WHIRLPOOL CORPORATION
Debt Securities
Underwriting Agreement
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March __, 2000
XXXXXXX, XXXXX & CO.,
As the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
From time to time Whirlpool Corporation, a Delaware corporation (the
"Company") proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities, which may include warrants in
respect thereof (the "Securities"), specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the Indenture dated as of March 20, 2000, as amended by the Trust
Indenture Reform Act of 1990 (the "Indenture"), between the Company and
Citibank, N.A. as Trustee (the "Trustee").
1. Particular sales of Designated Securities may be made from time to
time to the Underwriters of such Designated Securities, for whom the firms
designated as representatives of the Underwriters of such Designated Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representative. This Underwriting Agreement shall not be construed as an
obligation of the Company
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue and sell any of
the Securities and the obligation of any of the Underwriters to purchase any of
the Securities shall be evidenced by the Pricing Agreement with respect to the
Designated Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Designated Securities, the initial public
offering price of such Designated Securities, the purchase price to the
Underwriters of such Designated Securities, the names of the Underwriters of
such Designated Securities, the names of the Representatives of such
Underwriters and the principal amount of such Designated Securities to be
purchased by each Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the Indenture and
the registration statement and prospectus with respect thereto) the terms of
such Designated Securities. The Pricing Agreement also may specify such
additional terms and conditions as the parties thereto may agree. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 in respect of $750,000,000
aggregate principal amount of debt securities of the Company, including the
Securities, has been filed with the Securities and Exchange Commission (the
"Commission") in the form heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to such registration statement, but
including all documents incorporated by reference in the prospectus
contained therein, to the Representatives for each of the other
Underwriters, and such registration statement in such form has been
declared effective by the Commission and no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), being hereinafter called a "Preliminary Prospectus");
the various parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and, if applicable, including
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the information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof and deemed by virtue of Rule 430A under the Act to be part of
the registration statement at the time it was declared effective, each as
amended at the time such part became effective, being hereinafter
collectively called the "Registration Statement"; such final prospectus
(including, if applicable, any prospectus supplement) relating to the
Securities, in the form first filed pursuant to Rule 424(b) under the Act,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to the
applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the date
of such Preliminary Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated therein by reference; and any reference to the Prospectus, as
amended or supplemented, shall be deemed to refer to the Prospectus, as
amended or supplemented, in relation to the applicable Designated
Securities in the form in which it is first filed, or mailed for filing,
with the Commission pursuant to Rule 424(b) under the Act and in accordance
with Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing or mailing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents when they became
effective or were so filed contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that
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this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter of Designated
Securities through, or on behalf of, the Representatives expressly for use
in the Registration Statement or the Prospectus, as amended or
supplemented, relating to such Securities;
(c) The Registration Statement, as of its effective date, and the
Prospectus, as of its filing date, conformed, and, as of the applicable
effective date of any amendment to the Registration Statement or the
applicable filing date of any supplement to the Prospectus made by the
Company, the Registration Statement as so amended or the Prospectus as so
supplemented, as the case may be, conformed or will conform, as the case
may be, in all material respects to the requirements of the Act and the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date in the case of the Registration
Statement and any amendment thereto and as of the applicable filing date in
the case of the Prospectus and any amendment or supplement thereto, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
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not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through, or on behalf of, the
Representatives expressly for use in the Registration Statement or the
Prospectus, as amended or supplemented, relating to such Securities;
(d) Neither the Company nor any of Whirlpool Europe B.V. ("Whirlpool
Europe") or Multibras S.A. Eletrodomesticos (collectively with Whirlpool
Europe, the "Significant Subsidiaries") has sustained since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, as amended or supplemented, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth
or contemplated in the Prospectus, as amended or supplemented; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, as amended or supplemented, there has not
been any material change in the capital stock or long-term debt of the
Company and any of its subsidiaries, considered as a
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whole, or any material adverse change, or any development involving an
impending material adverse change, in the general affairs, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, in each case, otherwise than as set
forth or contemplated in the Prospectus, as amended or supplemented;
(e) The Company and each of its Significant Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with corporate
power and authority to own its properties and conduct its business as
described in the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
and where the failure to so qualify would have a material adverse effect on
the general affairs, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect");
(f) The Company has an authorized capitalization as included or
incorporated by reference in the Prospectus, as amended or supplemented,
and all of the issued shares of capital stock of the Company and its
Significant Subsidiaries have been duly and validly authorized and issued,
and are fully paid and nonassessable; and all of the shares of capital
stock of its Significant Subsidiaries owned directly or indirectly by the
Company are owned free and clear of all liens, encumbrances, equities or
claims (other than with respect to the right of the Company to transfer
shares of capital stock of Whirlpool Europe in certain circumstances);
(g) The principal manufacturing and service facilities referred to in
the Company's Annual Report on Form 10-K for the year ended December 31,
1999 under the caption "Properties" are either owned or leased by the
Company or one of its subsidiaries and, if owned, are held under good
title, subject to no defects or encumbrances which would materially
interfere with the conduct of the business of the Company and its
subsidiaries considered as a whole and, if leased, are held under valid and
enforceable leases with no exceptions which would materially interfere with
such conduct;
(h) The filing of the Registration Statement with respect to the
Securities and the issuance and sale of the Securities pursuant to this
Agreement have been duly
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authorized, and, when Designated Securities are duly executed,
authenticated, issued, delivered and paid for pursuant to this Agreement,
the Pricing Agreement with respect to such Designated Securities and the
Indenture, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture, except as may be limited by bankruptcy, insolvency,
reorganization, and other laws of general applicability relating to or
affecting creditors' rights and general equity principles, which Indenture
will be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized, executed and delivered
by each of the Company and, to the Company's knowledge, the Trustee and is
duly qualified under the Trust Indenture Act and, at the Time of Delivery
of such Designated Securities (as defined in Section 4 hereof), the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the Securities and the Indenture conform, and the
Designated Securities will conform, in all material respects, to the
descriptions thereof in the Prospectus, as amended or supplemented with
respect to such Designated Securities;
(i) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not materially conflict
with or result in a material breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its Significant Subsidiaries is a party or by
which the Company or any of its Significant Subsidiaries is bound or to
which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or the By-Laws of the Company or, to the best of the Company's
knowledge, any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its Significant Subsidiaries or properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale of
the Securities or the consummation by the Company of
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the other transactions contemplated by this Agreement or any Pricing
Agreement or the Indenture, except such as have been, or will have been
prior to the Time of Delivery, obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities by
the Underwriters in the manner contemplated hereby;
(j) Neither the Company nor any of its Significant Subsidiaries is in
violation of its By-laws or Certificate of Incorporation or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of its properties may be bound;
(k) Other than as set forth or contemplated in the Prospectus, as
amended or supplemented, there are no legal or governmental proceedings
pending to which the Company or any of its Significant Subsidiaries is a
party or to which any property of the Company or any of its Significant
Subsidiaries is subject other than litigation or other proceedings which,
in the opinion of the Company, will not in the aggregate have a Material
Adverse Effect; and, to the best of the knowledge of the Company's
officers, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(l) Each of the accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement are independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder; and
(m) Immediately after the sale of Securities by the Company hereunder,
the aggregate amount of Securities which shall have been issued and sold by
the Company pursuant to the Registration Statement will not exceed the
amount of Securities registered under the Registration Statement.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representa tives of the release
of such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus, as amended or supplemented.
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4. Designated Securities to be purchased by each Under writer pursuant to
the Pricing Agreement relating thereto, in the form specified in such Pricing
Agreement, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered, by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account or accounts specified in writing by the
Company to the Representatives at least forty-eight hours in advance or at such
other time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended or supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Designated Securities and prior to the Time of Delivery for such
Designated Securities if such further amendment or supplement is reasonably
disapproved by the Representatives for such Designated Securities promptly
after reasonable notice thereof; to advise the Representatives promptly of
any such amendment or supplement after such Time of Delivery and furnish
the Representatives with copies thereof; to file timely all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act for so long as the delivery of a prospectus is required
in connection with the offering or sale of such Securities, and during such
same period to advise the Representatives, promptly after the Company
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed, or mailed for filing,
with the Commission, of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any prospectus relating to
the Securities, of the suspension of the
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qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information; and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, promptly to use reasonable
efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business
Day next succeeding the date of the applicable Pricing Agreement, as
amended or supplemented, to furnish the Underwriters with copies of the
Prospectus, as amended or supplemented, in New York City in such quantities
as the Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or sale
of the Securities and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an 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 when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the Exchange Act or the
Trust Indenture Act, to notify the Representatives and upon their request
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
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(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement and any post-effective
amendment thereto, an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission thereunder
(including at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the later of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company which
mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives, which consent will not be
unreasonably withheld.
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
Pricing Agreement for such Designated Securities, and the Company shall at
the time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and all
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Securities; (iii) all expenses
in connection with the qualification of the Securities for offering and sale
under state securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for
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the Underwriters in connection with such qualification and in connection with
the Blue Sky and Legal Investment Surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Securities; (vi) the cost of preparing the Securities;
(vii) the fees and expenses of any Trustee and any agent of any Trustee and the
fees and disbursements of counsel for any Trustee in connection with any
Indenture and the Securities; and (viii) all other costs and expenses incident
to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, Section 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery for such Designated Securities, true and
correct in all material respects, the condition that the Company shall have
performed in all material respects all of its obligations hereunder theretofore
to be performed, and the following additional conditions:
(a) The Prospectus, as amended or supplemented, with respect to such
Designated Securities shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of the Pricing Agreement for such
Designated Securities; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the reasonable satisfaction of
the Representatives;
(b) Xxxxx, Brown& Xxxxx, counsel for the Underwriters, or such other
counsel acting for the Underwriters, shall have furnished to the
Representatives such written opinion or opinions, dated the Time of
Delivery for such Designated
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Securities, with respect to the incorporation of the Company, the validity
of the Indenture, the Designated Securities, the Registration Statement,
the Prospectus, as amended or supplemented, and other related matters as
the Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Xxxxxx X. Xxxx, Esq., Senior Vice President and General Counsel
of the Company, shall have furnished to the Representatives his written
opinion, dated the Time of Delivery for such Designated Securities, in form
and substance reasonably satisfactory to the Representatives, to the effect
that:
(i) Each of the Company and its Significant Subsidiaries has
been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
with corporate power and authority to own its properties and conduct
its business as described in the Prospectus, as amended or
supplemented, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties and
where the failure to so qualify would have a Material Adverse Effect;
(ii) The Company has an authorized capitalization as included or
incorporated by reference in the Prospectus, as amended or
supplemented, and all of the issued shares of capital stock of the
Company and its Significant Subsidiaries have been duly and validly
authorized and issued, and are fully paid and nonassessable; and all
of the shares of capital stock of its Significant Subsidiaries owned
directly or indirectly by the Company are owned free and clear of all
liens, encumbrances, equities or claims (other than with respect to
the right of the Company to transfer shares of capital stock of
Whirlpool Europe in certain circumstances);
(iii) Such counsel is not aware of any legal or governmental
proceedings pending to which the Company or any of its Significant
Subsidiaries is a party or to which any property of the Company or any
of its Significant Subsidiaries is the subject other than as described
in the Prospectus, as amended or supplemented, and other than
litigation or other proceedings which in the opinion of such counsel
are not required to be described in the Prospectus, as
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amended or supplemented, and other than litigation or other
proceedings which in the opinion of such counsel are not required to
be described in the Prospectus, as amended or supplemented, and which,
after consultation with the Company, such counsel does not believe
could reasonably be expected to have a Material Adverse Effect; and,
to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(iv) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(v) The Designated Securities have been duly authorized and,
when duly executed, authenticated, issued, delivered and paid for as
provided in this Agreement, the Pricing Agreement and the Indenture,
will constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture except as may be
limited by bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and
general equity principles; and the Designated Securities and the
Indenture conform in all material respects to the descriptions thereof
in the Prospectus, as amended or supplemented;
(vi) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery thereof by the trustee thereunder) constitutes
a valid and legally binding instrument, enforceable against the
Company in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act;
(vii) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not materially
conflict with or result in a material breach or violation of any of
the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of its Significant Subsidiaries is a party or by which the Company
or any of its Significant Subsidiaries is bound
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or to which any of the property or assets of the Company or any of its
Significant Subsidiaries is subject, nor will such actions result in
any violation of the provisions of the Certificate of Incorporation,
as amended, or the By-Laws of the Company or any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
Significant Subsidiaries or properties;
(viii) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Designated Securities
or the consummation by the Company of the transactions contemplated by
this Agreement or such Pricing Agreement or the Indenture, except such
as have been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Designated Securities by the Underwriters in the manner contemplated
hereby;
(ix) The documents incorporated by reference in the Prospectus,
as amended or supplemented (other than the financial statements and
related schedules and other financial data included or incorporated by
reference therein or omitted therefrom, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder; and nothing has come to the attention of such counsel to
cause him to believe that any of such documents (other than the
financial statements and related schedules and other financial data
included or incorporated by reference therein or omitted therefrom),
when they became effective or were so filed, as the case may be,
contained, in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to
14
make the statements therein, in the light of the circumstances under
which they were made when such documents were so filed, not
misleading; and
(x) The Registration Statement and the Prospectus and any
amendments and supplements thereto made by the Company prior to the
Time of Delivery for the Designated Securities (other than the
financial statements and related schedules and other financial data
included or incorporated by reference therein or omitted therefrom, as
to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; nothing has
come to the attention of such counsel to cause him to believe that, as
of its effective date, the Registration Statement or any amendment
thereto (other than the financial statements and related schedules and
other financial data included or incorporated by reference therein or
omitted therefrom) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that either
the Registration Statement, including any amendment thereto (as of the
Time of Delivery), or the Prospectus or any supplement thereto (as of
the date of the Prospectus or supplement thereto, respectively) or the
Prospectus, as amended or supplemented (as of the Time of Delivery)
(other than the financial statements and related schedules and other
financial data included or incorporated by reference therein or
omitted therefrom), 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 the
light of the circumstances under which they were made, not misleading;
and such counsel does not know of any contracts or other documents of
a character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus, as amended or supplemented, or required to be described in
the Registration Statement or the Prospectus, as amended or
supplemented, which are not filed or incorporated by reference or
described as required. In rendering such opinion, such counsel may
rely to the extent he deems appropriate upon certificates of officers
of the Company, of officers of any subsidiary of the Company and of
public officials as to factual matters and, if expressly so stated,
upon opinions of other counsel (other than the opinion required by
Section 7(d)
15
hereof, except as provided below), which other counsel and opinions
shall be reasonably satisfactory to the Representatives and which
opinions shall be furnished to the Representatives. Such counsel may
limit his opinion to matters relating to United States federal laws,
the laws of the State of Michigan and the corporate law of the State
of Delaware. Insofar as the opinions of such counsel relate to the
laws of the State of New York, such counsel may rely on the opinion of
counsel referenced in Section 7(d) hereof.
(d) Xxxxxxxx & Xxxxx, counsel to the Company, or such other counsel
to the Company reasonably satisfactory to the Representatives, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery with respect to such Designated Securities in form and substance
reasonably satisfactory to the Representatives, to the effect that the
Registration Statement and the Prospectus, as amended or supplemented, and
any further amendments and supplements thereto made by the Company prior to
the Time of Delivery for the Designated Securities (other than the
financial statements, related schedules and other financial data included
or incorporated by reference therein or omitted therefrom, and other than
documents incorporated therein by reference, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; and such counsel shall further state that nothing
has come to the attention of such counsel to cause such counsel to believe
that the Registration Statement or any amendment thereto (as of the time
the Registration Statement or such amendment became effective) (other than
the financial statements and related schedules and other financial data
included or incorporated by reference therein or omitted therefrom and
other than documents incorporated by reference therein) contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or that either the Registration Statement, including any
amendment thereto (as of the Time of Delivery), or the Prospectus or any
supplement thereto (as of the date of the Prospectus or supplement thereto,
respectively) or the Prospectus, as amended or supplemented (as of the Time
of Delivery) (other than the financial statements and related schedules and
other financial data included or incorporated by reference therein or
omitted therefrom, and other than documents incorporated by reference
therein), 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
16
circumstances under which they were made, not misleading. In rendering such
opinion, such counsel may rely to the extent it deems appropriate upon
certificates of officers of the Company, of officers of any subsidiary of
the Company and of public officials as to factual matters. Such counsel may
limit its opinion to matters relating to United States federal laws, the
laws of the States of Illinois and New York and the corporate law of the
State of Delaware;
(e) On the date of the Pricing Agreement for such Designated
Securities at a time prior to the execution of the Pricing Agreement with
respect to such Designated Securities and at the Time of Delivery for such
Designated Securities, the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement shall
have furnished to the Representatives a letter, dated the effective date of
the Registration Statement or the date of the most recent report filed with
the Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of Delivery,
respectively, to the effect set forth in Annex II hereto, and with respect
to such letter dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance reasonably
satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries considered as a whole shall
not have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus, as
amended or supplemented prior to the date of the Pricing Agreement with
respect to the Designated Securities, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented prior to the
date of the Pricing Agreement with respect to the Designated Securities,
and (ii) since the respective dates as of which information is given in the
Prospectus, as amended or supplemented, there shall not have been any
change material to the Company and its subsidiaries considered as a whole
in the capital stock or long-term debt of the Company or any of its
Significant Subsidiaries or any change, or any development involving an
impending change, in the general affairs, financial position, stockholders'
equity or results of operations of the Company and its subsidiaries, taken
as a whole, in each case, otherwise than as set forth or
17
contemplated in the Prospectus, as amended or supplemented prior to the
date of the Pricing Agreement with respect to the Designated Securities,
the effect of which, in any such case described in clause (i) or (ii), is
in the judgment of the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus, as amended or supplemented;
(g) Subsequent to the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, if the effect of any such event specified in this clause
(iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus, as amended or supplemented; or (iv) any downgrading in the
rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act, or any such organization
shall have announced publicly that it has placed any of such debt
securities on what is commonly termed a "watch list" for possible
downgrading;
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company reasonably
satisfactory to the Representatives dated as of such Time of Delivery as to
the accuracy of the representations and warranties of the Company herein at
and as of such Time of Delivery, as to the performance by the Company of
all of its obligations hereunder to be performed, at or prior to such Time
of Delivery and as to the matters set forth in subsections (a) and (f) of
this Section;
(i) The Company shall not have made, after the date of the Pricing
Agreement for any Designated Securities and prior to the Time of Delivery
for such Designated Securities, any amendment or supplement to the
Registration Statement or Prospectus, as amended or supplemented, which
18
shall have been reasonably disapproved by the Representatives for such
Securities; and
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of Prospectuses on the Business
Day next succeeding the date of the applicable Pricing Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registra tion Statement, the Prospectus, as amended
or supplemented, and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim; provided, however, that the Company shall not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus, as amended or
supplemented, and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by, or on behalf of, any Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus, as amended or supplemented, relating to such Securities; and
provided, further, that, in the event that the Prospectus, as amended or
supplemented, shall have been further amended or supplemented and copies
thereof, as so further amended or supplemented, furnished to each Underwriter
prior to the confirmation of any sales of Designated Securities, such indemnity
with respect to the Prospectus, as amended or supplemented, shall not inure to
the benefit of any Underwriter from whom the person asserting any such loss,
claim, damage or liability purchased the Designated Securities which are the
subject thereof if such person did not, at or prior to the confirmation of the
sale of Designated Securities to such person, receive a copy of the Prospectus
(excluding documents incorporated by reference) as so further amended or
supplemented and the untrue statement or omission of a material fact contained
in the Prospectus, as amended or supplemented, was (i) corrected
19
in the Prospectus as so further amended or supplemented and (ii) identified to
the Underwriters prior to the confirmation of the sale of the Designated
Securities.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus, as amended or supplemented, and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus, as amended or
supplemented, and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by, or on behalf of, such Underwriter
through the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satis factory to such indemnified party (who shall not, except with the
consent of the indemnified party (which consent shall not be unreasonably
withheld), be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party
20
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. The indemnifying party shall not be liable for any settlement of
any such action effected without its prior written consent (which consent will
not be unreasonably withheld or delayed), provided that the indemnifying party
has expressly acknowledged in writing its indemnification obligations to the
indemnified party or parties hereunder regarding the action to which the
Settlement relates. No indemnifying party shall, without the written consent of
the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 8 is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates and also the
relative fault of the Company on the one hand and the Underwriters of the
Designated Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and such Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from such offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by such Underwriters. The relative fault 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 Company on the one hand or such
Underwriters on the other
21
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. With respect to
the Underwriters, such relative fault shall also be determined by reference to
the extent (if any) to which such losses, claims, damages or liabilities (or
actions in respect thereof) result from the fact that the Underwriters sold
securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) if the Company had
previously furnished copies thereof to the Underwriters. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. The indemnifying party shall not be liable for any settlement of any
such action effected without its prior written consent (which consent will not
be unreasonably withheld or delayed), provided that the indemnifying party has
expressly acknowledged in writing its indemnification obligations to the
indemnified party or parties hereunder regarding the action to which the
settlement relates. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. 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. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any
22
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
and to each person, if any, who controls the Company within the meaning of the
Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein and in such
Pricing Agreement. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Designated Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Designated Securities, the
Representatives and the Company shall each have the right to postpone the Time
of Delivery for such Designated Securities for a period of not more than seven
days from the date of such notification, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus, as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the reasonable opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or
23
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provid ed in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Desig nated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for any of the Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except with respect to any non-defaulting Underwriter as provided in Section 6
and Section 8 hereof; but, if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through the Representatives for all out-of-pocket
expenses approved in writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Designated Securities,
but the Company shall then be under no further liability to any Underwriter with
respect to such Designated Securities except with respect to any non-defaulting
Underwriter as provided in Section 6 and Section 8 hereof.
24
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing or by telephone if promptly confirmed in writing, and if to the
Underwriters shall be sufficient in all respects if delivered or sent by
registered mail or facsimile transmission to the address or facsimile number of
the Representatives as set forth in the Pricing Agreement; and if to the Company
shall be sufficient in all respects if delivered or sent by registered mail to
Whirlpool Corporation, 0000 X-00, Xxxxxx Xxxxxx, Xxxxxxxx 00000-0000 or by
facsimile transmission to Facsimile Transmission No. (000) 000-0000, in each
case marked Attention: General Counsel; provided, however, that any notice to an
-------- -------
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
registered mail or facsimile transmission to such Underwriter at its address or
facsimile number set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address or facsimile number will be
supplied to the Company by the Representatives upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Under writers, the Company and, to the
extent provided in Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of this Agreement and of each Pricing
Agreement. As used herein, the term "Business day" shall mean any day when the
office of the Commission in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in
25
any number of counterparts, each of which shall be deemed to be an original, but
all of such respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return six counterparts hereof.
Very truly yours,
WHIRLPOOL CORPORATION
By:________________________
Its:____________________
Accepted in New York, New York
as of the date hereof:
(Xxxxxxx, Xxxxx & Co.)
26
Pricing Agreement
-----------------
March __, 2000
XXXXXXX, SACHS & CO.
As Representatives of the several
Underwriters named in Schedule I hereto,
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Whirlpool Corporation (the "Company") proposes, subject to the terms and
conditions stated herein and in the Underwriting Agreement, dated March __,
2000, (the "Underwriting Agreement"), between the Company on the one hand and
Xxxxxxx, Xxxxx & Co. on the other hand, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
with respect to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus, as amended or supplemented to date and relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Designated Securities pursuant to Section 12 of the Underwriting
Agreement and the facsimile number and address of the Representatives referred
to in such Section 12 are set forth at the end of Schedule II hereto.
27
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form to be delivered to you is proposed to be filed, or in the case of a
supplement mailed for filing, with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us one counterpart hereof for the Company and one counterpart hereof
for each of the Representatives plus one for each counsel, and upon acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
each of the Underwriters and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination, upon request, but
without warranty on the part of the Representatives as to the authority of the
signers thereof.
Very truly yours,
WHIRLPOOL CORPORATION
By:_____________________
Its:_________________
Accepted as of the date hereof:
By:____________________________
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Underwriters
2
SCHEDULE I
----------
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ----------
Xxxxxxx, Xxxxx & Co........................................... $
Xxxxxxx Xxxxx Barney Inc......................................
Total.................................................... $
SCHEDULE II
Title of Designated Securities:
Aggregate principal amount:
Price to Public:
Purchase Price by Underwriters:
Specified funds for payment of purchase price:
Federal (same day) funds
Indenture:
Indenture, dated as of March 20, 2000, as amended by the Trust Indenture
Reform Act of 1990, between the Company and Citibank, N.A., as Trustee
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Sinking Fund Provisions:
Time of Delivery:
_____ a.m. (New York City Time), _______, 2000
Closing Location:
Names and addresses of Representatives:
Designated Representatives:
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxx Barney Inc.
Address for Notices, etc.:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
ANNEX II
ACCOUNTANTS' LETTER
Pursuant to Section 7(e) of the Underwriting Agreement, each of the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference, or the financial statements of any subsidiary of the Company used in
the preparation of the financial statements of the Company and its subsidiaries
included or incorporated by reference, in the Registration Statement or the
Prospectus shall furnish letters to the effect set forth in subsection (a) or
(b) of this Annex II, as applicable.
(a) If such independent certified public accountants have certified the
financial statements of the Company and its consolidated subsidiaries included
or incorporated by reference in the Registration Statement or the Prospectus,
their letter shall be to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its consolidated subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder adopted
by the Commission;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules audited (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related rules and regulations; and, if applicable, they have made a
review in accordance with standards established by the American Institute
of Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified in
such letter, as indicated in their reports thereon, copies of which have
been furnished to the Representatives;
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and
II-1
consolidated statements of cash flows included in the Prospectus and/or
included in the Company's quarterly report on Form 10-Q incorporated by
reference into the Prospectus as indicated in their reports thereon copies
of which have been separately furnished to the Representatives and on the
basis of specified procedures, including inquiries of officials of the
Company who have responsibility for financial and accounting matters
regarding whether the unaudited condensed consolidated financial statements
referred to in paragraph (v)(A) below comply as to form in all material
respects with the applicable accounting requirements of the Act and the
related rules and regulations, nothing came to their attention that caused
them to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations adopted by the Commission.
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
for the three and five most recent fiscal years included in the Prospectus
and included or incorporated by reference in Item 6 of the Company's Annual
Report on Form 10-K for the most recent fiscal year, respectively, agrees
with the corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such five fiscal years which
were included or incorporated by reference in the Company's Annual Reports
on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not consti tuting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its consolidated subsidiaries,
inspection of the minute books of the Company and its con solidated
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, review of letters
issued pursuant to
II-2
Section 7(e) of the Underwriting Agreement concerning Multibras S.A.
Electrodomesticos and its subsidiaries and Empresa Brasileira de
Compressores S.A. - EMBRACO and its subsidiaries (collectively the
"Brazilian Subsidiaries") each to the effect set forth in subsection (b) of
Annex II to the Underwriting Agreement, inquiries of officials of the
Company and its consolidated subsidiaries (other than the Brazilian
Subsidiaries) responsible for financial and accounting matters and such
other inquiries and procedures as may be specified in such letter, nothing
came to their attention that caused them to believe that:
(A) the unaudited condensed financial statements of operations,
consolidated balance sheets and xxxxxxx dated statements of changes
in financial position included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by refer ence
in the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Exchange Act and
the related rules and regulations adopted by the Commission, or any
material modifications should be made to the unaudited condensed
consolidated statements of operations, consolidated balance sheets and
consolidated statements of changes in financial position included or
incorporated in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(B) any other unaudited income statement data and balance sheet
items in the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which such data
and items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for the
corresponding amounts in the audited consolidated financial statements
included or incorporated by reference in the Company's Annual Report
on Form 10-K for the most recent fiscal year;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived the unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
financial statements included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most recent fiscal year;
II-3
(D) any unaudited pro forma consolidated con densed financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the rules and regulations
adopted by the Commission thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the compilation
of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Representatives,
or any increases in any items specified by the Representatives, in
each case as compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus, except in
each case for changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are described in such
letter; and
(F) for the period from the date of the latest financial
statements included or incorporated by reference in the Prospectus to
the specified date referred to in clause (E) there were any decreases
in consolidated net revenues or earnings from continuing operations or
the total or per share amounts of consolidated net earnings or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representatives, except in each
case for increases or decreases which the Prospectus dis closes have
occurred or may occur or which are described in such letter; and
(vii) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute
II-4
books, inquiries and other procedures referred to in paragraph (v) above,
they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified
by the Representatives which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the Prospectus
(excluding documents incorporated by reference), or in Part II of, or in
exhibits and schedules to, the Registration Statement specified by the
Representatives, or in documents incor porated by reference in the
Prospectus specified by the Representatives, and have compared certain of
such amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be in
agreement.
(b) If such independent certified public accountants certi fied the
financial statements of the Brazilian Subsidiaries (in each case, referred to as
the "Subsidiary") used in the preparation of the financial statements of the
Company and its consolidated subsidiaries included or incorporated by reference
in the Registration Statement or the Prospectus, their letter shall be to the
effect that:
(i) They are independent certified public accountants with respect to
the Subsidiary and its consolidated subsidi aries within the meaning of
the Act and the applicable pub lished rules and regulations thereunder;
(ii) On the basis of limited procedures, not consti tuting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Subsidiary and its consolidated subsidiaries,
inspection of the minute books of the Subsidiary and its consolidated
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Subsidiary and its consolidated subsidiaries responsible
for financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) the unaudited condensed financial statements of operations,
consolidated balance sheets and xxxxxxx dated statements of changes
in financial position of the Subsidiary used in the preparation of the
unaudited condensed financial statements of operations,
II-5
consolidated balance sheets and consolidated statements of changes in
financial position of the Company and its subsidiaries included or
incorporated by reference, in the Company's Quarterly Reports on Form
10-Q incor porated by reference in the Prospectus are not stated on a
basis substantially consistent with the audited consolidated
statements of operations, consolidated balance sheets and consolidated
statements of changes in financial position of the Subsidiary used in
the preparation of the audited financial statements of operations,
consolidated balance sheets and consolidated statements of changes in
financial position of the Company and its subsidiaries included or
incorporated by reference, in the Company's Annual Report on Form 10-K
for the most recent fiscal year; and
(B) as of a specified date, there have been any changes in the
consolidated capital stock or in the consolidated long-term debt of
the Subsidiary and its subsidiaries, or any decreases in consolidated
net current assets, stockholders' equity or net earnings of the
Subsidiary or its subsidiaries or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the
latest balance sheet of the Subsidiary used in the preparation of the
latest balance sheet of the Company included or incorporated by
reference, in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter(s) delivered
on the applicable dates specified in Section 7(e) of the Underwriting Agreement
for purposes of such letter(s).
II-6
