered, (iii) the foreign court must have applied the proper law to the matter submitted to it, (iv) the decision of the foreign court must not have been obtained by fraud, but in compliance with the rights of the defendant and (v) the decision of the foreign court must not be contrary to Luxembourg international public policy or have been given in proceedings of a penal nature. | ||
13) | Under Luxembourg Law, none of the following steps is necessary to ensure that the Contractual Documents are valid or admissible in evidence or to ensure the priority or effectiveness of the security interests created by the Contractual Documents and none of those steps will be necessary in connection with any proceedings or other steps to enforce the Contractual Documents or the security interest created thereby in Luxembourg: |
(i) | the execution of the Contractual Documents as a notarial act or in any other authentic form; | ||
(ii) | the consent, approval, license or authorization by any public authority, the registration, filing or recording of the Contractual Documents or any form relating to the Contractual Documents, except that registration with theAdministration de I’Enregistrement et des Domainesin Luxembourg may be required as disclosed in the qualifications set out hereinafter; |
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(iii) | the payment of any stamp, registration or other documentary tax in relation to the Contractual Documents except payment of registration tax in case registration with theAdministration de I’Enregistrement et des Domainesin Luxembourg may be required as disclosed in the qualifications set out hereinafter. |
14) | The Luxembourg Companies (nor any of their assets) do not enjoy any immunity from jurisdiction of any relevant court or from any legal proceedings (whether through service, notice, attachment in aid of execution, execution or otherwise) under the laws of Luxembourg. | ||
15) | It is not necessary solely in order for the Lenders to enforce any of their rights under the Contractual Documents that they should be licensed, registered, qualified or otherwise authorised to carry on business or banking business in Luxembourg. |
(i) | Luxembourg legal concepts are expressed in English terms and not in their original French terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist in the laws of other jurisdictions. This Opinion may, therefore, only be relied on upon the express condition that any issues of the interpretation or liability arising thereunder will be governed by Luxembourg Law and be brought before a court in Luxembourg; | ||
(ii) | the opinions set out hereabove are subject to all limitations by reason of national or foreign bankruptcy, insolvency, moratorium, controlled management, suspension of payment, fraudulent conveyance, general settlement of composition with creditors, general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally; | ||
(iii) | we have not been responsible for investigating or verifying the accuracy of the facts (or statements of foreign law) or the reasonableness of any statements of opinion or intention contained in any documents (other than this Opinion), or for verifying that no material facts or provisions have been omitted therefrom; | ||
(iv) | where any obligations are to be performed or observed or are based upon a matter arising in a jurisdiction outside the Grand Duchy of Luxembourg, they may not be enforceable under Luxembourg law if and to the extent that such performance or observance would be unlawful, unenforceable, or contrary to public policy or public order under the laws of such jurisdiction; | ||
(v) | claims may become barred under the statutory limitation period rules or may be or become subject to defences of set-off or counterclaims; | ||
(vi) | actions in Luxembourg courts must be brought in the name of the principal not of an agent of the principal; |
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(vii) | we express no opinion on the rationale of the underlying transaction; | ||
(viii) | choice of law provisions in the Contractual Documents will be recognised and given effect to by a Luxembourg court except in case of legal fraud or unless such choices of law are meant to circumvent rules of public order of the laws that would have otherwise applied in the absence of such choice of law provisions; | ||
(ix) | a Luxembourg court will refuse to give effect to any particular provisions of a foreign law if, pleaded and proved, its application in the circumstances of the case would either be contrary to the mandatory rules of Luxembourg law or incompatible with Luxembourg international public policy or international public order; | ||
(x) | the registration of the Contractual Documents with theAdministration de I’Enregistrement et des Domainesin Luxembourg may be required in the case of court proceedings in Luxembourg (if competent) or, in the case that the Contractual Documents must be produced before an official authority, in which case a registration duty would become payable. The courts or authority may, in this context, require that the Contractual Documents be translated into the French or German language; | ||
(xi) | the Non-Registration Certificates do not determine conclusively whether or not the matters referred to therein have occurred or not at the date referred to in such Non-Registration Certificates, in particular due to the lapse between the passing of the actual judicial decisions referred to therein and their recording with the Luxembourg trade and companies register; | ||
(xii) | we express no opinion as to the tax consequences of the entry of the Companies into the Contractual Documents; and | ||
(xiii) | we express no opinion with respect to the enforceability of the Contractual Documents which we have not reviewed in this respect. |
by: Sophie Wagner-Chartier
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1. | A copy of the updated articles of incorporation of the Company 1 as at 7 December 2009 (the “Articles of Incorporation 1”); | |
2. | A copy of the updated articles of incorporation of the Company 2 as at 7 December 2009 (the “Articles of Incorporation 2”); | |
3. | A copy of the signed circular resolutions of the board of managers of the Company 1 dated 9 March 2011 which, inter alia, approve the entering of the Company 1 into the Contractual Documents to which it is a party (the “Board Resolutions 1”); | |
4. | A copy of the signed circular resolutions of the board of managers of the Company 2 dated 9 March 2011 which, inter alia, approve the entering of the Company 1 into the Contractual Documents to which it is a party (the “Board Resolutions 2”); | |
5. | A copy of a non-registration certificate issued by the Luxembourg Trade and Companies Register with respect to Company 1 dated 9 March 2011 and reflecting the situation of 8 March 2011 (the “Non-Registration Certificate 1”); | |
6. | A copy of a non-registration certificate issued by the Luxembourg Trade and Companies Register with respect to Company 2 dated 9 March 2011 and reflecting the situation of 8 March 2011 (the “Non-Registration Certificate 2”); | |
7. | An electronic version of an extract of the Luxembourg trade and companies register with respect to the Company 1 dated 9 March 2011; | |
8. | An electronic version of an extract of the Luxembourg trade and companies register with respect to the Company 2 dated 9 March 2011. |
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1. | A signed copy of a New York law governed credit agreement dated 9 March 2011 entered into between Herbalife International, Inc., Herbalife Ltd. and Herbalife International Luxembourg S.à r.l., as borrowers, Bank of America, N.A. as Administrative Agent, Swing Line Lender and L/C Issuer and the other Lenders party thereto (the “Credit Agreement”); | |
2. | A signed copy of a New York law governed guaranty dated 9 March 2011, granted by Company 1 in accordance with the terms of the Credit Agreement (the “Guaranty 1”); and | |
3. | A signed copy of a New York law governed guaranty dated 9 March 2011, granted by Company 2 in accordance with the terms of the Credit Agreement (the “Guaranty 2”). |
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Agent under the Credit Agreement (as
defined in Appendix A) and the Lenders
46011-4973840v4
WH Luxembourg Holdings S.à r.l.
(a) | We express no opinion (i) on public international law or on the rules of or promulgated under any treaty or by any treaty organisation or on any taxation laws of any jurisdiction (including Luxembourg), except as specifically set out herein, if applicable, (ii) that the future or continued performance of a party’s obligations or the consummation of the transaction contemplated by the Contractual Documents will not contravene Luxembourg Law, its application or interpretation in each case to the extent that such laws, their application or interpretation, are altered in the future, and (iii) with regard to the effect of any systems of law (other than Luxembourg Law) even in cases where, under Luxembourg Law, any foreign law should be applied, and we therefore assume that any applicable law (other than Luxembourg Law) would not affect or qualify the opinions as set out below. |
1
(b) | We express no opinion as to the correctness of any representation or warranty given by any of the parties (express or implied) under or by virtue of the Contractual Documents, save if and insofar as the matters represented or warranted are the subject matter of a specific opinion herein nor do we express any opinion on the transaction considered by the Contractual Documents. | ||
(c) | We have not been responsible for investigating or verifying the accuracy of the facts (or statements of foreign law) or the reasonableness of any statements of opinion or intention contained in any Documents, or for verifying that no material facts or provisions have been omitted therefrom. |
(i) | the genuineness of all signatures, seals and stamps on all Documents submitted to us and the legal capacity of all individuals who have signed such documents; | ||
(ii) | the completeness and conformity to originals thereof of all Documents submitted to us as certified, photostatic, faxed or e-mailed copies and the authenticity of the originals of such documents; | ||
(iii) | that the Contractual Documents constitute legal, valid, binding and enforceable obligations of the parties thereto for all purpose of the law to which they are expressly made subject; | ||
(iv) | the absence of any other arrangements between any of the parties to the Contractual Documents which modify or supersede any of the terms of the Contractual Documents; | ||
(v) | that the Documents submitted to us for examination have not been rescinded or amended in any way since the date hereof; | ||
(vi) | that any agreement or document referred to in the Contractual Documents constitute the legal, valid, binding and enforceable obligations of the parties thereto (except for those items opined on herein); | ||
(vii) | that, in respect of the Contractual Documents and each of the transactions contemplated by, referred to in, provided for or effected by the Contractual Documents, (i) the parties to the Contractual Documents entered into the same in good faith and for the purpose of carrying out their business, (ii) the parties to the Contractual Documents entered into the same on arms’ length commercial terms and (iii) the parties to the Contractual Documents entered into the same without any intention to defraud or deprive of any legal benefit any other parties (such as third parties and in particular creditors) or to circumvent any applicable mandatory laws or regulations of any jurisdiction; |
2
(viii) | that all representations and warranties given by any of the parties (express or implied) under or by virtue of the Contractual Documents, save if and insofar as the matters represented are the subject matter of a specific opinion herein, are and will be true and accurate when made; | ||
(ix) | that the principal place of business (principal établissement), the place of effective management (siège de direction effective) and (for the purposes of the Insolvency Regulation) the centre of main interests (centre des intérêts principaux) of the Companies are located at the place of their registered office (siège statutaire) in Luxembourg and the Company does not have any establishment (within the meaning of the Insolvency Regulation) outside Luxembourg; | ||
(x) | that the Board Resolutions were properly and validly passed, that the managers have properly performed their duties and that all provisions relating to the declaration of the managers’ interests or the power of the interested managers to vote were fully observed; | ||
(xi) | that the Contractual Documents have in fact been signed by the person(s) authorized to sign the Contractual Documents for and on behalf of the Companies as indicated in the Board Resolutions; | ||
(xii) | that during the full search at the Luxembourg trade and companies register, the records of the Luxembourg trade and companies register with respect to the Companies were complete and accurate at the time of such search and disclosed all information which is material for the purpose of this Opinion and such information has not since been materially altered; | ||
(xiii) | that the choice of the laws of the State of New York to govern the Contractual Documents and the submission to the Courts of the State of New York are valid and binding under the laws of any applicable jurisdiction (other than Luxembourg) and that such choice of law and submission to jurisdiction would be recognised and given effect by the courts of any jurisdiction (other than Luxembourg); | ||
(xiv) | that the Companies have complied with all legal requirements of the Luxembourg law of 31 May 1999 regarding the domiciliation of companies; | ||
(xv) | that no provisions of any foreign law shall have any bearing on the opinions set out herein; | ||
(xvi) | that all consents, approvals, authorisations or orders required from any governmental or other regulatory authorities outside Luxembourg and all other requirements outside Luxembourg for the legality, validity and enforceability of the Contractual Documents have been duly obtained or fulfilled and are and will remain in full force and effect and that any conditions to which they are subject have been satisfied; and | ||
(xvii) | that each of the Companies has a proper and proportionate corporate interest to enter into the Contractual Documents and to perform its obligations thereunder. |
3
1) | the Company 1 is asociété à responsabilitélimitée (private limited liability company) duly incorporated before a Luxembourg notary and validly existing for an unlimited duration under the laws of Luxembourg. | ||
2) | The Company 2 is asociété à responsabilité limitée(private limited liability company) duly incorporated before a Luxembourg notary and validly existing for an unlimited duration under the laws of Luxembourg. | ||
3) | The Company 1 has the necessary authority, corporate power and capacity under the Articles of Incorporation 1 to execute the Contractual Documents to which it is a party, to perform its obligations under the Contractual Documents to which it is a party and has taken all necessary corporate action required by the Articles of Incorporation 1 and Luxembourg Law to authorize the entry into, the execution of and the performance of the Contractual Documents to which it is a party. | ||
4) | The Company 2 has the necessary authority, corporate power and capacity under the Articles of Incorporation 2 to execute the Contractual Documents to which it is a party, to perform its obligations under the Contractual Documents to which it is a party and has taken all necessary corporate action required by the Articles of Incorporation 2 and Luxembourg Law to authorize the entry into, the execution of and the performance of the Contractual Documents to which it is a party. | ||
5) | The Contractual Documents to which the Company 1 is a party have been duly executed by and on behalf of the Company 1 in accordance with Luxembourg Law, the Articles of Incorporation 1 and the Board Resolutions 1. | ||
6) | The Contractual Documents to which the Company 2 is a party have been duly executed by and on behalf of the Company 2 in accordance with Luxembourg Law, the Articles of Incorporation 2 and the Board Resolutions 2. | ||
7) | According to, and based solely on, the Non-Registration Certificates, none of the following judicial decisions has been recorded with the Luxembourg Trade and Companies Register with respect to the Companies : (i) judgements or decisions pertaining to the opening of insolvency proceedings (faillite), (ii) judgements or court orders approving a voluntary arrangement with creditors (concordat préventif de faillite), (iii) court orders pronouncing a suspension of payments (sursis de paiement), (iv) judicial decisions regarding controlled management (gestion contrôlée), (v) judicial decisions pronouncing its dissolution or deciding on its liquidation, (vi) judicial decisions regarding the appointment of an interim administrator (administrateur provisoire), or (vii) judicial decisions taken by foreign judicial authorities concerning insolvency (faillite), voluntary arrangement (concordat) or any similar procedure in accordance with the Insolvency Regulation. |
4
8) | The execution by the Company 1 of the Contractual Documents does not conflict with, or result in, a breach of the Articles of Incorporation 1 or Luxembourg Law. | ||
9) | The execution by the Company 2 of the Contractual Documents does not conflict with, or result in, a breach of the Articles of Incorporation 2 or Luxembourg Law. | ||
10) | In any proceedings instituted in Luxembourg for the enforcement of any provisions of the Contractual Agreements which are stipulated to be governed by the law of the State of New York, the choice of the law of the state of New York, as the case may be, as the governing law thereof will be recognized and enforced by the courts of Luxembourg, in accordance with and subject to the provisions of the Rome I Regulation. | ||
11) | The submission by the Company in the Contractual Documents to the jurisdiction of the courts of the State of New York is legal, valid, binding and enforceable against the Company and will be recognized and given effect to by a court of competent jurisdiction in Luxembourg in accordance with Article 678 etseq. of the LuxembourgNouveau Code de Procédure Civile. | ||
12) | A judgment upon the Contractual Agreements obtained from a court of competent jurisdiction of the Court of the State of New York sitting in New York County and of the United States District Court of Southern District of New York in respect of the Contractual Agreements which are enforceable in the State of New York in accordance with the law of the State of New York, may be entered and enforced through a court of competent jurisdiction of Luxembourg subject to compliance with the enforcement procedures set out in Article 678 ff. of the LuxembourgNouveau Code de Procédure Civilebeing (i) the foreign court must properly have had jurisdiction to hear and determine the matter, (ii) the decision of the foreign court must be final and enforceable in the country in which it was rendered, (iii) the foreign court must have applied the proper law to the matter submitted to it, (iv) the decision of the foreign court must not have been obtained by fraud, but in compliance with the rights of the defendant and (v) the decision of the foreign court must not be contrary to Luxembourg international public policy or have been given in proceedings of a penal nature. | ||
13) | Under Luxembourg Law, none of the following steps is necessary to ensure that the Contractual Documents are valid or admissible in evidence or to ensure the priority or effectiveness of the security interests created by the Contractual Documents and none of those steps will be necessary in connection with any proceedings or other steps to enforce the Contractual Documents or the security interest created thereby in Luxembourg: |
(i) | the execution of the Contractual Documents as a notarial act or in any other authentic form; | ||
(ii) | the consent, approval, license or authorization by any public authority, the registration, filing or recording of the Contractual Documents or any form relating to the Contractual Documents, except that registration with theAdministration de l’Enregistrement et des Domainesin Luxembourg may be required as disclosed in the qualifications set out hereinafter; |
5
(iii) | the payment of any stamp, registration or other documentary tax in relation to the Contractual Documents except payment of registration tax in case registration with theAdministration de l’Enregistrement et des Domainesin Luxembourg may be required as disclosed in the qualifications set out hereinafter. |
14) | The Luxembourg Companies (nor any of their assets) do not enjoy any immunity from jurisdiction of any relevant court or from any legal proceedings (whether through service, notice, attachment in aid of execution, execution or otherwise) under the laws of Luxembourg. | ||
15) | It is not necessary solely in order for the Lenders to enforce any of their rights under the Contractual Documents that they should be licensed, registered, qualified or otherwise authorised to carry on business or banking business in Luxembourg. |
(i) | Luxembourg legal concepts are expressed in English terms and not in their original French terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist in the laws of other jurisdictions. This Opinion may, therefore, only be relied on upon the express condition that any issues of the interpretation or liability arising thereunder will be governed by Luxembourg Law and be brought before a court in Luxembourg; | ||
(ii) | the opinions set out hereabove are subject to all limitations by reason of national or foreign bankruptcy, insolvency, moratorium, controlled management, suspension of payment, fraudulent conveyance, general settlement of composition with creditors, general settlement with creditors, reorganisation or similar laws affecting the rights of creditors generally; | ||
(iii) | we have not been responsible for investigating or verifying the accuracy of the facts (or statements of foreign law) or the reasonableness of any statements of opinion or intention contained in any documents (other than this Opinion), or for verifying that no material facts or provisions have been omitted therefrom; | ||
(iv) | where any obligations are to be performed or observed or are based upon a matter arising in a jurisdiction outside the Grand Duchy of Luxembourg, they may not be enforceable under Luxembourg law if and to the extent that such performance or observance would be unlawful, unenforceable, or contrary to public policy or public order under the laws of such jurisdiction; | ||
(v) | claims may become barred under the statutory limitation period rules or may be or become subject to defences of set-off or counterclaims; | ||
(vi) | actions in Luxembourg courts must be brought in the name of the principal not of an agent of the principal; |
6
(vii) | we express no opinion on the rationale of the underlying transaction; | ||
(viii) | choice of law provisions in the Contractual Documents will be recognised and given effect to by a Luxembourg court except in case of legal fraud or unless such choices of law are meant to circumvent rules of public order of the laws that would have otherwise applied in the absence of such choice of law provisions; | ||
(ix) | a Luxembourg court will refuse to give effect to any particular provisions of a foreign law if, pleaded and proved, its application in the circumstances of the case would either be contrary to the mandatory rules of Luxembourg law or incompatible with Luxembourg international public policy or international public order; | ||
(x) | the registration of the Contractual Documents with theAdministration de l’Enregistrement et des Domainesin Luxembourg may be required in the case of court proceedings in Luxembourg (if competent) or, in the case that the Contractual Documents must be produced before an official authority, in which case a registration duty would become payable. The courts or authority may, in this context, require that the Contractual Documents be translated into the French or German language; | ||
(xi) | the Non-Registration Certificates do not determine conclusively whether or not the matters referred to therein have occurred or not at the date referred to in such Non-Registration Certificates, in particular due to the lapse between the passing of the actual judicial decisions referred to therein and their recording with the Luxembourg trade and companies register; | ||
(xii) | we express no opinion as to the tax consequences of the entry of the Companies into the Contractual Documents; and | ||
(xiii) | we express no opinion with respect to the enforceability of the Contractual Documents which we have not reviewed in this respect. |
by: Sophie Wagner-Chartier
7
8
9
1. | A copy of the updated articles of incorporation of the Company 1 as at 7 December 2009 (the “Articles of Incorporation 1”); | |
2. | A copy of the updated articles of incorporation of the Company 2 as at 7 December 2009 (the “Articles of Incorporation 2”); | |
3. | A copy of the signed circular resolutions of the board of managers of the Company 1 dated *** 2011 which, inter alia, approve the entering of the Company 1 into the Contractual Documents to which it is a party (the “Board Resolutions 1”); | |
4. | A copy of the signed circular resolutions of the board of managers of the Company 2 dated *** 2011 which, inter alia, approve the entering of the Company 1 into the Contractual Documents to which it is a party (the “Board Resolutions 2”); | |
5. | A copy of a non-registration certificate issued by the Luxembourg Trade and Companies Register with respect to Company 1 dated *** 2011 and reflecting the situation of *** 2011 (the “Non-Registration Certificate 1”); | |
6. | A copy of a non-registration certificate issued by the Luxembourg Trade and Companies Register with respect to Company 2 dated *** 2011 and reflecting the situation of *** 2011 (the “Non-Registration Certificate 2”); | |
7. | An electronic version of an extract of the Luxembourg trade and companies register with respect to the Company 1 dated *** 2011; | |
8. | An electronic version of an extract of the Luxembourg trade and companies register with respect to the Company 1 dated *** 2011. |
10
1. | A signed copy of a New York law governed credit agreement dated *** 2011 entered into between Herbalife International, Inc., Herbalife Ltd. and Herbalife International Luxembourg S.à r.l., as borrowers, Bank of America, N.A. as Administrative Agent, Swing Line Lender and L/C Issuer and the other Lenders party thereto (the “Credit Agreement”); | |
2. | A signed note dated *** 2011 issued by the Company 1 in accordance with the provisions of the Credit Agreement; | |
3. | A signed copy of a New York law governed guaranty dated ***, granted by Company 1 in accordance with the terms of the Credit Agreement (the “Guaranty 1”); and | |
4. | A signed copy of a New York law governed guaranty dated ***, granted by Company 2 in accordance with the terms of the Credit Agreement (the “Guaranty 2”). |
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as Administrative Agent under the
Credit Agreement referred to below
101 South Tryon Street, 15th Floor
Charlotte, NC 28255-0001
(i) | the Credit Agreement; | ||
(ii) | the Security Agreement, dated as of the date hereof, made by the Company, HIA and certain other subsidiaries of the Company, as pledgors, in favor the Administrative Agent, as pledgee, collateral agent and secured party (in such capacities, the “Collateral Agent”) for the Lenders (the “Security Agreement”); | ||
(iii) | the Company Guaranty, dated as of the date hereof, made by the Company in favor of the Secured Parties (the “Company Guaranty”); | ||
(iv) | the Domestic Subsidiary Guaranty, dated as of the date hereof, made by HIA and certain other Guarantors in favor of the Secured Parties (the “Domestic Subsidiary Guaranty”); | ||
(v) | the UCC financing statements to be filed in the office of the Nevada Secretary of State (the “Filing Office”), listing each of the Nevada Companies, as debtor, and the Collateral Agent, as secured party (the “Financing Statements”); |
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as Administrative Agent under the Credit Agreement
and the Lenders party to the Credit Agreement
March 9, 2011
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(vi) | the articles of incorporation and bylaws, each as amended to date, of each of the Nevada Companies (collectively, the “Governing Documents”); | ||
(vii) | such corporate records, minutes, consents, resolutions, actions and proceedings of the Nevada Companies as we have deemed necessary as a basis for the opinions expressed herein, including, without limitation, the resolutions of the board of directors of each of the Nevada Companies authorizing and approving, among other things, the execution and delivery by each of the Nevada Companies of the Loan Documents (as defined below) to which it is a party, the performance of its obligations thereunder and the consummation of the transactions contemplated thereby (the “Transactions”); | ||
(viii) | the Certificates of Existence with Status in Good Standing issued by the office of the Nevada Secretary of State on March 8, 2011, with respect to the existence and good standing in Nevada of each of the Nevada Companies on such date (the “Good Standing Certificates”); and | ||
(ix) | the certificate, of even date herewith, of an officer of each of the Nevada Companies with respect to certain factual matters, and any other certificates delivered by the Nevada Companies or any officers thereof at or in connection with the closing of the Transactions (collectively, the “Certificates”). |
as Administrative Agent under the Credit Agreement
and the Lenders party to the Credit Agreement
March 9, 2011
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as Administrative Agent under the Credit Agreement
and the Lenders party to the Credit Agreement
March 9, 2011
Page 4
as Administrative Agent under the Credit Agreement
and the Lenders party to the Credit Agreement
March 9, 2011
Page 5
as Administrative Agent under the Credit Agreement
and the Lenders party to the Credit Agreement
March 9, 2011
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K-1
PERFECTION CERTIFICATE
I. | Names/Locations. |
A. | Legal Names, Organizations, Jurisdictions of Organization and Organizational Identification Numbers. The full and exact legal name (as it appears in each respective certificate or articles of incorporation, limited liability membership agreement or similar organizational documents, in each case as amended to date), the type of organization, the jurisdiction of organization (or formation, as applicable), and the organizational identification number of each Loan Party (other than any Foreign Obligor) are as follows: |
Organization | Jurisdiction of | Organizational | Federal | |||||
Borrower/Guarantor | Type | Formation | ID | Employer ID | ||||
B. | Changes in Names, Jurisdiction of Organization or Corporate Structure. Except as set forth below, no Loan Party (other than any Foreign Obligor) has changed its name, jurisdiction of organization or corporate structure in any way (whether by merger, consolidation, change in corporate form, change in jurisdiction of organization or otherwise) within the past six months: |
Borrower/Guarantor | Date of Change | Description of Change | ||
Exhibit K-1
C. | Chief Executive Offices and Mailing Addresses. For each Loan Party (other than any Foreign Obligor), the address of its chief executive office, and its preferred mailing address (if different from the address of the chief executive office), is set forth below: |
Address of Chief Executive | Mailing Address (if different | |||
Borrower/Guarantor | Office | from CEO address) | ||
II. | Information regarding Securities Agreement Collateral. |
A. | Intellectual Property. For each Loan Party (other than any Foreign Obligor), set forth below is a list of all copyrights, patents, trademarks, and other intellectual property owned or used, or hereafter adopted, held or used: |
Borrower/Guarantor | Copyright | Filing Date | Status | Reg. No. | ||||
Borrower/Guarantor | Patent | Filing Date | Status | Reg. No. | ||||
Borrower/Guarantor | Trademark | Filing Date | Status | Reg. No. | ||||
B. | Commercial Tort Claims. For each Loan Party (other than any Foreign Obligor), set forth below is a complete list of all commercial tort claims held by such Loan Party, including a brief description of each: |
Borrower/Guarantor | Claim | Description | ||
By: | ||||
Name: | ||||
Title: | ||||
Exhibit K-2