EXHIBIT 10.17


 


MONITORING FEE AGREEMENT


 


This Monitoring Fee Agreement (this
“Agreement”) is made and entered into as of July 31, 2002, by and among
Herbalife International, Inc., a Nevada corporation, on behalf of itself and
each of its subsidiaries (collectively, the “Company”), and GGC Administration,
L.L.C., a Delaware limited liability company (“Sponsor”).


 


The Company, WH Holdings (Cayman Islands)
Ltd., a company organized under the laws of the Cayman Islands (“Parent”), and
Parent’s subsidiary, WH Acquisition Corp., a Nevada corporation (“Merger
Corp.”) are parties to an Agreement and Plan of Merger dated as of
April 10, 2002 (as the same may be amended or modified from time to time,
the “Merger Agreement”), pursuant to which Merger Corp. will be merged with and
into Herbalife International, Inc. This Agreement shall only become effective
(the “Effective Date”) upon the consummation of the transactions contemplated
by the Merger Agreement.


 


WHEREAS, the Company desires to retain
Sponsor with respect to the activities described herein, for which Sponsor
shall be entitled to the fees set forth herein.


 


NOW, THEREFORE, the parties agree as
follows:


 


1.                                       Term. This
Agreement shall be in effect for an initial term commencing on the Effective
Date and ending on the tenth anniversary of the Effective Date (the “Term”),
and shall be automatically extended thereafter on a year to year basis unless
Parent or Sponsor provides written notice of its desire to terminate this
Agreement to the other parties 90 days prior to the expiration of the Term or
any extension thereof.


 


2.                                       Activities.
Sponsor shall perform or cause to be performed such activities related to the
Company as determined by Sponsor in its sole discretion. Such activities may
include, without limitation, the following:


 


(a)                                  activities related to
the general management of the Company and its subsidiaries;


 


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(b)                                 identification, support,
negotiation and analysis of acquisitions and dispositions by the Company or its
subsidiaries;


 


(c)                                  support,
negotiation and analysis of financing alternatives for the Company and its
subsidiaries; and


 


(d)                                 other activities
determined by Sponsor in its sole discretion, including any activities
determined by Sponsor in its sole discretion to be necessary or advisable with
respect to the monitoring of the Company.


 


Nothing contained in this Agreement shall
require Sponsor to perform any minimum level of activities pursuant to this
Agreement.


 


3.                                       Monitoring
Fee.


 


(a)                                  During the
Term of this Agreement, the Company will pay Sponsor or its designee for actual
activities conducted by Sponsor and/or its affiliates (charged on an hourly
basis for actual activities conducted) pursuant to this Agreement, it being
agreed that subject to the terms and conditions of the following sentence, such
fees will not be less than $875,000 (the “Minimum Amount”) (regardless of the
level of services performed) but will not exceed $1,750,000 on an annual basis,
plus reasonable out-of-pocket expenses of Sponsor and/or its affiliates in
connection with the activities rendered by Sponsor and/or its affiliates
pursuant to this Agreement. Notwithstanding the foregoing, the Company shall
not be obligated to pay Sponsor the aforementioned fees (but will be obligated
to pay Sponsor for its reasonable out-of-pocket expenses in any event) (a) if
there is, or if such payment would result in, a default under the Senior Credit
Agreement (as defined below), or if the Senior Credit Agreement otherwise
prohibits such payment, which shall result in such fees accruing until such
time as such default is cured or waived or (b) until such time as Parent and
its consolidated subsidiaries achieve LTM Adjusted EBITDA (as defined below)
equal to or greater than $125.8 million (it being agreed that the
aforementioned LTM Adjusted EBITDA threshold need only be achieved once, and
thereafter, shall not operate as a limitation on the Company’s obligation to
pay the fees specified herein). “LTM Adjusted EBITDA” means, for Parent and its
consolidated subsidiaries (including, for avoidance of doubt, the pre-Effective
Date LTM Adjusted EBITDA of the Company and its consolidated subsidiaries), for
any trailing twelve month period ending on any calendar quarter following the
Effective Date, “Adjusted EBITDA” calculated in a manner consistent with the
calculation thereof set forth under the caption “Summary unaudited pro forma
and historical consolidated financial data” set forth in that certain Offering
Memorandum dated June 21, 2002 pursuant to which WH Acquisition Corp.
privately placed an aggregate of $165 million of its 11.75% Senior Subordinated
Notes due 2010. The Company shall pay the aforementioned fees and expenses to
Sponsor or its designee on a quarterly (calendar year) basis, in arrears.
“Senior Credit Agreement” means that certain Credit Agreement (as the same may
be amended, restated or otherwise modified from time to time) to be dated on or
about July 31, 2002, among the Company, the subsidiaries of Parent listed
therein as guarantors, the lenders listed therein, UBS Warburg LLC, as
arranger, UBS AG, Stamford Branch, as administrative agent and collateral
agent, and the other parties listed therein as agents.


 


(b)                                 Notwithstanding
any provision contained herein to the contrary, so long as there are any unpaid
Obligations (as such term is defined in the Senior Credit Agreement) pursuant
to the Senior Credit Agreement (other than contingent indemnity obligations),
the Company shall not pay any monitoring fees pursuant to Section 3(a) of
this Agreement in excess of the Minimum Amount. Any monitoring fees due and
payable pursuant to Section 3(a) of this Agreement in excess of the
Minimum Amount shall be accrued as a general unsecured obligation of the
Company, and shall accrue interest at a rate of 12% per annum, compounded
quarterly, and shall be due and payable upon the first date on which (i) all
Obligations (other than contingent indemnity obligations) pursuant to the
Credit Agreement have been paid in full in cash or otherwise satisfied in


 


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full and (ii) following the satisfaction of
the condition in the aforementioned clause (i) of this sentence, Parent and its
consolidated subsidiaries achieve LTM Adjusted EBITDA equal to or greater than
$100 million (it being agreed that the aforementioned LTM Adjusted EBITDA
threshold need only be achieved once, and thereafter, shall not operate as a
limitation on the Company’s obligation to pay the fees specified in this
Section 3(b)).


 


4.                                       Transaction
Fees.


 


(a)                                  The Company
shall pay Sponsor or its designee upon the Effective Date a fee in the amount
of $7,000,000 for activities rendered in connection with the structuring of the
Company’s debt financing for the transactions contemplated by the Merger Agreement.
Such fee will be payable to Sponsor or its designee by wire transfer of
immediately available funds. In addition, the Company shall pay Sponsor or its
designee, by wire transfer or immediately available funds, the reasonable
out-of-pocket expenses incurred by Sponsor and/or its affiliates in connection
with the foregoing.


 


(b)                                 In
addition, during the Term, the Company will pay Sponsor or its designee a
transaction fee in connection with the consummation of each transaction
resulting in a Change in Control (as defined below), acquisition, divestiture
or financing (whether debt or equity financing) by or involving Parent or its
subsidiaries in an amount equal to 1.0% of the aggregate value of each such
transaction (in each case, whether such transaction is by way of merger,
purchase or sale of stock, purchase or sale or other disposition of assets,
recapitalization, reorganization, consolidation, tender offer, public or
private offering or otherwise, and whether consummated directly by Parent or its
subsidiaries or indirectly by their respective stockholders). “Change in
Control” means (i) any sale or transfer by Parent or its subsidiaries of all or
substantially all of their assets on a consolidated basis, (ii) any
consolidation, merger or reorganization of Parent or any subsidiary with or
into any other entity or entities as a result of which the holders of Parent’s
or such subsidiary’s outstanding capital stock possessing the voting power
(under ordinary circumstances) to elect a majority of the board or directors
immediately prior to such consolidation, merger or reorganization cease to own
the outstanding capital stock of the surviving corporation possessing the
voting power (under ordinary circumstances) to elect a majority of the
surviving corporation’s board of directors or (iii) issuance by Parent or any
subsidiary or sale or transfer to any third party of shares of Parent’s or such
subsidiary’s capital stock by the holders thereof as a result of which the
holders of Parent’s or such subsidiary’s outstanding capital stock possessing
the voting power (under ordinary circumstances) to elect a majority of the
board of directors immediately prior to such sale or transfer cease to own the
outstanding capital stock of Parent or such subsidiary possessing the voting
power (under ordinary circumstances) to elect a majority of the board of
directors.


 


5.                                       Personnel.
Sponsor will provide and devote to the performance of this Agreement such
partners, employees and agents of Sponsor as Sponsor shall deem appropriate to
the conduct of the activities contemplated hereunder.


 


6.                                       Liability.
Neither Sponsor nor any of its affiliates, nor any of their respective
partners, members, employees or agents (collectively, the “Sponsor Group”)
shall be liable to the Company, Parent, their subsidiaries or any of their
affiliates for any loss, liability, damage or expense (including attorney’s
fees and expenses) (collectively a “Loss”) arising out of or in connection with
the performance of activities contemplated by this Agreement. Sponsor makes no
representations or warranties, express or implied, in respect of the activities
provided by any member of the Sponsor Group. Except as Sponsor may otherwise
agree in writing after the date hereof: (i) each member of the Sponsor Group
shall have the right to, and shall have no duty (contractual or otherwise) not
to, directly or indirectly: (A) engage in the same or similar business
activities or lines of business as the Company, Parent, their subsidiaries or
any of their affiliates and (B) do business with any client or customer of the
Company, Parent, their subsidiaries or any of their affiliates; (ii) no member
of the Sponsor Group shall be liable to the Company, Parent, their subsidiaries
or any of their affiliates for breach


 


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of any duty (contractual
or otherwise) by reason of any such activities or of such person’s
participation therein; and (iii) in the event that any member of the Sponsor
Group acquires knowledge of a potential transaction or matter that may be a
corporate opportunity for both the Company, Parent, their subsidiaries or any
of their affiliates on the one hand, and any member of the Sponsor Group, on
the other hand, or any other person, no member of the Sponsor Group shall have
any duty (contractual or otherwise) to communicate or present such corporate
opportunity to the Company, Parent, their subsidiaries or any of their
affiliates and, notwithstanding any provision of this Agreement to the
contrary, shall not be liable to the Company, Parent, their subsidiaries or any
of their affiliates for breach of any duty (contractual or otherwise) by reason
of the fact that any member of the Sponsor Group directly or indirectly pursues
or acquires such opportunity for itself, directs such opportunity to another
person, or does not present such opportunity to the Company, Parent, their
subsidiaries or any of their affiliates. In no event will any of the parties
hereto be liable to any other party hereto for (i) any indirect, special,
incidental or consequential damages, including lost profits or savings, whether
or not such damages are foreseeable or (ii) in respect of any liabilities
relating to any third party claims (whether based in contract, tort or
otherwise), except as set forth in Section 7 below.


 


7.                                       Indemnity.
The Company, Parent and their subsidiaries shall defend, indemnify and hold
harmless each member of the Sponsor Group from and against any and all Losses
arising from any claim by any person or entity with respect to, or in any way
related to, this Agreement (collectively, “Claims”) resulting from any act or
omission of any member of the Sponsor Group. The Company, Parent and their
subsidiaries shall defend at their own cost and expense any and all suits or
actions (just or unjust) which may be brought against the Company, Parent,
their subsidiaries or any of their affiliates, or any member of the Sponsor
Group or in which any member of the Sponsor Group may be impleaded with others
upon any Claims, or upon any matter, directly or indirectly related to or
arising out of this Agreement or the performance hereof by any member of the
Sponsor Group.


 


8.                                       Notices.
All notices hereunder shall be in writing and shall be delivered personally or
mailed, postage prepaid, addressed to the parties as follows:


 


To Parent or the Company:


 


WH Holdings
(Caymans Islands) Ltd.


Herbalife International, Inc.


1800 Century Park East


Los Angeles, California 90067


Attention: 
Chief Executive Officer


Telecopy No.:  (310) 216-7255


 


To Sponsor:


 


GGC Administration, L.L.C.


One Embarcadero Center, 33rd Floor


San Francisco, California 94111


Attention: Jesse Rogers


Telecopy No.:  (415) 627-4501


 


9.                                       Successors.
This Agreement and all the obligations and benefits hereunder shall inure to
the successors and assigns of the parties.


 


10.                                 Assignment.
No party may assign any obligations hereunder to any other party without the
prior written consent of each of the other parties (which consent shall not be
unreasonably withheld); provided that Sponsor may, without consent of Parent or
the Company, assign its rights and obligations under this Agreement to any of
its affiliated investment funds. The assignor shall remain liable for the
performance of any assignee.


 


11.                                 Counterparts.
This Agreement may be executed and delivered by each party hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which taken together shall constitute but one and the same
agreement.


 


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12.                                 Entire
Agreement; Modification; Governing Law. The terms and conditions hereof
constitute the entire agreement between the parties hereto with respect to the
subject matter of this Agreement and supersede all previous communications,
either oral or written, representations or warranties of any kind whatsoever,
except as expressly set forth herein. No modifications of this Agreement nor waiver of the terms or conditions thereof shall be
binding upon any party unless approved in writing by an authorized
representative of such party. All issues concerning this agreement shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of New York or any other jurisdiction) that would cause
the application of the law of any jurisdiction other than the State of New
York.


 


13.                                 Guarantee.
Parent hereby (i) unconditionally guarantees the full, complete and timely
performance of, and compliance with, all of the covenants, agreements,
obligations and other liabilities of the Company under this Agreement; and (ii)
agrees to the obligations of it set forth in this Agreement, including, without
limitation, set forth in Sections 6 and 7.


 


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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the date first written above.


 


	
   

  	
  HERBALIFE
  INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
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  GGC ADMINISTRATION, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Acknowledged and agreed to

  for purposes of Section 13 hereof:

  	
   

  
	
   

  	
   

  
	
  WH HOLDINGS (CAYMAN ISLANDS) LTD.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Its:

  	
   

  	
   

  	
   

  
							



 


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