Exhibit 10.43


 


WH HOLDINGS (CAYMAN ISLANDS) LTD.


WH CAPITAL CORPORATION


 


$275,000,000 9 1/2 %
Notes due 2011


 


PURCHASE AGREEMENT


 


March 3, 2004


New York, New York


 


UBS SECURITIES LLC


677 Washington Boulevard


Stamford, Connecticut 06901


 


Ladies and Gentlemen:


 


WH Holdings (Cayman Islands) Ltd., a Cayman Islands exempted
limited liability company (the “Company”)
and WH Capital Corporation, a Nevada corporation (“Capital,” and together with the Company, the “Issuers”), agree with you as follows:


 


1.                   Issuance of
Notes.  The Issuers propose to issue
and sell to UBS Securities LLC (the “Initial
Purchaser”) $275,000,000 aggregate principal amount of their 9
1¤2% Notes due 2011 (the “Original Notes”). The Original Notes will
be issued pursuant to an indenture (the “Indenture”),
to be dated the Closing Date (as defined herein), by and among the Issuers and
The Bank of New York, as trustee (the “Trustee”).
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Offering Memorandum (as defined herein).


 


The Original Notes will be offered and sold to the Initial Purchaser
pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended (the “Act”).
The Issuers have prepared a preliminary offering memorandum, dated
February 20, 2004 (the “Preliminary
Offering Memorandum”), and a final offering memorandum dated and
available for distribution on the date hereof (the “Offering Memorandum”) relating to the Issuers and the Original
Notes.


 


The Initial Purchaser has advised the Issuers that the Initial
Purchaser intends, as soon as it deems practicable after this Purchase
Agreement (this “Agreement”) has
been executed and delivered, to resell (the “Exempt
Resales”) the Original Notes purchased by the Initial Purchaser
under this Agreement in private sales exempt from registration under the Act on
the terms set forth in the Offering Memorandum, as amended or supplemented,
solely to (i) persons whom the Initial Purchaser reasonably believes to be
“qualified institutional buyers,” as defined in Rule 144A under the Act (“QIBs”), and (ii) other eligible
purchasers pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Act; the Persons specified in
clauses (i) and (ii) are sometimes collectively referred to herein as
the “Eligible Purchasers.”


 


Upon issuance of the Original Notes and until such time as the same is
no longer required under the applicable requirements of the Act, the Original
Notes shall bear the legend relating thereto substantially in the form set
forth under “Notice to Investors” in the Offering Memorandum.


 


Holders (including subsequent transferees) of the Original Notes will
have the registration rights set forth in the registration rights agreement, to
be dated the Closing Date, substantially in the form attached hereto as Annex A (the “Registration Rights Agreement”). Pursuant to the Registration
Rights Agreement, the Issuers will agree to (i) file with the Securities
and Exchange Commission (the “Commission”)
under the circumstances set forth in the Registration Rights Agreement,
(a) a registration statement under the Act (the “Exchange Offer Registration Statement”)
relating to a new issue of debt securities (collectively with the Private
Exchange Notes (as defined in the Registration Rights Agreement) as the “Exchange Notes” and, the Exchange Notes are
referred to herein, together with the Original Notes, as the “Notes”) to be offered in exchange for the
Original Notes (the “Exchange Offer”)
and issued under the Indenture or indentures substantially identical to the


 
















 


Indenture and/or (b) under
certain circumstances set forth in the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 under the Act (the “Shelf Registration Statement” and, together
with the Exchange Offer Registration Statement, the “Registration Statements”) relating to the resale by certain
holders of the Original Notes, and (ii) to use its reasonable best efforts
to cause such Registration Statements to be declared effective. This Agreement,
the Notes, the Indenture and the Registration Rights Agreement are hereinafter
sometimes referred to collectively as the “Note
Documents.”


 


As described in the Offering Memorandum under the caption “The
recapitalization of Holdings and related transactions,” the net proceeds of the
offering of the Notes, together available cash, will be used as a part of a
recapitalization of the Company, pursuant to which the Company will redeem all
of its outstanding 12% Series A Convertible Preferred Shares (the “Holdings Preferred Stock”) and pay accrued
and unpaid dividends thereon, purchase the Company’s outstanding 15.5% Senior
Notes due 2011 (the “Holdings Senior Notes”)
at a negotiated price, repay a portion of Herbalife’s senior credit facilities
(the “Herbalife Senior Credit Facilities”),
and pay related fees and expenses.


 


The issuance and sale of the Original Notes, the redemption of the
Holdings Preferred Stock, the purchase of the Holdings Senior Notes and the
prepayment of a portion of the Herbalife Senior Credit Facilities and the
payment of related fees and expenses are referred to as the “Transactions.”


 


2.                   Agreements to
Sell and Purchase.  On the basis of
the representations, warranties and covenants contained in this Agreement and
subject to the terms and conditions contained in this Agreement, the Issuers
agree to issue and sell to the Initial Purchaser and the Initial Purchaser
agrees to purchase from the Issuers, $275,000,000 aggregate principal amount of
Original Notes at a purchase price equal to 97.25% of their principal amount.


 


3.                   Delivery
and Payment.  Delivery of, and
payment of the purchase price for, the Original Notes will be made at
9:00 a.m., New York time, on March 8, 2004 (such date and time, the “Closing Date”) at the offices of Gibson,
Dunn & Crutcher LLP, 2029 Century Park East, Suite 4000, Los Angeles,
California 90067. The Closing Date and the location of delivery of and the form
of payment for the Original Notes may be varied by mutual agreement between the
Initial Purchaser and the Issuers.


 


All of the Original Notes will be delivered by the Issuers to the
Initial Purchaser (or as the Initial Purchaser may direct) against payment by
the Initial Purchaser of the purchase price therefor by means of transfer of
immediately available funds to such account or accounts specified by the
Issuers in accordance with its obligations under Section 4(g) hereof on or
prior to the Closing Date, or by such means as the parties hereto agree prior
to the Closing Date. Delivery of the Original Notes shall be made through the
facilities of the Depositary Trust Company (“DTC”)
unless the Initial Purchaser shall otherwise instruct. The Original Notes shall
be evidenced by one or more certificates in global form registered in such
names as the Initial Purchaser may request upon at least one business day’s
notice prior to the Closing Date and having an aggregate principal amount
corresponding to the aggregate principal amount of the Original Notes.


 


4.                   Agreements of
the Issuers.  Each of the Issuers
severally covenants and agrees with the Initial Purchaser as follows:


 


(a)               To furnish the Initial Purchaser and
those persons identified by the Initial Purchaser, without charge, with as many
copies of the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments or supplements thereto, as the Initial Purchaser may reasonably
request. Each of the Issuers consents to the use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments and supplements
thereto required pursuant to this Agreement, by the Initial Purchaser in
connection with Exempt Resales.


 


(b)              Not to amend or supplement the Offering
Memorandum prior to the Closing Date unless the Initial Purchaser has
previously been advised of such proposed amendment or supplement at


 


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least two business days prior to the proposed use, and shall not have
reasonably objected to such amendment or supplement.


 


(c)               If, prior to the time that the Initial
Purchaser has notified the Issuers that it has completed its distribution of
the Original Notes, any event shall occur that makes any statement of a
material fact in the Offering Memorandum, as then amended or supplemented,
untrue or requires the making of any additions to or changes in the Offering
Memorandum in order to make the statements in the Offering Memorandum, as then
amended or supplemented, in light of the circumstances under which they are
made, not misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply with all applicable laws known to the Issuers, the Issuers
shall promptly notify the Initial Purchaser of such event and prepare an
appropriate amendment or supplement to the Offering Memorandum so that
(i) the statements in the Offering Memorandum, as amended or supplemented,
in light of the circumstances as of the time of the amendment or supplement
will not be misleading and (ii) the Offering Memorandum will comply with
applicable law.


 


(d)              To cooperate with the Initial Purchaser
and counsel to the Initial Purchaser in connection with the qualification or
registration of the Original Notes under the securities laws of such
jurisdictions as the Initial Purchaser may reasonably request and to continue
such qualification in effect so long as reasonably required for the Exempt
Resales. Notwithstanding the foregoing, neither of the Issuers shall be
required to qualify as a foreign corporation or other business entity in any
jurisdiction in which it is not so qualified or to file a general consent
to service of process in any such jurisdiction or subject itself to taxation in
any such jurisdiction where it is not then so subject.


 


(e)               To advise the Initial Purchaser promptly
and, if requested by the Initial Purchaser, to confirm such advice in writing,
of the issuance by any securities commission of any stop order suspending the
qualification or exemption from qualification of any of the Original Notes for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by any securities commission or other regulatory authority. Each
of the Issuers shall use its reasonable best efforts to prevent the issuance of
any stop order or order suspending the qualification or exemption of any of the
Original Notes under any securities laws, and if at any time any securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption of any of the Original Notes under any securities
laws, each of the Issuers shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.


 


(f)                 Whether or not the transactions
contemplated by this Agreement are consummated, to pay all costs, expenses,
fees, disbursements (including reasonable fees, expenses and disbursements of
each of the counsel to the Issuers and the Initial Purchaser) reasonably
incurred and stamp, documentary or similar taxes incident to and in connection
with: (i) the preparation, printing and distribution of the Preliminary
Offering Memorandum and the Offering Memorandum (including, without limitation,
financial statements) and all amendments and supplements thereto, (ii) all
expenses (including travel expenses) of the Issuers and the Initial Purchaser
in connection with any meetings with prospective investors in the Original
Notes, (iii) the preparation, notarization (if necessary) and delivery of
the Note Documents and all other agreements, memoranda, correspondence and
documents prepared and delivered in connection with this Agreement and with the
Exempt Resales, (iv) the issuance, transfer and delivery of the Original
Notes by the Issuers to the Initial Purchaser, (v) (subject to
Section 4(d)) hereof, the qualification or registration of the Notes for
offer and sale under the securities laws of the several states of the United
States or provinces of Canada (including, without limitation, the cost of
printing and mailing preliminary and final Blue Sky or legal investment
memoranda and fees, and disbursements of counsel (including local counsel) to
the Initial Purchaser relating thereto up to


 


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$20,000), (vi) the furnishing of such copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be reasonably requested for use in connection with
Exempt Resales, (vii) the preparation of certificates for the Notes,
(viii) the application for quotation of the Original Notes and the
Exchange Notes in The PORTAL Market (“PORTAL”)
of the National Association of Securities Dealers, Inc. (“NASD”), including, but not limited to, all
listing fees and expenses, (ix) the approval of the Notes by the DTC for
“book-entry” transfer, (x) the rating of the Notes by investment rating
agencies, (xi) the fees and expenses of the Trustee and its counsel and
(xii) the performance by the Issuers of their other obligations under the
Note Documents.


 


(g)              To use the proceeds from the sale of the
Original Notes substantially in the manner described in the Offering Memorandum
under the caption “Use of Proceeds.”


 


(h)              To do and perform all things required to
be done and performed under this Agreement by it prior to or after the Closing
Date and to use its reasonable best efforts to satisfy all conditions precedent
on its part to the delivery of the Original Notes.


 


(i)                  Not to, and not to cause any of its
subsidiaries to, sell, offer for sale or solicit offers to buy any security (as
defined in the Act) that would be integrated with the sale of the Original
Notes in a manner that would require the registration under the Act of the sale
of the Original Notes to the Initial Purchaser or any Eligible Purchasers.


 


(j)                  Not to, and to use its reasonable
best efforts to cause its affiliates (as defined in Rule 144 under the
Act) not to, resell any of the Original Notes that have been reacquired by any
of them; provided, that,
affiliates of the Issuers may resell any Original Notes that have been acquired
by such affiliate so long as such resale (i) is made pursuant to an
exemption from the registration requirements of the Act or a transaction
registered under the Act and (ii) such Original Notes, when resold by such
affiliates do not constitute restricted securities (as defined in Rule 144
of the Act).


 


(k)               Not to engage, not to allow any of its
subsidiaries to engage, and to use its reasonable best efforts to cause its
other affiliates and any person acting on their behalf (other than, in any
case, the Initial Purchaser and any of their affiliates, as to whom neither of
the Issuers makes any covenant) not to engage, in any form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act) in connection with any offer or sale of the Original Notes in
the United States prior to the effectiveness of a registration statement with
respect to the Notes.


 


(l)                  Not to engage, not to allow any of
its subsidiaries to engage, and to use its reasonable best efforts to cause its
other affiliates and any person acting on its behalf (other than, in any case,
the Initial Purchaser and any of their affiliates, as to whom neither of the
Issuers makes any covenant) not to engage, in any directed selling effort with
respect to the Original Notes, and to comply with the offering restrictions
requirement of Regulation S under the Act. Terms used in this paragraph
have the meanings given to them by Regulation S.


 


(m)            From and after the Closing Date, to provide
to the holders of the Notes the information required by the Indenture and, for
so long as any of the Notes remain outstanding and are “restricted securities”
within the meaning of Rule 144(a)(3) under the Act and during any period
in which the Issuers are not subject to Section 13 or 15(d) of the
Exchange Act, to make available upon request the information required by
Rule 144A(d)(4) under the Act to (i) any holder of Notes in
connection with any sale of such Notes and (ii) any prospective purchaser
of such Notes from any such holder designated by the holder. The Issuers will
pay the expenses of printing and distributing such documents.


 


(n)              To comply with all of its agreements set
forth in the Registration Rights Agreement.


 


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(o)              To use its reasonable best efforts to
obtain approval of the Notes by DTC for “book-entry” transfer.


 


(p)              Prior to the Closing Date, to furnish
without charge to the Initial Purchaser, (i) as soon as they have been
prepared by the Company, a copy of any regularly prepared internal financial
statements of the Company and its subsidiaries for any period subsequent to the
period covered by the financial statements appearing in the Offering
Memorandum, (ii) all other reports and other communications (financial or
otherwise) that the Company mails or otherwise makes available to its security
holders and (iii) such other information as the Initial Purchaser shall
reasonably request.


 


(q)              During the period of two years after the
Closing Date or, if earlier, until such time as the Original Notes are no
longer restricted securities (as defined in Rule 144 under the Act), not
to be or become a closed-end investment company required to be registered, but
not registered, under the Investment Company Act of 1940, as amended.


 


(r)                 In connection with the offering, until
the Initial Purchaser shall have notified the Issuers of the completion of the
resale of the Notes, not to, and not to permit any of their affiliates (as such
term is defined in Rule 501(b) of Regulation D under the Act) to,
either alone or with one or more other Persons, bid for or purchase for any
account in which it or any of its affiliates has a beneficial interest, and
neither of the Issuers or any of their affiliates will make bids or purchases
for the purpose of creating actual or apparent active trading in, or of raising
the price of, the Notes.


 


(s)               To use its reasonable best efforts to
effect the inclusion of the Notes in PORTAL.


 


5.                   Representations
and Warranties.  (a) Each of the
Issuers hereby severally and not jointly represents and warrants to the Initial
Purchaser that:


 


(i)                  Each of the
Preliminary Offering Memorandum and the Offering Memorandum has been prepared
for use in connection with the Exempt Resales. The Preliminary Offering
Memorandum as of its date, and the Offering Memorandum or any supplement or
amendment thereto as of the date of this Agreement and as of the Closing Date
do not, and will not, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however,
that neither of the Issuers makes any representation or warranty with respect
to information relating to the Initial Purchaser contained in or omitted from
the Preliminary Offering Memorandum or the Offering Memorandum or any
supplement or amendment thereto in reliance upon and in conformity with
information furnished to the Issuers in writing by or on behalf of the Initial
Purchaser expressly for use in the Preliminary Offering Memorandum, the
Offering Memorandum or any supplement or amendment thereto. No order preventing
the use of the Preliminary Offering Memorandum or the Offering Memorandum, or
any order asserting that any of the transactions contemplated by this Agreement
are subject to the registration requirements of the Act, has been issued or, to
the knowledge of the Issuers has been threatened.


 


(ii)               There are no
securities of the Issuers that are listed on a national securities exchange
registered under Section 6 of the Exchange Act or that are quoted in a
United States automated interdealer quotation system of the same class as the
Notes within the meaning of Rule 144A under the Act.


 


(iii)            The Company has an
authorized capitalization as set forth under the heading “Capitalization” in
the Offering Memorandum. All of the issued and outstanding shares of capital
stock or other equity interests of the Issuers have been duly authorized and
validly issued, are fully paid and nonassessable and were not issued in
violation of any preemptive or


 


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similar right. Attached as Schedule I
is a true and complete list of each entity, as of the Closing Date, in which
either of the Issuers has a direct or indirect majority equity or voting
interest (all such entities, the “Subsidiaries”),
their jurisdictions of incorporation or formation, type of entity and
percentage equity ownership by such Issuer. All of the issued and outstanding
shares of capital stock or other equity interests of the Subsidiaries referred
to in Schedule II (the “Specified Subsidiaries”) have been duly and
validly authorized and issued, fully paid and nonassessable, were not issued in
violation of any preemptive or similar right and, except as set forth in Schedule II herein, are owned by
either of the Issuers or another Subsidiary, as appropriate, free and clear of
all Liens (as defined in the Indenture), (other than transfer restrictions
imposed by the Act, the securities or Blue Sky laws of certain jurisdictions
and security interests granted pursuant to the Credit Facilities). Except as
set forth in the Offering Memorandum, and except for directors qualifying
shares or shares or other securities issued under circumstances similar to
those applicable to directors qualifying shares, there are no outstanding
options, warrants or other rights to acquire or purchase, or instruments
convertible into or exchangeable for, any shares of capital stock of the
Issuers or any of the Subsidiaries. No holder of any securities of the Issuers
or any of the Subsidiaries is entitled to have such securities (other than the
Notes) registered under any registration statement contemplated by the
Registration Rights Agreement.


 


(iv)           Each of the Issuers and
their respective subsidiaries (a) is a corporation, partnership, limited
liability company or other entity duly organized and validly existing under the
laws of the jurisdiction of its organization; (b) has all requisite power
and authority (corporate or otherwise), and has all governmental licenses,
authorizations, consents and approvals, necessary to own its property and carry
on its business as now being conducted, except if the failure to obtain any
such license, authorization, consent and approval could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect (as
defined below); and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business conducted by
it makes such qualification necessary and where failure to be so qualified and
in good standing, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect. A “Material Adverse Effect” means any material adverse effect on
the business, condition (financial or other), results of operations,
performance or properties of the Issuers and their respective subsidiaries,
taken as a whole.


 


(v)              Each of the Issuers
has all requisite power and authority (corporate or otherwise) to execute,
deliver, and perform all of its obligations under, the Note Documents to which
it is a party and to consummate the transactions contemplated hereby and by the
Note Documents to be consummated on its part and, without limitation, each of the
Issuers has all requisite corporate power and authority to issue, sell and
deliver, and perform its obligations under, the Notes.


 


(vi)           This Agreement has been
duly and validly authorized, executed and delivered by each of the Issuers.


 


(vii)        The Indenture has been
duly and validly authorized by the Issuers and, at the Closing Date, when duly
executed and delivered by the Issuers (assuming the due authorization,
execution and delivery thereof by the Trustee), will be valid and legally
binding obligations of each of the Issuers, enforceable against each of the
Issuers in accordance with their terms, except as the enforcement thereof may
be subject to (x) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights generally and (y) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought (regardless of whether such enforcement is considered in a proceeding
in equity or at law). The Indenture,


 


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when executed and delivered, will conform in
all material respects to the description thereof in the Offering Memorandum.


 


(viii)     The Original Notes have been
duly and validly authorized for issuance and sale to the Initial Purchaser by
the Issuers, and when issued, authenticated and delivered by the Issuers
against payment by the Initial Purchaser in accordance with the terms of this
Agreement and the Indenture, the Original Notes will be valid and legally
binding obligations of each of the Issuers, entitled to the benefits of the
Indenture and enforceable against each of the Issuers in accordance with their
terms, except as the enforcement thereof may be subject to (x) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar laws
of general applicability relating to or affecting creditors’ rights generally
and (y) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether such
enforcement is considered in a proceeding in equity or at law). The Original
Notes, when issued, authenticated and delivered, will conform in all material
respects to the descriptions thereof in the Offering Memorandum.


 


(ix)             The Exchange Notes
have been, or on or before the Closing Date will be, duly and validly
authorized for issuance by each of the Issuers and when issued, authenticated
and delivered by each of the Issuers, in accordance with the terms of the
Registration Rights Agreement, the Exchange Offer and the Indenture, the
Exchange Notes will be valid and legally binding obligations of each of the
Issuers entitled to the benefits of the Indenture and enforceable against each
of the Issuers, in accordance with their terms, except as the enforcement
thereof may be subject to (x) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights generally and (y) general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought (regardless of whether such enforcement is
considered in a proceeding in equity or at law).


 


(x)              The Registration
Rights Agreement has been duly and validly authorized by each of the Issuers
and, when duly executed and delivered by each of the Issuers (assuming the due
authorization, execution and delivery thereof by the Initial Purchaser), will
constitute a valid and legally binding obligation of each of the Issuers
enforceable against each of the Issuers in accordance with its terms, except
that (A) except as the enforcement thereof may be subject to
(x) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium
and similar laws of general applicability relating to or affecting creditors’
rights generally and (y) general principles of equity and the discretion
of the court before which any proceeding therefor may be brought (regardless of
whether such enforcement is considered in a proceeding in equity or at law) and
(B) any rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations. The
Registration Rights Agreement, when executed and delivered, will conform in all
material respects to the description thereof in the Offering Memorandum.


 


(xi)             All Taxes (as defined
herein), fees and other governmental charges that are due and payable on or
prior to the Closing Date in connection with the execution, delivery and
performance of the Note Documents and the execution, delivery and sale of the
Original Notes shall have been paid by or on behalf of the Issuers at or prior
to the Closing Date.


 


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(xii)          None of the Issuers or
any Subsidiary is (A) in violation of its memorandum and articles of
association, charter, bylaws or other constitutive documents, (B) in
default (or, with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or condition
contained in any bond, debenture, note, indenture, mortgage, deed of trust,
loan or credit agreement, lease, license, franchise agreement, authorization,
permit, certificate or other agreement or instrument to which either of the
Issuers or any Subsidiary is a party or by which any of them is bound or to
which any of their assets or properties is subject (collectively, “Agreements and Instruments”), or
(C) except as disclosed in the Offering Memorandum, in violation of any
law, statute, rule, regulation, judgment, order or decree of any domestic or
foreign court with jurisdiction over any of them or any of their assets or
properties or other governmental or regulatory authority, agency or other body,
which, in the case of clauses (B) and (C) herein, individually or in
the aggregate, could reasonably be expected to have a Material Adverse Effect.
There exists no condition that, with notice, the passage of time or otherwise,
would constitute a default by the Issuers or any Subsidiary under any such
document or instrument or result in the imposition of any penalty or the
acceleration of any indebtedness, other than penalties, defaults or conditions
that, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.


 


(xiii)         Assuming the accuracy of
the representations and warranties of the Initial Purchaser in
Section 5(b) of this Agreement, the execution, delivery and performance of
the Note Documents and consummation of the Transactions does not and will not
violate, conflict with or constitute a breach of any of the terms or provisions
of or a default under (or an event that with notice or the lapse of time, or
both, would constitute a default), or require consent under, or result in the
creation or imposition of a lien, charge or encumbrance on any property or
assets of either of the Issuers or any Specified Subsidiary (other than as
created pursuant to the Indenture) or an acceleration of any indebtedness of
either of the Issuers or Specified Subsidiary, as applicable, pursuant to,
(i) the memorandum and articles of association, charter, bylaws or other
constitutive documents of either of the Issuers or any Specified Subsidiary,
(ii) any of the Agreements and Instruments, except for any such violation,
conflict, breach, default or event which would not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect,
(iii) assuming compliance with all applicable state securities or “blue
sky” laws and assuming qualification of the Indenture under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”), any law, statute, rule or
regulation applicable to either of the Issuers or any Subsidiary or their
respective assets or properties, or (iv) any judgment, order or decree of
any domestic or foreign court or governmental agency or authority having
jurisdiction over either of the Issuers or any Specified Subsidiary or their
respective assets or properties, except for any such violation, conflict,
breach, default or event which would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect. Assuming the accuracy
of the representations and warranties of the Initial Purchaser in
Section 5(b) of this Agreement, no consent, approval, authorization or
order of, or filing, registration, qualification, license or permit of or with,
any court or governmental agency, body or administrative agency, domestic or
foreign, is required to be obtained or made by the Issuers or any of the
Subsidiaries for the execution, delivery and performance by the Issuers or any
of the Subsidiaries of the Note Documents and the consummation of the
Transactions, except (w) such as have been or will be obtained or made on
or prior to the Closing Date, (x) registration of the Exchange Offer or
resale of the Notes under the Act pursuant to the Registration Rights
Agreement, (y) qualification of the Indenture under the Trust Indenture
Act, in connection with the issuance of the Exchange Notes and (z) any
state or foreign securities laws or by the regulations of the NASD. No consents
or waivers from any other person or entity are required


 


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for the execution, delivery and performance
of this Agreement or any of the other Note Documents and the consummation of
the Transactions, other than such consents and waivers as have been obtained or
will be obtained prior to the Closing Date and will be in full force and
effect, or such consents or waivers the failure to obtain which individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect.


 


(xiv)      Except as set forth in the
Offering Memorandum, there is (A) no action, suit or proceeding before or
by any court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to the knowledge of the Issuers or any Subsidiary
threatened or contemplated, to which the Issuers or any Subsidiary is or may be
a party or to which the business, assets or property of such Person is or may
be subject, (B) no statute, rule, regulation or order that has been
enacted, adopted or issued or, to the knowledge of the Issuers or any
Subsidiary, that has been proposed by any governmental body or agency, domestic
or foreign, (C) no injunction, restraining order or order of any nature by
a federal or state court or foreign court of competent jurisdiction to which
the Issuers or any Subsidiary is or may be subject, which in the case of
clauses (A) through (C), could reasonably be expected, individually or in
the aggregate, (1) to have a Material Adverse Effect or (2) to
interfere with or adversely affect the consummation of the Transactions. Every
request of any securities authority or agency of any jurisdiction for
additional information with respect to the Transactions that has been received
by the Issuers or any Subsidiary or their counsel prior to the date hereof has
been, or will prior to the Closing Date be, complied with in all material
respects.


 


(xv)         Except as could not
reasonably be expected to have a Material Adverse Effect, no labor disturbance
by the employees of the Issuers or any Subsidiary exists or, to the knowledge
of the Issuers, is imminent.


 


(xvi)      Except as set forth in the
Offering Memorandum, each of the Issuers and the Subsidiaries (A) is in
compliance with, or not subject to costs or liabilities under, laws,
regulations, rules of common law, orders and decrees, as in effect as of the
date hereof, and any present judgments and injunctions issued or promulgated
thereunder relating to pollution or protection of public and employee health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants applicable to it or its business or operations or
ownership or use of its property (“Environmental
Laws”), other than noncompliance or such costs or liabilities that,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect, and (B) possesses all permits, licenses or other
approvals required under applicable Environmental Laws, except where the
failure to possess any such permit, license or other approval could not
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect. All currently pending and, to the knowledge of the
Issuers and each of the Subsidiaries, threatened proceedings, notices of
violation, demands, notices of potential responsibility or liability, suits and
existing environmental investigations by any governmental authority relating to
Environmental Laws which the Issuers or any Subsidiary could reasonably expect
to result in a Material Adverse Effect are fully and accurately described in
all material respects in the Offering Memorandum. The Company maintains a system
of internal environmental management controls sufficient to provide reasonable
assurance of compliance in all material respects of its business facilities,
real property and operations with requirements of applicable Environmental
Laws.


 


(xvii)   Each of the Issuers and the
Subsidiaries has (A) all licenses, certificates, permits, authorizations,
approvals, franchises and other rights from, and has made all declarations and
filings with, all applicable authorities, all self-regulatory authorities and all
courts and other tribunals (each, an “Authorization”)
necessary to engage in the business conducted by it in the manner described in
the Offering Memorandum, except where the failure to hold such


 


9
















 


Authorizations could not, individually or in
the aggregate, be reasonably expected to have a Material Adverse Effect, and
(B) except as set forth in the Offering Memorandum, no reason to believe
that any governmental body or agency, domestic or foreign, is considering
limiting, suspending or revoking any such Authorization, except where such
limitation, suspension or revocation could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. All such
Authorizations are valid and in full force and effect and each of the Issuers
and the Subsidiaries is in compliance in all material respects with the terms
and conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities having jurisdiction with respect to such
Authorizations, except for any invalidity, failure to be in full force and
effect or noncompliance with any Authorization that could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(xviii)           Each of the Issuers and
the Subsidiaries has good, valid and marketable title in fee simple to all
items of owned real property, and valid title to all personal property owned by
each of them, in each case free and clear of any pledge, lien, encumbrance,
security interest or other defect or claim of any third party other than
Permitted Liens, except such as do not adversely affect the value of such
property and do not interfere with the use made or proposed to be made of such
property by the Issuers or any of the Subsidiaries to an extent that such
effect on value and/or interference could reasonably be expected to have a
Material Adverse Effect. Any real property, personal property that is leased
and buildings held under lease by the Issuers and each of the Subsidiaries are
held under valid, subsisting and enforceable leases, with such exceptions as do
not interfere with the use made or proposed to be made of such property and
buildings the Issuers or the Subsidiaries to the extent such interference could
reasonably be expected to have a Material Adverse Effect.


 


(xix)        To the knowledge of the
Issuers and the Subsidiaries, each of the Issuers and the Subsidiaries own,
possess or have the right to employ all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively, the “Intellectual Property”) necessary to
conduct the businesses operated by it as described in the Offering Memorandum,
except where the failure to own, possess or have the right to employ such
Intellectual Property, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. Neither of the Issuers nor any
of the Subsidiaries has received any notice of infringement of or conflict with
(and neither knows of any such infringement or a conflict with) asserted rights
of others with respect to any of the foregoing that could reasonably be
expected to have a Material Adverse Effect. To the knowledge of the Issuers and
the Subsidiaries, the use of the Intellectual Property in connection with the
business and operations of the Issuers and the Subsidiaries does not infringe on
the rights of any person, except for such infringement as could not reasonably
be expected to have a Material Adverse Effect.


 


(xx)           Except as set forth in
the Offering Memorandum, all Tax returns required to be filed by the Issuers
and each Specified Subsidiary have been filed and all such returns are true,
complete, and correct in all material respects, except as could not reasonably
be expected to have a Material Adverse Effect. Except as set forth in the
Offering Memorandum, all Taxes due or claimed to be due from the Issuers and
each Specified Subsidiary have been paid, other than those (i) currently
payable without penalty or interest or (ii) being contested in good faith
and by appropriate proceedings and for which, in the case of both clauses
(i) and (ii), adequate reserves have been established on the books and
records of the Issuers and each Specified Subsidiary in accordance with GAAP.
To the knowledge of the Issuers and the Specified Subsidiaries, there are no
proposed, material tax assessments against any of the


 


10
















 


Issuers or the Specified Subsidiaries. The
accruals and reserves on the books and records of the Issuers and each
Specified Subsidiary, in respect of any material Tax liability for any taxable
period not finally determined have been made and established in accordance with
GAAP. For purposes of this Agreement, the term “Tax” and “Taxes” shall mean all
Federal, state, local, and foreign taxes, and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable thereto.


 


(xxi)        Except as set forth in the
Offering Memorandum, none of the Issuers or any Subsidiary has any liability
for any prohibited transaction (within the meaning of Section 4975 of the
Code) which could have a Material Adverse Effect, accumulated funding
deficiency (within the meaning of Section 412 of the Code) or any complete
or partial withdrawal liability with respect to any pension, profit sharing or
other plan which is subject to Title IV of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”),
to which the Issuers or any Subsidiary makes or ever has made a contribution
and in which any employee of the Issuers or any Subsidiary is or has ever been
a Sponsor. With respect to such plans, there has been no failure by the Issuers
or any Subsidiary to comply with any applicable provisions of ERISA, which
failure could reasonably be expected to have a Material Adverse Effect.


 


(xxii)     None of the Issuers or any
Subsidiary is an “investment company” or a company “controlled” by an
“investment company” incorporated in the United States within the meaning of
the Investment Company Act of 1940, as amended; and, after giving effect to the
offering and sale of the Notes, none of the Issuers or any Subsidiary will be
required to register as an investment company.


 


(xxiii)  Each of the Issuers and their
respective subsidiaries maintains a system of internal accounting controls sufficient
to provide reasonable assurance that: (A) transactions are executed in
accordance with management’s general or specific authorizations;
(B) transactions are recorded as necessary to permit preparation of their
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (C) access to assets
is permitted only in accordance with management’s general or specific
authorization; and (D) the recorded accountability for their assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.


 


(xxiv)            Except as set forth in
the Offering Memorandum, each of the Issuers and the Subsidiaries maintain
insurance covering their properties, assets, operations personnel and
businesses, and such insurance is of such type and in such amounts in
accordance with customary industry practice to protect the Issuers and the
Subsidiaries and their businesses.


 


(xxv)               None of the
Issuers, the Subsidiaries or any of their respective affiliates (as defined in
Rule 501(b) of Regulation D under the Act) has (A) taken,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
any security of either of the Issuers to facilitate the sale or resale of the
Original Notes or (B) sold, bid for, purchased or paid any person any
compensation for soliciting purchases of the Original Notes in a manner that
would require registration of the Original Notes under the Act or paid or
agreed to pay to any person any compensation for soliciting another to purchase
any other securities of the Issuers in a manner that would require registration
of the Original Notes under the Act.


 


(xxvi)            None of the Issuers,
the Subsidiaries or any of their respective affiliates (as defined in
Regulation D under the Act) has, directly or through any agent (other than
the Initial Purchaser or any affiliate of the Initial Purchaser, as to which no
representation is made),


 


11
















 


sold, offered for sale, contracted to sell,
pledged, solicited offers to buy or otherwise disposed of or negotiated in
respect of any security (as defined in the Act) that is currently or will be
integrated with the sale of the Original Notes in a manner that would require
the registration of the Original Notes under the Act.


 


(xxvii)                 None of the
Issuers, the Subsidiaries or any of their respective affiliates, or any person
acting on its or their behalf (other than any Initial Purchaser, as to whom
neither of the Issuers makes any representation), is engaged in any directed
selling effort with respect to the Original Notes, and each of them has
complied with the offering restrictions requirement of Regulation S under
the Act. Terms used in this paragraph have the meaning given to them by
Regulation S.


 


(xxviii)              No form of general
solicitation or general advertising (within the meaning of Regulation D
under the Act) was used by the Issuers, the Subsidiaries or any of their
respective representatives (other than any Initial Purchaser, as to whom none
of the Issuers and the Subsidiaries makes any representation) in connection
with the offer and sale of any of the Original Notes or in connection with
Exempt Resales, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio or displayed on any computer terminal, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. None of the Issuers, the Subsidiaries or
any of their respective affiliates has entered into, and none of the Issuers,
the Subsidiaries or any of their respective affiliates will enter into, any
contractual arrangement with respect to the distribution of the Original Notes
except for this Agreement.


 


(xxix)   As of the date of the latest
balance sheet presented in the Offering Memorandum, neither the Issuers nor any
of their subsidiaries had any material liabilities or obligations, direct or
contingent, that were required in accordance with GAAP, to be set forth in the
Company’s consolidated balance sheet as of such date or in the notes thereto
set forth in the Offering Memorandum not so set forth. Since the date of the
latest balance sheet presented in the Offering Memorandum, except as set forth
or contemplated in the Offering Memorandum, (a) none of the Issuers or any
Subsidiary has (1) incurred any liabilities or obligations, direct or
contingent, that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, or (2) entered into any
material transaction not in the ordinary course of business, (b) there has
not been any event or development in respect of the business or condition
(financial or other) of the Issuers and the Subsidiaries that, individually or
in the aggregate, could reasonably be expected to have a Material Adverse
Effect, (c) there has been no dividend or distribution of any kind
declared, paid or made by either of the Issuers on any class of its capital
stock and (d) there has not been any material change in the long-term debt
of either of the Issuers or any of their respective subsidiaries.


 


(xxx)      None of the Issuers or any
of their respective subsidiaries (or any agent thereof acting on their behalf)
has taken, and none of them will take, any action that might cause the issuance
or sale of the Notes to violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System, as in effect, or as the same may
hereafter be in effect, on the Closing Date.


 


(xxxi)   Each of Deloitte &
Touche LLP and PricewaterhouseCoopers LLP are independent accountants within
the meaning of Regulation S-X of the Exchange Act. The historical
financial statements and the notes thereto included in the Offering Memorandum
present fairly in all material respects the consolidated financial position,
income statement, cash flows and changes in stockholder’s equity of the Company
and its subsidiaries at the respective dates and for the respective periods
indicated. All such financial statements have been prepared in


 


12
















 


accordance with GAAP applied on a consistent
basis throughout the periods presented (except as disclosed therein). The
unaudited pro forma financial statements and the notes thereto included in the
Offering Document have been prepared on a basis consistent with the historical
financial statements of the Company and its subsidiaries and give effect to
assumptions used in the preparation thereof on a reasonable basis and in good
faith and present fairly in all material respects the historical and proposed
transactions contemplated by the Offering Memorandum; and such pro forma financial
statements comply as to form in all material respects with the requirements
applicable to pro forma financial statements set forth in Regulation S-X
under the Act. The other financial and statistical information and data
included in the Offering Memorandum (other than industry and market-related
data) are accurately presented in all material respects and prepared on a basis
consistent with the financial statements and the books and records of the
Company and its subsidiaries.


 


(xxxii)                       As of the
date hereof and as of the Closing Date, immediately prior to and immediately
following the consummation of the Transactions, each of the Issuers and their
respective subsidiaries (on a consolidated basis) is and will be Solvent. None
of the Issuers or the Subsidiaries is contemplating the filing of a petition by
it under any bankruptcy or insolvency laws or the liquidating of all or a
substantial portion of its property, and none of the Issuers or the
Subsidiaries has knowledge of any Person contemplating the filing of any such
petition. As used herein, “Solvent”
shall mean, for any Person on a particular date that on such date (a) the
fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such
Person, (b) the present fair salable value of the assets of such Person is
not less than the amount that will be required to pay the probable liability of
such Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts and
liabilities beyond such Person’s ability to pay as such debts and liabilities
mature, (d) such Person is not engaged in a business or a transaction, and
is not about to engage in a business or a transaction, for which such Person’s
property would constitute an unreasonably small capital and (e) such
Person is able to pay its debts as they become due and payable.


 


(xxxiii)                    Except as
described in the section entitled “Plan of Distribution” in the Offering
Memorandum, there are no contracts, agreements or understandings between either
of the Issuers or any Subsidiary and any other Person other than the Initial
Purchaser pursuant to this Agreement that would give rise to a valid claim against
either of the Issuers, any of the Subsidiaries or the Initial Purchaser for a
brokerage commission, finder’s fee or like payment in connection with the
issuance, purchase and sale of the Notes.


 


(xxxiv)               The statistical and
market-related data and forward-looking statements (within the meaning of
Section 27A of the Act and Section 21E of the Exchange Act) included
in the Offering Memorandum are based on or derived from sources that each of
the Issuers believe to be reliable and represent good faith estimates that are
made on the basis of data derived from such sources.


 


(xxxv)                      Capital has
conducted no business prior to the date hereof other than in connection with
the transactions contemplated by this Agreement and the Offering Memorandum.


 


(xxxvi)                   Each
certificate signed by any officer of either of the Issuers and delivered to the
Initial Purchaser or counsel for the Initial Purchaser pursuant to, or in
connection with, this Agreement shall be deemed to be a representation and
warranty by such Issuer to the Initial Purchaser as to the matters covered by
such certificate.


 


Each of the Issuers acknowledges that the
Initial Purchaser and, for purposes of the opinions to be delivered to the
Initial Purchaser pursuant to Section 8 of this Agreement, counsel to the


 


13
















 


Issuers and
counsel to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and each of the Issuers hereby consent to such
reliance.


 


(b)              The Initial Purchaser acknowledges that
it is purchasing the Original Notes pursuant to a private sale exemption from
registration under the Act, and that the Original Notes have not been
registered under the Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. Persons except pursuant to
an exemption from the registration requirements of the Act. The Initial
Purchaser represents, warrants and covenants to the Issuers that:


 


(i)                  Neither it, nor
any person acting on its behalf, has or will solicit offers for, or offer or
sell, the Original Notes by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in
any manner involving a public offering within the meaning of Section 4(2)
of the Act, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio or displayed on any computer terminal, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising, and it has and will solicit offers for the
Original Notes only from, and will offer and sell the Original Notes only to,
(A) Persons whom the Initial Purchaser reasonably believes to be QIBs or,
if any such Person is buying for one or more institutional accounts for which
such Person is acting as fiduciary or agent, only when such Person has
represented to the Initial Purchaser, and the Initial Purchaser reasonably
believes based on such representation, that each such account is a QIB to whom
notice has been given that such sale or delivery is being made in reliance on
Rule 144A, and, in each case, in reliance on the exemption from the
registration requirements of the Act pursuant to Rule 144A, or
(B) Persons other than U.S. Persons outside the United States in reliance
on the exemption from the registration requirements of the Act provided by
Regulation S. The Initial Purchaser agrees, with respect to resales made
in reliance on Rule 144A of any of the Notes, to deliver either with the
confirmation of such resale or otherwise prior to settlement of such resale a
notice to the effect that the resale of such Notes have been made in reliance
upon the exemption from the registration requirements of the Act provided by
Rule 144A.


 


(ii)               With respect to
offers and sales outside the United States, the Initial Purchaser has offered
the Original Notes and will offer and sell the Original Notes (1) as part
of its distribution at any time and (2) otherwise until 40 days after
the later of the commencement of the offering of the Original Notes and the
Closing Date, only in accordance with Rule 903 of Regulation S or
another exemption from the registration requirements of the Act. Accordingly,
neither the Initial Purchaser nor any person acting on its behalf has engaged
or will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Original Notes, and all such persons
have complied and will comply with the offering restrictions requirements of
Regulation S.


 


The Initial
Purchaser agrees that it and each of its affiliates has not entered and will
not enter into any contractual arrangement with respect to the distribution of
the Notes except with the prior written consent of the Issuers or as
contemplated by this Agreement.


 


14
















 


Terms used in this Section 5(b)(ii) have
the meanings given to them by Regulation S.


 


The Initial Purchaser understands that the Issuers and, for purposes of
the opinions to be delivered to them pursuant to Section 8 hereof, counsel
to the Issuers and counsel to the Initial Purchaser will rely upon the accuracy
and truth of the foregoing representations, and the Initial Purchaser hereby
consents to such reliance.


 


6.                   Indemnification.  (a) Each of the Issuers, jointly and
severally agrees to indemnify and hold harmless the Initial Purchaser, each
person, if any, who controls any Initial Purchaser within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, the agents, employees, officers and directors
of any Initial Purchaser and the agents, employees, officers and directors of
any such controlling person from and against any and all losses, liabilities,
claims, damages and expenses whatsoever (including, but not limited, to
reasonable attorneys’ fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation) (collectively, “Losses”) to which they or any of them may
become subject under the Act, the Exchange Act or otherwise insofar as such
Losses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum or the Offering Memorandum, or in any
supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing indemnity
agreement shall not apply any such case to the extent, but only to the extent,
that any such Loss arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission relating to the
Initial Purchaser made therein in reliance upon and in conformity with written
information furnished to either of the Issuers by or on behalf of the Initial
Purchaser expressly for use therein; provided,
however, that with respect to any untrue statement or alleged untrue
statement in or omission or alleged omission from the Preliminary Offering
Memorandum, the indemnity agreement contained in this section shall not inure
to the benefit of the Initial Purchaser if the Initial Purchaser sold the Notes
concerned to the Person asserting any such Losses, to the extent that such sale
was an initial resale by the Initial Purchaser and any such Losses of the
Initial Purchaser results from the fact that there was not sent or given to
such Person, at or prior to the written confirmation of the sale of such Notes
to such Person, a copy of the Offering Memorandum (exclusive of any material
included therein but not attached thereto) if the Issuers had previously
furnished copies thereof to the Initial Purchaser. This indemnity agreement
will be in addition to any liability that the Issuers may otherwise have,
including, but not limited to, liability under this Agreement.


 


(b)             The Initial Purchaser
agrees to indemnify and hold harmless each of the Issuers and each person, if
any, who controls either of the Issuers, within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, each of its respective
agents, employees, officers and directors and the agents, employees, officers
and directors of any such controlling person from and against any Losses to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise insofar as such Losses (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission relating to the Initial Purchaser made therein in reliance upon and in
conformity with information furnished in writing to either of the Issuers by or
on behalf of such Initial Purchaser expressly for use therein. Each of the
Issuers and the Initial Purchasers


 


15
















 


acknowledge that the information described in
Section 9 of this Agreement is the only information furnished in writing
by the Initial Purchasers to the Issuers expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.


 


(c)              Promptly after
receipt by an indemnified party under subsection 6(a) or 6(b) above of
notice of the commencement of any action, suit or proceeding (collectively, an
“action”), such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement of such action (but the failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability that it may have under this Section 6 except to the extent
that it has been prejudiced in any material respect by such failure). In case
any such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement of such action, the indemnifying party
will be entitled to participate in such action, and to the extent it may elect
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense of such
action with counsel satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its or
their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties
unless (i) the employment of such counsel shall have been authorized in
writing by the indemnifying parties in connection with the defense of such
action, (ii) the indemnifying parties shall not have employed counsel to
take charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) the named parties to such action
(including any impleaded parties) include such indemnified party and the
indemnifying parties (or such indemnifying parties have assumed the defense of
such action), and such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them that are different
from, in addition to, or in conflict with, those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party
or parties), in any of which events such reasonable fees and expenses of
counsel shall be borne by the indemnifying parties. In no event shall the
indemnifying party be liable for the fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent, which
consent may not be unreasonably withheld. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by paragraph (a) or (b) of this Section 6,
then the indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 45 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 45 days prior notice of
its intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding and does not include a statement as to or an admission of
fault, culpability or failure to act on behalf of any indemnified party.


 


7.                   Contribution.  In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of
this Agreement is for any reason held to be unavailable


 


16
















 


from an indemnifying party, or
is insufficient to hold harmless a party indemnified under Section 6 of
this Agreement, each party that is obligated under Section 6 of this
Agreement to indemnify any other party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses
(i) in such proportion as is appropriate to reflect the relative benefits
received by the Issuers, on the one hand, and the Initial Purchaser, on the
other hand, from the offering of the Original Notes or (ii) if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Issuers on the one hand, and the Initial
Purchaser, on the other hand, in connection with the statements or omissions
that resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
shall be deemed to be in the same proportion as (x) the total proceeds
from the offering of Original Notes (net of discounts and commissions but
before deducting expenses) received by the Issuers are to (y) the total
discount, commissions and other compensation received by the Initial Purchaser.
The relative fault of the Issuers, on the one hand, and the Initial Purchaser,
on the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers, or the Initial Purchasers and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission.


 


Each of the Issuers and the Initial Purchaser agree that it would not
be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 7, (i) in no case
shall the Initial Purchaser be required to contribute any amount in excess of
the amount by which the total discount, commissions and other compensation
applicable to the Original Notes purchased by the Initial Purchaser pursuant to
this Agreement exceeds the amount of any damages that the Initial Purchaser has
otherwise been required to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each
person, if any, who controls the Initial Purchaser within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as the Initial Purchaser, and each person, if
any, who controls either of the Issuers within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act and each director,
officer, employee and agent of each of the Issuers shall have the same rights
to contribution as the Issuers. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 7, notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; provided,
however, that no additional
notice shall be required with respect to any action for which notice has been
given under Section 6 of this Agreement for purposes of indemnification.
Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its
written consent; provided, however, that such written consent was not
unreasonably withheld.


 


8.                   Conditions
to the Initial Purchaser’s Obligations.  The obligations of the Initial Purchaser to
purchase and pay for the Original Notes, as provided for in this Agreement, shall
be subject to satisfaction of the following conditions prior to or concurrently
with such purchase:


 


(a)                        All of the
representations and warranties of the Issuers contained in this Agreement shall
be true and correct in all material respects on the date of this Agreement and
on the Closing Date


 


17
















 


(other than any such representations or
warranties which are qualified as to materiality, which representations and
warranties shall be accurate in all respect on the date hereof and on the
Closing Date). Each of the Issuers shall have in all material respects
performed or complied with all of the agreements and covenants contained in
this Agreement and required to be performed or complied with by it on or prior to
the Closing Date.


 


(b)                       The
Offering Memorandum shall have been printed and copies distributed to the
Initial Purchaser on the date of this Agreement or at such later date as the
Initial Purchaser may determine. No stop order suspending the qualification or
exemption from qualification of the Original Notes in any jurisdiction shall
have been issued and no proceeding for that purpose shall have been commenced
or shall be pending or threatened.


 


(c)                        No action
shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any governmental agency that would, as of the
Closing Date, prevent the issuance and sale of the Original Notes or
consummation of the Exchange Offer; except as disclosed in the Offering Memorandum,
no action, suit or proceeding shall have been commenced and be pending against
or affecting or, to the best knowledge of the Issuers, threatened against
either of the Issuers or any of their respective subsidiaries before any court
or arbitrator or any governmental body, agency or official that could
reasonably be expected to have a Material Adverse Effect; and no stop order
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act shall have been issued.


 


(d)                       As of the
date of the latest balance sheet presented in the Offering Memorandum, neither
the Company nor any of its subsidiaries had any material liabilities or
obligations, direct or contingent, that were required in accordance with GAAP,
to be set forth in the Company’s consolidated balance sheet as of such date or
in the notes thereto set forth in the Offering Memorandum not so set forth.
Since the date of the latest balance sheet presented in the Offering
Memorandum, except as set forth or contemplated in the Offering Memorandum,
(a) neither of the Issuers has (1) incurred any liabilities or
obligations, direct or contingent, that, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect, or
(2) entered into any material transaction not in the ordinary course of
business, (b) there has not been any event or development in respect of
the business or condition (financial or other) of the Issuers that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, (c) there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its capital
stock and (d) there has not been any material change in the long-term debt
of the Company or any of its subsidiaries.


 


(e)                        The
Initial Purchaser shall have received certificates from each of the Issuers,
dated the Closing Date, signed by two authorized officers of each of the
Issuers confirming, as of the Closing Date, to its knowledge, the matters set
forth in paragraphs (a), (b), (c) and (d) of this Section 8.


 


(f)                          The
Initial Purchaser shall have received on the Closing Date opinions dated the
Closing Date, addressed to the Initial Purchaser, of (i) Gibson,
Dunn & Crutcher LLP, special counsel to the Issuers, (ii) Schreck
Brignone, special Nevada counsel to the Issuers, (iii) Sidley Austin Brown &
Wood LLP, special regulatory counsel to the Issuers, (iv) Brett R.
Chapman, general counsel to the Issuers, and (v) Maples and Calder, Cayman
Islands counsel to Issuers, each substantially in the form of
Exhibits A-1, A-2, A-3, A-4 and A-5 attached hereto, with such reasonable
assumptions and qualifications satisfactory to the Initial Purchaser.


 


(g)                       The Initial
Purchaser shall have received on the Closing Date an opinion dated the Closing
Date of Skadden, Arps, Slate, Meagher & Flom LLP, counsel to the
Initial Purchaser.


 


18
















 


(h)                       On the date
hereof, the Initial Purchaser shall have received a “comfort letter” from each
of Deloitte & Touche LLP and PricewaterhouseCoopers LLP, independent
public accountants for the Issuers, dated the date of this Agreement, addressed
to the Initial Purchaser and in form and substance satisfactory to the Initial
Purchaser and counsel to the Initial Purchaser. In addition, the Initial
Purchaser shall have received “bring-down comfort letter” from each of
Deloitte & Touche LLP and PricewaterhouseCoopers LLP, dated as of the
Closing Date, addressed to the Initial Purchaser and in form and substance
satisfactory to the Initial Purchaser and counsel to the Initial Purchaser.


 


(i)                           Each of
the other Note Documents shall have been executed and delivered and the Initial
Purchaser shall have received copies, conformed as executed, thereof.


 


(j)                           Skadden,
Arps, Slate, Meagher & Flom LLP, counsel to the Initial Purchaser,
shall have been furnished with such documents as they may reasonably request to
enable them to review or pass upon the matters referred to in this
Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations, warranties
or conditions contained in this Agreement.


 


(k)                        The Notes
shall be eligible for trading in PORTAL upon issuance. All agreements set forth
in the representation letter of the Issuers to DTC relating to the approval of
the Notes by DTC for “book-entry” transfer shall have been complied with.


 


If any of the conditions specified in this Section 8 shall not
have been fulfilled when and as required by this Agreement to be fulfilled (or
waived by the Initial Purchaser), this Agreement may be terminated by the
Initial Purchaser on notice to the Issuers and at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party. Notwithstanding any such termination, the provisions of
Sections 4(f), 6, 7, 9, 10 and 11(d) shall remain in effect.


 


The documents required to be delivered by this Section 8 will be
delivered at the office of counsel for the Initial Purchaser on the Closing
Date.


 


9.                   Initial
Purchaser Information.  The
Issuers and the Initial Purchaser severally acknowledge that the statements
with respect to the delivery of
the Original Notes to the Initial Purchaser set forth in the third, sixth,
seventh, eighth, tenth and eleventh paragraph under “Plan of Distribution” in
the Preliminary Offering Memorandum and the Offering Memorandum constitute the
only information furnished in writing by the Initial Purchaser expressly for
use in the Preliminary Offering Memorandum or the Offering Memorandum.


 


10.             Survival
of Representations and Agreements. 
All representations and warranties, covenants and agreements contained
in this Agreement, including the agreements contained in Sections 4(f) and
11(d), the indemnity agreements contained in Section 6 and the
contribution agreements contained in Section 7, shall remain operative and
in full force and effect regardless of any investigation made by or on behalf
of the Initial Purchaser or any controlling person thereof or by or on behalf
of either of the Issuers or any controlling person thereof, and shall survive
delivery of and payment for the Original Notes to and by the Initial Purchaser.
The agreements contained in Sections 4(f), 6, 7, 9 and 11(d) shall survive
the termination of this Agreement, including pursuant to Section 11.


 


11.             Effective
Date of Agreement; Termination. 
(a) This Agreement shall become effective upon execution and
delivery of a counterpart hereof by each of the parties hereto.


 


(b)                       The Initial
Purchaser shall have the right to terminate this Agreement at any time prior to
the Closing Date by notice to the Issuers from the Initial Purchaser, without
liability (other than with respect to Sections 6 and 7) on the Initial
Purchaser’s part to the Issuers, or any affiliate thereof if, on or after the
date hereof there shall have occurred: (i) a failure, refusal or inability
to perform by either of the Issuers in any material respect any agreement on
its part to be performed


 


19
















 


under this Agreement when and as required,
(ii) a failure by either of the Issuers to fulfill pursuant to
Section 8 any other condition to the obligations of the Initial Purchaser
under this Agreement when and as required, (iii) a general moratorium on
commercial banking activities is declared by either Federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States, (iv) the outbreak
or escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war or (v) the occurrence of
any other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in the judgment of the Initial Purchaser
makes it impracticable or inadvisable to proceed with the public offering or
the delivery of the Original Notes on the terms and in the manner contemplated
in the Offering Memorandum.


 


(c)                        Any notice
of termination pursuant to this Section 11 shall be given at the address
specified in Section 12 below by telephone, telex, telephonic facsimile or
telegraph, confirmed in writing by letter.


 


(d)                       If this
Agreement shall be terminated pursuant to Section 11(b), or if the sale of
the Notes provided for in this Agreement is not consummated because of any
refusal, inability or failure on the part of either of the Issuers to satisfy
any condition to the obligations of the Initial Purchaser set forth in this
Agreement to be satisfied on its part or because of any refusal, inability or
failure on the part of either of the Issuers to perform in any material respect
any agreement in this Agreement or comply in any material respect with any
provision of this Agreement, the Issuers will reimburse the Initial Purchaser
for all of their reasonable out-of-pocket expenses (including, without
limitation, the fees and expenses of the Initial Purchaser’s counsel) incurred
in connection with this Agreement.


 


12.             Notice.  All communications with respect to or under
this Agreement, except as may be otherwise specifically provided in this
Agreement, shall be in writing and, if sent to the Initial Purchaser, shall be
mailed, delivered, or, telegraphed or telecopied and confirmed in writing to
UBS Securities LLC, 677 Washington Boulevard, Stamford, Connecticut
(telephone: (203) 719-3000, fax number: (203) 719-1075), Attention:
High Yield Syndicate Department, with a copy to UBS Securities LLC,
677 Washington Boulevard, Stamford, Connecticut (telephone: (203) 719-3000,
fax number: (203) 719-0680), Attention: Legal Department and to Skadden,
Arps, Slate, Meagher & Flom LLP, 300 South Grand Ave., Los
Angeles, California, 90071 (telephone: (213) 687-5000, fax:
(213) 687-5600), Attention: Nicholas P. Saggese, Esq.; and if
sent to the Issuers, shall be mailed, delivered or, telegraphed or telecopied
and confirmed in writing to WH Holdings (Cayman Islands) Ltd., c/o
Whitney & Co, LLC, 177 Broad Street, Stamford, Connecticut 06901
(telephone: (203) 973-4100, fax: (203) 973-1422), Attention:
Mr. James Fordyce with a copy to WH Holdings (Cayman
Islands) Ltd., c/o 1800 Century Park East, 15th Floor, Los
Angeles, California 90067-1501 (telephone: (310) 410-9600, fax:
(310) 557-3909), Attention: Brett R. Chapman, Esq. and to Gibson
Dunn & Crutcher, LLP, 2029 Century Park East, Suite 4000,
Los Angeles, California 90067 (telephone: (310) 552-8500, fax:
(310) 551-8741), Attention: Jonathan K. Layne, Esq.


 


All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged by telecopier machine, if telecopied; and one business day after
being timely delivered to a next-day air courier.


 


13.             Parties.  This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Initial Purchaser, the Issuers and
the controlling persons and agents referred to in Sections 6 and 7 above,
and their respective successors and assigns, and no other person shall have or
be construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement


 


20
















 


or any provision herein contained. The term “successors and assigns”
shall not include a purchaser, in its capacity as such, of Notes from the
Initial Purchaser.


 


14.             Construction.  This Agreement shall be construed in
accordance with the internal laws of the State of New York including, without
limitation, Sections 5-1401 and 5-1402 of the New York General Obligations
Law and New York Civil Practice Laws and Rules 327(b) (without giving
effect to any provisions thereof relating to conflicts of law).


 


15.             Captions.  The captions included in this Agreement are
included solely for convenience of reference and are not to be considered a
part of this Agreement.


 


16.             Counterparts.  This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.


 


21
















 


If the foregoing Purchase Agreement correctly sets forth the
understanding among the Issuers and the Initial Purchaser, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Issuers and the
Initial Purchaser.


 


	
   

  	
  ISSUERS:

  
	
   

  	
   

  
	
   

  	
  WH HOLDINGS (CAYMAN ISLANDS) LTD.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  MICHAEL O. JOHNSON

  	
   

  
	
   

  	
   

  	
  Name: Michael O. Johnson

  
	
   

  	
   

  	
  Title: Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  WH CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  BRETT R. CHAPMAN

  	
   

  
	
   

  	
   

  	
  Name: Brett R. Chapman

  
	
   

  	
   

  	
  Title: Secretary

  
	
   

  	
   

  	
   

  
	
  INITIAL PURCHASER:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Confirmed and accepted as of

  the date first above written:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  UBS SECURITIES LLC

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/  DAVID BARTH

  	
   

  	
   

  
	
   

  	
  Name: David Barth

  	
   

  	
   

  
	
   

  	
  Title:
  Executive Director

  High Yield Capital Markets

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/  MICHAEL F. NEWCOMB II

  	
   

  	
   

  
	
   

  	
  Name:Michael F. Newcomb II

  	
   

  	
   

  
	
   

  	
  Title:
  Executive Director

  High Yield Capital Markets

  	
   

  	
   

  



 
















 


Schedule I


 


Subsidiaries of WH Holdings (Cayman
Islands) Ltd.


 


	
  Subsidiary

  	
   

  	
  Type of Entity

  	
   

  	
  % Ownership

  	
   

  	
  Jurisdiction of

  Incorporation

  
	
  WH Capital Corporation

  	
   

  	
  Corporation

  	
   

  	
  100%

  	
   

  	
  Nevada

  
	
  WH Intermediate Holdings Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100%

  	
   

  	
  Cayman Islands

  
	
  WH Luxembourg Holdings SàRL

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Luxembourg

  
	
  WH Luxembourg Intermediate Holdings SàRL

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Luxembourg

  
	
  WH Luxembourg CM SàRL

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Luxembourg

  
	
  Herbalife International, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Nevada

  
	
  Herbalife International Argentina S.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Argentina

  
	
  Herbalife Australisia Pty, Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Australia

  
	
  Herbalife Foreign Sales Corporation

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Barbados

  
	
  Herbalife International Belgium, S.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Belgium

  
	
  Herbalife International Do Brasil Ltda.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Brazil and Delaware

  
	
  Herbalife of Canada, Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Canada

  
	
  Importadora Y Distribuidora Herbalife International de Chile Limitada

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Chile

  
	
  H&L (Suzhou) Health Products LTD

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Republic of China

  
	
  Herbalife Denmark ApS

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Denmark

  
	
  Herbalife Domincana, S.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Dominican Republic

  
	
  Herbalife Del Ecuador, S.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Ecuador

  
	
  Herbalife International Finland OY

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Finland

  
	
  Herbalife International France, S.A.

  	
   

  	
  Corporation

  	
   

  	
  99.99% (indirect) .01 (held by nominee)

  	
   

  	
  France

  
	
  Herbalife International Deutschland GmbH

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Germany

  
	
  Herbalife International Greece S.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Greece

  
	
  Herbalife International Hong Kong Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Hong Kong

  
	
  Herbalife Hungary Trading, Limited

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Hungary

  
	
  Herbalife International India Private Limited

  	
   

  	
  Corporation

  	
   

  	
  85.6% (indirect)

  	
   

  	
  India

  
	
  PT Herbalife Indonesia

  	
   

  	
  Corporation

  	
   

  	
  Nominee ownership

  	
   

  	
  Indonesia

  
	
  Herbalife International of Israel (1990) Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Israel

  
	
  Herbalife Italia S.p.A

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Italy

  
	
  Herbalife of Japan K.K.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Japan and Delaware

  
	
  Herbalife Korea Co., Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Korea and Delaware

  
	
  Herbalife International SDN.BHD

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Malaysia

  
	
  Herbalife Internacional de Mexico, S.A. de C.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Mexico

  
	
  Herbalife Products De Mexico, S.A. de C.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Mexico

  
	
  Herbavida International de Mexico, S.A. de C.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Mexico

  
	
  Herbalife International (Netherlands) B.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Netherlands

  
	
  Herbalife International Products N.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Netherlands Antilles

  
	
  Herbalife (NZ) limited

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  New Zealand

  
	
  Herbalife Norway Products AS

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Norway

  
	
  Herbalife International Holdings, Inc.

  	
   

  	
  Corporation

  	
   

  	
  40%

  	
   

  	
  Philippines

  
	
  Herbalife International Philippines, Inc.

  	
   

  	
  Corporation

  	
   

  	
  99.9% (indirect)

  	
   

  	
  Philippines

  
	
  Herbalife Polska Sp.z.o.o

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Poland

  
	
  Herbalife International, S.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Portugal

  
	
  Herbalife International Russia 1995 Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Israel

  
	
  Limited Liability Company Herbalife International RS

  	
   

  	
  LLC

  	
   

  	
  100% (indirect)

  	
   

  	
  Russia

  
	
  Herbalife International Singapore, Pte. Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Singapore

  
	
  Herbalife International Espana, S.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Spain

  
	
  Herbalife Sweden Aktiebolag

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Sweden

  
	
  HBL Products, SA

  	
   

  	
  Corporation

  	
   

  	
  99.7% (indirect)

  	
   

  	
  Switzerland

  
	
  Herbalife International Urunleri Tic. Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Turkey and Delaware

  
	
  Herbalife (UK) Limited

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  United Kingdom

  
	
  Herbalife Europe Limited

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  United Kingdom

  
	
  Vida Herbalife Suplementos Alimenticios, C.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Venezuela and Delaware

  



 
















 


	
  Herbalife China LLC

  	
   

  	
  LLC

  	
   

  	
  100% (indirect)

  	
   

  	
  Delaware

  
	
  HIIP Investment Co., LLC

  	
   

  	
  LLC

  	
   

  	
  40%

  	
   

  	
  Delaware

  
	
  Herbalife International of America, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International of America, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Nevada

  
	
  Herbalife International Communications, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International Distribution, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International of Europe, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Promotions One, Inc.

  	
   

  	
  Corporations

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International del Colombia

  	
   

  	
  Corporations

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International South Africa, Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International del Ecuador

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife Taiwan, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International (Thailand) Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  



 


Subsidiaries of WH Capital Corporation


 


None.


 
















 


Schedule II


 


Specified Subsidiaries of WH Holdings (Cayman
Islands) Ltd.


 


	
  Subsidiary

  	
   

  	
  Type of Entity

  	
   

  	
  % Ownership

  	
   

  	
  Jurisdiction of

  Incorporation

  
	
  WH Intermediate Holdings Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100%

  	
   

  	
  Cayman Islands

  
	
  WH Luxembourg Holdings SàRL

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Luxembourg

  
	
  WH Luxembourg Intermediate Holdings SàRL

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Luxembourg

  
	
  WH Luxembourg CM SàRL

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Luxembourg

  
	
  Herbalife International, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Nevada

  
	
  Herbalife Australisia Pty, Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Australia

  
	
  Herbalife International Do Brasil Ltda.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Brazil and Delaware

  
	
  Herbalife of Canada, Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Canada

  
	
  H&L (Suzhou) Health Products LTD*

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Republic of China

  
	
  Herbalife International Finland OY

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Finland

  
	
  Herbalife International France, S.A.

  	
   

  	
  Corporation

  	
   

  	
  99.99% (indirect) .01(held by nominee)

  	
   

  	
  France

  
	
  Herbalife International Deutschland GmbH

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Germany

  
	
  Herbalife International Greece S.A*.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Greece

  
	
  Herbalife International Hong Kong Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Hong Kong

  
	
  Herbalife International of Israel (1990) Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Israel

  
	
  Herbalife of Japan K.K.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Japan and Delaware

  
	
  Herbalife Korea Co., Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Korea and Delaware

  
	
  Herbalife Internacional de Mexico, S.A. de C.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Mexico

  
	
  Herbalife Products De Mexico, S.A. de C.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Mexico

  
	
  Herbalife International (Netherlands) B.V.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Netherlands

  
	
  Herbalife International Singapore, Pte. Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Singapore

  
	
  Herbalife Sweden Aktiebolag

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Sweden

  
	
  Herbalife International Urunleri Tic. Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Turkey and Delaware

  
	
  Herbalife (UK) Limited

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  United Kingdom

  
	
  Herbalife Europe Limited

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  United Kingdom

  
	
  Vida Herbalife Suplementos Alimenticios, C.A.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Venezuela and Delaware

  
	
  Herbalife China LLC

  	
   

  	
  LLC

  	
   

  	
  100% (indirect)

  	
   

  	
  Delaware

  
	
  Herbalife International of America, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International of America, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  Nevada

  
	
  Herbalife International Communications, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International Distribution, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International of Europe, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International South Africa, Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International del Ecuador

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife Taiwan, Inc.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  
	
  Herbalife International (Thailand) Ltd.

  	
   

  	
  Corporation

  	
   

  	
  100% (indirect)

  	
   

  	
  California

  



 
















 


Exhibit A-1


 


FORM OF OPINION OF GIBSON, DUNN &
CRUTCHER LLP


 


Ladies and Gentlemen:


 


We have acted as United States special counsel to WH Holdings (Cayman
Islands) Ltd., a Cayman Islands exempted limited liability company (“WH Holdings”), and as United States
special counsel to WH Capital Corporation, a Nevada corporation (“WH Capital Corp.” and, together with WH
Holdings, the “Issuers”), in
connection with the offering and sale by the Issuers of $275,000,000 in
aggregate principal amount of their 9 1¤2%
Notes due 2011 (the “Initial Securities”)
to you pursuant to the Purchase Agreement, dated March 3, 2004 (the “Purchase Agreement”), among the Issuers
and you, as initial purchaser (the “Initial
Purchaser”). Terms defined in the Purchase Agreement and not
otherwise defined herein are used herein as therein defined.


 


In connection with the opinions herein expressed, we have reviewed the
final offering memorandum, dated March 3, 2004 (the “Offering Memorandum”), relating to the
offering of the Initial Securities. In addition, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following:


 


i.           the Purchase Agreement;


 


ii.          the Indenture, dated the date hereof (the “Indenture”), between the Issuers, on the
one hand, and The Bank of New York, as trustee (the “Trustee”), on the other hand, relating to the Initial
Securities;


 


iii.         the Registration Rights Agreement, dated the
date hereof (the “Registration Rights
Agreement”), among you and the Issuers relating to the Initial
Securities; and


 


iv.        such other documents, corporate records, and
other instruments as we have deemed necessary or advisable to enable us to
render the opinions set forth herein.


 


The documents described under the foregoing clauses (i) through
(iii), together with the Initial Securities and the Exchange Securities, are
referred to herein as the “Operative
Documents”.


 


In rendering this opinion, we have made such inquiries and examined,
among other things, originals or copies, certified or otherwise identified to
our satisfaction, of such records, agreements, certificates, instruments and
other documents as we have considered necessary or appropriate for purposes of
this opinion. As to certain factual matters, we have relied upon the
representations and warranties of each Issuer in the Purchase Agreement,
certificates of officers of each Issuer (copies of which are attached hereto)
(collectively, the “Officers’ Certificate”)
or certificates obtained from public officials.


 


Further, we have assumed with your permission and without independent
investigation that:


 


a)                            The signatures on all
documents examined by us are genuine, all individuals executing such documents
had all requisite legal capacity and competency, the documents submitted to us
as originals are authentic and the documents submitted to us as certified or
reproduction copies conform to the originals;


 


b)                           Each of the parties to the
Operative Documents (including, without limitation, the Issuers) is validly
existing in good standing under the laws of its jurisdiction of incorporation
or organization and has all requisite power and authority to execute, deliver
and perform its obligations under each of the Operative Documents to which it
is a party, and the execution and delivery of such Operative Documents by such
party and performance of its obligations thereunder have been duly authorized
by all necessary action on the part of such party and do


 


A-1-1
















 


not violate any law, regulation, order, judgment or decree applicable
to such party, and such Operating Documents have been duly executed and
delivered by such party;


 


c)                            The Operative Documents are
legal, valid and binding obligations of each party thereto (other than the
Issuers, as to which this assumption does not apply), enforceable against it in
accordance with their respective terms;


 


d)                           The proceeds from the sale
of the Initial Securities will be applied as set forth in the Offering
Memorandum.


 


Except as expressly stated otherwise herein, whenever an opinion herein
with respect to the existence or absence of facts is stated to be to the best
of our knowledge, such statement is intended to signify that, during the course
of our representation of the Issuers, as herein described, no information has
come to the attention of the lawyers in our Firm working on the transactions
contemplated by the Offering Memorandum and the Operative Documents that would
give them actual knowledge of facts contrary to the existence or absence of the
facts indicated. However, we have not undertaken any independent investigation
to determine the existence or absence of such facts, and no inference as to our
knowledge of the existence or absence of such facts should be drawn from our
representation of the Issuers or any affiliate thereof.


 


Based on the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, qualifications and limitations set forth herein, we
are of the opinion that:


 


1.                       The Initial Securities, when
executed by each Issuer and authenticated by the Trustee in the manner provided
for in the Indenture and delivered to and paid for by the Initial Purchaser in
accordance with the terms of the Purchase Agreement, will be legal, valid and
binding obligations of each Issuer, enforceable against each Issuer in
accordance with their terms. The Initial Securities are in the form
contemplated by the Indenture.


 


2.                       When the Exchange Securities are
executed, authenticated and delivered in the manner provided for by the terms
of the Indenture, the Exchange Securities will be legal, valid and binding
obligations of each Issuer, enforceable against each Issuer in accordance with
their terms.


 


3.                       The Indenture constitutes a
legal, valid and binding obligation of each Issuer, enforceable against each
Issuer in accordance with its terms.


 


4.                       The Registration Rights
Agreement constitutes a legal, valid and binding obligation of each Issuer,
enforceable against each Issuer in accordance with its terms.


 


5.                       Insofar as the statements in the
Offering Memorandum under the heading “Description of the Notes” purport to
describe specific provisions of the Initial Securities, the Indenture or the
Registration Rights Agreement, such statements present in all material respects
an accurate summary of such provisions.


 


6.                       Assuming the accuracy of the
representations and warranties of the Initial Purchaser and the Issuers
contained in the Purchase Agreement, and compliance by them with their
respective agreements contained therein, no registration of the Initial
Securities under the Act is required for the purchase of the Initial Securities
by the Initial Purchaser on the date hereof in the manner contemplated by the
Purchase Agreement and the Offering Memorandum. The Indenture does not require
qualification under the Trust Indenture Act.


 


7.                       The issuance of the Initial
Securities, and the execution, delivery and performance by each Issuer of the
Operative Documents to which it is a party, and the consummation of the
Transactions, do not and will not violate, or require any filing with or
approval of any governmental authority or regulatory body of the State of New
York or the United States of America under, any law or regulation of the State
of New York or the United States of America applicable to either of the Issuers
that, in


 


A-1-2
















 


our experience, is generally
applicable to transactions in the nature of those contemplated by the Operative
Documents, except for such filings or approvals (i) as already have been
obtained or (ii) that, if not made or obtained, would not have a material
adverse effect on the Issuers and their subsidiaries taken as a whole or expose
the Initial Purchaser to any liability. We express no opinion in this
Paragraph 7 as to the United States federal securities laws or securities
or “blue sky” laws of any state, including, without limitation, the State of
New York.


 


8.                       The execution and delivery of
the Purchase Agreement, the Indenture and the Registration Rights Agreement by
each Issuer and the performance by each Issuer on or prior to the date hereof
of its obligations under the Purchase Agreement, the Indenture and the
Registration Rights Agreement do not, as of the date hereof:


 


(i)             based solely upon review of the orders,
judgments or decrees identified to us in the Officers’ Certificate as
constituting all material orders, judgments or decrees binding on either of the
Issuers (each a “Governmental Order”),
violate any Governmental Order; or


 


(ii)          based solely upon review of the documents,
agreements or other instruments to which either of the Issuers or any of their
respective subsidiaries is a party or by which any of their respective assets
is bound and which is filed as an exhibit to WH Intermediate
Holdings, Ltd.’s Annual Report on Form 10-K for the fiscal year ended
December 31, 2003, and the Amended and Restated Credit Agreement, dated as
of March 8, 2004, by and among Herbalife International, Inc., WH
Holdings, WH Intermediate Holdings Ltd., WH Luxembourg Holdings SàRL, WH
Luxembourg Intermediate Holdings SàRL, WH Luxembourg CM SàRL and the Subsidiary
Guarantors party thereto, and certain lenders and agents named therein (each a
“Material Contract”),
(A) result in a material breach of or material default under any Material
Contract, or (B) result in or require the creation or imposition of any
lien or encumbrance on any assets of either of the Issuers or any of their
respective subsidiaries under any Material Contract.


 


9.                       Neither of the Issuers is, or
after giving effect to the offering and sale of the Initial Securities and the
application of the proceeds thereof as described in the Offering Memorandum
will be, required to be registered as an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.


 


10.                 To the extent that the statements in
the Offering Memorandum under the caption “United States federal income tax
consequences”, purport to describe specific provisions of the Internal Revenue
Code, such statements present in all material respects an accurate summary of
such provisions.


 


11.                 To our knowledge, and except as set
forth in the Offering Memorandum, there does not exist any judgment, order,
injunction or other restraint issued or filed which seeks to restrain, enjoin,
prevent the consummation of or otherwise challenges the Transactions or the
performance by either of the Issuers of their respective obligations under the
Operative Documents.


 


12.                 To our knowledge, the issuance to and
resale by the Initial Purchaser of the Initial Securities in accordance with
the provisions of the Purchase Agreement do not and will not result in a
violation of Regulation T, U or X of the Board of Governors of the Federal
Reserve System.


 


The foregoing opinions are subject to the following exceptions,
qualifications, assumptions and limitations:


 


A.                   We render no opinion herein as to
matters involving the laws of any jurisdiction other than the State of New York
and the United States of America. This opinion is limited to the present effect
of the present state of the laws of the State of New York and the United States
of America and to present judicial interpretations and to the facts as they presently
exist. We assume no obligation to


 


A-1-3
















 


revise or supplement this
opinion in the event of any future change in such laws or any interpretation
thereof or such facts.


 


B.                     Our opinions set forth in Paragraphs
1 through 4 are subject to (1) the effect of any bankruptcy, insolvency,
reorganization, moratorium, arrangement or similar laws affecting the rights
and remedies of creditors generally (including, without limitation, the effect
of statutory or other laws regarding fraudulent transfers or preferential
transfers or distributions by corporations to stockholders); and
(2) general principles of equity, regardless of whether enforceability is
considered in a proceeding in equity or at law, including without limitation
concepts of materiality, reasonableness, good faith and fair dealing. We
express no opinion as to the availability of specific performance, injunctive
relief or other equitable remedies as a remedy for breach of or default under
any of the Operative Documents.


 


C.                     We express no opinion as to the
enforceability of provisions providing for the indemnification of or
contribution to a party with respect to a liability to the extent such
indemnification or contribution may be found to be contrary to public policy.
We express no opinion regarding the effect on the enforceability of the
Operative Documents against any surety (which could include a co-issuer of
notes or co-borrower of loans jointly liable for notes or loans the proceeds of
which were delivered to another co-issuer or co-borrower, a hypothecator of
property to secure obligations owed by another person or a common creditor that
has subordinated obligations owing to it), of any facts or circumstances that
would constitute a defense to the obligation of a surety, unless such defense
has been waived effectively by such surety.


 


D.                    We express no opinion regarding
(1) the effectiveness of any waiver (whether or not stated as such) under
the Operative Documents of, or any consent thereunder relating to, any unknown
future rights or the rights of any party thereto existing, or duties owing to
it, as a matter of law; (2) the effectiveness of any waiver (whether or
not stated as such) contained in the Operative Documents of rights of any party,
or duties owing to it, that is broadly or vaguely stated or does not describe
the right or duty purportedly waived with reasonable specificity; or
(3) provisions relating to indemnification, exculpation or contribution,
to the extent such provisions may be held unenforceable as contrary to public
policy or federal or state securities laws or due to the negligence or willful
misconduct of the indemnified party.


 


E.                      In rendering our opinion
expressed in Paragraph 8(ii) insofar as it requires interpretation of
Material Contracts, we express no opinion with respect to the compliance by
either of the Issuers with, or any financial calculations or data in respect
of, financial covenants or ratios included in any Material Contract.


 


F.                      For purposes of our opinion in paragraph 12,
we have assumed without independent investigation that: the representation and
warranty of the Company set forth in Section 5(xxx) of the Purchase
Agreement is and will be true and correct at all relevant times, the Issuers will
comply with their agreement set forth in Section 4(g) of the Purchase
Agreement, less than 25% of the value of the assets of the Issuer and its
subsidiaries subject to the negative covenants of the Indenture consist and
will consist of “margin stock” within the meaning of Regulations U or X of the
Board of Governors of the Federal Reserve System at all relevant times. Our
opinion in paragraph 12 is subject to (and we express no opinion in
respect of) any requirement applicable to purchasers of the Notes to obtain in
good faith a Form FR U-1 signed by the Issuers.


 


We have participated in conferences with officers and other
representatives of the Issuers, representatives of the independent public
accountants for WH Holdings and your representatives and your counsel, at which
the contents of the Offering Memorandum and related matters were discussed.
Although, except as expressly stated herein, we have not verified, are not
passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum
and have not made any independent verification thereof, in the course of our
participation, nothing has come to our attention that caused us to believe that
the Offering


 


A-1-4
















 


Memorandum, as of its date, or
as of the date hereof, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that we have
not been requested to, and do not make any comment with respect to, the
financial statements and the notes thereto or other financial data or statistical
data derived therefrom included or incorporated by reference in the Offering
Memorandum).


 


The opinions expressed in section II above, and the statements
made in section III above, are solely for your benefit in connection with
the transactions contemplated by the Operative Documents and are not to be used
for any other purpose, or, circulated, quoted or otherwise referred to for any
purpose, without, in each case, our written permission, except that the
Trustee, in its capacity as trustee under the Indenture, may rely on this
opinion as if it were addressed to it.


 


	
   

  	
  Very truly yours,

  



 


A-1-5
















 


Exhibit A-2


 


FORM OF OPINION OF SCHRECK BRIGNONE


 


Dear Ladies and Gentlemen:


 


We have acted as special Nevada counsel to WH Capital Corporation, a
Nevada corporation (the “Company”), in connection with the issue and sale by
the Company and WH Holdings (Cayman Islands) Ltd., a Cayman Islands
corporation (together with the Company, the “Issuers”), of $275,000,000 aggregate
principal amount of their 9 1¤2%
Notes due 2011 (the “Original Notes”), which will be issued and sold pursuant
to that certain Purchase Agreement, dated as of March 3, 2004 (the
“Purchase Agreement”), by and among UBS Warburg LLC (the “Initial Purchaser”)
and the Issuers, and pursuant to that certain Indenture, dated as of
March 8, 2004 (the “Indenture”), by and among the Issuers and The Bank of
New York, as trustee (the “Trustee”). This opinion is being issued and
delivered to you pursuant to Section 8(f)(ii) of the Purchase
Agreement. Capitalized terms used herein, unless otherwise defined, shall have
the meanings ascribed to them in the Purchase Agreement.


 


For the purpose of rendering this opinion, we have examined originals,
or copies certified or otherwise identified to our satisfaction as being true
copies, of such records, documents, instruments and certificates as, in our
judgment, are necessary or appropriate to enable us to render the opinions set
forth below, including, but not limited to, the following:


 


(i)         the Purchase Agreement;


 


(ii)        the Indenture;


 


(iii)       the Registration Rights Agreement;


 


(iv)       the Original Notes;


 


(v)        the form of the Exchange Notes;


 


(vi)       the Offering Memorandum;


 


(vii)      the Articles of Incorporation and Bylaws of the
Company (the “Governing Documents”);


 


(viii)     such corporate records and proceedings, minutes,
consents, actions and resolutions of the board of directors and stockholder of
the Company as we have deemed necessary as a basis for the opinions expressed
below, including, without limitation, those resolutions authorizing, among
other matters, the execution and delivery, and the performance by the Company
of its obligations under, the Notes Documents (as defined below) and the
transactions contemplated thereby (the “Transactions”);


 


(ix)       the Certificate of Existence issued by the
Nevada Secretary of State on March 2, 2004, with respect to the existence
and good standing in Nevada of the Company; and


 


(x)        the certificate of an officer of the Company,
dated of even date herewith, with respect to certain factual matters, and all
other certificates of the Company required by or delivered in connection with
the closing of the Transactions (collectively, the “Certificates”).


 


The Purchase Agreement, the Indenture, the Registration Rights
Agreement and the Notes are hereinafter referred to collectively as the “Notes
Documents”.


 


We have made such legal and factual examinations and inquiries as we
have deemed necessary or appropriate for purposes of this opinion, except where
a statement is qualified as to knowledge or awareness, in which case we have
made no or limited inquiry as specified below. We have been furnished with, and
with your consent have relied upon, as to factual matters, the Certificate and
assurances of the officers and other representatives of the Company and of
public officials, as we have deemed necessary for the purpose of rendering the
opinions set forth herein. As to questions of fact


 


A-2-1
















 


material to our opinions, we
have also relied upon the statements of fact and the representations and
warranties as to factual matters contained in the documents we have examined;
however, except as otherwise expressly indicated, we have not been requested to
conduct, nor have we undertaken, any independent investigation to verify the
content or veracity thereof or to determine the accuracy of any statement, and
no inference as to our knowledge of any matters should be drawn from the fact
of our representation of the Company.


 


Without limiting the generality of the foregoing, in rendering this
opinion, we have, with your permission, assumed without independent
verification that (i) the statements of fact and all representations and
warranties set forth in the documents we have examined are true and correct as
to factual matters; (ii) the obligations of each party set forth in such
documents are its valid and binding obligations, enforceable in accordance with
their respective terms; (iii) all documents that we examined accurately
describe and contain the mutual understanding of the parties thereto and there
are no oral or written agreements or understandings, and there is no course of
prior dealing between any of the parties, that would in any manner vary or
supplement the terms and provisions of such documents, or of the relationships
set forth therein, or which would constitute a waiver of any of the provisions
thereof by the actions or conduct of the parties or otherwise, or which would
have an effect on the opinions rendered herein; (iv) each natural person
executing any document has sufficient legal capacity to do so; (v) all
documents submitted to us as originals are authentic, the signatures on all
documents that we have examined are genuine, and all documents submitted to us
as certified, conformed, photostatic or facsimile copies conform to the
original document; and (vi) all corporate records made available to us by
the Company and all public records we have reviewed, are accurate and complete.


 


Whenever a statement herein is qualified by the phrase “to our
knowledge” or “known to us” or a similar phrase, we have, with your consent,
advised you concerning only the conscious awareness of facts in the possession
of those attorneys who are currently members of or associated with this firm
and who have performed legal services on behalf of the Company in connection
with the Transactions, and which knowledge we have recognized as being
pertinent to the matters set forth herein.


 


As used herein, all references to (i) ”Applicable Nevada Law”
refers to those statutes, rules and regulations of the State of Nevada which,
in our experience, are customarily applicable both to transactions of the type
contemplated by the Purchase Agreement and to general business entities which are
not engaged in regulated business activities; (ii) ”Nevada Governmental
Authorities” shall mean the governmental and regulatory authorities, bodies,
instrumentalities and agencies and courts of the State of Nevada, excluding its
political subdivisions and local agencies; (iii)  “Nevada Governmental
Order” refers to any judgment, order or decree known to us to have been issued
by any Nevada Governmental Authority having jurisdiction over the Company under
Applicable Nevada Law; and (iv) ”Nevada Governmental Approval” refers to
any consent, approval or authorization of any Nevada Governmental Authority
having jurisdiction over the Company that is required to be obtained by the
Company pursuant to Applicable Nevada Law.


 


We are qualified to practice law in the State of Nevada. The opinions
set forth herein are expressly limited to the effect on the Transactions only
of the laws of the State of Nevada and we do not purport to be experts on, or
to express any opinion with respect to the applicability thereto, or to the
effect thereon, of, the laws of any other jurisdiction. We express no opinion
herein concerning, and we assume no responsibility as to laws or judicial
decisions related to, or any orders, consents or other authorizations or
approvals as may be required by, any federal law, including any federal
securities law, or any state securities or Blue Sky laws or regulations.


 


Based upon the foregoing, and subject to the qualifications, exceptions
and assumptions set forth herein, we are of the opinion that:


 


1.               The Company
(a) is duly organized as a corporation and validly existing and in good
standing under the laws of the State of Nevada, and (b) has the requisite
corporate power and


 


A-2-2
















 


authority necessary to own its property and
carry on its business as described in the Offering Memorandum.


 


2.               The Company has the
requisite corporate power and authority to execute, deliver and perform its
obligations under the Note Documents to which it is a party and to consummate
the Transactions and, without limitation, the Company has the requisite
corporate power and authority to issue, sell and deliver and perform its
obligations under the Notes.


 


3.               All of the
outstanding shares of capital stock of the Company (as described in the
Offering Memorandum) have been duly authorized and validly issued and are fully
paid, non-assessable and not subject to any statutory preemptive or similar
rights or, to our knowledge (without investigation or inquiry), any non-statutory
preemptive or similar rights.


 


4.               The Notes Documents
to which the Company is a party have been duly authorized by the Company and
such Notes Documents (except for the Exchange Notes) have been duly executed
and delivered by the Company.


 


5.               The execution and
delivery by the Company of, and the performance of its obligations under, the
Purchase Agreement and the other Note Documents to which it is a party, the
compliance by the Company with the provisions thereof, as applicable, and the
consummation of the Transactions, as applicable, will not (i) require any
Nevada Governmental Order or Nevada Governmental Approval (except as such as
may be required under the securities or Blue Sky laws of Nevada, as to which we
express no opinion), or (ii) in the case of the Company, constitute a
breach of any of the terms or provisions of, or a default under, the Governing
Documents.


 


The opinions expressed herein are based upon the Applicable Nevada Law
in effect and the facts in existence as of the date of this letter. In
delivering this letter to you, we assume no obligation, and we advise you that
we shall make no effort, to update the opinions set forth herein, or to conduct
an inquiry into the continued accuracy of such opinions, or to apprise any
addressee hereof, its counsel or its assignees of any facts, matters,
transactions, events or occurrences taking place, and of which we may acquire
knowledge, after the date of this letter, or of any change in any Applicable
Nevada Law or any facts occurring after the date of this letter, which may
affect the opinions set forth herein. No opinions are offered or implied as to
any matter, and no inference may be drawn, beyond the strict scope of the
specific issues expressly addressed by the opinions herein.


 


This opinion is rendered only to you in your capacity as the Initial
Purchaser under the Purchase Agreement, and is solely for your benefit in
connection with the closing of the Transactions. This opinion may not be relied
upon or used by you for any other purpose, or otherwise circulated or furnished
to, quoted to, or relied upon by any other person, firm or entity for any
purpose, without our prior written consent in each instance except that,
subject to all qualifications, limitations, exceptions and assumptions set forth
herein, the Trustee may rely on this opinion letter as if it were an addressee
on this date for all purposes relating to its capacity as Trustee under the
Indenture.


 


Very truly yours,


 


A-2-3
















 


Exhibit A-3


 


FORM OF OPINION OF SIDLEY AUSTIN
BROWN & WOOD LLP


 


Ladies and Gentlemen:


 


We address this opinion to you as the initial purchasers (the “Initial
Purchasers”) named in the Purchase Agreement, dated March 3, 2004 (the
“Purchase Agreement”), between you and WH Holdings (Cayman Islands) Ltd.,
a Cayman Islands exempted limited liability company (“WH Holdings”) and WH
Capital Corporation, a Nevada corporation (“WH Capital” and, together with WH
Holdings, the “Issuers”) relating to the issuance of $275,000,000 aggregate
principal amount of the Issuers’ 9 1¤2%
Notes due 2011 (the “Securities”). We have acted as special regulatory counsel
to the Issuers in the United States Food and Drug Administration (the “FDA”)
area only. In such capacity, we have been retained by the Issuers to review
certain information under the captions “Risk Factors—Regulatory matters
governing our industry could have a significant negative effect on our
business” and “Business—Regulation—General—Products,” in the Issuers’ final
Offering Memorandum dated March 3, 2004 (the “Offering Memorandum”). We
have not been retained or engaged by the Issuers to perform, nor have we
performed, any review of any other information in the Offering Memorandum, nor
have we acted as the Issuers’ corporate or securities counsel in connection
with the issuance and sale of the Securities. Capitalized terms not defined
herein shall have the meanings ascribed to them in the Purchase Agreement.


 


This opinion letter is furnished to you at the request of the Issuers pursuant
to Section 8(f) of the Purchase Agreement.


 


In connection with the opinions expressed herein we have made such
examination of matters of law and of fact as we considered appropriate or
advisable for purposes hereof. We have examined such documents and such records
as we have deemed appropriate, including the following:


 


1.                       an executed copy of the Purchase
Agreement;


 


2.                       the Offering Memorandum; and


 


3.                       such other records, documents,
instruments and certificates (including but not limited to certificates of
public officials and officers of the Company) as we have considered necessary
for purposes of this opinion.


 


In rendering this opinion, we have relied without independent
investigation, as to matters of fact, upon the representations and warranties
of the Company in the Purchase Agreement and upon representations, both written
and oral, and certificates of officers or employees of the Company, third
parties and government authorities; and we have assumed the genuineness of
signatures of all persons signing any documents, the authority of all persons
signing any document on behalf of the parties thereto, the authority of all
governmental authorities and public officials, the truth and accuracy of all
matters of fact set forth in all certificates furnished to us, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies or by facsimile or other means of electronic transmission,
and the authenticity of the originals of such latter documents.


 


Nothing herein shall be construed to cause us to be considered
“experts” within the meaning of Section 11 of the Securities Act of 1933,
as amended.


 


Based on and subject to the foregoing and subject to the further
qualifications, exceptions and assumptions set forth below, we are of the
opinion that the statements made in the Offering Memorandum under the captions
“Risk Factors—Regulatory matters governing our industry could have a
significant negative effect on our business” and
“Business—Regulation—General—Products,” insofar


 


A-3-1
















 


as such statements purport to
constitute a summary of the applicable provisions of the United States Federal
Food, Drug and Cosmetics Act, as amended (the “FDC Act”), fairly present in all
material respects such provisions.


 


In acting as special regulatory counsel to the Issuers for FDA matters,
during the course of preparation of the Offering Memorandum, we participated in
certain discussions with certain officers and employees of the Issuers
regarding the FDA regulatory matters dealt with under the captions “Risk
Factors—Regulatory matters governing our industry could have a significant
negative effect on our business” and “Business—Regulation—General—Products” in
the Offering Memorandum. While we have not undertaken to determine
independently, and we do not assume any responsibility for, the accuracy,
completeness, or fairness of the statements under the above referenced captions
in the Offering Memorandum, on the basis of these discussions and our
activities as special regulatory counsel to the Issuers in connection with our
review of the statements contained in such captioned sections, no facts have
come to our attention that cause us to believe that the statements in the
Offering Memorandum under such captioned sections, insofar as such statements
relate to FDA regulatory matters, as of the date of the Offering Memorandum or
as of the date hereof, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they are
made, not misleading.


 


The foregoing opinions and other statements are subject to the
following qualifications, exceptions, assumptions and limitations:


 


The foregoing opinion is limited to matters arising under the FDC Act
and the regulations promulgated thereunder and we express no opinion as to any
other federal laws of the United States of America or the laws, rules or
regulations of any other jurisdiction or as to the municipal laws or the laws,
rules or regulations or any state or local agencies or governmental authorities
of or within the United States of America.


 


The opinions expressed herein are given as of the date hereof, and we
undertake no obligation to supplement this letter if any applicable laws change
after the date hereof or of any facts or circumstances occurring or coming to
our attention after the date hereof.


 


This letter is solely for your benefit in connection with the
transaction described in the first paragraph above and may not be quoted or
relied upon by, nor may copies be made or delivered to, any other person
(including, without limitation, any person who acquires the Securities from the
persons to whom this is addressed), nor may this letter be relied upon by you
for any other purpose without our prior written consent.


 


Very truly yours,


 


A-3-2
















 


Exhibit A-4


 


FORM OF OPINION OF GENERAL COUNSEL FOR THE
COMPANY


 


Ladies and Gentlemen:


 


I am the General Counsel and Secretary of WH Holdings (Cayman
Islands) Ltd., a Cayman Islands exempted limited liability company (“Holdings”) and the Secretary of WH Capital
Corporation, a Nevada corporation (“Capital”,
and together with Holdings, the “Issuers”).
I have acted as legal counsel to the Issuers in connection with the offering
and sale by the Issuers of $275,000,000 in aggregate principal amount of their 9
1¤2% Notes
due 2011 (the “Initial Securities”)
to you pursuant to the Purchase Agreement, dated March 3, 2004 (the “Purchase Agreement”), among the Issuers
and you, as initial purchaser (the “Initial
Purchaser”). Terms defined in the Purchase Agreement and not
otherwise defined herein are used herein as therein defined.


 


In connection with the opinions herein expressed, I have reviewed the
final offering memorandum, dated March 3, 2004 (the “Offering Memorandum”), relating to the
offering of the Initial Securities. In addition, I have examined originals, or
copies certified or otherwise identified to our satisfaction, of the following:


 


i.           the Purchase Agreement;


 


ii.          the Indenture, dated the date hereof (the “Indenture”), between the Issuers, on the
one hand, and The Bank of New York, as trustee (the “Trustee”), on the other hand, relating to the Initial
Securities;


 


iii.         the Registration Rights Agreement, dated the
date hereof (the “Registration Rights
Agreement”), among you and the Issuers relating to the Initial
Securities; and


 


iv.        such other documents, corporate records, and
other instruments as I have deemed necessary or advisable to enable me to
render the opinions set forth herein.


 


The documents described under the foregoing clauses (i) through
(iii), together with the Initial Securities and the Exchange Securities, are
referred to herein as the “Operative
Documents”.


 


In rendering this opinion, I have made such inquiries and examined,
among other things, originals or copies, certified or otherwise identified to
my satisfaction, of such records, agreements, certificates, instruments and
other documents and have made such other factual and legal investigations and
have considered such matters of law as I deem relevant and necessary for the
purposes of this opinion.


 


Further, I have assumed with your permission and without independent
investigation that the signatures on all documents I have examined are genuine,
all individuals executing such documents had all requisite legal capacity and
competency and were duly authorized, the documents submitted to me as originals
are authentic and the documents submitted to me as certified or reproduction
copies conform to the originals.


 


With respect to any opinion herein in regard to the existence or
absence of facts stated to be to my knowledge, such statement is intended to
signify that I have no actual knowledge of facts contrary to the existence or
absence of the facts indicated.


 


Based on the foregoing and in reliance thereon, and subject to the
assumptions, exceptions, qualifications and limitations set forth herein, I am
of the opinion that:


 


1.                       Except as set forth in the
Offering Memorandum, there is: (a) no action, suit or proceeding before or
by any court, arbitrator or governmental agency, body or official, domestic or
foreign, now pending or, to my knowledge, threatened in writing, to which the
Issuers or any of their subsidiaries is, or to my knowledge is threatened in
writing to be made, a party or to which the business, assets or


 


A-4-1
















 


property of the Issuers or any
of their respective subsidiaries is, or to my knowledge is threatened in
writing to be made, subject, (b) no statute, rule, regulation or order
that has been enacted, adopted or issued, or to my knowledge, that has been
proposed by any governmental body or agency, domestic or foreign, or
(c) to my knowledge, no injunction, restraining order or order of any
nature by a federal or state court or foreign court of competent jurisdiction
to which the Issuers or any of their subsidiaries is subject that, in the case
of any of clauses (a), (b) or (c), would, individually or in the
aggregate, (1) have a Material Adverse Effect or (2) prevent or
adversely affect the consummation of the Transactions, assuming, in the case of
clause (a), such action, suit or proceeding is determined adversely to the
Issuers or any of their respective subsidiaries.


 


2.                       None of the Issuers or any of
their respective subsidiaries is (a) in violation of its charter, bylaws
or other constitutive documents, (b) in default (or, with notice or lapse
of time or both, would be in default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any of the Agreements
and Instruments known to me, or (c) in violation of any law, statute,
rule, regulation, judgment, order or decree of any domestic or foreign court
with jurisdiction over any of them or any of their assets or properties or
other governmental or regulatory authority, agency or other body, that, in the
case of clauses (b) and (c) herein, individually or in the aggregate,
would have a Material Adverse Effect.


 


The foregoing opinions are subject to the following exceptions,
qualifications, assumptions and limitations:


 


A.                   I am admitted to practice in the
State of California and I render no opinion herein as to matters involving the
laws of any jurisdiction other than the State of California. I call to your
attention that each of the Operative Documents provides that it is governed by
New York law and I am not providing any opinion with respect to New York law.
Therefore, I have not examined the question of what law would govern the
interpretation or enforcement of such Operative Documents and my opinion is
based on the assumption that the internal laws of the State of California would
govern the provisions of such Operative Documents and the transactions
contemplated thereby. This opinion is limited to the present effect of the
present state of the laws of the State of California and to present judicial
interpretations and to the facts as they presently exist. I assume no
obligation to revise or supplement this opinion in the event of any future
change in such laws or any interpretation thereof or such facts. I express no
opinion with respect to the effect or applicability of the laws of any other
jurisdiction.


 


B.                     In rendering the opinion expressed
in Paragraph 2(c), I express no opinion as to the application of any
(i) local laws and regulations such as city ordinances and county zoning ordinances,
that are adopted by political subdivisions below the state level,
(ii) tax, insolvency, antitrust, antifraud, margin rules, trade
regulation, gaming, state securities or Blue Sky laws and the Exxon Florio
amendment, and (iii) laws that a lawyer exercising customary diligence
would not reasonably recognize as being applicable to a transaction of this
type involving these parties.


 


C.                     In rendering the opinion expressed
in Paragraph 2(b) insofar as it requires interpretation of Agreements and
Instruments, I express no opinion with respect to the compliance by either of
the Issuers or any of their respective subsidiaries with, or any financial
calculations or data in respect of, financial covenants or ratios included in
any of the Agreements or Instruments.


 


In rendering this opinion, I expressly disclaim any obligation or
undertaking to update or modify this opinion as a consequence of any future
changes in any laws or in the facts bearing upon this opinion.


 


The opinions expressed in Section II above are solely for your
benefit in connection with the transactions contemplated by the Operative
Documents and are not to be used for any other purpose, or, circulated, quoted
or otherwise referred to for any purpose, without, in each case, my written permission.


 


Very truly yours,


 


A-4-2
















 


EXHIBIT A-5


 


FORM OF OPINION OF MAPLES & CALDER


 


Dear Sirs


 


Re:                   WH Holdings (Cayman Islands) Ltd. (the
“Company”)


 


We have acted as counsel as to Cayman Islands law to the Company in
connection with its issue of US$275,000,000 9 1¤2%
Notes due 2011 (the “Notes) the
proceeds of which, together with available cash, the Company will use to pay
the cash redemption price due upon conversion of all of the Company’s
outstanding convertible preferred shares, including all accrued and unpaid
dividends, to refinance a portion of the Company’s existing indebtedness and to
pay related fees and expenses.


 


1                               DOCUMENTS
REVIEWED


 


We have reviewed originals, copies, drafts or conformed copies of the
following documents:


 


1.1                 the Certificate of Incorporation dated
4th April, 2002 and Memorandum and Articles of Association of the
Company adopted on 24th July, 2002 as amended by a special
resolution passed on 11th October, 2002, an ordinary resolution to
alter the share capital passed on 31st July, 2003 and special
resolutions and an ordinary resolution passed on 1st March, 2004;


 


1.2                 the minutes of the meeting of the
board of directors of the Company held on [ ], 2004 and the corporate records
of the Company maintained at its registered office in the Cayman Islands;


 


1.3                 a Certificate of Good Standing issued
by the Registrar of Companies in the Cayman Islands (the “Certificate of Good Standing”);


 


1.4                 a certificate from a director of the
Company a copy of which is annexed hereto (the “Director’s Certificate”); and


 


1.5                 the documents listed in the Second
Schedule hereto. The documents listed from 1 to 3 in the Second Schedule hereto
are collectively referred to as the “Note
Documents”.


 


2                               ASSUMPTIONS


 


The following opinion is given only as to, and based on, circumstances
and matters of fact existing and known to us on the date of this opinion. This
opinion only relates to the laws of the Cayman Islands which are in force on
the date of this opinion. In giving this opinion we have relied (without
further verification) upon the completeness and accuracy of the Director’s
Certificate and the Certificate of Good Standing. We have also relied upon the
following assumptions, which we have not independently verified:


 


2.1                 the Note Documents and the Notes have
been or will be authorised and duly executed and delivered by or on behalf of
all relevant parties (other than the Company as a matter of Cayman Islands law)
in accordance with all relevant laws (other than the laws of the Cayman
Islands);


 


2.2                 the Note Documents and the Notes 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 the laws of the Cayman Islands);


 


2.3                 the choice of New York law as the
governing law of the Note Documents and the Notes has been made in good faith
and would be regarded as a valid and binding selection which will be upheld by
the courts of the State of New York 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 originals;


 
















 


2.5                 all signatures, initials and seals are
genuine;


 


2.6                 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,
deliver and perform their respective obligations under the Note Documents;


 


2.7                 the Notes will be issued and
authenticated in accordance with the provisions of the Indenture;


 


2.8                 no invitation has been or will be made
by or on behalf of the Company to the public in the Cayman Islands to subscribe
for any of the Notes; and


 


2.9                 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 the State of New York.


 


3                               OPINIONS


 


Based upon, and subject to, the foregoing assumptions and the
qualifications set out below, and having regard to such legal considerations as
we deem relevant, we are of the opinion that:


 


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 and perform its obligations under the Note Documents and the Notes
including the issue and offer of the Notes pursuant to the Note Documents.


 


3.3                 The execution and delivery of the Note
Documents and the issue and offer of the Notes by the Company and the
performance 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 Note Documents has been authorised by and on behalf of the
Company and, assuming the Note Documents have been executed and delivered by
any Director or Officer, the Note 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                 The Notes have been duly authorised by
the Company and when the Notes are signed in facsimile or manually by a
Director on behalf of the Company and, if appropriate, authenticated in the
manner set forth in the Indenture and delivered against due payment therefor
will be duly executed, issued and delivered and will constitute the legal,
valid and binding obligations of the Company enforceable in accordance with
their respective terms.


 


3.6                 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:


 


3.6.1 the
issue of the Offering Memorandum;


 


3.6.2 the
execution, creation or delivery of the Note Documents by the Company;


 


3.6.3 subject
to the payment of stamp duty, the enforcement of the Note Documents against the
Company;


 


3.6.3 the
offering, execution, authentication, allotment, issue or delivery of the Notes;


 


3.6.4 the
performance by the Company of its obligations under the Notes and the Note
Documents; or


 


3.6.5 the
payment of the principal and interest and any other amounts under the Notes.


 
















 


3.7                 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:


 


3.7.1 the
execution or delivery of the Note Documents or the Notes;


 


3.7.2 the
enforcement of the Note Documents or the Notes;


 


3.7.3 payments
made under, or pursuant to, the Note Documents; or


 


3.7.4 the
issue, transfer or redemption of the Notes.


 


The Cayman Islands currently have no form of income, corporate or
capital gains tax and no estate duty, inheritance tax or gift tax.


 


3.8                 The courts of the Cayman Islands will
observe and give effect to the choice of New York law as the governing law of
the Note Documents and the Notes.


 


3.9                 Based solely on our inspection of the
Register of Writs and Other Originating process in the Grand Court of the
Cayman Islands from the date of incorporation of the Company there were no
actions or petitions pending against the Company in the courts of the Cayman
Islands as at close of business in the Cayman Islands on [date].


 


3.10           Although there is no statutory enforcement
in the Cayman Islands of judgments obtained in the State of New York, the
courts of the Cayman Islands will recognise a foreign judgment as the basis for
a claim at common law in the Cayman Islands provided such judgment:


 


3.10.1 is
given by a competent foreign court;


 


3.10.2 imposes
on the judgment debtor a liability to pay a liquidated sum for which the
judgment has been given;


 


3.10.3   is final;


 


3.10.4 is not
in respect of taxes, a fine or a penalty; and


 


3.10.5 was not
obtained in a manner and is not of a kind the enforcement of which is contrary
to the public policy of the Cayman Islands.


 


3.11           It is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of the Note Documents or
the Notes that any document be filed, recorded or enrolled with any governmental
authority or agency or any official body in the Cayman Islands.


 


3.12           The statements made in the Offering
Memorandum under the heading “Cayman Islands tax consequences” are correct in
so far as such statements are summaries of or relate to Cayman Islands law.


 


4                               QUALIFICATIONS


 


The opinions expressed above are subject to the following
qualifications:


 


4.1                 The term “enforceable” as used above means that the obligations assumed
by the Company under the Note Documents and the Notes 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:


 


4.1.1
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;


 


4.1.2
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;


 
















 


4.1.3 some
claims may become barred under the statutes of limitation or may be or become
subject to defenses of set-off, counterclaim, estoppel and similar defenses;


 


4.1.4 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;


 


4.1.5 the
Cayman Islands court has 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 Cayman Islands
court 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;


 


4.1.6  obligations to make payments that may be
regarded as penalties will not be enforceable; and


 


4.1.7  the courts of the Cayman Islands may decline
to exercise jurisdiction in relation to substantive proceedings brought under
or in relation to the Note Documents in matters where they determine that such
proceedings may be tried in a more appropriate forum.


 


4.2                 Cayman Islands stamp duty may be
payable if the original Note Documents, the agreements to transfer Notes or the
original Notes (not being treated as registered Notes) are brought to or
executed in the Cayman Islands.


 


4.3                 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.


 


4.4                 The obligations of the Company may be
subject to restrictions pursuant to United Nations sanctions as implemented
under the laws of the Cayman Islands.


 


4.5                 A certificate, determination,
calculation or designation of any party to the Note Documents or the Notes 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.


 


4.6                 In principle a Cayman Islands court
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.


 


4.7                 We reserve our opinion as to the
extent to which a Cayman Islands court 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.


 


4.8                 We make no comment with regard to the
references to foreign statutes in the Note Documents or the Notes.


 


We express no view as to the commercial terms of the Note Documents or
the Notes or whether such terms represent the intentions of the parties and
make no comment with respect to any representations which may be made by the
Company.


 


This opinion may be relied upon by the addressees only. It may not be
relied upon by any other person except with our prior written consent.


 


Yours faithfully,


 
















 


FIRST SCHEDULE


 


UBS Securities LLC


677 Washington Boulevard


Stamford, Connecticut 06901


USA


 


WH Holdings (Cayman Islands) Limited


c/o P.O. Box 309GT,


Ugland House,


South Church Street,


George Town,


Grand Cayman,


Cayman Islands


 


SECOND SCHEDULE


 


1.                                       Indenture
dated as of [8] March, 2004 the Company, WH Capital Corporation and The Bank of
New York as trustee.


 


2.                                       Purchase
agreement dated as of 3 March, 2004 among the Company, WH Capital Corporation
and UBS Securities LLC.


 


3.                                       Registration
Rights Agreement dated as of [8] March, 2004 among the Company, WH Capital
Corporation and UBS Securities LLC.


 


4.                                       Preliminary
offering memorandum dated 20 February, 2004 and offering memorandum dated
[3] March, 2004 (together the “Offering
Memorandum”).


 
















 


Annex A


 


FORM OF REGISTRATION RIGHTS AGREEMENT


 


[attached]


 


Annex A-1