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LONG-TERM CREDIT AGREEMENT
dated as of June 1, 2001
among
WHIRLPOOL CORPORATION
WHIRLPOOL EUROPE B.V.
CERTAIN FINANCIAL INSTITUTIONS
and
BANK OF AMERICA, N.A.,
as Administrative Agent
and
CITIBANK, N.A.,
as Syndication Agent
ABN AMRO BANK, N.V., FLEET NATIONAL BANK
and THE CHASE MANHATTAN BANK,
as Documentation Agents
BANC OF AMERICA SECURITIES LLC
and
XXXXXXX XXXXX XXXXXX INC.,
Co-Lead Arrangers and Joint Book Managers
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS ........................................................1
Section 1.01. Definitions. .............................................1
Section 1.02. Accounting Terms and Determinations......................15
ARTICLE 2 THE FACILITY ......................................................16
Section 2.01. Description of Facility .................................16
Section 2.02. Availability of Facility; Required Payments..............16
Section 2.03. Committed Advances.......................................17
Section 2.04. Letter of Credit Subfacility.............................20
Section 2.05. Competitive Bid Advances.................................25
Section 2.06. Fees.....................................................29
Section 2.07. General Facility Terms...................................30
Section 2.08. Borrowing Subsidiaries; Additional Borrowing
Subsidiaries ..........................................38
Section 2.09. Regulation D Compensation ...............................38
ARTICLE 3 CHANGE IN CIRCUMSTANCES ...........................................39
Section 3.01. Taxes ...................................................39
Section 3.02. Increased Costs .........................................40
Section 3.03. Changes in Capital Adequacy Regulations .................41
Section 3.04. Availability of Types and Currencies ....................42
Section 3.05. Funding Indemnification .................................42
Section 3.06. Mitigation of Additional Costs or Adverse Circumstances..42
Section 3.07. Lender Statements; Survival of Indemnity ................43
ARTICLE 4 GUARANTY ..........................................................43
Section 4.01. Guaranty.................................................43
Section 4.02. Waivers..................................................44
Section 4.03. Guaranty Absolute........................................44
Section 4.04. Continuing Guaranty......................................45
Section 4.05. Delay of Subrogation.....................................45
Section 4.06. Acceleration.............................................45
Section 4.07. Reinstatement............................................46
ARTICLE 5 CONDITIONS PRECEDENT...............................................46
Section 5.01. Effectiveness ...........................................46
Section 5.02. Initial Advance to Each Additional Borrowing Subsidiary..47
Section 5.03. Each Extension of Credit.................................48
ARTICLE 6 REPRESENTATIONS AND WARRANTIES.....................................49
Section 6.01. Existence and Standing...................................49
Section 6.02. Authorization and Validity...............................49
Section 6.03. No Conflict; Government Consent..........................49
Section 6.04. Financial Statements.....................................50
Section 6.05. Material Adverse Change..................................50
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Section 6.06. Taxes....................................................50
Section 6.07. Litigation and Contingent Obligations....................50
Section 6.08. ERISA ...................................................51
Section 6.09. Accuracy of Information..................................51
Section 6.10. Material Agreements......................................51
Section 6.11. Compliance with Laws.....................................51
Section 6.12. Public Utility Holding Company Act.......................51
Section 6.13. Investment Company Act...................................52
Section 6.14. Environmental Matters....................................52
Section 6.15. Proper Legal Form........................................52
Section 6.16. Solvency.................................................52
ARTICLE 7 COVENANTS..........................................................53
Section 7.01. Financial Reporting......................................53
Section 7.02. Use of Proceeds..........................................54
Section 7.03. Notice of Default........................................54
Section 7.04. Existence................................................55
Section 7.05. Taxes....................................................55
Section 7.06. Insurance................................................55
Section 7.07. Compliance with Laws.....................................55
Section 7.08. Inspection...............................................55
Section 7.09. Consolidations, Mergers, Dissolution and Sale of Assets..56
Section 7.10. Liens....................................................56
Section 7.11. Subsidiary Indebtedness..................................58
Section 7.12. Consolidated Net Worth...................................58
Section 7.13. Interest Coverage Ratio..................................59
Section 7.14. Ownership of Borrowing Subsidiaries......................59
Section 7.15. Transactions with Affiliates.............................59
Section 7.16. Limitation on Restricted Actions.........................59
Section 7.17. Limitation on Negative Pledges...........................59
Section 7.18. Material Contracts.......................................60
ARTICLE 8 DEFAULTS...........................................................60
Section 8.01. Representations and Warranties...........................60
Section 8.02. Payment..................................................60
Section 8.03. Covenants................................................60
Section 8.04. Other Obligations........................................61
Section 8.05. Bankruptcy...............................................61
Section 8.06. Receivership, Etc........................................62
Section 8.07. Condemnation.............................................62
Section 8.08. Judgments................................................62
Section 8.09. ERISA....................................................62
Section 8.10. Guaranty.................................................62
Section 8.11. Change of Control........................................63
ARTICLE 9 ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES.....................63
Section 9.01. Acceleration; Allocation of Payments after Acceleration..63
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Section 9.02. Judgment Currency........................................64
Section 9.03. Amendments. .............................................65
Section 9.04. Preservation of Rights...................................66
ARTICLE 10 GENERAL PROVISIONS................................................66
Section 10.01. Survival of Representations..............................66
Section 10.02. Governmental Regulation..................................66
Section 10.03. Headings.................................................66
Section 10.04. Entire Agreement.........................................66
Section 10.05. Several Obligations......................................67
Section 10.06. Expenses; Indemnification................................67
Section 10.07. [Reserved]...............................................67
Section 10.08. Severability of Provisions...............................67
Section 10.09. Nonliability of Lenders..................................68
Section 10.10. CHOICE OF LAW............................................68
Section 10.11. CONSENT TO JURISDICTION..................................68
Section 10.12. WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES....69
Section 10.13. Binding Effect; Termination..............................70
Section 10.14. Confidentiality..........................................70
ARTICLE 11 THE AGENTS........................................................71
Section 11.01. Appointment..............................................71
Section 11.02. Powers...................................................71
Section 11.03. General Immunity.........................................71
Section 11.04. No Responsibility for Loans, Recitals, etc...............71
Section 11.05. Action on Instructions of Lenders........................72
Section 11.06. Employment of Agents and Counsel.........................72
Section 11.07. Reliance on Documents; Counsel...........................72
Section 11.08. Administrative Agent's Reimbursement and
Indemnification........................................73
Section 11.09. Rights as a Lender.......................................73
Section 11.10. Lender Credit Decision...................................73
Section 11.11. Successor Administrative Agent...........................74
ARTICLE 12 SETOFF; RATABLE PAYMENTS..........................................74
Section 12.01. Setoff...................................................74
Section 12.02. Ratable Payments.........................................74
ARTICLE 13 BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS.................75
Section 13.01. Successors and Assigns...................................75
Section 13.02. Participations...........................................76
Section 13.03. Assignments..............................................76
Section 13.04. Dissemination of Information.............................77
Section 13.05. Tax Treatment............................................77
Section 13.06. SPC's....................................................77
ARTICLE 14 NOTICES...........................................................78
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Section 14.01. Giving Notice............................................78
Section 14.02. Change of Address........................................78
ARTICLE 15 COUNTERPARTS......................................................79
EXHIBITS
Exhibit A - Committed Note
Exhibit B - Competitive Bid Quote Request
Exhibit C - Invitation For Competitive Bid Quotes
Exhibit D - Competitive Bid Quote
Exhibit E - Assumption Agreement
Exhibit F - Assignment Agreement
Exhibit G - Compliance Certificate
SCHEDULES
Schedule I - Bilateral Credit Facilities
Schedule II - Commitments
Schedule III - Eurocurrency Payment Offices of
the Administrative Agent
Schedule IV - Pricing Schedule
Schedule V - Notices
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LONG-TERM CREDIT AGREEMENT
This Credit Agreement, dated as of June 1, 2001, is among Whirlpool
Corporation, a Delaware corporation, Whirlpool Europe B.V., a Netherlands
corporation, the other Borrowers from time to time party hereto, the Lenders
from time to time party hereto, Bank of America, N.A., as Administrative Agent
for such Lenders, Citibank, N.A., as Syndication Agent, and ABN Amro Bank, N.V.,
Fleet National Bank and The Chase Manhattan Bank, as Documentation Agents.
W I T N E S S E T H:
WHEREAS, Whirlpool, certain other borrowers, Xxxxxx Guaranty Trust Company
of New York, individually and as Administrative Agent, and certain lenders named
therein entered into that certain Long-Term Credit Agreement, dated as of
January 8, 1997 (the "Existing Long-Term Credit Facility"), and Whirlpool and
certain lenders named therein entered into the respective bilateral credit
facilities identified on Schedule I to this Credit Agreement (the "Bilateral
Credit Facilities"), pursuant to which the lenders party thereto agreed to make
available to certain borrowers named therein revolving loans in an aggregate
principal amount and on terms and conditions more fully described therein
(collectively, the Existing Long-Term Credit Facility and the Bilateral Credit
Facilities, as amended to the date hereof, the "Existing Credit Facilities");
and
WHEREAS, pursuant to the terms of this Credit Agreement, on the Closing
Date: (i) all obligations outstanding under the Existing Credit Facilities shall
be paid in full and the commitments thereunder terminated and (ii) the
provisions of this Credit Agreement shall become effective.
NOW, THEREFORE, in consideration of the undertakings set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.
As used in this Credit Agreement:
"Absolute Rate" means, with respect to a Loan made by a given Lender
for the relevant Absolute Rate Interest Period, the rate of interest per
annum offered by such Lender and accepted by the applicable Borrower
pursuant to Section 2.05(f).
"Absolute Rate Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Absolute Rate Loans made by some or all of
the Lenders
to the applicable Borrower at the same time and for the same Absolute Rate
Interest Period.
"Absolute Rate Auction" means a solicitation of Competitive Bid Quotes
setting forth Absolute Rates pursuant to Section 2.05.
"Absolute Rate Interest Period" means, with respect to an Absolute
Rate Advance or an Absolute Rate Loan, a period of not less than seven days
commencing on a Business Day selected by the applicable Borrower pursuant
to this Credit Agreement, but in no event extending beyond the scheduled
Termination Date. If such Absolute Rate Interest Period would end on a day
which is not a Business Day, such Absolute Rate Interest Period shall,
subject to the preceding sentence, end on the next succeeding Business Day.
"Absolute Rate Loan" means a Loan which bears interest at an Absolute
Rate.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Credit Agreement, by
which any Borrower or any Subsidiary of a Borrower (i) acquires any going
business or all or substantially all of the assets of any firm, corporation
or division thereof, whether through purchase of assets, merger or
otherwise, or (ii) directly or indirectly acquires (in one transaction or
in a series of transactions) at least 25% (in number of votes) of the
equity securities of a corporation which have ordinary voting power for the
election of directors (other than securities having such power only by
reason of the happening of a contingency).
"Additional Borrowing Subsidiary" means any Subsidiary of Whirlpool
duly designated by Whirlpool pursuant to Section 2.08 to request Advances
hereunder, which Subsidiary shall have satisfied the conditions precedent
set forth in Section 5.02.
"Administrative Agent" means Bank of America in its capacity as agent
for the Lenders pursuant to Article 11, and not in its individual capacity
as a Lender, and any successor Administrative Agent appointed pursuant to
Article 11.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of the several Loans made by some or all of the Lenders to a
Borrower of the same Type (or on the same interest basis in the case of
Competitive Bid Advances) and, in the case of Fixed Rate Advances, for the
same Interest Period and includes both a Committed Advance and a
Competitive Bid Advance.
"Affiliate" means with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. As used herein, the term
"control" means possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise; and
the terms "controlled" and "controlling" have meanings correlative to the
foregoing.
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"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders hereunder (which, as of the date of this Credit Agreement, is
$800,000,000), as reduced from time to time pursuant to the terms hereof.
"Agreed Currency" means, subject to Section 3.04, (i) Dollars, (ii)
euros and (iii) any other currency (A) which is freely transferable and
convertible into Dollars, (B) in which deposits are customarily offered to
banks in the London interbank market, (C) which a Borrower requests the
Administrative Agent to include as an Agreed Currency hereunder and (D)
which is acceptable to each Lender; provided that, for purposes of clause
(iii) above, the Administrative Agent shall promptly notify each Lender of
each such request and unless each Lender shall have agreed to each such
request within five Business Days from the date of such notification by the
Administrative Agent to such Lender, such Lender shall be deemed to have
disagreed with such request.
"Alternate Base Rate" means, on any date and with respect to all
Floating Rate Advances, a fluctuating rate of interest per annum equal to
the higher of (i) the Federal Funds Effective Rate most recently determined
by the Administrative Agent plus 1/2% per annum and (ii) the Prime Rate.
"Article" means an article of this Credit Agreement unless another
document is specifically referenced.
"Assumption Agreement" means an agreement of a Subsidiary of Whirlpool
addressed to the Lenders in substantially the form of Exhibit "E" hereto
pursuant to which such Subsidiary agrees to become a "Borrower" and be
bound by the terms and conditions of this Credit Agreement.
"Authorized Officer" means (i) the Chairman of the Board of Whirlpool,
(ii) the Executive Vice President and Chief Financial Officer of Whirlpool,
(iii) the Vice President and Treasurer of Whirlpool and (iv) any other
officer of Whirlpool authorized by resolution of the Board of Directors of
Whirlpool to execute and deliver on behalf of Whirlpool this Credit
Agreement or any other Loan Document.
"Authorized Representative" means any Authorized Officer and any other
officer, employee or agent of a Borrower designated from time to time as an
Authorized Representative in a written notice from any Authorized Officer
to the Administrative Agent.
"Bank of America" means Bank of America, N.A. and its successors.
"Bankruptcy Code" means Xxxxx 00, Xxxxxx Xxxxxx Code, Sections 1 et
seq., as the same may have been and may hereafter be amended from time to
time, and any successor thereto or replacement therefor which may be
hereafter enacted.
"Borrower" means, individually, Whirlpool or any Borrowing Subsidiary,
and
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"Borrowers" means collectively, Whirlpool and each Borrowing Subsidiary.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Subsidiary" means, individually, Whirlpool Europe or any
Additional Borrowing Subsidiary, and "Borrowing Subsidiaries" means,
collectively, Whirlpool Europe and each Additional Borrowing Subsidiary.
"Business Day" means (i) with respect to any borrowing, payment or
rate selection of Eurocurrency Committed Advances or Eurocurrency Bid Rate
Advances and to any conversion of another Type of Advance into a
Eurocurrency Committed Advance, a day other than Saturday or Sunday on
which banks are open for business in San Francisco, California, Dallas,
Texas and New York City, on which dealings in Dollars are carried on in the
London interbank market and, where funds are to be paid or made available
in a currency other than Dollars, on which commercial banks are open for
domestic and international business (including dealings in deposits in such
currency) in both London and the place where such funds are to be paid or
made available, and (ii) for all other purposes, a day other than Saturday
or Sunday on which banks are open for business in San Francisco,
California, Dallas, Texas and New York City.
"Capitalized Lease" means any lease in which the obligation for
rentals with respect thereto is required to be capitalized on a balance
sheet of the lessee in accordance with generally accepted accounting
principles.
"Closing Date" is defined in Section 5.01.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" means, (i) for each Lender, the obligation of such Lender
(a) to make Loans to the Borrowers or (b) to purchase Participation
Interests in Letters of Credit in accordance with Section 2.04(c), in each
case not exceeding the amount set forth on Schedule II hereto or as set
forth in an applicable Assignment Agreement in the form of Exhibit "F"
hereto received by the Administrative Agent under the terms of Section
13.03, as such amount may be modified from time to time pursuant to the
terms of this Credit Agreement and (ii) with respect to the Issuing Lender,
the LOC Commitment.
"Committed Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Committed Loans made by the Lenders to the
applicable Borrower at the same time, of the same Type and, in the case of
Fixed Rate Advances, for the same Interest Period.
"Committed Borrowing Notice" is defined in Section 2.03(e).
"Committed Loan" means a Loan made by a Lender pursuant to Section
2.03.
4
"Competitive Bid Advance" means a borrowing hereunder consisting of
the aggregate amount of the several Competitive Bid Loans made by some or
all of the Lenders to the applicable Borrower at the same time, at the same
interest basis, and for the same Interest Period.
"Competitive Bid Borrowing Notice" is defined in Section 2.05(f).
"Competitive Bid Loan" means a Eurocurrency Bid Rate Loan or an
Absolute Rate Loan, as the case may be.
"Competitive Bid Margin" means the margin above or below the
applicable Eurocurrency Base Rate offered for a Eurocurrency Bid Rate Loan,
expressed as a percentage to be added or subtracted from such Eurocurrency
Base Rate.
"Competitive Bid Quote" means a Competitive Bid Quote substantially in
the form of Exhibit "D" hereto completed and delivered by a Lender to the
Administrative Agent in accordance with Section 2.05(d).
"Competitive Bid Quote Request" means a Competitive Bid Quote Request
substantially in the form of Exhibit "B" hereto completed and delivered by
a Borrower to the Administrative Agent in accordance with Section 2.05(b).
"Consolidated EBIT" means, for any period, the consolidated net income
of Whirlpool and its Consolidated Subsidiaries for such period (as
determined in accordance with generally accepted accounting principles)
plus (i) an amount, which in the determination of such net income has been
deducted for (a) Consolidated Interest Expense for such period, (b) taxes
in respect of, or measured by, income or excess profits of Whirlpool and
its Consolidated Subsidiaries for such period, (c) the Restructuring
Charges during such period and (d) without duplication, identifiable and
verifiable non-cash, non-recurring pre-tax charges taken by Whirlpool
during such period plus (or minus) (ii) to the extent included in the
determination of such net income (x) losses (or income) from discontinued
operations for such period and (y) losses (or gains) from the effects of
accounting changes during such period.
"Consolidated Interest Expense" means, for any period, the
consolidated interest expense of Whirlpool and its Consolidated
Subsidiaries for such period (as determined in accordance with generally
accepted accounting principles).
"Consolidated Net Worth" means, at any date as of which the amount
thereof is to be determined, the consolidated stockholders' equity of
Whirlpool and its Consolidated Subsidiaries, as determined as of such date
in accordance with generally accepted accounting principles.
"Consolidated Subsidiary" means, at any date as of which the same is
to be determined, any Subsidiary the accounts of which would be
consolidated with those of
5
Whirlpool in its consolidated financial statements if such statements were
prepared as of such date in accordance with generally accepted accounting
principles.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated)
under common control which, together with Whirlpool or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Agreement" means this Long-Term Credit Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Default" means an event described in Article 8.
"Documentation Agent" means any of ABN Amro Bank, N.V., Fleet National
Bank or The Chase Manhattan Bank in each case, so long as it is a Lender
under this Credit Agreement.
"Dollar Amount" of any currency at any date means (i) the amount of
such currency if such currency is Dollars or (ii) the equivalent amount of
Dollars if such currency is any currency other than Dollars, calculated at
approximately 11:00 a.m. (London Time) as set forth on the applicable
Telerate Screen on the date of determination; provided that if more than
one rate is listed then the applicable conversion rate shall be the
arithmetic average of such rates. If for any reason such conversion rates
are not available, the Dollar Amount shall be calculated using the
arithmetic average of the spot buying rates for such currency in Dollars as
quoted to the Administrative Agent by three foreign exchange dealers of
recognized standing in the United States selected by the Administrative
Agent at approximately 11:00 a.m. (London time) on any date of
determination. The Dollar Amount of each Advance shall be established two
Business Days prior to the first day of each Interest Period with respect
thereto and on the last Business Day of each fiscal quarter of Whirlpool.
"Dollar Continuation/Conversion Notice" is defined in Section 2.03(f).
"Dollars" and "$" each mean lawful money of the United States of
America.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions,
grants, franchises, licenses, agreements and other governmental
restrictions relating to the environment, the effect of the environment on
human health or to emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into the environment,
including, without limitation, ambient air, surface water, ground water, or
land, or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous substances or wastes or the clean-up or other
remediation thereof.
6
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"euro" means the common currency of participating members of the
European Community.
"Eurocurrency Auction" means a solicitation of Competitive Bid Quotes
setting forth Competitive Bid Margins pursuant to Section 2.05.
"Eurocurrency Base Rate" means, with respect to (i) a Eurocurrency
Committed Advance or a Eurocurrency Committed Loan and (ii) a Eurocurrency
Bid Rate Advance or a Eurocurrency Bid Rate Loan, in each case denominated
in a particular Agreed Currency (pursuant to Sections 2.01 and 2.05) for
the relevant Eurocurrency Interest Period: (a) the rate per annum equal to
the rate (determined by the Administrative Agent in the case of a
Eurocurrency Committed Advance or a Eurocurrency Committed Loan) to be the
offered rate that appears on the page of the Telerate screen (or any
successor thereto) that displays an average British Bankers Association
Interest Settlement Rate for deposits in such Agreed Currency (for delivery
on the first day of such Eurocurrency Interest Period) with a term
equivalent to such Eurocurrency Interest Period, determined as of
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Eurocurrency Interest Period, or (b) if the rate referenced in
the preceding clause (a) does not appear on such page or service or such
page or service shall cease to be available, the rate per annum equal to
the rate (determined by the Administrative Agent in the case of a
Eurocurrency Committed Advance or a Eurocurrency Committed Loan) to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in such
Agreed Currency (for delivery on the first day of such Eurocurrency
Interest Period) with a term equivalent to such Eurocurrency Interest
Period, determined as of approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Eurocurrency Interest Period,
or (c) in the case of a Eurocurrency Committed Advance or a Eurocurrency
Committed Loan, if the rates referenced in the preceding clauses (a) and
(b) are not available, the rate per annum determined by the Administrative
Agent as the rate of interest (rounded upward to the next 1/100th of 1%) at
which deposits in such Agreed Currency for delivery on the first day of
such Eurocurrency Interest Period in same day funds in the approximate
amount of the Eurocurrency Loan being made, continued or converted by Bank
of America and with a term equivalent to such Eurocurrency Interest Period
would be offered by Bank of America's London Branch to major banks in the
offshore Agreed Currency market at their request at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Eurocurrency Interest Period. The Eurocurrency Base Rate shall be rounded
upward to the next 1/100 of 1%.
"Eurocurrency Bid Rate" means, with respect to a Loan made by a given
Lender for the relevant Eurocurrency Interest Period, the sum of (i) the
Eurocurrency Base Rate and (ii) the Competitive Bid Margin offered by such
Lender and accepted by the applicable Borrower pursuant to Section 2.05(f).
7
"Eurocurrency Bid Rate Advance" means a Competitive Bid Advance which
bears interest at a Eurocurrency Bid Rate.
"Eurocurrency Bid Rate Loan" means a Competitive Bid Loan which bears
interest at a Eurocurrency Bid Rate.
"Eurocurrency Committed Advance" means an Advance which bears interest
at a Eurocurrency Rate requested by a Borrower pursuant to Section 2.03.
"Eurocurrency Committed Loan" means a Loan which bears interest at a
Eurocurrency Rate requested by a Borrower pursuant to Section 2.03.
"Eurocurrency Interest Period" means, with respect to a Eurocurrency
Committed Advance, a Eurocurrency Committed Loan, a Eurocurrency Bid Rate
Advance or a Eurocurrency Bid Rate Loan, a period of one, two, three or six
months commencing on a Business Day selected by a Borrower pursuant to this
Credit Agreement. Such Eurocurrency Interest Period shall end on (but
exclude) the day which corresponds numerically to such date of commencement
one, two, three or six months thereafter, but in no event later than the
scheduled Termination Date; provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth
succeeding month, such Eurocurrency Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If a
Eurocurrency Interest Period would otherwise end on a day which is not a
Business Day, such Eurocurrency Interest Period shall end on the next
succeeding Business Day; provided, however, that if said next succeeding
Business Day falls in a new month, such Eurocurrency Interest Period shall
end on the immediately preceding Business Day.
"Eurocurrency Loan" means a Eurocurrency Committed Loan or a
Eurocurrency Bid Rate Loan, as applicable.
"Eurocurrency Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
"Eurocurrency Payment Office" of the Administrative Agent means, for
each of the Agreed Currencies (i) the office, branch or affiliate of the
Administrative Agent specified as the "Eurocurrency Payment Office" for
such currency in Schedule III hereto or (ii) such other office, branch,
affiliate or correspondent bank of the Administrative Agent as it may from
time to time specify to each Borrower and each Lender as its Eurocurrency
Payment Office for such currency.
"Eurocurrency Rate" means, with respect to a Eurocurrency Committed
Advance or a Eurocurrency Committed Loan for each day during the relevant
Eurocurrency Interest Period, the sum of (i) the Eurocurrency Base Rate
applicable to such Eurocurrency Interest Period plus (ii) the Eurocurrency
Margin for such day.
"European Community " means the European countries that are
signatories to the
8
Treaty on European Union.
"Existing Credit Facilities" is defined in the preamble to this Credit
Agreement.
"Facility Fee Rate" means a rate per annum determined in accordance
with the Pricing Schedule.
"Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum (rounded upwards to the nearest 1/100%) equal for
each day during such period to (i) the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if
such day is not a Business Day, for the preceding Business Day) by the
Federal Reserve Bank of New York; or (ii) if such rate is not so published
for any day which is a Business Day, the Federal Funds Effective Rate for
such day shall be the average rate charged to Bank of America on such day
on such transactions as determined by the Administrative Agent.
"Fixed Rate" means the Eurocurrency Rate, the Eurocurrency Bid Rate or
the Absolute Rate.
"Fixed Rate Advance" means an Advance which bears interest at a Fixed
Rate.
"Fixed Rate Loan" means a Loan which bears interest at a Fixed Rate.
"Floating Rate Advance" means an Advance which bears interest at the
Alternate Base Rate.
"Floating Rate Loan" means a Loan which bears interest at the
Alternate Base Rate.
"Government Acts" is defined in Section 2.04(i)(i).
"Guaranteed Obligations" is defined in Section 4.01.
"Guaranty" of any Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes liable upon the obligation
of any other Person, or agrees to maintain the net worth or working capital
or other financial condition of any other Person or otherwise assures any
creditor of such other Person against loss, and shall include, without
limitation, the contingent liability of such Person under or in relation to
any letter of credit (or similar instrument), but shall exclude
endorsements for collection or deposit in the ordinary course of business.
"Indebtedness" means, without duplication, with respect to each
Borrower and each Subsidiary of a Borrower, such Person's (i) obligations
for borrowed money, (ii) obligations representing the deferred purchase
price of any of its Property or services
9
(other than accounts payable arising in the ordinary course of such
Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from any Property now or hereafter owned or acquired
by such Person, (iv) obligations which are evidenced by notes, acceptances,
or other instruments, (v) obligations under Capitalized Leases which would
be shown as a liability on a balance sheet of such Person, (vi) net
liabilities under any agreement, device or arrangement designed to protect
at least one of the parties thereto from the fluctuation of interest rates,
exchange rates or forward rates applicable to such party's assets,
liabilities or exchange transactions (including any cancellation, buy back,
reversal, termination or assignment thereof), and (vii) Indebtedness of
another Person for which such Person is obligated pursuant to a Guaranty.
"Interest Coverage Ratio" means, as of any date of calculation
thereof, the ratio of (i) Consolidated EBIT for the twelve month period
ending on such date to (ii) Consolidated Interest Expense for the twelve
month period ending on such date.
"Interest Period" means a Eurocurrency Interest Period or an Absolute
Rate Interest Period.
"Invitation for Competitive Bid Quotes" means an Invitation for
Competitive Bid Quotes substantially in the form of Exhibit "C" hereto,
completed and delivered by the Administrative Agent to the Lenders in
accordance with Section 2.05(c).
"Issuing Lender" means Bank of America.
"Lenders" means the financial institutions listed on the signature
pages of this Credit Agreement and their respective successors and assigns.
"Lending Installation" means any office, branch, subsidiary or
affiliate of any Lender or the Administrative Agent.
"Letter of Credit" means any letter of credit issued by the Issuing
Lender for the account of the Borrower in accordance with Section 2.04.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, the interest of a
vendor or lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means, with respect to a Lender, such Lender's portion, if any,
of any Advance.
"Loan Documents" means this Credit Agreement, each Note, the LOC
Documents and the Assumption Agreements.
10
"LOC Commitment" means the commitment of the Issuing Lender to issue
Letters of Credit in an aggregate face amount at any time outstanding
(together with the amounts of any unreimbursed drawings thereon) of up to
the LOC Committed Amount.
"LOC Committed Amount" means $100,000,000, as it may be reduced from
time to time pursuant to the terms hereof.
"LOC Documents" means, with respect to any Letter of Credit, such
Letter of Credit, any amendments thereto, any documents delivered in
connection therewith, any application therefor, and any agreements,
instruments, guarantees or other documents (whether general in application
or applicable only to such Letter of Credit) governing or providing for (i)
the rights and obligations of the parties concerned or at risk or (ii) any
collateral security for such obligations. The term "LOC Documents" shall
not include any underlying agreements between the account party and the
beneficiary of a Letter of Credit.
"LOC Obligations" means, at any time, the sum of (i) the maximum
amount which is, or at any time thereafter may become, available to be
drawn under Letters of Credit then outstanding, assuming compliance with
all requirements for drawings referred to in such Letters of Credit plus
(ii) the aggregate amount of all drawings under Letters of Credit honored
by the Issuing Lender but not theretofore reimbursed by the applicable
Borrower.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise) or results of
operations of Whirlpool and its Subsidiaries taken as a whole, (ii) the
ability of any Borrower to perform its obligations under the Loan
Documents, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Administrative Agent or the
Lenders thereunder.
"Material Subsidiary" means a Subsidiary of Whirlpool that would
constitute a "Significant Subsidiary" under and as defined in Regulation
S-X promulgated by the Securities and Exchange Commission.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which any Borrower or
other member of the Controlled Group is a party and to which more than one
employer is obligated to make contributions.
"Non-Dollar Continuation/Conversion Notice" is defined in Section
2.03(g).
"Non-Recourse Obligations" of a Person means Indebtedness of such
Person (i) incurred to finance the acquisition of property which property
is subject to a Lien securing such Indebtedness and generates rentals or
other payments sufficient to pay the entire principal of and interest on
such Indebtedness on or before the date or dates for payment thereof, (ii)
which does not constitute a general obligation of such Person but is
repayable solely out of the rentals or other sums payable with respect to
the property subject to the Lien securing such Indebtedness and the
proceeds from the sale of such
11
property because the holder of such Indebtedness (hereinafter called
the "Holder") shall have agreed in writing at or prior to the time
such Indebtedness is incurred that (A) such Person shall not have any
personal liability whatsoever (other than for (I) rentals or other
sums received by such Person which are subject to the Lien securing
such Indebtedness, (II) any other rights assigned to the Holder, (III)
the proceeds from any sale or other disposition of the property
subject to the Lien securing such Indebtedness and (IV) breach by such
Person of any customary representation or warranty (such as a warranty
as to ownership of property or a warranty of quiet enjoyment)), either
in its capacity as the owner of the property or in any other capacity,
to the Holder for any amounts payable with respect to such
Indebtedness and that such Indebtedness does not constitute a general
obligation of such Person, (B) the Holder shall look for repayment of
such Indebtedness and the payment of interest thereon and all other
payments with respect to such Indebtedness solely to the rentals or
other sums payable with respect to the property subject to the Lien
securing such Indebtedness and the proceeds from the sale of such
property, and (iii) to the extent the Holder may legally do so, the
Holder waives any and all rights it may have to make the election
provided under 11 U.S.C. 111 l(b)(l)(A) or any other similar or
successor provisions against such Person.
"Note" means a promissory note in substantially the form of
Exhibit "A" hereto, with appropriate insertions, duly executed and
delivered to the Administrative Agent by the applicable Borrower for
the account of a Lender and payable to the order of such Lender,
including any amendment, modification, renewal or replacement of such
promissory note.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans and the Notes, all LOC Obligations, all
accrued and unpaid fees, all obligations of Whirlpool under Article 4
and all other reimbursements, indemnities or other obligations of the
Borrowers to any Lender (including the Issuing Lender) or the
Administrative Agent arising under the Loan Documents.
"Off-Balance Sheet Obligations" means, with respect to each
Borrower and each Subsidiary of a Borrower, (i) the principal portion
of such Person's obligations under any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing product and (ii) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of receivables
(or similar transaction) regardless of whether such transaction is
effected without recourse to such Person.
"Original Borrowers" is defined in Section 5.01.
"Participant" is defined in Section 13.02.
"Participation Interest" means a purchase by a Lender of a
participation in Letters of Credit or LOC Obligations as provided in
Section 2.2.
"Payment Date" means the last Business Day of each March, June,
September and December.
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"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Person" means any corporation, natural person, firm, joint
venture, partnership, limited liability company, trust, unincorporated
organization, enterprise, government or any department or agency of
any government.
"Plan" means an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code as to which a Borrower or any other member of
the Controlled Group may have any liability.
"Pricing Schedule" means Schedule IV attached hereto.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its "Prime Rate." Such rate is
a rate set by Bank of America based upon various factors including
Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by Bank of America
shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Property" of a Person means any and all property and assets,
whether real, personal, tangible, intangible, or mixed, of such
Person.
"Purchaser" is defined in Section 13.03.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System from time to time in effect and shall
include any successor or other regulation or official interpretation
of said Board of Governors relating to reserve requirements applicable
to member banks of the Federal Reserve System.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System from time to time in effect and shall
include any successor or other regulations or official interpretations
of said Board of Governors relating to the extension of credit by
banks for the purpose of purchasing or carrying margin stock
applicable to member banks of the Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of
the Federal Reserve System from time to time in effect and shall
include any successor or other regulations or official interpretations
of said Board of Governors relating to the obtaining of credit for the
purpose of purchasing or carrying margin stock from (among others)
member banks of the Federal Reserve System.
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section with
respect to a Plan, excluding,
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however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30
days of the occurrence of such event.
"Required Lenders" means Lenders in the aggregate having more
than 50% of the Aggregate Commitment or, if the Aggregate Commitment
has been terminated, Lenders in the aggregate holding more than 50% of
the aggregate unpaid principal amount of the outstanding Advances
(excluding Competitive Bid Advances if any Committed Advances are
outstanding) and Participation Interests in LOC Obligations.
"Reserve Requirement" means, with respect to a Eurocurrency
Interest Period, the maximum aggregate reserve requirement (including
all basic, supplemental, marginal, special, emergency and other
reserves) which is imposed under Regulation D on "Eurocurrency
liabilities" (or in respect of any other category of liabilities which
includes deposits by reference to which the interest rate on
Eurocurrency Committed Loans is determined or any category of
extensions of credit or other assets which includes loans by a
non-United States office of the Administrative Agent to United States
residents). The Reserve Requirement shall be adjusted automatically on
and as of the effective date of any change in the applicable reserve
requirement for all Interest Periods beginning on or after such date.
"Restructuring Charges" means the identifiable cash or non-cash
pre-tax restructuring charges taken by Whirlpool during calendar years
2001 and 2002, in an aggregate amount not to exceed $350 million.
"Section" means a numbered Section of this Credit Agreement,
unless another document is specifically referenced.
"Single Employer Plan" means a Plan maintained by Whirlpool or
any member of the Controlled Group for employees of Whirlpool or any
member of the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than 50%
of the outstanding securities having ordinary voting power of which
shall at the time be owned or controlled, directly or indirectly, by
such Person or by one or more of its Subsidiaries or by such Person
and one or more of its Subsidiaries, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary
voting power of which shall at the time be, directly or indirectly, so
owned or controlled. Unless otherwise expressly provided, all
references herein to a "Subsidiary" shall mean a Subsidiary of
Whirlpool.
"Substantial Portion" means, with respect to the Property of
Whirlpool and its Subsidiaries, Property which (i) represents more
than 10% of the consolidated assets of Whirlpool and its Subsidiaries
as would be shown in the consolidated financial statements of
Whirlpool and its Subsidiaries as at the last day of the most recent
quarter for which financial statements have been delivered pursuant to
Section 7.01 or (ii) is
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responsible for more than 10% of the consolidated net sales or of the
consolidated net income of Whirlpool and its Subsidiaries as reflected
in the financial statements referred to in clause (i) above.
"Syndication Agent" means Citibank, N.A. so long as it is a
Lender under this Credit Agreement.
"Taxes" is defined in Section 3.01(a).
"Termination Date" means (i) June 1, 2006 or (ii) the date on
which the Commitments terminate pursuant to the terms of this Credit
Agreement.
"Treaty on European Union" means the Treaty of Rome of March 25,
1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht
Treaty (which was signed at Maastricht on February 1, 1992 and came
into force on November 1, 1993), as amended from time to time.
"Type" means, with respect to any Loan or Advance, its nature as
a Floating Rate Advance or Loan, Eurocurrency Committed Advance or
Loan, Eurocurrency Bid Rate Advance or Loan or Absolute Rate Advance
or Loan.
"Unfunded Vested Liabilities" means the amount (if any) by which
the present value of all currently accrued, vested and nonforfeitable
benefits under all Single Employer Plans exceeds the fair market value
of all assets of such Plan allocable to such benefits, all determined
on an ongoing Plan basis as set forth in the then most recent
actuarial valuation for each such Plan.
"Unmatured Default" means an event which but for the lapse of
time or the giving of notice, or both, would constitute a Default.
"Whirlpool" means Whirlpool Corporation, a Delaware corporation,
and its successors and assigns.
"Whirlpool Europe" means Whirlpool Europe B.V., a Netherlands
corporation, and its successors and assigns.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
Section 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all accounting terms used herein
shall be interpreted, all accounting determinations hereunder shall be made, and
all financial statements required to be delivered hereunder shall be prepared in
accordance with general accepted accounting principles in the United States of
America. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly
15
provided herein) be made by application of generally accepted accounting
principles applied on a basis consistent with the most recent annual or
quarterly financial statements delivered pursuant to Section 7.01 (or, prior to
the delivery of the first financial statements pursuant to Section 7.01,
consistent with the financial statements dated December 31, 2000); provided,
however, if (a) Whirlpool shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to any change in
generally accepted accounting principles or the rules promulgated with respect
thereto or (b) either the Administrative Agent or the Required Lenders shall so
object in writing within 60 days after delivery of such financial statements (or
after the Lenders have been informed of the change in generally accepted
accounting principles affecting such financial statements, if later), then such
calculations shall be made on a basis consistent with the most recent financial
statements delivered by Whirlpool to the Lenders as to which no such objection
shall have been made.
ARTICLE 2
THE FACILITY
Section 2.01. Description of Facility.
Upon the terms and subject to the conditions set forth in this Credit
Agreement, the Lenders hereby grant to the Borrowers a revolving credit facility
pursuant to which:
(i) each Lender severally agrees to make Committed Loans in Agreed
Currencies to each of the Borrowers in accordance with Section 2.03;
(ii) the Issuing Lender agrees to issue Letters of Credit in Agreed
Currencies for the account of each of the Borrowers in accordance with
Section 2.04; and
(iii) each Lender may, in its sole discretion, make bids to make
Competitive Bid Loans in Dollars to each of the Borrowers in accordance
with Section 2.05;
provided that (A) Floating Rate Loans and Competitive Bid Loans may only be
denominated in Dollars, (B) after giving effect to each Advance or Letter of
Credit, the outstanding Advances or Letters of Credit shall be denominated in no
more than five Agreed Currencies (including Dollars), and (C) in no event may
the Dollar Amount of the aggregate principal amount of all outstanding Advances
plus the outstanding LOC Obligations exceed the Aggregate Commitment.
Section 2.02. Availability of Facility; Required Payments.
Subject to all of the terms and conditions of this Credit Agreement, the
facility described herein is available from the Closing Date to the Termination
Date, and each Borrower may borrow, repay, reborrow and, subject to Section
2.04(a), request Letters of Credit at any time prior to the Termination Date.
The Commitments to lend and issue Letters of Credit hereunder shall expire on
the Termination Date. Each applicable Borrower promises to pay its outstanding
16
Advances and its other unpaid Obligations in full on the Termination Date.
Section 2.03. Committed Advances.
(a) Committed Advances. From and including the date of this Credit
Agreement and prior to the Termination Date, each Lender severally agrees,
on the terms and conditions set forth in this Credit Agreement and
notwithstanding the amount of Competitive Bid Loans made by such Lender, to
make Committed Loans to the Borrowers from time to time in amounts the
Dollar Amount of which shall not exceed in the aggregate at any one time
outstanding the amount of its Commitment. Each Committed Advance hereunder
shall consist of borrowings made from the several Lenders ratably in
proportion to the ratio that their respective Commitments bear to the
Aggregate Commitment. The Committed Advances shall be repaid as provided by
the terms of Sections 2.02 and 2.03(g).
(b) Types of Committed Advances. The Committed Advances may be
Floating Rate Advances or Eurocurrency Committed Advances, or a combination
thereof, selected by the applicable Borrower in accordance with Sections
2.03(e), 2.03(f) and 2.03(g).
(c) Reductions in Aggregate Commitment. Whirlpool may permanently
reduce the Aggregate Commitment in whole, or in part ratably among the
Lenders in integral multiples of $25,000,000, upon at least three Business
Days' written notice to the Administrative Agent, which notice shall
specify the amount of any such reduction; provided, however, that the
amount of the Aggregate Commitment may not be reduced below the Dollar
Amount of the aggregate principal amount of the outstanding Advances plus
the outstanding LOC Obligations.
(d) Minimum Amount of Each Committed Advance. Each Committed Advance
made or continued hereunder shall be in the minimum Dollar Amount of
$25,000,000 or a higher integral multiple of $5,000,000; provided, however,
that any Floating Rate Advance may be in the aggregate amount of the unused
Aggregate Commitment.
(e) Method of Selecting Types and Interest Periods for New Committed
Advances. Subject to all of the terms and conditions of this Credit
Agreement, each Borrower shall select the Type of Advance and, in the case
of each Eurocurrency Committed Advance, the Interest Period applicable
thereto, for each Committed Advance from time to time made to it. A
Borrower shall give the Administrative Agent irrevocable notice (a
"Committed Borrowing Notice") not later than 10:30 a.m. (Dallas, Texas
time) on the Borrowing Date of each Floating Rate Advance, three Business
Days before the Borrowing Date for each Eurocurrency Committed Advance
denominated in Dollars, and five Business Days before the Borrowing Date
for each Eurocurrency Committed Advance denominated in an Agreed Currency
other than Dollars. A Committed Borrowing Notice shall in accordance with
all the terms and conditions of this Credit Agreement specify:
17
(i) the Borrower to which such Committed Advance is to be made;
(ii) the Borrowing Date, which shall be a Business Day, of such
Committed Advance;
(iii) the Type of Committed Advance selected;
(iv) in the case of each Eurocurrency Committed Advance, the Agreed
Currency of such Committed Advance;
(v) the aggregate amount of such Committed Advance; and
(vi) in the case of each Eurocurrency Committed Advance, the Interest
Period applicable thereto.
(f) Continuation and Conversion of Dollar-Denominated Committed Advances.
Subject to all of the terms and conditions of this Credit Agreement, each
Floating Rate Advance shall continue as a Floating Rate Advance unless and until
such Floating Rate Advance is paid or converted into one or more
Dollar-denominated Eurocurrency Committed Advances. Subject to all of the terms
and conditions of this Credit Agreement, each Eurocurrency Committed Advance
denominated in Dollars shall continue as a Dollar-denominated Eurocurrency
Committed Advance until the end of the then applicable Interest Period therefor,
at which time such Eurocurrency Committed Advance shall be automatically
converted into a Floating Rate Advance unless such Eurocurrency Committed
Advance is paid by the applicable Borrower or the applicable Borrower shall have
given the Administrative Agent an irrevocable notice (a "Dollar
Continuation/Conversion Notice") requesting that, at the end of such Interest
Period, such Eurocurrency Committed Advance continue as a Dollar-denominated
Eurocurrency Committed Advance for the same or another specified Interest
Period, be converted into one or more new Dollar-denominated Eurocurrency
Committed Advances each having a specified new Interest Period or be converted
into a Floating Rate Advance. Accordingly, but subject to all of the terms and
conditions of this Credit Agreement, each Borrower may elect from time to time
to convert all or any part (subject to Section 2.03(d)) of a Dollar-denominated
Committed Advance of any Type made to it into the other Type of
Dollar-denominated Committed Advance; provided that any conversion of a
Eurocurrency Committed Advance shall be made on, and only on, the last day of
the Interest Period applicable thereto. The applicable Borrower shall give the
Administrative Agent a Dollar Continuation/Conversion Notice with respect to
each continuation or conversion of a Dollar-denominated Committed Advance not
later than 10:30 a.m. (Dallas, Texas time) at least three Business Days prior to
the date of the requested continuation or conversion, specifying in accordance
with all of the terms and conditions of this Credit Agreement:
(i) the requested date, which shall be a Business Day, of such
continuation or conversion;
18
(ii) the aggregate amount and Type of the Committed Advance which
is to be continued or converted;
(iii) the amount and Type(s) of the Dollar-denominated Committed
Advance(s) into which such Committed Advance is to be continued or
converted; and
(iv) in the case of each continuation of or conversion into a
Dollar-denominated Eurocurrency Committed Advance, the Interest Period
applicable thereto.
(g) Payment or Continuation and Conversion of Non-Dollar-Denominated
Committed Advances. Subject to all of the terms and conditions of this
Credit Agreement, each Eurocurrency Committed Advance denominated in an
Agreed Currency other than Dollars shall continue as a Eurocurrency
Committed Advance denominated in the same currency until the end of the
then applicable Interest Period therefor, at which time such Eurocurrency
Committed Advance shall mature and be payable by the applicable Borrower on
the last day of the applicable Interest Period unless the applicable
Borrower shall have given the Administrative Agent an irrevocable notice (a
"Non-Dollar Continuation/Conversion Notice") requesting that, at the end of
such Interest Period, such Eurocurrency Committed Advance either continue
as a Eurocurrency Committed Advance denominated in the same currency for
the same or another specified Interest Period or be converted into one or
more new Eurocurrency Committed Advances each denominated in the same
currency as that of the converted Eurocurrency Committed Advance and having
a specified new Interest Period; provided that if after giving effect to
any such conversion or continuation, the aggregate Dollar Amount of the
principal amount of all Advances plus the outstanding LOC Obligations would
exceed the Aggregate Commitment, such Borrower shall prepay an aggregate
principal amount of such Eurocurrency Committed Advance on the last day of
the Interest Period then ending such that the Dollar Amount of the
aggregate principal amount of all outstanding Advances plus the outstanding
LOC Obligations does not exceed the Aggregate Commitment. Accordingly, but
subject to all of the terms and conditions of this Credit Agreement, each
Borrower may elect from time to time to convert all or any part (subject to
Section 2.03(d)) of a Eurocurrency Committed Advance denominated in an
Agreed Currency other than Dollars made to it into any other Eurocurrency
Committed Advance(s) denominated in the same currency as the converted
Eurocurrency Committed Advance; provided that any such conversion shall be
made on, and only on, the last day of the Interest Period applicable to the
converted Eurocurrency Committed Advance. The applicable Borrower shall
give the Administrative Agent a Non-Dollar Continuation/Conversion Notice
with respect to each continuation or conversion of a Eurocurrency Committed
Advance denominated in an Agreed Currency other than Dollars not later than
10:30 a.m. (Dallas, Texas time) at least five Business Days prior to the
date of the requested continuation or conversion specifying in accordance
with all of the terms and conditions of this Credit Agreement:
19
(i) the requested date, which shall be a Business Day, of such
continuation or conversion;
(ii) the aggregate amount and Agreed Currency of the Eurocurrency
Committed Advance which is to be continued or converted; and
(iii) the amount(s) of the Eurocurrency Committed Advance(s) into
which such Eurocurrency Committed Advance is to be continued or converted
and the Interest Period applicable to each new Eurocurrency Committed
Advance.
Section 2.04. Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties set forth herein and upon
the agreements of the other Lenders set forth in this Section 2.04, the
Issuing Lender agrees to issue, and each Lender severally agrees to
participate in the issuance by the Issuing Lender of, standby Letters of
Credit in Agreed Currencies from time to time from the Closing Date until
the date thirty (30) days prior to the Termination Date as any Borrower may
request, in a form acceptable to the Issuing Lender; provided, however,
that (i) the Dollar Amount of the LOC Obligations outstanding shall not at
any time exceed the LOC Committed Amount and (ii) the Dollar Amount of the
principal amount of all Advances plus the outstanding LOC Obligations shall
not at any time exceed the Aggregate Commitment. The Issuing Lender shall
be under no obligation to issue any Letter of Credit if (x) the original
expiry date of such Letter of Credit is more than one year from the date of
issuance (provided that such Letter of Credit may contain customary
"evergreen" provisions pursuant to which the expiry date is automatically
extended by a specific time period unless the Issuing Lender gives notice
to the beneficiary of such Letter of Credit at least a specified time
period prior to the expiry date then in effect), (y) such Letter of Credit
has an expiry date extending beyond the Termination Date or (z) the
issuance of such Letter of Credit would violate any applicable laws, rules,
regulations or orders or any generally applicable policy of the Issuing
Lender, including, without limitation, any order, judgment or decree of any
government authority or arbitrator that by its terms purports to enjoin or
restrain the Issuing Lender from issuing such Letter of Credit, or any
request or directive (whether or not having the force of law) from any
governmental authority with jurisdiction over the Issuing Lender that
prohibits, or requests that the Issuing Lender refrain from the issuance of
letters of credit generally or such Letter of Credit in particular or that
imposes upon the Issuing Lender with respect to such Letter of Credit any
restriction, reserve or capital requirement (for which the Issuing Lender
is not otherwise compensated hereunder) not in effect on the Closing Date,
or that imposes upon the Issuing Lender any unreimbursed loss, cost or
expense which was not applicable on the Closing Date and which the Issuing
Lender in good xxxxx xxxxx material to it. Each Letter of Credit shall be a
standby letter of credit and shall comply with the related LOC Documents.
The issuance and expiry dates of each Letter of Credit shall be a Business
Day.
(b) Notice and Reports. Any Borrower may request the issuance of a
Letter of Credit by submitting a request therefor to the Issuing Lender (by
completion of the
20
appropriate application forms of the Issuing Lender) at least three (3)
Business Days prior to the requested date of issuance. At least quarterly
(and more frequently upon request) the Issuing Lender shall provide to the
Administrative Agent a detailed report specifying the Letters of Credit
issued by the Issuing Lender which are then issued and outstanding. The
Administrative Agent shall disseminate promptly to each of the Lenders the
information provided by the Issuing Lender pursuant to this subsection (b).
(c) Participation. Each Lender, upon issuance of a Letter of Credit,
shall be deemed to have purchased without recourse a Participation Interest
from the Issuing Lender in such Letter of Credit and the obligations
arising thereunder and any collateral relating thereto, in each case in an
amount equal to its pro rata share of the obligations under such Letter of
Credit (ratably in proportion to the ratio that its respective Commitment
bears to the Aggregate Commitment) and shall absolutely, unconditionally
and irrevocably assume and be obligated to pay to the Issuing Lender and
discharge when due, its pro rata share of the obligations arising under
such Letter of Credit. Without limiting the scope and nature of each
Lender's Participation Interest in any Letter of Credit, to the extent that
the Issuing Lender has not been reimbursed as required hereunder or under
any such Letter of Credit, each such Lender shall pay to the Administrative
Agent for the account of the Issuing Lender its pro rata share of such
unreimbursed drawing in same day funds on the day of notification by the
Administrative Agent of an unreimbursed drawing pursuant to the provisions
of subsection (d) below. The obligation of each Lender to so reimburse the
Issuing Lender shall be absolute and unconditional and shall not be
affected by the occurrence of an Unmatured Default, a Default or any other
occurrence or event. Any such reimbursement shall not relieve or otherwise
impair the obligation of the applicable Borrower to reimburse the Issuing
Lender under any Letter of Credit, together with interest as hereinafter
provided.
(d) Reimbursement. In the event of any drawing under any Letter of
Credit, the Issuing Lender will promptly notify the applicable Borrower and
the Administrative Agent. The applicable Borrower promises to reimburse the
Issuing Lender (such reimbursement to be made to the Administrative Agent
for the account of the Issuing Lender) on the day of drawing under any
Letter of Credit either in same day funds in the same Agreed Currency as
the related drawing or with a Committed Advance in Dollars in the Dollar
Amount of such drawing. Unless such Borrower shall promptly notify the
Administrative Agent and the Issuing Lender that such Borrower intends to
otherwise reimburse the Issuing Lender for such drawing, such Borrower
shall be deemed to have requested that the Lenders make a Committed Advance
in Dollars in the Dollar Amount of the drawing as provided in subsection
(e) below on the related Letter of Credit, the proceeds of which will be
used to satisfy the related reimbursement obligations. Each Borrower's
reimbursement obligations hereunder shall be absolute and unconditional
under all circumstances irrespective of any rights of setoff, counterclaim
or defense to payment such Borrower may claim or have against the Issuing
Lender, the Administrative Agent, the Lenders, the beneficiary of the
Letter of Credit drawn upon or any other Person, including without
limitation any defense based on any failure of a Borrower to receive
consideration or the legality, validity, regularity or unenforceability of
the Letter of Credit. The Issuing Lender will promptly notify the
Administrative
21
Agent, who shall, in turn, promptly notify the other Lenders of the amount
of any unreimbursed drawing and each Lender shall promptly pay to the
Administrative Agent for the account of the Issuing Lender in Dollars and
in immediately available funds, the Dollar Amount of such Lender's pro rata
share of such unreimbursed drawing. Such payment shall be made on the day
such notice is received by such Lender from the Administrative Agent if
such notice is received at or before 2:00 P.M. (Dallas, Texas time), and
otherwise such payment shall be made at or before 12:00 Noon (Dallas, Texas
time) on the Business Day next succeeding the day such notice is received.
If such Lender does not pay such amount to the Administrative Agent for the
account of the Issuing Lender in full upon such request, such Lender shall,
on demand, pay to the Administrative Agent for the account of the Issuing
Lender interest on the unpaid amount during the period from the date of
such drawing until such Lender pays such amount to the Administrative Agent
for the account of the Issuing Lender in full at a rate per annum equal to,
if paid within two (2) Business Days of the date that such Lender is
required to make payments of such amount pursuant to the preceding
sentence, the Federal Funds Effective Rate and thereafter at a rate equal
to the Alternate Base Rate. Each Lender's obligation to make such payment
to the Issuing Lender, and the right of the Issuing Lender to receive the
same, shall be absolute and unconditional, shall not be affected by any
circumstance whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence of an
Unmatured Default or a Default or the acceleration of the obligations of
the Borrowers hereunder and shall be made without any offset, abatement,
withholding or reduction whatsoever. Simultaneously with the making of each
such payment by a Lender to the Administrative Agent for the account of the
Issuing Lender, such Lender shall, automatically and without any further
action on the part of the Administrative Agent, the Issuing Lender or such
Lender, acquire a Participation Interest in an amount equal to such payment
(excluding the portion of such payment constituting interest owing to the
Issuing Lender) in the related unreimbursed drawing portion of the LOC
Obligation and in the interest thereon and in the related LOC Documents,
and shall have a claim against the applicable Borrower with respect
thereto.
(e) Repayment with Committed Advances. On any day on which a Borrower
shall have requested, or been deemed to have requested a Committed Advance
to reimburse a drawing under a Letter of Credit, the Administrative Agent
shall give notice to the Lenders that a Committed Advance has been
requested or deemed requested by such Borrower to be made in connection
with a drawing under a Letter of Credit, in which case a Committed Advance
comprised of Floating Rate Loans in the Dollar Amount of the unreimbursed
drawing shall be immediately made to such Borrower by all Lenders
(notwithstanding any termination of the Commitments pursuant to Section
9.01) ratably in proportion to the ratio that their respective Commitments
bear to the Aggregate Commitment (determined before giving effect to any
termination of the Commitments pursuant to Section 9.01) and the proceeds
thereof shall be paid directly to the Administrative Agent for the account
of the Issuing Lender for application to the respective LOC Obligations.
Each such Lender hereby irrevocably agrees to make its pro rata share of
each such Committed Advance immediately upon any such request or deemed
request in the amount, in the manner and on the date specified in the
preceding
22
sentence notwithstanding (i) the amount of such borrowing may not comply
with the minimum amount for Advances otherwise required hereunder, (ii)
whether any conditions specified in Section 5.03 are then satisfied, (iii)
whether an Unmatured Default or a Default then exists, (iv) failure for any
such request or deemed request for such Advance to be made by the time
otherwise required hereunder, (v) whether the date of such borrowing is a
date on which Committed Advances are otherwise permitted to be made
hereunder or (vi) any termination of the Commitments relating thereto
immediately prior to or contemporaneously with such borrowing. In the event
that any Committed Advance cannot for any reason be made on the date
otherwise required above (including, without limitation, as a result of the
commencement of a proceeding under the Bankruptcy Code with respect to any
Borrower), then each such Lender hereby agrees that it shall forthwith
purchase (as of the date such borrowing would otherwise have occurred, but
adjusted for any payments received from the applicable Borrower on or after
such date and prior to such purchase) from the Issuing Lender such
Participation Interests in the outstanding LOC Obligations as shall be
necessary to cause each such Lender to share in such LOC Obligations
ratably in proportion to the ratio that their respective Commitments bear
to the Aggregate Commitment (determined before giving effect to any
termination of the Commitments pursuant to Section 9.01)), provided that at
the time any purchase of Participation Interests pursuant to this sentence
is actually made, the purchasing Lender shall be required to pay to the
Administrative Agent for the account of the Issuing Lender, to the extent
not paid to the Issuing Lender by the applicable Borrower in accordance
with the terms of subsection (d) above, interest on the principal amount of
Participation Interests purchased for each day from and including the day
upon which such borrowing would otherwise have occurred to but excluding
the date of payment for such Participation Interests, at the rate equal to,
if paid within two (2) Business Days of the date of the Committed Advance,
the Federal Funds Effective Rate, and thereafter at a rate equal to the
Alternate Base Rate.
(f) Designation of Subsidiaries as Account Parties. Notwithstanding
anything to the contrary set forth in this Credit Agreement, including
without limitation Section 2.04(a), a Letter of Credit issued hereunder may
contain a statement to the effect that such Letter of Credit is issued for
the account of any Subsidiary of a Borrower, provided that notwithstanding
such statement, such Borrower shall be the actual account party for all
purposes of this Credit Agreement for such Letter of Credit and such
statement shall not affect such Borrower's reimbursement obligations
hereunder with respect to such Letter of Credit.
(g) Renewal, Extension. The renewal or extension of any Letter of
Credit shall, for purposes hereof, be treated in all respects the same as
the issuance of a new Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender may have the
Letters of Credit be subject to The Uniform Customs and Practice for
Documentary Credits (the "UCP") or the International Standby Practices 1998
(the "ISP98"), in either case as published as of the date of issue by the
International Chamber of Commerce, in which case the UCP or the ISP98, as
applicable, may be incorporated therein and deemed in all
23
respects to be a part thereof.
(i) Indemnification; Nature of Issuing Lender's Duties.
(i) In addition to its other obligations under this Section 2.04,
each Borrower hereby agrees to pay, and protect, indemnify and save
each Lender harmless from and against, any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including
reasonable attorneys' fees) that such Lender may incur or be subject
to as a consequence, direct or indirect, of (A) the issuance of any
Letter of Credit or (B) the failure of such Lender to honor a drawing
under a Letter of Credit as a result of any act or omission, whether
rightful or wrongful, of any present or future de jure or de facto
government or Governmental Authority (all such acts or omissions,
herein called "Government Acts").
(ii) As between the Borrowers and the Lenders (including the
Issuing Lender), the applicable Borrower shall assume all risks of the
acts, omissions or misuse of any Letter of Credit by the beneficiary
thereof. Except to the extent arising solely from the gross negligence
or willful misconduct of such Lender, no Lender (including the Issuing
Lender) shall be responsible: (A) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any
Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (B)
for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign any Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (C)
for errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or
otherwise, whether or not they be in cipher; (D) for any loss or delay
in the transmission or otherwise of any document required in order to
make a drawing under a Letter of Credit or of the proceeds thereof;
and (E) for any consequences arising from causes beyond the control of
such Lender, including, without limitation, any Government Acts. None
of the above shall affect, impair, or prevent the vesting of the
Issuing Lender's rights or powers hereunder.
(iii) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted
by any Lender (including the Issuing Lender), under or in connection
with any Letter of Credit or the related certificates, if taken or
omitted in good faith, shall not put such Lender under any resulting
liability to any Borrower. It is the intention of the parties that
this Credit Agreement shall be construed and applied to protect and
indemnify each Lender (including the Issuing Lender) against any and
all risks involved in the issuance of the Letters of Credit, all of
which risks are hereby assumed by the Borrowers, including, without
limitation, any and all Government Acts. No Lender (including the
Issuing Lender) shall, in any way, be liable for any failure
24
by such Lender or anyone else to pay any drawing under any Letter of
Credit as a result of any Government Acts or any other cause beyond
the control of such Lender.
(iv) Nothing in this Section 2.04(i) is intended to limit the
reimbursement obligations of any Borrower contained in subsection (d)
above. The obligations of each Borrower under this Section 2.04(i)
shall survive the termination of this Credit Agreement. No act or
omission of any current or prior beneficiary of a Letter of Credit
shall in any way affect or impair the rights of the Lenders (including
the Issuing Lender) to enforce any right, power or benefit under this
Credit Agreement.
(v) Notwithstanding anything to the contrary contained in this
Section 2.04(i), no Borrower shall have any obligation to indemnify
any Lender (including the Issuing Lender) in respect of any liability
incurred by such Lender (A) arising solely out of the gross negligence
or willful misconduct of such Lender, as determined by a court of
competent jurisdiction, or (B) caused by such Lender's failure to pay
under any Letter of Credit after presentation to it of a request
strictly complying with the terms and conditions of such Letter of
Credit, as determined by a court of competent jurisdiction, unless
such payment is prohibited by any law, regulation, court order or
decree.
(j) Responsibility of Issuing Lender. It is expressly understood and
agreed that the obligations of the Issuing Lender hereunder to the Lenders
are only those expressly set forth in this Credit Agreement and that the
Issuing Lender shall be entitled to assume that the conditions precedent
set forth in Section 5.03 have been satisfied unless it shall have acquired
actual knowledge that any such condition precedent has not been satisfied;
provided, however, that nothing set forth in this Section 2.04 shall be
deemed to prejudice the right of any Lender to recover from the Issuing
Lender any amounts made available by such Lender to the Issuing Lender
pursuant to this Section 2.04 in the event that it is determined by a court
of competent jurisdiction that the payment with respect to a Letter of
Credit constituted gross negligence or willful misconduct on the part of
the Issuing Lender.
(k) Conflict with LOC Documents. In the event of any conflict between
this Credit Agreement and any LOC Document (including any letter of credit
application), this Credit Agreement shall control.
(l) Appointment of Issuing Lender. Bank of America is hereby appointed
as Issuing Lender hereunder and under each other Loan Document and each of
the Lenders authorizes the Issuing Lender to act on behalf of the Lenders
with respect to any Letters of Credit and related LOC Documents.
Section 2.05. Competitive Bid Advances.
(a) Competitive Bid Option; Repayment of Competitive Bid Advances. In
25
addition to Committed Advances pursuant to Section 2.03, but subject
to all of the terms and conditions of this Credit Agreement
(including, without limitation, the limitation set forth in Section
2.01 as to the maximum aggregate principal amount of all outstanding
Advances and LOC Obligations hereunder), each Borrower may, as set
forth in this Section 2.05, request the Lenders, prior to the
Termination Date, to make offers to make Competitive Bid Advances in
Dollars to such Borrower. Each Lender may, but shall have no
obligation to, make such offers and the applicable Borrower may, but
shall have no obligation to, accept any such offers in the manner set
forth in this Section 2.05. Each applicable Borrower promises to repay
each of its Competitive Bid Advances in full by on the last day of the
Interest Period applicable thereto.
(b) Competitive Bid Quote Request. When a Borrower wishes to
request offers to make Competitive Bid Loans under this Section 2.05,
such Borrower shall transmit to the Administrative Agent by telecopy a
Competitive Bid Quote Request so as to be received no later than 10:30
a.m. (Dallas, Texas time) at least (x) five Business Days prior to the
Borrowing Date proposed therein, in the case of a Eurocurrency
Auction, or (y) one Business Day prior to the Borrowing Date proposed
therein, in the case of an Absolute Rate Auction, specifying in
accordance with all of the terms of this Credit Agreement:
(i) the proposed Borrowing Date for the proposed Competitive
Bid Advance;
(ii) the aggregate principal amount of such Competitive Bid
Advance;
(iii) whether the Competitive Bid Quotes requested are to
set forth a Competitive Bid Margin or an Absolute Rate, or both;
(iv) the Interest Period applicable thereto; and
(v) the Borrower to which such proposed Competitive Bid
Advance is to be made.
A Borrower may request offers to make Competitive Bid Loans for
more than one Interest Period and for a Eurocurrency Auction and an
Absolute Rate Auction in a single Competitive Bid Quote Request. No
Competitive Bid Quote Request shall be given within five Business Days
(or upon reasonable prior notice to the Lenders, such other number of
days as the Borrowers and the Administrative Agent may agree) of any
other Competitive Bid Quote Request. Each Competitive Bid Quote
Request shall be in a minimum amount of $25,000,000 or a larger
multiple of $5,000,000. A Competitive Bid Quote Request that does not
conform substantially to the format of Exhibit "B" hereto shall be
rejected, and the Administrative Agent shall promptly notify the
applicable Borrower of such rejection by telecopy.
(c) Invitation for Competitive Bid Quotes. Promptly upon receipt
of a Competitive Bid Quote Request that is not rejected pursuant to
Section 2.05(b), the
26
Administrative Agent shall send to each of the Lenders by telecopy an
Invitation for Competitive Bid Quotes which shall constitute an invitation
by the applicable Borrower to each Lender to submit Competitive Bid Quotes
offering to make the Competitive Bid Loans to which such Competitive Bid
Quote Request relates in accordance with this Section 2.05.
(d) Submission and Contents of Competitive Bid Quotes. (i) Each Lender
may, in its sole discretion, submit a Competitive Bid Quote containing an
offer or offers to make Competitive Bid Loans in response to any Invitation
for Competitive Bid Quotes. Each Competitive Bid Quote must comply with the
requirements of this Section 2.05(d) and must be submitted to the
Administrative Agent by telecopy at its offices specified in or pursuant to
Article 14 not later than (i) (A) 12:45 p.m. (Dallas, Texas time) in the
case of Bank of America and (B) 1:00 p.m. (Dallas, Texas time) in the case
of each other Lender, at least four Business Days prior to the proposed
Borrowing Date in the case of a Eurocurrency Auction, or (ii) (A) 9:15 a.m.
(Dallas, Texas time) in the case of Bank of America and (B) 9:30 a.m.
(Dallas, Texas time) in the case of each other Lender, on the proposed
Borrowing Date in the case of an Absolute Rate Auction (or, in any such
case upon reasonable prior notice to the Lenders, such other time and date
as the Borrowers and the Administrative Agent may agree; provided that Bank
of America shall always be required to submit its Competitive Bid Quotes
not less than fifteen minutes prior to the other Lenders). Subject to
Articles 5 and 6, any Competitive Bid Quote so made shall be irrevocable
except with the written consent of the Administrative Agent given on the
instructions of the applicable Borrower.
(i) Each Competitive Bid Quote shall in any case specify:
(A) the proposed Borrowing Date, which shall be the same as that
set forth in the applicable Invitation for Competitive Bid Quotes;
(B) the principal amount of the Competitive Bid Loan for which
each such offer is being made, (1) which principal amount may be
greater than, less than or equal to the Commitment of the quoting
Lender, but in no case greater than the unutilized Aggregate
Commitment, (2) which principal amount must be at least $5,000,000 and
an integral multiple of $1,000,000, and (3) which principal amount may
not exceed the principal amount of Competitive Bid Loans for which
offers were requested;
(C) in the case of a Eurocurrency Auction, the Competitive Bid
Margin offered for each such Competitive Bid Loan;
(D) in the case of an Absolute Rate Auction, the Absolute Rate
offered for each such Competitive Bid Loan;
(E) the applicable Interest Period; and
27
(F) the identity of the quoting Lender.
(ii) The Administrative Agent shall reject any Competitive Bid
Quote that:
(A) is not substantially in the form of Exhibit "D" hereto
or does not specify all of the information required by Section
2.05(d)(i);
(B) contains qualifying, conditional or similar language,
other than any such language contained in Exhibit "D" hereto;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bid Quotes; or
(D) arrives after the time set forth in Section 2.05(d)(i).
(iii) If any Competitive Bid Quote shall be rejected pursuant to
Section 2.05(d)(ii), then the Administrative Agent shall notify the
relevant Lender of such rejection as soon as practicable.
(e) Notice to Borrower. The Administrative Agent shall promptly notify
the applicable Borrower of the terms (i) of any Competitive Bid Quote
submitted by a Lender that is in accordance with Section 2.05 and (ii) of
any Competitive Bid Quote that is in accordance with Section 2.05 and
amends, modifies or is otherwise inconsistent with a previous Competitive
Bid Quote submitted by such Lender with respect to the same Competitive Bid
Quote Request. Any such subsequent Competitive Bid Quote shall be
disregarded by the Administrative Agent unless such subsequent Competitive
Bid Quote specifically states that it is submitted solely to correct a
manifest error in such former Competitive Bid Quote. The Administrative
Agent's notice to the applicable Borrower shall specify the aggregate
principal amount of Competitive Bid Loans for which offers have been
received for each Interest Period specified in the related Competitive Bid
Quote Request and the respective principal amounts and Competitive Bid
Margins or Absolute Rates, as the case may be, so offered.
(f) Acceptance and Notice by Borrower. Subject to the receipt of the
notice from the Administrative Agent referred to in Section 2.05(e), not
later than 10:30 a.m. (Dallas, Texas time) (i) at least three Business Days
prior to the proposed Borrowing Date, in the case of a Eurocurrency Auction
or (ii) on the proposed Borrowing Date, in the case of an Absolute Rate
Auction, the applicable Borrower shall notify the Administrative Agent of
such Borrower's acceptance or rejection of the offers so notified to it
pursuant to Section 2.05(e); provided, however, that the failure by such
Borrower to give such notice to the Administrative Agent shall be deemed to
be a rejection by such Borrower of all such offers. In the case of
acceptance, such notice (a "Competitive Bid Borrowing Notice") shall
specify the aggregate principal amount of offers for each Interest Period
that are accepted. The applicable Borrower may accept or reject any
Competitive Bid Quote in whole or in part; provided that:
28
(i) the aggregate principal amount of each Competitive Bid
Advance may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the basis of
ascending Competitive Bid Margins or Absolute Rates, as the case may
be; and
(iii) the applicable Borrower may not accept any offer of the
type described in Section 2.05(d)(ii) or that otherwise fails to
comply with the requirements of this Credit Agreement for the purpose
of obtaining a Competitive Bid Loan under this Credit Agreement.
(g) Allocation by the Administrative Agent. If offers are made by two
or more Lenders with the same Competitive Bid Margins or Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount
in respect of which offers are permitted to be accepted for the related
Interest Period, the principal amount of Competitive Bid Loans in respect
of which such offers are accepted shall be allocated by the Administrative
Agent among such Lenders as nearly as possible (in such multiples of
$1,000,000 as the Administrative Agent may deem appropriate) in proportion
to the aggregate principal amount of such offers. Allocations by the
Administrative Agent of the amounts of Competitive Bid Loans shall be
conclusive in the absence of manifest error. The Administrative Agent shall
promptly, but in any event on the same Business Day in the case of
Eurocurrency Bid Rate Advances, and by 11:30 a.m. (Dallas, Texas time) on
the same Business Day in the case of Absolute Rate Advances, notify each
Lender of its receipt of a Competitive Bid Borrowing Notice and the
aggregate principal amount of each Competitive Bid Advance allocated to
each participating Lender.
Section 2.06. Fees.
(a) Facility Fee. Whirlpool hereby agrees to pay to the Administrative
Agent for the account of the Lenders, ratably in proportion to their
Commitments, a facility fee at the Facility Fee Rate on the daily actual
amount of the Aggregate Commitment (without regard to the outstanding
principal amount of the Loans) for the period from and including the
Closing Date to but excluding the Termination Date, which fee shall be
payable quarterly in arrears on each Payment Date, commencing June 30,
2001, and on the Termination Date.
(b) Utilization Fee. With respect to each day that the Dollar Amount
of the aggregate outstanding principal amount of all Loans plus LOC
Obligations exceeds the product of (i) one-third (1/3) times (ii) the
Aggregate Commitment, Whirlpool hereby agrees to pay to the Administrative
Agent, for the account of the Lenders, ratably in proportion to their
Commitments, a utilization fee at a per annum rate equal to 0.125% on the
Dollar Amount of the aggregate outstanding principal amount of the Loans
plus LOC Obligations on each such day, which fee shall be payable quarterly
in arrears on each Payment Date, commencing June 30, 2001, and on the
Termination Date.
29
(c) Arrangement and Administration Fees. Whirlpool hereby agrees to pay to
the Administrative Agent for its sole account such arrangement, administration
fees as are heretofore and hereafter agreed upon in writing by Whirlpool and the
Administrative Agent.
(d) Competitive Bid Fees. Upon submission of a Competitive Bid Quote
Request to the Administrative Agent, the applicable Borrower hereby agrees to
pay to the Administrative Agent for its sole account an auction fee of $1,000.
(e) Letter of Credit Fees.
(i) In consideration of the issuance of Letters of Credit hereunder,
each Borrower hereby agrees to pay to the Administrative Agent, for the
account of each Lender, an issuance fee on the actual daily maximum amount
available to be drawn under each such Letter of Credit issued for the
account of such Borrower computed at a per annum rate for each day from the
date of issuance to the date of expiration equal to the Eurocurrency Margin
in effect from time to time; such issuance fee shall be allocated among the
Lenders ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment and shall be payable quarterly
in arrears on each Payment Date, commencing June 30, 2001, and on the
Termination Date.
(ii) In addition to the issuance fee payable pursuant to clause (i)
above, each Borrower hereby agrees to pay to the Issuing Lender, without
sharing by the other Lenders (A) a letter of credit fronting fee of 0.125%
on the actual daily maximum amount available to be drawn under each Letter
of Credit issued for the account of such Borrower computed at a per annum
rate for each day from the date of issuance to the date of expiration
(which fronting fee shall be shall be payable quarterly in arrears on each
Payment Date, commencing June 30, 2001, and on the Termination Date) and
(B) the customary charges from time to time of the Issuing Lender with
respect to the issuance, amendment, transfer, administration, cancellation
and conversion of, and drawings under, such Letters of Credit.
Section 2.07. General Facility Terms.
(a) Method of Borrowing. On each Borrowing Date, each Lender shall
make available its Loan or Loans, if any, (i) if such Loan is denominated
in Dollars, not later than 12:00 noon (Dallas, Texas time) in funds
immediately available to the Administrative Agent, at its address specified
in or pursuant to Article 14 and (ii) if such Loan is denominated in
another currency, not later than 12:00 noon, local time in the city of the
Administrative Agent's Eurocurrency Payment Office for such currency, in
such funds as may then be customary for the settlement of international
transactions in such currency in the city of and at the address of the
Administrative Agent's Eurocurrency Payment Office for such currency. The
Administrative Agent will make the funds so received from the Lenders
available to the applicable Borrower at the Administrative
30
Agent's aforesaid address. Notwithstanding the foregoing provisions of
this Section 2.07(a), to the extent that a Loan made by a Lender
matures on the Borrowing Date of a requested Loan denominated in the
same Agreed Currency as that of the maturing Loan, such Lender shall
apply the proceeds of the Loan it is then making to the repayment of
principal of the maturing Loan.
(b) Prepayments.
(i) Optional Prepayments. Each Borrower may from time to
time pay all of its outstanding Floating Rate Advances, or, in a
minimum aggregate amount of $5,000,000 (and in integral multiples
of $1,000,000 if in excess thereof), any portion of the
outstanding Floating Rate Advances upon one Business Day's prior
notice to the Administrative Agent. Each Borrower may from time
to time pay all of its outstanding Eurocurrency Committed
Advances, or, in a minimum aggregate Dollar Amount of $5,000,000
and in integral multiples of $1,000,000 if in excess thereof, any
portion of the outstanding Eurocurrency Committed Advances upon
three Business Days' prior notice to the Administrative Agent. No
Competitive Bid Loan may be prepaid prior to the last day of its
applicable Interest Period without the prior consent of the
Lender holding such Competitive Bid Loan, which consent may be
given or withheld at such Lender's sole and absolute discretion.
Any such prepayment pursuant to the foregoing provisions of this
Section 2.07 of a Eurocurrency Committed Advance or a Competitive
Bid Loan prior to the end of its applicable Interest Period shall
be subject to the provisions of Section 3.05.
(ii) Mandatory Prepayments.
(A) Aggregate Commitment. If at any time, the sum of
the Dollar Amount of the aggregate outstanding principal
amount of Advances plus LOC Obligations shall exceed the
Aggregate Commitment, the Borrowers immediately shall prepay
outstanding Advances and (after all Advances have been
repaid) cash collateralize LOC Obligations, in an amount
sufficient to eliminate such excess.
(B) LOC Committed Amount. If at any time, the sum of
the Dollar Amount of the aggregate principal amount of LOC
Obligations shall exceed the LOC Committed Amount, the
Borrowers immediately shall cash collateralize LOC
Obligations in an amount sufficient to eliminate such
excess.
(c) Interest Rates; Interest Periods. Subject to Section 2.07(d),
(i) each Floating Rate Advance (and each Floating Rate Loan making up
such Floating Rate Advance) shall bear interest on the outstanding
principal amount thereof, for each day from and including the date
such Advance is made or is converted from a Eurocurrency Committed
Advance pursuant to Section 2.03(f) to but excluding the date it is
paid or is converted into a Eurocurrency Committed Advance pursuant to
Section 2.03(f), at a rate
31
per annum equal to the Alternate Base Rate for such day, (ii) each
Eurocurrency Committed Advance (and each Eurocurrency Loan making up
such Eurocurrency Advance) shall bear interest on the outstanding
principal amount thereof from and including the first day of each
Interest Period applicable thereto to (but not including) the last day
of such Interest Period at a rate per annum equal to the Eurocurrency
Rate determined pursuant hereto as applicable to such Eurocurrency
Committed Advance for each day during such Interest Period, (iii) each
Absolute Rate Loan shall bear interest on the outstanding principal
amount thereof from and including the first day of the Interest Period
applicable thereto to (but not including) the last day of such Interest
Period at a rate per annum equal to the Absolute Rate determined
pursuant hereto as applicable to such Absolute Rate Loan, and (iv) each
Eurocurrency Bid Rate Loan shall bear interest on the outstanding
principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day
of such Interest Period at a rate per annum equal to the Eurocurrency
Bid Rate determined pursuant hereto as applicable to such Eurocurrency
Bid Rate Loan. Changes in the rate of interest on each Floating Rate
Advance will take effect simultaneously with each change in the
Alternate Base Rate. No Interest Period shall end after the Termination
Date.
(d) Rate after Certain Defaults.
(i) During the existence of any Default (other than
pursuant to Section 8.02(i)), the Required Lenders may, at
their option by notice to the Borrowers, declare that each
Advance and the issuance and fronting fees on each outstanding
Letter of Credit shall bear interest or accrue an issuance
fee, respectively, at a rate per annum equal to the rate
otherwise applicable to such Advance or such fee plus 1% per
annum.
(ii) During the existence of any Default under
Section 8.02(i), each Advance (and each Loan making up such
Advance) not paid when due, whether by acceleration or
otherwise, and any reimbursement obligation arising from any
Letter of Credit not paid when due shall, in each case, bear
interest on the outstanding principal amount thereof, for each
day from and including the date such Advance matures (or the
date such reimbursement obligation arises), whether by
acceleration or otherwise, to but excluding the date it is
paid, at the rate otherwise applicable to such Advance plus 2%
per annum or, if no rate is applicable, the Alternate Base
Rate plus 2% per annum, payable on demand.
(iii) During the existence of any Default, the
Required Lenders may, at their option, by notice to the
Borrowers, declare that no Advance may be converted into or
continued as a Dollar-denominated Eurocurrency Committed
Advance.
(e) Interest Payment Dates; Interest Basis. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date,
commencing on the first such date to occur after the date hereof, on
any date on which such Floating Rate Advance is prepaid or converted,
whether due to acceleration or otherwise, at maturity and thereafter
32
on demand. Subject to the next sentence, interest accrued on each Fixed
Rate Advance shall be payable on the last day of its applicable
Interest Period, on any date on which such Fixed Rate Advance is
prepaid, whether due to acceleration or otherwise, at maturity and
thereafter on demand. Interest accrued on each Fixed Rate Advance
having an Interest Period longer than three months shall also be
payable on the last day of each 90 day interval (in the case of
Absolute Rate Advances) or three-month interval (in the case of
Eurocurrency Committed Advances or Eurocurrency Bid Rate Advances)
during such Interest Period. Interest on all Fixed Rate Advances, all
Floating Rate Advances which bear interest based on the Federal Funds
Effective Rate and all fees due hereunder shall be calculated for the
actual number of days elapsed on the basis of a 360-day year. Interest
on all Floating Rate Advances which bear interest based on the Prime
Rate shall be calculated for the actual number of days elapsed on the
basis of a 365, or when appropriate 366, day year. Interest shall be
payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to noon (local
time) at the place of payment. If any payment of principal of, or
interest on, an Advance or of fees due hereunder shall become due on a
day which is not a Business Day, such payment shall be made on the next
succeeding Business Day and, in the case of a principal payment such
extension of time shall be included in computing interest in connection
with such payment. Each Borrower promises to pay interest on its
respective Advances as provided in this Section 2.07(e).
(f) Method of Payment. Each Advance and each reimbursement
obligation with respect to a drawing under a Letter of Credit shall be
paid, repaid or prepaid in the currency in which such Advance or the
related drawing was made in the amount borrowed or paid and interest
payable thereon shall be paid in such currency. Subject to the last
sentence of Section 2.07(a), (i) all amounts of principal, interest,
fees and other Obligations payable by the Borrowers in Dollars under
the Loan Documents shall be made in Dollars by 12:00 noon (Dallas,
Texas time) on the date when due in funds immediately available,
without condition or deduction for any counterclaim, defense,
recoupment or setoff, to the Administrative Agent at the Administrative
Agent's address specified pursuant to Article 14, or at such other
Lending Installation of the Administrative Agent as may be specified
in writing by the Administrative Agent to the Borrowers, and (ii) all
amounts of principal, interest and other Obligations payable by the
Borrowers in any currency other than Dollars under the Loan Documents
shall be made in such currency by 12:00 noon (local time) on the date
when due in such funds as may then be customary for the settlement of
international transactions in such currency for the account of the
Administrative Agent, at its Eurocurrency Payment Office for such
currency. Prior to the existence of a Default, ll amounts due hereunder
and all payments of reimbursement obligations arising from drawings
under Letters of Credit shall be made ratably among the applicable
Lenders in the case of payments of principal or interest in respect of
Competitive Bid Advances and ratably among all of the Lenders in the
case of all other payments (other than reimbursement obligations under
Letters of Credit paid to and fronting fees retained by the Issuing
Lender for its own account and the administrative and auction fees
retained by the Administrative Agent for its own account). Except as
provided in Section 9.01(b), uring the existence of any Default, all
payments of principal due hereunder and all payments of reimbursement
obligations
33
arising from drawings under Letters of Credit shall be applied ratably
among all outstanding Advances and Participation Interests. Each
payment delivered to the Administrative Agent for the account of any
Lender shall be delivered promptly, but in any event not later than the
close of business on the date received by the Administrative Agent if
received by the Administrative Agent by 12:00 noon (local time), by the
Administrative Agent to such Lender in the same type and currency of
funds which the Administrative Agent received at such Lender's address
specified pursuant to Article 14 or at any Lending Installation
specified by such Lender in a written notice received by the
Administrative Agent. If the Administrative Agent shall fail to pay any
Lender the amount due such Lender pursuant to this Section when due,
the Administrative Agent shall be obligated to pay to such Lender
interest on the amount that should have been paid hereunder for each
day from the date such amount shall have become due until the date such
amount is paid at the Federal Funds Effective Rate for such day.
Notwithstanding the foregoing provisions of this Section 2.07(f), if,
after the making of any Advance or issuance of any Letter of Credit in
any currency other than Dollars, currency control or exchange
regulations are imposed in the country which issues such currency with
the result that different types of such currency (the "New Currency")
are introduced and the type of currency in which the Advance was made
or such Letter of Credit was issued (the "Original Currency") no longer
exists or the applicable Borrower is not able to make payment to the
Administrative Agent for the account of the Lenders in such Original
Currency, then all payments to be made by such Borrower hereunder or
under any other Loan Document in such currency shall be made in such
amount and such type of the New Currency as shall be equivalent (based
upon market value) to the amount of such payment otherwise due
hereunder or under such Loan Document in the Original Currency, it
being the intention of the parties hereto that the Borrowers take all
risks of the imposition of any such currency control or exchange
regulations. In addition, notwithstanding the foregoing provisions of
this Section 2.07(f), if, after the making of any Advance or issuance
of any Letter of Credit in any currency other than Dollars, the
applicable Borrower is not able to make payment to the Administrative
Agent for the account of the Lenders in the type of currency in which
such Advance was made or such Letter of Credit was issued (or in any
New Currency as set forth above) because of the imposition of any such
currency control or exchange regulation, then such Advance or
reimbursement obligations shall instead be repaid when due in Dollars
in a principal amount equal to the Dollar Amount (as of the date of
repayment) of such Advance or such reimbursement obligations. The
Administrative Agent is hereby authorized, for the benefit of the
Lenders, to charge the account of each Borrower maintained with Bank of
America for each payment of principal, interest and fees due from such
Borrower as it becomes due hereunder. In the event any amount paid to
any Lender hereunder is rescinded or must otherwise be returned by the
Administrative Agent, each Lender shall, upon the request of the
Administrative Agent, repay to the Administrative Agent the amount so
paid to such Lender, with interest for the period commencing on the
date such payment is returned by the Administrative Agent until the
date the Administrative Agent receives such repayment at a rate per
annum equal to, during the period to but excluding the date two
Business Days after such request, the Federal Funds Effective Rate, and
thereafter, the Alternate Base Rate plus two percent (2%) per annum.
34
(g) Evidence of Debt; Telephonic Notices. Each Lender is
hereby authorized to record in accordance with its usual practice, the
date, the currency, the amount and the maturity of each of its Loans
made hereunder; provided, however, that any failure to so record shall
not affect any Borrower's obligations under this Credit Agreement. Upon
the request of any Lender made through the Administrative Agent, such
Lender's Loans shall be evidenced by a Note. Except as otherwise set
forth herein, each Borrower hereby authorizes the Lenders and the
Administrative Agent to extend or continue Advances, effect selections
of Types of Advances and transfer funds based on telephonic notices
made by any Person or Persons the Administrative Agent or any Lender
reasonably believes to be an Authorized Representative. If requested by
the Administrative Agent or any Lender, each Borrower agrees to deliver
promptly to the Administrative Agent a written confirmation of each
telephonic notice given by it signed by an Authorized Representative.
If the written confirmation differs in any material respect from the
action taken by the Administrative Agent and the Lenders, the records
of the Administrative Agent and the Lenders shall govern absent
manifest error.
(h) Notification of Advances, Interest Rates and Prepayments.
Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Aggregate Commitment reduction
notice, Committed Borrowing Notice, Dollar Continuation/Conversion
Notice, Non-Dollar Continuation Conversion Notice, Competitive Bid
Borrowing Notice, and repayment notice received by it hereunder. In
addition, with respect to each Committed Borrowing Notice, the
Administrative Agent shall notify each Lender of its pro rata share of
the Advance to be made pursuant to such Committed Borrowing Notice. The
Administrative Agent will notify the applicable Borrower and each
Lender of the interest rate applicable to each Fixed Rate Advance
promptly upon determination of such interest rate and will give each
Borrower and each Lender prompt notice of each change in the Alternate
Base Rate; provided, however, that the Administrative Agent's failure
to give any such notice will not affect any Borrower's obligation to
pay interest to the Lenders at the applicable interest rate.
(i) Non-Receipt of Funds by the Administrative Agent. Unless
the applicable Borrower or Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make
payment to the Administrative Agent of (i) in the case of a Lender, the
proceeds of a Loan or (ii) in the case of a Borrower, a payment of
principal, interest or fees to the Administrative Agent for the account
of the Lenders, that it does not intend to make such scheduled payment,
the Administrative Agent may assume that such scheduled payment has
been made. The Administrative Agent may, but shall not be obligated to,
make the amount of such scheduled payment available to the intended
recipient in reliance upon such assumption. If such Lender or Borrower,
as the case may be, has not in fact made such scheduled payment to the
Administrative Agent, the recipient of such scheduled payment shall, on
demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect
of each day during the period commencing on the date such amount was so
made available by the Administrative Agent until the date the
Administrative Agent recovers such amount at a rate per annum equal to
(x) in the case of such a repayment due from a Lender, the Federal
Funds Effective Rate for such day, or (y) in the
35
case of such a repayment due from a Borrower, the interest rate applicable
to the relevant Loan.
(j) Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in Article 5 with respect to any Advance or any
Letter of Credit in any currency other than Dollars, if there shall occur
on or prior to the date of such Advance or issuance of such Letter of
Credit any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which
would in the reasonable opinion of the Administrative Agent or the Required
Lenders make it impracticable for the Eurocurrency Committed Loans
comprising such Advance or such Letter of Credit to be denominated in the
currency specified by the applicable Borrower, then the Administrative
Agent shall forthwith give notice thereof to such Borrower and the Lenders,
and such Loans or such Letter of Credit shall not be denominated in such
currency but shall be made on such Borrowing Date as Floating Rate Loans or
issued on such date in Dollars, in an aggregate principal amount or face
amount equal to the Dollar Amount of the aggregate principal amount or face
amount specified in the related Committed Borrowing Notice or LOC
Documents, unless such Borrower notifies the Administrative Agent at least
one Business Day before such date that it elects not to borrow or have such
Letter of Credit issued on such date.
(k) Lending Installations. Subject to Section 3.06, each Lender may
(i) from time to time book its Loans at any Lending Installation(s)
selected by such Lender, and (ii) by written or telecopy notice to the
Administrative Agent and the Borrowers, designate (or change any such prior
designation) a Lending Installation through which Loans of a particular
Type will be made by it and for whose account payments on such Loans are to
be made. All terms of this Credit Agreement shall apply to any such Lending
Installation and any Notes of a Lender shall be deemed held by such Lender
for the benefit of its appropriate Lending Installation. Each Lender will
notify the Administrative Agent and Whirlpool on or prior to the date of
this Credit Agreement of the Lending Installation which it intends to
utilize for each Type and currency of Loan hereunder.
(l) Withholding Tax Exemption.
(i) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof shall:
(A) (1) on or before the date of any payment by a Borrower
incorporated in the United States under this Credit Agreement to
such Lender, deliver to the Borrowers incorporated in the United
States and the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form W-8BEN or W-8ECI, or
successor applicable form, as the case may be, certifying that it
is entitled to receive payments under this Credit Agreement
without deduction or withholding of any United States federal
income taxes;
36
(2) deliver to the Borrowers and the Administrative Agent
two further copies of any such form or certification on or before
the date that any such form or certification expires or becomes
obsolete and after the occurrence of any event requiring a change
in the most recent form previously delivered by it to the
Borrowers; and
(3) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by
the Borrowers or the Administrative Agent; or
(B) in the case of any such Lender that is not a "bank" within
the meaning of Section 881(c)(3)(A) of the Code, (1) represent to the
Borrowers (for the benefit of the Borrowers and the Administrative
Agent) that it is not a bank within the meaning of Section
881(c)(3)(A) of the Code, (2) agree to furnish to the Borrowers, on or
before the date of any payment by the Borrowers, with a copy to the
Administrative Agent, two accurate and complete original signed copies
of Internal Revenue Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the date of such
certificate to an exemption from U.S. withholding tax under the
provisions of Section 881(c) of the Code with respect to payments to
be made under this Credit Agreement (and to deliver to the Borrowers
and the Administrative Agent two further copies of such form on or
before the date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most recently
provided form and, if necessary, obtain any extensions of time
reasonably requested by the Borrowers or the Administrative Agent for
filing and completing such forms), and (3) agree, to the extent
legally entitled to do so, upon reasonable request by the Borrowers,
to provide to the Borrowers (for the benefit of the Borrowers and the
Administrative Agent) such other forms as may be reasonably required
in order to establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments under this Credit
Agreement.
Notwithstanding the above, if any change in treaty, law or regulation has
occurred after the date such Person becomes a Lender hereunder which
renders all such forms inapplicable or which would prevent such Lender from
duly completing and delivering any such form with respect to it and such
Lender so advises the Borrowers and the Administrative Agent then such
Lender shall be exempt from such requirements. Each Person that shall
become a Lender or a participant of a Lender pursuant to Section 13.02 or
13.03 shall, upon the effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements required pursuant
to this subsection (i); provided that in the case of a participant of a
Lender, the obligations of such participant of a Lender pursuant to this
subsection (i) shall be determined as if the participant of a Lender were a
Lender except that such participant of a Lender shall furnish all such
required forms, certifications and statements to the Lender from which the
related participation shall have been purchased.
37
(ii) If any withholding, deduction or other taxes (whether United
States, Netherlands or otherwise) shall be or become applicable after
the date of this Credit Agreement to any payments by the Borrowers to
a Lender hereunder, such Lender shall use reasonable efforts to make,
fund or maintain the Loan or Loans, as the case may be, through
another lending office located in another jurisdiction so as to
reduce, to the fullest extent possible, the Borrowers' liability
hereunder, if the making, funding or maintenance of such Loan or Loans
through such other office does not, in the reasonable judgment of the
Lender, materially affect the Lender of such Loan.
(m) Allocation of the Aggregate Commitment Among the Borrowers.
The Borrowers understand and agree that (i) subject to the terms and
conditions of this Credit Agreement, the Lenders will honor Committed
Borrowing Notices, Competitive Bid Borrowing Notices and requests for
the issuance of Letters of Credit in the order received by the
Administrative Agent, and (ii) as a result, one or more of the
Borrowers may be unable to borrow or increase borrowings hereunder if
other Borrowers have already borrowed hereunder in amounts which have
caused the Dollar Amount of the aggregate outstanding principal amount
of the Loans plus the outstanding LOC Obligations to equal the
Aggregate Commitment.
Section 2.08. Borrowing Subsidiaries; Additional Borrowing
Subsidiaries.
Whirlpool may at any time or from time to time, with the consent of
the Administrative Agent, which consent shall not be unreasonably withheld,
designate any of its Subsidiaries to become an "Additional Borrowing
Subsidiary" (and thereby a "Borrowing Subsidiary" and a "Borrower")
hereunder by satisfying the conditions precedent set forth in Section 5.02.
Upon satisfaction of such conditions precedent such Subsidiary shall for
all purposes be a party hereto as a Borrower as fully as if it had executed
and delivered this Credit Agreement. So long as the principal of and
interest on any Advances made to any Borrowing Subsidiary under this Credit
Agreement and any LOC Obligations of such Borrowing Subsidiary shall have
been repaid or paid in full and all other obligations of such Borrowing
Subsidiary under this Credit Agreement shall have been fully performed (and
all Letters of Credit issued for the account of such Borrowing Subsidiary
have been fully cash-collateralized to the satisfaction of the
Administrative Agent and the Issuing Lender), Whirlpool may, by not less
than five Business Days' prior notice to the Administrative Agent (which
shall promptly notify the Lenders thereof), terminate such Borrowing
Subsidiary's status as a Borrower hereunder; provided, however, that
Whirlpool shall concurrently terminate, if applicable, the status as a
Borrower hereunder of any Subsidiary of the terminated Borrowing
Subsidiary.
Section 2.09. Regulation D Compensation.
Each Lender may require each Borrower to pay, contemporaneously with
each payment of interest on its Eurocurrency Committed Loans, additional
interest on the related Eurocurrency Committed Loan of such Lender at a
rate per annum determined by such Lender up to but not exceeding the excess
of (i) (A) the Eurocurrency Base Rate then in effect for such Loan divided
by (B) one minus the Reserve Requirement applicable to such Lender over
(ii) such Eurocurrency Base Rate. Any Lender wishing to require payment of
such additional interest
38
(x) shall so notify the Borrower and the Administrative Agent, in which case
such additional interest on the Eurocurrency Committed Loans of such Lender to
such Borrower shall be payable to such Bank at the place indicated in such
notice with respect to each Interest Period commencing at least three Business
Days after the giving of such notice and (y) shall notify such Borrower at least
five Business Days prior to each date on which interest is payable on its
Eurocurrency Committed Loans of the amount then due such Lender under this
Section.
ARTICLE 3
CHANGE IN CIRCUMSTANCES
Section 3.01. Taxes.
(a) Payments to be Free and Clear. Except as otherwise provided
in Section 3.01(c), all sums payable by each Borrower under the Loan
Documents, whether in respect of principal, interest, fees or
otherwise, shall be paid without deduction for any present and future
taxes, levies, imposts, deductions, charges or withholdings imposed by
any government or any political subdivision or taxing authority thereof
(but excluding franchise taxes and any tax imposed on or measured by
the net income, receipts, profits or gains of any Lender) and all
interest, penalties or similar liabilities with respect thereto
(collectively, "Taxes"), which amounts shall be paid by the applicable
Borrower as provided in Section 3.01(b) below. The applicable Borrower
will pay each Lender the amounts necessary such that the net amount of
the principal, interest, fees or other sums received and retained by
each Lender is not less than the amount payable under this Credit
Agreement.
(b) Grossing-up of Payments. Except as otherwise provided in
Section 3.01(c), if: (i) any Borrower or any other Person is required
by law to make any deduction or withholding on account of any Taxes
from any sum paid or expressed to be payable by such Borrower to any
Lender under this Credit Agreement, or (ii) any party to this Credit
Agreement (or any Person on its behalf) other than a Borrower is
required by law to deduct or withhold any Tax from, or make a payment
of Taxes with respect to, any such sum received or receivable by any
Lender under this Credit Agreement:
(A) the applicable party shall notify the Administrative
Agent and, if such party is not the applicable Borrower, the
Administrative Agent will notify the applicable Borrower of any
such requirement or any change in any such requirement as soon as
such party becomes aware of it;
(B) the applicable Borrower shall pay all Taxes before the
date on which penalties attached thereto become due and payable,
such payment to be made (if the liability to pay is imposed on
such Borrower) for its own account or (if that liability is
imposed on any other party to this Credit Agreement) on behalf of
and in the name of that party;
39
(C) the sum payable by the applicable Borrower in
respect of which the relevant deduction, withholding or
payment is required shall (except, in the case of any such
payment, to the extent that the amount thereof is not
ascertainable when that sum is paid) be increased to the
extent necessary to ensure that, after the making of that
deduction, withholding or payment, that party receives on the
due date and retains (free from any liability in respect of
any such deduction, withholding or payment of Taxes) a sum
equal to that which it would have received and so retained had
no such deduction, withholding or payment of Taxes been
required or made; and
(D) within thirty (30) days after payment of any sum
from which the applicable Borrower is required by law to make
any deduction or withholding of Taxes, and within thirty (30)
days after the due date of payment of any Tax or other amount
which it is required to pay pursuant to the foregoing
subsection (B) of this Section 3.01(b), the applicable
Borrower shall deliver to the Administrative Agent all such
certified documents and other evidence as to the making of
such deduction, withholding or payment as (x) are satisfactory
to the affected parties as proof of such deduction,
withholding or payment and of the remittance thereof to the
relevant taxing or other authority, and (y) are required by
any such party to enable it to claim a tax credit with respect
to such deduction, withholding or payment.
(c) Conditions to Gross-up. Notwithstanding any provision of
this Section 3.01 to the contrary, no Borrower shall have any
obligation to pay any Taxes pursuant to this Section 3.01, or to pay
any amount to the Administrative Agent or any Lender pursuant to this
Section 3.01, to the extent that such amount results from the failure
of any Lender or the Administrative Agent to comply with its
obligations pursuant to Section 2.07(l) or Section 13.05.
(d) Refunds. If any Lender receives a refund in respect of
Taxes paid by any Borrower, it shall promptly pay such refund, together
with any other amounts paid by such Borrower pursuant to Section 3.01
in connection with such refunded Taxes, to such Borrower, provided that
such Borrower agrees to promptly return such refund to the applicable
Lender after it receives notice from the applicable Lender that it is
required to repay such refund.
Section 3.02. Increased Costs.
If, at any time after the date of this Credit Agreement, the adoption
of any applicable law or the application of any applicable governmental or
quasi-governmental rule, regulation policy, guideline or directive (whether or
not having the force of law), or any change therein, or any change in the
interpretation or administration thereof, or the compliance of any Lender
therewith,
(i) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending
40
Installation (other than amounts paid pursuant to Section 2.09 and
other than reserves and assessments taken into account in determining
the interest rate applicable to Eurocurrency Committed Advances), or
(ii) imposes any other condition (not being included within the Taxes
covered by Section 3.01), the result of which is to increase the cost to
any Lender or any applicable Lending Installation of making, funding or
maintaining Eurocurrency Loans or Letters of Credit or reduces any amount
receivable by any Lender or any applicable Lending Installation in
connection with Eurocurrency Loans or Letters of Credit, or requires any
Lender or any applicable Lending Installation to make any payment
calculated by reference to the amount of Eurocurrency Loans held or
interest received by it, by an amount deemed material by such Lender, then,
within 15 days of demand by such Lender, the applicable Borrower shall pay
such Lender that portion of such increased expense incurred or reduction in
an amount received which such Lender determines is attributable to making,
funding and maintaining its Eurocurrency Loans or Letters of Credit and its
Commitment to make Eurocurrency Loans or issue or participate in Letters of
Credit; provided, however, that any amount payable pursuant to this Section
3.02 shall be limited to the amount incurred from and after the date one
hundred fifty (150) days prior to the date that such Lender makes such
demand.
Section 3.03. Changes in Capital Adequacy Regulations.
If a Lender determines that the amount of capital required or expected to
be maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a Change (as
hereafter defined), then, within 15 days of demand by such Lender (with a copy
of such demand to the Administrative Agent), the applicable Borrower shall pay
such Lender the amount which such Lender reasonably determines is necessary to
compensate it for any shortfall in the rate of return on the portion of such
increased capital which such Lender determines is attributable to this Credit
Agreement, its Loans, its Letters of Credit or its obligation to make Loans or
issue Letters of Credit hereunder (after taking into account such Lender's
policies as to capital adequacy); provided, however, that any amount payable
pursuant to this Section 3.03 shall be limited to the amount incurred from and
after the date one hundred fifty (150) days prior to the date that such Lender
makes such demand. "Change" means (i) any change after the date of this Credit
Agreement in the Risk-Based Capital Guidelines (as hereafter defined), or (ii)
any adoption of or change in any other law, governmental or quasi-governmental
rule, regulation, policy, guideline, interpretation, or directive (whether or
not having the force of law) after the date of this Credit Agreement which
affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.
"Risk-Based Capital Guidelines" means (x) the risk-based capital guidelines in
effect in the United States on the date of this Credit Agreement, including
transition rules, and (y) the corresponding capital regulations promulgated by
regulatory authorities outside the United States in effect on the date of this
Credit Agreement, including transition rules.
41
Section 3.04. Availability of Types and Currencies.
If any Lender determines that maintenance at a suitable Lending
Installation of any Type of its Eurocurrency Loans or any Letter of Credit
denominated in any Agreed Currency would violate any applicable law, rule,
regulation or directive, whether or not having the force of law, and notifies
the Borrowers and the Administrative Agent of such determination, then the
affected currency shall cease to be an Agreed Currency and the Administrative
Agent shall suspend the availability of the affected Type and currency of
Advance and Letters of Credit and, if such Lender determines that it is
necessary, require that any Eurocurrency Advances of the affected Type and
currency be repaid or any Letters of Credit denominated in the affected currency
be cash collateralized. If any Lender determines that deposits of a type and
maturity appropriate to match fund Eurocurrency Committed Advances denominated
in any Agreed Currency are not available, then the affected currency shall cease
to be an Agreed Currency and the Administrative Agent shall suspend the
availability of Eurocurrency Committed Advances denominated in the affected
currency. If any Lender determines that the combination of the interest rate
applicable to Eurocurrency Committed Advances and Letters of Credit denominated
in any Agreed Currency and payments due pursuant to Sections 3.01 and 3.02 with
respect to such Eurocurrency Committed Advances or such Letters of Credit does
not accurately reflect the cost of making or maintaining Eurocurrency Committed
Advances and Letters of Credit in the affected currency, then the affected
currency shall cease to be an Agreed Currency and the Administrative Agent shall
suspend the availability of Eurocurrency Committed Advances and Letters of
Credit denominated in the affected currency.
Section 3.05. Funding Indemnification.
If any payment of a Fixed Rate Loan occurs on a date which is not the last
day of the applicable Interest Period, whether because of acceleration,
prepayment or otherwise, or a Fixed Rate Loan is not made on the date specified
by the applicable Borrower for any reason other than default by a Lender, such
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Fixed Rate
Loan (but excluding loss of profits).
Section 3.06. Mitigation of Additional Costs or Adverse Circumstances.
If, in respect of any Lender, circumstances arise which would or would
upon the giving of notice result in:
(i) an increase in the liability of a Borrower to such Lender under
Section 3.01, 3.02 or 3.03;
(ii) the unavailability of a Type or currency of Committed Advance
under Section 3.04; or
(iii) a Lender being unable to deliver the forms required by Section
2.07(l);
then, without in any way limiting, reducing or otherwise qualifying the
applicable
42
Borrower's obligations under any of the Sections referred to above in this
Section 3.06, such Lender shall promptly upon becoming aware of the same notify
the Administrative Agent thereof and shall, in consultation with the
Administrative Agent and Whirlpool and to the extent that it can do so without
disadvantaging itself, take such reasonable steps as may be reasonably open to
it to mitigate the effects of such circumstances (including, without limitation,
the designation of an alternate Lending Installation or the transfer of its
Loans to another Lending Installation). If and so long as a Lender has been
unable to take, or has not taken, steps acceptable to Whirlpool to mitigate the
effect of the circumstances in question, such Lender shall be obliged, at the
request of Whirlpool, to assign all its rights and obligations hereunder to
another Person nominated by Whirlpool with the approval of the Administrative
Agent (which shall not be unreasonably withheld) and willing to participate in
the facility in place of such Lender; provided that (i) all obligations owed to
such assigning Lender (including, if such Lender is the Issuing Lender, the
cancellation or replacement of or other accommodation with respect to
outstanding Letters of Credit in a manner satisfactory to it) shall be paid in
full and (ii) such Person satisfies all of the requirements of this Credit
Agreement including, but not limited to, providing the forms required by
Sections 2.07(l) and 13.03(b). Notwithstanding any such assignment, the
obligations of the Borrowers under Sections 3.01, 3.02, 3.03 and 10.06 shall
survive any such assignment and be enforceable by such Lender.
Section 3.07. Lender Statements; Survival of Indemnity.
Each Lender shall deliver to the applicable Borrower and Whirlpool a
written statement of such Lender as to the amount due, if any, under Section
3.01, 3.02, 3.03 or 3.05. Such written statement shall set forth in reasonable
detail the calculations upon which such Lender determined such amount and shall
be final, conclusive and binding on the applicable Borrower in the absence of
manifest error. Determination of amounts payable under such Sections in
connection with a Fixed Rate Loan shall be calculated as though each Lender
funded its Fixed Rate Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Fixed Rate applicable to such Loan, whether in fact that is the case or not.
Unless otherwise provided herein, the amount specified in the written statement
shall be payable within 15 days after receipt by the applicable Borrower and
Whirlpool of the written statement. The obligations of any Borrower under
Sections 3.01, 3.02, 3.03 or 3.05 shall survive payment of any other of such
Borrower's Obligations and the termination of this Credit Agreement.
ARTICLE 4
GUARANTY
Section 4.01. Guaranty.
For valuable consideration, the receipt of which is hereby acknowledged,
and to induce the Lenders to make Advances and issue or participate in Letters
of Credit to each of the Borrowing Subsidiaries, Whirlpool hereby irrevocably,
absolutely and unconditionally guarantees prompt payment when due, whether at
stated maturity, upon acceleration or
43
otherwise, and at all times thereafter, of any and all existing and future
obligations of each of the Borrowing Subsidiaries to the Administrative Agent
and the Lenders, or any of them, under or with respect to the Loan Documents,
whether for principal, interest (including, without limitation, all interest
accruing subsequent to the commencement of any case, proceeding or other action
relating to any Borrowing Subsidiary under the Bankruptcy Code or any similar
law with respect to the bankruptcy, insolvency or reorganization of any
Borrowing Subsidiary, and all interest which, but for any such case, proceeding
or other action would otherwise accrue), fees, expenses or otherwise
(collectively, the "Guaranteed Obligations"). Whirlpool also agrees that all
payments under this guaranty shall be made in the same currency and manner as
provided herein for the Guaranteed Obligations.
Section 4.02. Waivers.
Whirlpool waives notice of the acceptance of this guaranty and of the
extension or continuation of the Guaranteed Obligations or any part thereof.
Whirlpool further waives presentment, protest, notice of notices delivered or
demand made on any Borrowing Subsidiary or action or delinquency in respect of
the Guaranteed Obligations or any part thereof, including any right to require
the Administrative Agent and the Lenders to xxx any Borrowing Subsidiary, any
other guarantor or any other Person obligated with respect to the Guaranteed
Obligations or any part thereof, or otherwise to enforce payment thereof against
any collateral securing the Guaranteed Obligations or any part thereof.
Section 4.03. Guaranty Absolute.
This guaranty is a guaranty of payment and not of collection, it is a
primary obligation of Whirlpool and not one of surety, and the validity and
enforceability of this guaranty shall be absolute and unconditional irrespective
of, and shall not be impaired or affected by, any of the following: (a) any
extension, modification or renewal of, or indulgence with respect to, or
substitutions for, the Guaranteed Obligations or any part thereof or any
agreement relating thereto at any time; (b) any failure or omission to enforce
any right, power or remedy with respect to the Guaranteed Obligations or any
part thereof or any agreement relating thereto, or any collateral; (c) any
waiver of any right, power or remedy or of any default with respect to the
Guaranteed Obligations or any part thereof or any agreement relating thereto, or
any collateral; (d) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any collateral,
any other guaranties with respect to the Guaranteed Obligations or any part
thereof, or any other obligation of any Person with respect to the Guaranteed
Obligations or any part thereof; (e) the enforceability or validity of the
Guaranteed Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral;
(f) the application of payments received from any source to the payment of
obligations other than the Guaranteed Obligations, any part thereof or amounts
which are not covered by this guaranty even though the Administrative Agent and
the Lenders might lawfully have elected to apply such payments to any part or
all of the Guaranteed Obligations or to amounts which are not covered by this
guaranty; (g) any change in the ownership of any Borrowing Subsidiary or the
insolvency, bankruptcy or any other change in the legal status of any Borrowing
Subsidiary; (h) the change in or the imposition of any law, decree, regulation
or other governmental act which does or might impair, delay or in any way
44
affect the validity, enforceability or payment when due of the Guaranteed
Obligations; (i) the failure of Whirlpool or any Borrowing Subsidiary to
maintain in full force, validity or effect or to obtain or renew when required
all governmental and other approvals, licenses or consents required in
connection with the Guaranteed Obligations or this guaranty, or to take any
other action required in connection with the performance of all obligations
pursuant to the Guaranteed Obligations or this guaranty; (j) the existence of
any claim, setoff or other rights which Whirlpool may have at any time against
any Borrowing Subsidiary, or any other Person in connection herewith or an
unrelated transaction; or (k) any other circumstances, whether or not similar to
any of the foregoing, which could constitute a defense to a guarantor; all
whether or not Whirlpool shall have had notice or knowledge of any act or
omission referred to in the foregoing clauses (a) through (k) of this Section
4.03. It is agreed that Whirlpool's liability hereunder is several and
independent of any other guaranties or other obligations at any time in effect
with respect to the Guaranteed Obligations or any part thereof and that
Whirlpool's liability hereunder may be enforced regardless of the existence,
validity, enforcement or non-enforcement of any such other guaranties or other
obligations or any provision of any applicable law or regulation purporting to
prohibit payment by any Borrowing Subsidiary of the Guaranteed Obligations in
the manner agreed upon between such Borrowing Subsidiary and the Administrative
Agent and the Lenders.
Section 4.04. Continuing Guaranty.
The Lenders may make or continue Loans to and issue Letters of Credit for
the account of any of the Borrowing Subsidiaries from time to time without
notice to or authorization from Whirlpool regardless of the financial or other
condition of any Borrowing Subsidiary at the time any Loan is made or continued
or any Letter of Credit is issued, and no Lender shall have any obligation to
disclose or discuss with Whirlpool its assessment of the financial condition of
any of the Borrowing Subsidiaries. This guaranty shall continue in effect,
notwithstanding any extensions, modifications, renewals or indulgences with
respect to, or substitution for, the Guaranteed Obligations or any part thereof,
until all of the Guaranteed Obligations shall have been paid in full and all of
the Commitments shall have expired or been terminated.
Section 4.05. Delay of Subrogation.
Until the Guaranteed Obligations have been paid in full, Whirlpool shall
not exercise any right of subrogation with respect to payments made by Whirlpool
pursuant to this guaranty.
Section 4.06. Acceleration.
Whirlpool agrees that, as between Whirlpool on the one hand, and the
Lenders and the Administrative Agent, on the other hand, the obligations of any
Borrowing Subsidiary guaranteed under this Article 4 may be declared to be
forthwith due and payable, or may be deemed automatically to have been
accelerated, as provided in Section 9.01 for purposes of this Article 4,
notwithstanding any stay, injunction or other prohibition (whether in a
bankruptcy proceeding affecting such Borrowing Subsidiary or otherwise)
preventing such declaration as against such Borrowing Subsidiary and that, in
the event of such declaration or automatic acceleration, such obligations
(whether or not due and payable by such Borrowing Subsidiary)
45
shall forthwith become due and payable by Whirlpool for purposes of this
Article 4.
Section 4.07. Reinstatement.
The obligations of Whirlpool under this Article 4 shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Guaranteed Obligations is rescinded or must be
otherwise restored by any holder of any of the Guaranteed Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise, and
Whirlpool agrees that it will indemnify the Administrative Agent and each Lender
on demand for all reasonable costs and expenses (including, without limitation,
fees and expenses of counsel) incurred by the Administrative Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
ARTICLE 5
CONDITIONS PRECEDENT
Section 5.01. Effectiveness.
This Credit Agreement shall not be effective and no Lender shall be
required to make the initial Advance nor will the Issuing Lender be required to
issue Letters of Credit hereunder to any Borrower which is an original signatory
hereto (each, an "Original Borrower" and collectively, the "Original Borrowers")
until a date (the "Closing Date") upon which the Original Borrowers have
furnished or caused to be furnished to the Administrative Agent the following:
(i) A copy of the articles, certificate or charter of incorporation or
similar document of each Original Borrower, certified by the appropriate
governmental officer in the jurisdiction of incorporation or organization
of each Original Borrower within ten days of the Closing Date;
(ii) A certificate of good standing, to the extent applicable, for
each Original Borrower from its jurisdiction of incorporation dated within
ten days of the Closing Date;
(iii) A copy, certified as of the Closing Date by the Secretary or
Assistant Secretary of each Original Borrower, of its by-laws or similar
governing document;
(iv) A copy, certified as of the Closing Date by the Secretary or
Assistant Secretary of each Original Borrower, of the resolutions of its
Board of Directors (and resolutions of other bodies, if any are reasonably
deemed necessary by counsel for any Lender) authorizing the execution of
this Credit Agreement and the other Loan Documents to be executed by it;
(v) An incumbency certificate, executed as of the Closing Date by the
46
Secretary or an Assistant Secretary of Whirlpool, which shall identify by
name and title and bear the signature of all of the Authorized Officers,
upon which certificate the Administrative Agent and the Lenders shall be
entitled to rely until informed of any change in writing by Whirlpool;
(vi) An incumbency certificate, executed as of the Closing Date by the
Secretary or an Assistant Secretary of each Original Borrower, which shall
identify by name and title and bear the signature of the officers of such
Original Borrower authorized to sign this Credit Agreement and the other
Loan Documents to be executed by such Original Borrower and to receive
extensions of credit hereunder, upon which certificate the Administrative
Agent and the Lenders shall be entitled to rely until informed of any
change in writing by such Original Borrower;
(vii) A certificate, signed by an Authorized Officer and an officer of
each Original Borrower, stating that on the Closing Date (i) no Default or
Unmatured Default has occurred and is continuing, and (ii) the
representations and warranties contained in Article 6 are true and correct
in all material respects;
(viii) Written opinions of counsel to each Original Borrower given
upon the express instructions of each Original Borrower, each dated the
Closing Date and addressed to the Administrative Agent and each of the
Lenders, in form and substance satisfactory to the Administrative Agent;
(ix) Payment in full of all obligations under (and as defined in) the
Existing Credit Facilities which would be due and payable upon termination
of such Existing Credit Facilities and the termination of all commitments
under the Existing Credit Facilities;
(x) Since December 31, 2000, there has been no development or event
relating to or affecting Whirlpool or any of its Subsidiaries that has had
or could be reasonably expected to have a Material Adverse Effect; and
(xi) Such other documents and information as any Lender or its counsel
may have reasonably requested.
Section 5.02. Initial Advance to Each Additional Borrowing Subsidiary.
No Lender shall be required to make an Advance nor shall the Issuing Lender
be required to issue Letters of Credit hereunder to an Additional Borrowing
Subsidiary unless such Additional Borrowing Subsidiary has furnished or caused
to be furnished to the Administrative Agent the following:
(i) An Assumption Agreement executed and delivered by such Additional
Borrowing Subsidiary and containing the written consent of Whirlpool at the
foot thereof, as contemplated by Section 2.08;
47
(ii) A copy of the articles, certificate or charter of incorporation
or other similar document of such Additional Borrowing Subsidiary,
certified by the appropriate governmental officer in the jurisdiction of
incorporation of such Additional Borrowing Subsidiary within ten days of
the date of delivery;
(iii) A certificate of good standing, to the extent applicable, for
such Additional Borrowing Subsidiary from its jurisdiction of incorporation
dated within ten days of the date of delivery;
(iv) A copy, certified as of the date of delivery by the Secretary or
Assistant Secretary of such Additional Borrowing Subsidiary, of its
by-laws;
(v) A copy, certified as of the date of delivery by the Secretary or
Assistant Secretary of such Additional Borrowing Subsidiary, of the
resolutions of its Board of Directors (and resolutions of other bodies, if
any are reasonably deemed necessary by counsel for any Lender) authorizing
the execution of its Assumption Agreement and the other Loan Documents to
be executed by it;
(vi) An incumbency certificate, executed as of the date of delivery by
the Secretary or an Assistant Secretary of such Additional Borrowing
Subsidiary, which shall identify by name and title and bear the signature
of the officers of such Additional Borrowing Subsidiary authorized to sign
its Assumption Agreement and the other Loan Documents to be executed by
such Additional Borrowing Subsidiary and to receive extensions of credit
hereunder, upon which certificate the Administrative Agent and the Lenders
shall be entitled to rely until informed of any change in writing by such
Additional Borrowing Subsidiary;
(vii) Written opinions of counsel to such Additional Borrowing
Subsidiary given upon the express instructions of each Additional Borrowing
Subsidiary, each dated the date of delivery and addressed to the
Administrative Agent and each of the Lenders, in form and substance
satisfactory to the Administrative Agent; and
Section 5.03. Each Extension of Credit.
No Lender shall be required to make any Advance (including, without
limitation, the initial Advance hereunder) nor shall the Issuing Lender be
required to issue any Letter of Credit, unless on the applicable Borrowing Date:
(i) Prior to and after giving effect to such Advance or issuance of
such Letter of Credit there exists no Default or Unmatured Default;
(ii) The representations and warranties contained in Article 6 are
true and correct as of such Borrowing Date or date of issuance of any
Letter of Credit (except the representations and warranties set forth in
Sections 6.04, 6.05 and 6.07, which representations and warranties shall be
true and correct as of the respective dates specified therein);
48
(iii) All legal matters incident to the making of such Advance or
issuance of such Letter of Credit shall be reasonably satisfactory to the
Lenders and their counsel; and
(iv) The applicable Borrower shall have delivered the applicable
notices described in Section 2.03(a), 2.04(b) or 2.05(f).
Each request for extension of credit hereunder shall constitute a
representation and warranty by the applicable Borrower that the conditions
contained in Sections 5.03(i) and (ii) have been satisfied.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Each of the Borrowers represents and warrants to the Lenders that:
Section 6.01. Existence and Standing.
It and each of its Material Subsidiaries is duly incorporated or otherwise
organized, validly existing and (to the extent applicable) in good standing
under the laws of its jurisdiction of incorporation or organization and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.
Section 6.02. Authorization and Validity.
It has the power and authority and legal right to execute and deliver the
Loan Documents to which it is a party and to perform its obligations thereunder.
Its execution and delivery of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate or other proceedings, and the Loan Documents to which it is a party
constitute its legal, valid and binding obligations enforceable against it in
accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of creditors'
rights generally and the availability of equitable remedies for the enforcement
of certain obligations (other than the payment of money) contained herein or
therein may be limited by equitable principles generally and by principles of
good faith and fair dealing.
Section 6.03. No Conflict; Government Consent.
Neither its execution and delivery of the Loan Documents to which it is a
party, nor the consummation of the transactions therein contemplated, nor its
compliance with the provisions thereof will violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on it or any of its
Subsidiaries or the articles, certificate or charter of incorporation or by-laws
or other organizational documents of it or any of its Subsidiaries or the
provisions of any
49
indenture, instrument or agreement to which it or any of its Subsidiaries is a
party or is subject, or by which it or its Property is bound, or conflict with
or constitute a default thereunder, or result in the creation or imposition of
any Lien in, of or on the Property of it or any of its Subsidiaries pursuant to
the terms of any such indenture, instrument or agreement, in any such case which
violation, conflict, default, creation or imposition has not had or could not
reasonably be expected to have a Material Adverse Effect. No order, consent,
approval, license, authorization, or validation of, or filing, recording or
registration with or exemption by, any governmental or public body or authority,
or any subdivision thereof, is required to authorize, or is required in
connection with, its execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, any of the Loan Documents to
which it is a party other than those the absence of which has not had or could
not reasonably be expected to have a Material Adverse Effect.
Section 6.04. Financial Statements.
The December 31, 2000 financial statements of Whirlpool and its
Consolidated Subsidiaries were prepared in accordance with generally accepted
accounting principles in effect on the date such statements were prepared and
fairly present the financial condition of Whirlpool and its Consolidated
Subsidiaries at such date and the results of their operations for the period
then ended.
Section 6.05. Material Adverse Change.
As of the date of this Credit Agreement, there has been no change since
December 31, 2000 in the business, Property, condition (financial or otherwise)
or results of operations of Whirlpool and its Consolidated Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.
Section 6.06. Taxes.
Whirlpool and its Subsidiaries have filed all United States federal income
tax returns and all other material tax returns which are required to be filed
and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by Whirlpool or any of its Subsidiaries, except such taxes,
if any, as are being contested in good faith and as to which adequate reserves
have been provided. No material tax liens have been filed and no material claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of Whirlpool and its Subsidiaries in respect of any taxes
or other governmental charges are adequate.
Section 6.07. Litigation and Contingent Obligations.
As of the date of this Credit Agreement, there is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
its knowledge, threatened against or affecting it or any of its Subsidiaries
which has had or could reasonably be expected to have a Material Adverse Effect,
and neither it nor any of its Subsidiaries has any material contingent
obligations not provided for or disclosed in the financial statements referred
to in Section 6.04.
50
Section 6.08. ERISA.
No member of the Controlled Group has incurred, or is reasonably expected
to incur, any withdrawal liability to Multiemployer Plans in excess of
$50,000,000 in the aggregate. Each Plan complies in all material respects with
all applicable requirements of law and regulations, no Reportable Event has
occurred with respect to any Plan, no member of the Controlled Group has
withdrawn from any Plan or initiated steps to do so, and no steps have been
taken to reorganize or terminate any Plan.
Section 6.09. Accuracy of Information.
No information or report furnished by it to the Administrative Agent or the
Lenders in connection with the negotiation of, or compliance with, the Loan
Documents contains any material misstatement of fact or omits to state a
material fact necessary to make the statements contained therein not misleading.
Section 6.10. Material Agreements.
Neither it nor any of its Subsidiaries is a party to any agreement or
instrument or subject to any charter or other corporate restriction which could
reasonably be expected to have a Material Adverse Effect. Neither it nor any of
its Subsidiaries is in default in the performance, observance or fulfillment of
any of the obligations, covenants or conditions contained in (i) any agreement
to which it is a party, which default could reasonably be expected to have a
Material Adverse Effect or (ii) any agreement or instrument evidencing or
governing any Indebtedness or Off-Balance Sheet Obligations with an outstanding
principal amount (or implied or attributed principal amount) in excess of
$50,000,000.
Section 6.11. Compliance with Laws.
It and its Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any domestic or foreign government, or
any instrumentality or agency thereof, having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property,
except where non-compliance with any such statute, rule, regulation, order or
restriction cannot reasonably be expected to have a Material Adverse Effect.
Neither it nor any of its Subsidiaries has received any notice to the effect
that its operations are not in material compliance with any of the requirements
of applicable federal, state and local environmental, health and safety statutes
and regulations or the subject of any federal or state investigation evaluating
whether any remedial action is needed to respond to a release of any toxic or
hazardous waste or substance into the environment, which non-compliance or
remedial action could reasonably be expected to have a Material Adverse Effect.
Section 6.12. Public Utility Holding Company Act.
Neither Whirlpool nor any of its Subsidiaries is a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of a "holding
company" or of a "subsidiary
51
company" of a "holding company", within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
Section 6.13. Investment Company Act.
Neither Whirlpool nor any of its Subsidiaries is an "investment company" or
an "affiliated person" thereof or an "affiliated person" of such affiliated
person as such terms are defined in the Investment Company Act of 1940, as
amended.
Section 6.14. Environmental Matters.
In the ordinary course of its business, Whirlpool conducts an ongoing
review of the effect of Environmental Laws on the business, operations and
properties of Whirlpool and its Subsidiaries, in the course of which it
identifies and evaluates associated liabilities and costs (including, without
limitation, any capital or operating expenditures required for clean-up or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law or as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat, any costs or liabilities
in connection with off-site disposal of wastes or hazardous substances, and any
actual or potential liabilities to third parties, including employees, and any
related costs and expenses). On the basis of this review, Whirlpool has
concluded that such associated liabilities and costs, including the costs of
compliance with Environmental Laws, would not reasonably be expected to have a
Material Adverse Effect.
Section 6.15 Proper Legal Form.
Each Loan Document to which a Borrower that is not domiciled in the United
States is a party is in proper legal form under the law of the jurisdiction in
which such Borrower is organized, formed or incorporated for the enforcement
thereof against such Borrower under the law of such jurisdiction. To ensure the
legality, validity, enforceability or admissibility in evidence of each such
Loan Document in such jurisdiction, it is not necessary that any such Loan
Document or any other document be filed or recorded with any court or other
authority of such jurisdiction or that any stamp or similar tax be paid on or in
respect of any such Loan Documents.
Section 6.16 Solvency.
Immediately after giving effect to each Advance or Letter of Credit made or
issued on or after the Closing Date, (a) each of the applicable Borrower and
Whirlpool is able to pay its debts and other liabilities, contingent obligations
and other commitments as they mature in the normal course of business, (b)
neither such Borrower nor Whirlpool intends to, nor does it believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (c) neither such Borrower
nor Whirlpool is engaged in a business or a transaction, nor is it about to
engage in a business or a transaction, for which such Person's
52
assets would constitute unreasonably small capital, (d) the fair value of the
assets of each of such Borrower and Whirlpool is greater than the total amount
of liabilities, including, without limitation, contingent liabilities, of such
Person and (e) the present fair saleable value of the assets of each of such
Borrower and Whirlpool is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
ARTICLE 7
COVENANTS
During the term of this Credit Agreement, unless the Required Lenders shall
otherwise consent in writing:
Section 7.01. Financial Reporting.
The Borrowers will maintain, for Whirlpool and each of its Subsidiaries, a
system of accounting established and administered in accordance with generally
accepted accounting principles, and furnish to the Administrative Agent, for
distribution to the Lenders:
(i) Within 90 days after the close of each of Whirlpool's fiscal
years, an unqualified audit report certified by independent certified
public accountants of recognized national standing selected by Whirlpool,
prepared in accordance with generally accepted accounting principles on a
consolidated basis for Whirlpool and its Consolidated Subsidiaries,
including a consolidated balance sheet as of the end of such period and
related consolidated statements of earnings and cash flows, and accompanied
by a certificate of said accountants that, in the course of their
examination necessary for their certification of the foregoing, they have
obtained no knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default shall exist,
stating the nature and status thereof;
(ii) Within 60 days after the close of each of the first three
quarterly periods of each of Whirlpool's fiscal years, for Whirlpool and
the Consolidated Subsidiaries, an unaudited consolidated balance sheet as
at the close of such period and a consolidated statement of earnings and
cash flows for the period from the beginning of such fiscal year to the end
of such quarter, all certified, subject to year-end audit adjustments, by
an Authorized Officer;
(iii) Together with the financial statements required pursuant to
clauses (i) and (ii) above, a compliance certificate in substantially the
form of Exhibit "G" hereto signed by an Authorized Officer showing the
calculations necessary to determine compliance with this Credit Agreement
and stating that no Default or Unmatured Default exists, or if
53
any Default or Unmatured Default exists, stating the nature and status
thereof;
(iv) Promptly upon the furnishing thereof to the shareholders of
Whirlpool, copies of all financial statements, reports and proxy statements
so furnished;
(v) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular reports which
Whirlpool or any of its Subsidiaries files with the Securities and Exchange
Commission;
(vi) If and when Whirlpool or any member of the Controlled Group (A)
gives or is required to give notice to the PBGC of any Reportable Event
with respect to any Plan which would constitute grounds for a termination
of such Plan under ERISA, or knows that the plan administrator of any Plan
has given or is required to give notice of any Reportable Event, (B)
receives notice of complete or partial withdrawal liability under Title IV
of ERISA, (C) receives notice that any Multiemployer Plan is in
reorganization under Section 4242 of ERISA or may become insolvent under
Section 4245 of ERISA, or (D) receives notice from the PBGC that it will
institute proceedings asserting liability under Title IV of ERISA or to
terminate a Plan under Section 4042 of ERISA or will apply to the
appropriate United States District Court to seek the appointment of a
trustee to administer any Plan, then, in each such event, Whirlpool shall
deliver to the Administrative Agent copies of such notice given, required
to be given or received, as the case may be; provided that Whirlpool shall
be required to deliver copies of the notices referred to in this Section
7.01(vi) only to the extent that it knows or should know of the giving or
receipt of such a notice; and
(vii) Within a reasonable time after receipt of a request therefor,
which time shall in any event be not less than two days nor more than
thirty (30) days, such other information (including non-financial
information) as the Administrative Agent or any Lender may from time to
time reasonably request.
Section 7.02. Use of Proceeds.
Each of the Borrowers will use the proceeds of the Advances and the
issuance of Letters of Credit only for general corporate purposes (including the
financing of Acquisitions) and to repay outstanding Advances or replace existing
Letters of Credit. No Borrower will, and no Borrower will permit any of its
Subsidiaries to, use any of the proceeds of the Advances to (i) purchase or
carry any "margin stock" (as defined in Regulation U) or in contravention of
Regulation X or (ii) make an Acquisition of capital stock of another Person
unless the board of directors (or other comparable governing body) of such
Person has duly approved such Acquisition.
Section 7.03. Notice of Default.
Promptly after any Authorized Officer referenced in clauses (i), (ii) or
(iii) of the definition of Authorized Officer or any assistant treasurer becomes
aware of the occurrence of any Default or Unmatured Default, Whirlpool will give
notice in writing to the Administrative
54
Agent of the occurrence of such Default or Unmatured Default.
Section 7.04. Existence.
Each of the Borrowers will, and will cause each of its Subsidiaries to,
do all things necessary to remain duly incorporated or otherwise organized,
validly existing and (to the extent applicable) in good standing in its
jurisdiction of incorporation or organization and maintain all requisite
authority to conduct its business in each jurisdiction in which the character of
the properties owned or leased by it therein or in which the transaction of its
business is such that failure to maintain such authority has resulted or could
result in a Material Adverse Effect; provided, however, that the existence of
any Subsidiary which is not a Borrower may be terminated and any right,
franchise or license of any Subsidiary which is not a Borrower may be terminated
or abandoned if in the good faith judgment of the appropriate officer or
officers of Whirlpool, such termination or abandonment is in its best interest
and is not materially disadvantageous to the Lenders.
Section 7.05. Taxes.
Each of the Borrowers will, and will cause each of its Subsidiaries to, pay
when due all material taxes, assessments and governmental charges and levies
upon it or its income, profits or Property, except those which are being
contested in good faith by appropriate proceedings diligently conducted (or, in
the case of any such tax, those the payment of which can be delayed without
penalty) and with respect to which adequate reserves have been set aside.
Section 7.06. Insurance.
Each of the Borrowers will, and will cause each of its Subsidiaries to,
maintain with financially sound and reputable insurance companies, or by way of
such self-insurance as Whirlpool considers appropriate, insurance on its
Property in such amounts and covering such risks of loss of a character usually
insured by corporations of comparable size and financial strength and with
comparable risks.
Section 7.07. Compliance with Laws.
Each of the Borrowers will, and will cause each of its Subsidiaries to,
comply with all laws, rules, regulations, orders, writs, judgments, injunctions,
decrees or awards to which it may be subject (including, without limitation, all
laws, rules or regulations under ERISA and all environmental laws and
regulations) which, if violated, could reasonably be expected to have a Material
Adverse Effect.
Section 7.08. Inspection.
Each of the Borrowers will, and will cause each of its Subsidiaries to,
permit the Lenders, by their respective representatives and agents, to inspect
at all reasonable times, and at the risk and expense of the inspecting party,
any of the Properties, corporate books and financial records of such Borrower
and each of its Subsidiaries, to examine and make copies (subject to any
55
confidentiality agreement reasonably acceptable to the applicable Borrower and
the inspecting party, copyright laws and similar reasonable requirements) of the
books of accounts and other financial records of such Borrower and each of its
Subsidiaries, and to discuss the affairs, finances and accounts of such Borrower
and each of its Subsidiaries with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the Lenders may
designate.
Section 7.09. Consolidations, Mergers, Dissolution and Sale of Assets.
Whirlpool will not, nor will it permit any Borrowing Subsidiary to, sell,
lease, transfer or otherwise dispose of all or substantially all of its assets
(whether by a single transaction or a number of related transactions and whether
at one time or over a period of time) or to dissolve or to consolidate with or
merge into any Person or permit any Person to merge into it, except that (i)
Whirlpool or such Borrowing Subsidiary may consolidate with or merge into, any
other Person, or permit another Person to merge into it so long as (a) if such
transaction involves Whirlpool, Whirlpool shall be the continuing or surviving
Person, (b) subject to clause (a), if such transaction involves a Borrowing
Subsidiary, a Borrowing Subsidiary shall be the continuing or surviving Person
and (c) immediately after such merger or consolidation or sale, there shall not
exist any Default or Unmatured Default and (ii) a Borrowing Subsidiary may sell
all or substantially all of its assets to Whirlpool.
Section 7.10. Liens.
No Borrower will, nor will any Borrower permit any of its Subsidiaries to,
create, incur, assume or suffer to exist any Lien in or on any of its Property,
except:
(i) Liens existing on the date of this Credit Agreement securing
Indebtedness outstanding on the date of this Credit Agreement;
(ii) Liens for taxes not delinquent and Liens for taxes which are
being contested in good faith and by appropriate proceedings diligently
conducted and in respect to which such Borrower or such Subsidiary, as the
case may be, shall have set aside on its books an adequate reserve;
(iii) purchase money Liens (including those incurred in connection
with synthetic leases) on fixed assets or other physical Properties
hereafter acquired and not theretofore owned by any Borrower or any
Subsidiary of a Borrower (provided such Liens are created at the time of
acquisition or within 90 days thereafter), and Liens existing on the date
of acquisition on fixed assets or other physical Properties acquired by any
Borrower or any Subsidiary of a Borrower after the date hereof and not
theretofore owned by any Borrower or any Subsidiary of a Borrower, if in
each such case, such fixed assets or physical Properties are not or shall
not thereby become encumbered in an amount in excess of the fair market
value thereof at the time such Lien was or will be created (as determined
in good faith by the Board of Directors of such Borrower or such
Subsidiary, as the case may be) plus any amount in excess of such fair
market value which shall have been applied to Section 7.10(xvi) below, and
refundings or extensions
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of the foregoing Liens for amounts not exceeding the principal amounts so
refunded or extended and applying only to the same fixed assets or physical
Property theretofore subject to such Lien and fixtures and building
improvements thereon;
(iv) (A) any deposit or pledge as security for the performance of any
contract or understanding not directly or indirectly in connection with the
borrowing of money or the security of Indebtedness, if made and continuing
in the ordinary course of business, (B) any deposit or pledge with any
governmental agency required or permitted to qualify any Borrower or any
Subsidiary of a Borrower to conduct business, to maintain self-insurance or
to obtain the benefits of any law pertaining to workmen's compensation,
unemployment insurance, old age pensions, social security or similar
matters, or to obtain any stay or discharge in any legal or administrative
proceedings, (C) deposits or pledges made in the ordinary course of
business to obtain the release of mechanics', workmen's, repairmen's or
warehousemen's Liens or the release of property in the possession of a
common carrier, (D) easements, licenses, franchises or minor encumbrances
on or over any real property which do not materially detract from the value
of such real property or its use in the business of the applicable Borrower
or Subsidiary, or (E) other deposits or pledges similar to those referred
to in clauses (B) and (C) of this Section 7.10(iv), if made and continuing
in the ordinary course of business;
(v) Liens of carriers, warehousemen, mechanics, laborers and
materialmen for sums not yet due or being contested in good faith and by
appropriate proceedings diligently conducted, if such reserve or other
appropriate provision, if any, as shall be required by generally accepted
accounting principles shall have been made therefor;
(vi) Liens on Property of any Subsidiary of a Borrower exclusively in
favor of one or more of the Borrowers or other Subsidiaries of a Borrower;
(vii) mortgages, pledges, Liens or charges existing on Property
acquired by any Borrower or any Subsidiary of a Borrower through the
exercise of rights arising out of defaults on receivables of any Borrower
or any Subsidiary of a Borrower;
(viii) any banker's Lien or right of offset on moneys of any Borrower
or any Subsidiary of a Borrower in favor of any lender or holder of its
commercial paper deposited with such lender or holder in the ordinary
course of business;
(ix) Liens securing Indebtedness in respect of lease obligations which
with respect to any Borrower or any Subsidiary of a Borrower constitute
Non-Recourse Obligations;
(x) interests of lessees in Property owned by any Borrower or any
Subsidiary of a Borrower where such interests are created in the ordinary
course of their respective leasing activities and are not created directly
or indirectly in connection with the borrowing of money or the securing of
Indebtedness by any Borrower or any Subsidiary of a Borrower;
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(xi) Liens incidental to the conduct of the business of any Borrower
or any Subsidiary of a Borrower or the ownership of their respective
Properties which were not incurred in connection with the borrowing of
money or the obtaining of advances or credit, and which do not in the
aggregate materially detract from the value of their Properties or
materially impair the use thereof in the operation of their businesses;
(xii) Judgment liens which are not a Default under Section 8.08;
(xiii) Liens in favor of customs and revenue authorities arising as a
matter of law or regulation to secure the payment of customs duties in
connection with the importation of goods and deposits made to secure
statutory obligations in the form of excise taxes;
(xiv) Statutory liens of depository or collecting banks on items in
collection and any accompanying documents or the proceeds thereof;
(xv) Liens arising from precautionary UCC financing statement filings
regarding operating leases;
(xvi) Liens in addition to the Liens permitted by Sections 7.10(i)
through (xv), inclusive; provided that such Liens may not exist if: (a) the
value of all assets subject to such Liens at any time exceeds an amount
equal to 15% of the value of all assets of Whirlpool and its Consolidated
Subsidiaries or (b) the value of all assets located in the United States of
America subject to such Liens at any time exceeds an amount equal to 5% of
the value of all assets of Whirlpool and its Consolidated Subsidiaries, in
each case, as shown on its most recent audited consolidated balance sheet
and as determined in accordance with generally accepted accounting
principles or (c) the incurrence of the Indebtedness or Off-Balance Sheet
Obligations to be secured by such Liens would cause a violation of Section
7.11.
Section 7.11. Subsidiary Indebtedness.
Whirlpool will not permit its Subsidiaries to, contract, create, incur,
assume or permit to exist Indebtedness or Off-Balance Sheet Obligations if the
sum of: (i) the aggregate amount of all Indebtedness and Off-Balance Sheet
Obligations contracted, created, incurred, assumed or permitted by a Subsidiary
of Whirlpool (other than Indebtedness incurred by a Borrowing Subsidiary under
this Credit Agreement) plus (ii) without duplication, the amount of all
Indebtedness and Off-Balance Sheet Obligations subject to a Lien (other than
Liens permitted by Sections 7.10(i) through (xv) inclusive) exceeds 15% of the
value of all assets of Whirlpool and its Consolidated Subsidiaries, as shown on
its most recent audited consolidated balance sheet and as determined in
accordance with generally accepted accounting principles.
Section 7.12. Consolidated Net Worth.
Whirlpool shall maintain, as of the last day of each fiscal quarter of
Whirlpool, Consolidated Net Worth of not less than $1,000,000,000.
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Section 7.13. Interest Coverage Ratio.
Whirlpool shall maintain, as of the last day of each fiscal quarter of
Whirlpool, an Interest Coverage Ratio of greater than or equal to 2.0 to 1.0.
Section 7.14. Ownership of Borrowing Subsidiaries.
Each Borrowing Subsidiary shall at all times be a wholly-owned Subsidiary
of Whirlpool.
Section 7.15. Transactions with Affiliates.
Whirlpool will not, and will not permit any Subsidiary to, directly or
indirectly, pay any material amount of funds to or for the account of, make any
material investment (whether by acquisition of stock or indebtedness, by loan,
advance, transfer of property, guarantee or other agreement to pay, purchase or
service, directly or indirectly, any Indebtedness, or otherwise) in, lease,
sell, transfer or otherwise dispose of any material assets, tangible or
intangible, to, or participate in, or effect, any material transaction with, any
Affiliate except on an arms-length basis on terms at least as favorable to
Whirlpool or such Subsidiary as would have been obtained from a third party who
was not an Affiliate.
Section 7.16. Limitation on Restricted Actions.
No Borrower will, nor will it permit its Subsidiaries to, directly or
indirectly, create or otherwise cause, incur, assume, suffer or permit to exist
or become effective any consensual encumbrance or restriction of any kind on the
ability of any such Person to (a) pay dividends or make any other distribution
on any of such Person's capital stock (or other equity interests), (b) pay any
Indebtedness owed to any Borrower, (c) make loans or advances to any Borrower or
(d) transfer any of its property to any Borrower, except for (i) encumbrances or
restrictions existing under or by reason of this Credit Agreement, (ii) those
imposed by applicable laws or regulations, (iii) agreements in existence and as
in effect on the Closing Date (and any refundings, replacements or refinancing
of the same not in excess of the then outstanding amount of the obligations
thereunder and containing restrictions which are not less favorable to Whirlpool
and its Subsidiaries), (iv) in connection with any Lien permitted by Section
7.10 or any document or instrument governing any such Lien, provided that any
such restriction contained therein relates only to the asset or assets subject
to such Lien, (v) pursuant to customary restrictions and conditions contained in
any agreement relating to any sale of assets not prohibited hereunder pending
the consummation of such sale and (vi) customary non-assignment provisions in
contracts.
Section 7.17. Limitation on Negative Pledges.
No Borrower will, nor will it permit its Subsidiaries to, enter into,
assume or become subject to any agreement prohibiting or otherwise restricting
the creation or assumption of any Lien upon its properties or assets, whether
now owned or hereafter acquired, or requiring the grant of any security for such
obligation if security is given for some other obligation except (a) as set
forth in this Credit
59
Agreement, (b) agreements in existence and as in effect on the Closing Date (and
any refundings, replacements of the same not in excess of the then outstanding
amount of the obligations thereunder and containing restrictions which are not
less favorable to Whirlpool and its Subsidiaries), (c) in connection with any
Lien permitted by Section 7.10 or any document or instrument governing any such
Lien, provided that any such restriction contained therein relates only to the
asset or assets subject to such Lien, (d) customary restrictions and conditions
contained in any agreement relating to the sale of any assets not prohibited
hereunder pending the consummation of such sale and (e) customary non-assignment
provisions in contracts.
Section 7.18. Material Contracts.
Each of the Borrowers will, and will cause its Subsidiaries to, perform in
all material respects all of its obligations under the terms of all contracts to
which it is a party or by which it is bound, other than such non-performance as
would not reasonably be expected to have a Material Adverse Effect. For purposes
of this Section 7.18 "contracts" shall not include indentures, mortgages,
security agreements or other debt instruments or agreements securing debt
instruments.
ARTICLE 8
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
Section 8.01. Representations and Warranties.
Any representation or warranty made or deemed made by or on behalf of any
Borrower to the Lenders or the Administrative Agent under or in connection with
this Credit Agreement or in any certificate or other information delivered in
connection with this Credit Agreement or any other Loan Document shall be
materially false on the date as of which made or deemed made.
Section 8.02. Payment.
(i) Nonpayment of principal under the Loan Documents or reimbursement
obligations arising from drawings under Letters of Credit when due, or
(ii) nonpayment of interest or of any facility fee, utilization fee,
letter of credit fee or any other obligations under any of the Loan
Documents within five days after the same becomes due.
Section 8.03. Covenants.
(a) The breach by any Borrower of any of the terms or provisions of
Section 7.02, 7.09, 7.10, 7.11, 7.12, 7.13, 7.14, 7.16, 7.17 or 7.18.
(b) The breach by any Borrower of any of the terms or provisions of
Section 7.01 and such breach shall continue unremedied for a period of five
or more
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Business Days.
(c) The breach by any Borrower (other than a breach which
constitutes a Default under Section 8.01, 8.02, 8.03(a) or 8.03(b)) of
any of the terms or provisions of this Credit Agreement and such
breach shall continue unremedied for a period of thirty or more days
after the earlier of (i) receipt of written notice from the
Administrative Agent or any Lender as to such breach or (ii) the date
on which an Authorized Representative of a Borrower became aware of
such breach.
Section 8.04. Other Obligations.
Failure of any Borrower or Subsidiary of a Borrower to pay when due
Indebtedness (other than the Obligations) or Off-Balance Sheet Obligations
in an aggregate amount greater than $50,000,000 (or the Dollar Amount of
Indebtedness or Off-Balance Sheet Obligations denominated in a currency
other than Dollars); or the default by any Borrower or any Subsidiary of a
Borrower in the performance of any term, provision or condition contained
in any agreement under which any Indebtedness (other than the Obligations)
or Off-Balance Sheet Obligations in an aggregate amount greater than
$50,000,000 (or the Dollar Amount of Indebtedness or Off-Balance Sheet
Obligations denominated in a currency other than Dollars) was created or is
governed, the effect of which is to cause, or to permit the holder or
holders of any Indebtedness or Off-Balance Sheet Obligations to cause,
Indebtedness or Off-Balance Sheet Obligations in an aggregate amount
greater than $50,000,000 (or the Dollar Amount of Indebtedness or
Off-Balance Sheet Obligations denominated in a currency other than Dollars)
to become due prior to its stated maturity; or Indebtedness (other than the
Obligations) or Off-Balance Sheet Obligations in an aggregate amount
greater than $50,000,000 (or the Dollar Amount of Indebtedness or
Off-Balance Sheet Obligations denominated in a currency other than Dollars)
shall be declared to be due and payable or required to be prepaid (other
than by a regularly scheduled payment) prior to the stated maturity
thereof.
Section 8.05. Bankruptcy.
Any Borrower or any Material Subsidiary of a Borrower shall (i) have
an order for relief entered with respect to it under the Bankruptcy Code or
any other bankruptcy, insolvency or other similar law as now or hereafter
in effect, (ii) make an assignment for the benefit of creditors, (iii) fail
to pay, or admit in writing its inability to pay, its debts generally as
they become due, (iv) apply for, seek, consent to, or acquiesce in the
appointment of a receiver, custodian, trustee, examiner, liquidator or
similar official for it or any Substantial Portion of its Property, (v)
institute any proceeding seeking an order for relief under the Bankruptcy
Code or any other bankruptcy, insolvency or other similar law as now or
hereafter in effect or seeking to adjudicate it as bankrupt or insolvent,
or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under the
Bankruptcy Code or any other law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, (vi) take any corporate action to authorize or effect any of
the foregoing actions set forth in this Section 8.05 or (vii) fail to
contest in good faith any appointment or proceeding described in Section
8.06.
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Section 8.06. Receivership, Etc.
Without the application, approval or consent of any Borrower or any
Material Subsidiary of a Borrower, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for any Borrower or any
Material Subsidiary of a Borrower or any Substantial Portion of the
Property of any such Person, or a proceeding described in Section 8.05(v)
shall be instituted against any Borrower or any Material Subsidiary of a
Borrower and such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 90 consecutive days.
Section 8.07. Condemnation.
Any court, government or governmental agency shall condemn, seize or
otherwise appropriate, or take custody or control of (each a
"Condemnation"), all or any portion of the Property of any Borrower or any
Subsidiary of a Borrower which, when taken together with all other Property
of any Borrower or any Subsidiary of a Borrower so condemned, seized,
appropriated, or taken custody or control of, during the twelve-month
period ending with the month in which any such Condemnation occurs,
constitutes a Substantial Portion.
Section 8.08. Judgments.
Any Borrower or any Subsidiary of a Borrower shall fail within sixty
days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of $50,000,000 which is not stayed on appeal or
otherwise being appropriately contested in good faith.
Section 8.09. ERISA.
Whirlpool or any other member of the Controlled Group shall fail to
pay when due any amount or amounts which it shall have become liable to pay
to the PBGC or to any Plan, or any notice of intent to terminate a Plan
having aggregate Unfunded Vested Liabilities in excess of $50,000,000 shall
be filed by a member of the Controlled Group and/or any Plan administrator,
or the PBGC shall institute proceedings under Title IV of ERISA to
terminate, to impose liability (other than for premiums under Section 4007
of ERISA) in respect of, or to cause a trustee to be appointed to
administer any such Plan, or a condition shall exist which would entitle
the PBGC to obtain a decree adjudicating that any such Plan must be
terminated.
Section 8.10. Guaranty.
Whirlpool's guaranty of the Guaranteed Obligations pursuant to Article
4 shall cease to be in full force and effect as a legal, valid, binding and
enforceable obligation of Whirlpool or Whirlpool shall disaffirm or seek to
disaffirm any of its obligations under or with respect to its guaranty of
the Guaranteed Obligations pursuant to Article 4.
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Section 8.11. Change of Control.
Any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act)
of 40% or more of the outstanding shares of common stock of Whirlpool;
or, during any period of 12 consecutive calendar months, individuals
who were directors of Whirlpool on the first day of such period
(together with any new directors whose election or nomination to the
Board of Directors of Whirlpool was approved by a vote of at least a
majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) shall cease for
any reason other than retirement, death, or disability to constitute a
majority of the board of directors of Whirlpool.
ARTICLE 9
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
Section 9.01. Acceleration; Allocation of Payments after
Acceleration.
(a) If any Default described in Section 8.05 or 8.06 occurs, the
obligations of the Lenders to make Loans and issue Letters of Credit
hereunder shall automatically terminate and the Obligations of the
Borrowers shall immediately become due and payable without
presentment, demand, protest or notice of any kind (all of which each
Borrower hereby expressly waives) or any other election or action on
the part of the Administrative Agent or any Lender. If any other
Default occurs, the Required Lenders may (i) terminate or suspend the
obligations of the Lenders to make Loans and issue Letters of Credit
hereunder, (ii) declare the Obligations of the Borrowers to be due and
payable, or both, or (iii) direct the Borrowers to pay to the
Administrative Agent additional cash, to be held by the Administrative
Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all
Letters of Credit then outstanding, in each case upon written notice
to the Borrowers, whereupon such obligations shall terminate or be
suspended, as the case may be, and/or the Obligations shall become
immediately due and payable, without presentment, demand, protest or
further notice of any kind, all of which each Borrower hereby
expressly waives.
(b) Notwithstanding any other provisions of this Credit
Agreement, after acceleration of the Obligations, all amounts
collected or received by the Administrative Agent or any Lender on
account of amounts outstanding under any of the Loan Documents shall
be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys'
fees) of the Administrative Agent or any of the Lenders in
connection with enforcing the rights of the Lenders under the
Loan Documents;
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SECOND, to payment of any fees owed to the Administrative Agent,
the Issuing Lender or any Lender;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder;
FOURTH, to the payment of the outstanding principal amount of the
Advances and to the payment or cash collateralization of the
outstanding LOC Obligations, pro rata, as set forth below;
FIFTH, to all other obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses
"FIRST" through "FOURTH" above; and
SIXTH, to the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied
in the numerical order provided until exhausted prior to application to the
next succeeding category; (b) each of the Lenders shall receive an amount
equal to its pro rata share (based on the proportion that the then
outstanding Advances and LOC Obligations held by such Lender bears to the
aggregate then outstanding Advances and LOC Obligations) of amounts
available to be applied pursuant to clauses "FIRST", "THIRD," "FOURTH" and
"FIFTH" above; and (c) to the extent that any amounts available for
distribution pursuant to clause "FOURTH" above are attributable to the
issued but undrawn amount of outstanding Letters of Credit, such amounts
shall be held by the Administrative Agent in a cash collateral account and
applied (x) first, to reimburse the Issuing Lender from time to time for
any drawings under such Letters of Credit and (y) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses "FOURTH" and "FIFTH" above in the manner provided in
this Section 9.01.
Section 9.02. Judgment Currency.
(i) The Borrowers' obligations under the Credit Documents to make
payments in an applicable Agreed Currency (the "Obligation Currency")
shall not be discharged or satisfied by any tender or recovery
pursuant to any judgment expressed in or converted into any currency
other than the Obligation Currency, except to the extent that such
tender or recovery results in the effective receipt by the
Administrative Agent or a Lender of the full amount of the Obligation
Currency expressed to be payable to the Administrative Agent or such
Lender under the Credit Documents. If, for the purpose of obtaining or
enforcing judgment against any Borrower in any court or in any
jurisdiction, it becomes necessary to convert into or from any
currency other than the Obligation Currency (such other currency being
hereinafter referred to as the "Judgment Currency") an amount due in
the Obligation Currency, the conversion shall be made at the Dollar
Amount, determined as of the Business Day immediately preceding the
day on which the judgment is given (such Business Day being
hereinafter referred to as the "Judgment Currency Conversion Date").
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(ii) If there is a change in the rate of exchange prevailing
between the Judgment Currency Conversion Date and the date of actual
payment of the amount due, such amount payable by the applicable
Borrower shall be reduced or increased, as applicable, such that the
amount paid in the Judgment Currency, when converted at the rate of
exchange prevailing on the date of payment, will produce the amount of
the Obligation Currency which could have been purchased with the
amount of Judgment Currency stipulated in the judgment or judicial
award at the rate of exchange prevailing on the Judgment Currency
Conversion Date. Each Borrower agrees to pay any additional amounts
payable by it under this subsection (ii) as a separate obligation
notwithstanding any such judgment or judicial award.
Section 9.03. Amendments.
Subject to the provisions of this Article 9, the Required Lenders (or
the Administrative Agent with the consent in writing of the Required
Lenders) and the Borrowers may enter into agreements supplemental hereto
for the purpose of adding or modifying any provisions to the Loan Documents
or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall without the consent of each Lender directly or
indirectly affected thereby:
(i) Extend the maturity of any Loan or reduce the principal
amount thereof, or reduce the rate or extend the time of payment of
any interest thereon or extend the time of payment of any
reimbursement obligation under a Letter of Credit;
(ii) Reduce the rate or extend the time of payment of any fees
due hereunder or amounts due under Section 3.01, 3.02, 3.03 or 3.05;
(iii) Increase the percentage specified in clause (i) in the
definition of Required Lenders or reduce the percentage specified in
clause (ii) in the definition of Required Lenders;
(iv) Extend the Termination Date or increase the amount of the
Commitment of any Lender hereunder, or permit any Borrower to assign
its rights under this Credit Agreement;
(v) Amend, modify or waive Section 9.01, this Section 9.03, or
Article 12; or
(vi) Release Whirlpool from its Guaranteed Obligations.
No amendment of any provision of this Credit Agreement relating to the
Administrative Agent shall be effective without the written consent of the
Administrative Agent. No amendment to Section 2.04 or any other provision
hereof relating to the Issuing Lender shall be effective without the
written consent of the Issuing Lender. The Administrative Agent may waive
payment of the fee required under Section 13.03(b) without obtaining the
consent of any of the Lenders.
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Section 9.04. Preservation of Rights.
No delay or omission of the Lenders or the Administrative Agent to
exercise any right under the Loan Documents shall impair such right or be
construed to be a waiver of any Default or an acquiescence therein, and the
making of a Loan notwithstanding the existence of a Default or the
inability of any Borrower to satisfy the conditions precedent to such Loan
or Letter of Credit shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders or the Required Lenders, as applicable, pursuant to Section 9.03,
and then only to the extent in such writing specifically set forth. All
remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Administrative Agent and the
Lenders until the Obligations have been paid in full.
ARTICLE 10
GENERAL PROVISIONS
Section 10.01. Survival of Representations.
All representations and warranties of the Borrowers contained in this
Credit Agreement shall survive the making of the Loans and issuance of the
Letters of Credit herein contemplated.
Section 10.02. Governmental Regulation.
Anything contained in this Credit Agreement to the contrary
notwithstanding, no Lender shall be obligated to extend credit to any
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.
Section 10.03. Headings.
Section headings in the Loan Documents are for convenience of
reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
Section 10.04. Entire Agreement.
The Loan Documents embody the entire agreement and understanding among
the Borrowers, the Administrative Agent and the Lenders and supersede all
prior agreements and understandings among the Borrowers, the Administrative
Agent and the Lenders relating to the subject matter thereof except as
contemplated in Section 2.06(c).
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Section 10.05. Several Obligations.
The respective obligations of the Lenders hereunder are several and
not joint and no Lender shall be the partner or agent of any other (except
to the extent to which the Administrative Agent is authorized to act as
such). The failure of any Lender to perform any of its obligations
hereunder shall not relieve any other Lender from any of its obligations
hereunder. No Lender shall have any liability for the failure of any other
Lender to perform its obligations hereunder. This Credit Agreement shall
not be construed so as to confer any right or benefit upon any Person other
than the parties to this Credit Agreement and their respective successors
and assigns.
Section 10.06. Expenses; Indemnification.
Whirlpool shall reimburse the Administrative Agent for any costs,
internal charges and out-of-pocket expenses (including reasonable
attorneys' fees) paid or incurred by the Administrative Agent in connection
with the preparation, negotiation review, execution, delivery, amendment,
modification and administration of the Loan Documents. Whirlpool also
agrees to reimburse the Administrative Agent and the Lenders for any costs,
internal charges and out-of- pocket expenses (including attorneys' fees and
time charges of attorneys for the Administrative Agent and the Lenders,
which attorneys may be employees of the Administrative Agent or any Lender)
paid or incurred by the Administrative Agent or any Lender in connection
with the collection and enforcement of the Loan Documents. Whirlpool
further agrees to indemnify the Administrative Agent, the Issuing Lender
and each Lender and each of their respective directors, officers and
employees (each an "Indemnified Person") against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or
not the Administrative Agent, the Issuing Lender, a Lender or any other
Indemnified Person is a party thereto) which any of them may pay or incur
arising out of or relating to the Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Loan or Letter of Credit hereunder;
provided, however, that Whirlpool shall not be liable to any Indemnified
Person for any such loss, claim, damage, penalty, judgment, liability or
expense resulting from such Indemnified Person's gross negligence or
willful misconduct. Notwithstanding anything in this Credit Agreement to
the contrary, Whirlpool shall indemnify the Lenders for all losses, taxes
(including withholding taxes), liabilities and expenses incurred or arising
out of making Advances or issuing Letters of Credit in Agreed Currencies
other than Dollars. The obligations of Whirlpool under this Section 10.06
shall survive the termination of this Credit Agreement.
Section 10.07. [Reserved].
Section 10.08. Severability of Provisions.
Any provision in any Loan Document that is held to be inoperative,
unenforceable, or invalid in any jurisdiction shall, as to that
jurisdiction, be inoperative, unenforceable, or invalid without affecting
the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction,
and to this end the provisions of all Loan
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Documents are declared to be severable.
Section 10.09. Nonliability of Lenders.
The relationship between the Borrowers and the Lenders and the
Administrative Agent shall be solely that of borrower and lender. Neither
the Administrative Agent nor any Lender shall have any fiduciary
responsibilities to any Borrower. Neither the Administrative Agent nor any
Lender undertakes any responsibility to the Borrowers to review or inform
any of the Borrowers of any matter in connection with any phase of the
business or operations of any of the Borrowers.
Section 10.10. CHOICE OF LAW.
THE LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF NEW YORK.
Section 10.11. CONSENT TO JURISDICTION.
(a) EACH BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR NEW YORK STATE COURT SITTING
IN NEW YORK CITY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES TO THE EXTENT ALLOWED BY LAW ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST A BORROWER
IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY A
BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY LENDER OR ANY AFFILIATE OF
THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY
LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK CITY, UNLESS
SUCH BORROWER IS UNABLE TO OBTAIN SUCH JURISDICTION.
(b) Each Subsidiary Borrower domiciled outside of the United States (a
"Foreign Borrower") hereby irrevocably appoints Whirlpool as its true and
lawful attorney-in-fact (the "Service of Process Agent") in its name, place
and stead to accept service of any and all writs, summons and other legal
process and any such enforcement proceeding brought in the State of New
York and agrees that service by the mailing, of copies thereof by
registered or certified mail, postage prepaid, to it at the address for
notices pursuant to Section V, such service to become effective 30 days
after such mailing, of any enforcement proceeding may be made upon
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such Service of Process Agent and that it will take such action as
necessary to continue such appointment in full force and effect or to
appoint another such Service of Process Agent satisfactory to the
Administrative Agent for service of process. Whirlpool hereby irrevocably
accepts such appointment and agrees to serve in the capacity of Service of
Process Agent.
(c) With respect to each Foreign Borrower:
(i) Without limiting the generality of subsections (a) and (b)
of this Section 10.11, such Foreign Borrower agrees that any
controversy or claim with respect to it arising out of or relating to
this Credit Agreement or the other Loan Documents may, at the sole
option of the Administrative Agent and the Lenders, be settled
immediately by submitting the same to binding arbitration in the City
of New York, New York (or such other place as the parties may agree)
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Upon the request and submission of any
controversy or claim for arbitration hereunder, the Administrative
Agent shall give such Foreign Borrower not less than 45 days written
notice of the request for arbitration, the nature of the controversy
or claim, and the time and place set for arbitration. Such Foreign
Borrower agrees that such notice is reasonable to enable it sufficient
time to prepare and present its case before the arbitration panel.
Judgment on the award rendered by the arbitration panel may be entered
in any court including, without limitation, any court of the State of
New York or any federal court sitting in the State of New York. The
expenses of arbitration shall be paid by such Foreign Borrower.
(ii) The provisions of subsection (i) above are intended to
comply with the requirements of the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (the "Convention"). To the
extent that any provisions of such subsection (i) are not consistent
with or fail to conform to the requirements set out in the Convention,
such subsection (i) shall be deemed amended to conform to the
requirements of the Convention.
(iii) Such Foreign Borrower hereby specifically consents and
submits to the jurisdiction of the courts of the State of New York and
courts of the United States located in the State of New York for
purposes of entry of a judgment or arbitration award entered by the
arbitration panel.
Section 10.12. WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL
DAMAGES.
AS AN INDUCEMENT TO ENTER INTO THIS CREDIT FACILITY, EACH
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER HEREBY WAIVES TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY
WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR
THE RELATIONSHIP ESTABLISHED THEREUNDER. Each Borrower agrees not to
assert any claim against the Administrative Agent, the Issuing Lender,
any Lender, any of their Affiliates, or any of their
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respective directors, officers, employees, attorneys or agents, or any
theory of liability for special, indirect, consequential or punitive
damages arising out of or otherwise relating to any transactions
contemplated therein.
Section 10.13. Binding Effect; Termination.
(i) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.01 have been
satisfied or waived by the Lenders and it shall have been executed by
the Original Borrowers and the Administrative Agent, and the
Administrative Agent shall have received copies hereof (telefaxed or
otherwise) which, when taken together, bear the signatures of each
Lender, and thereafter this Credit Agreement shall be binding upon and
inure to the benefit of the Borrowers, the Administrative Agent, and
each Lender and their respective successors and assigns.
(ii) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, LOC
Obligations, interest, fees and other Obligations have been paid in
full and all Commitments and Letters of Credit have been terminated.
Upon termination, the Borrowers shall have no further obligations
(other than the indemnification provisions that survive) under the
Loan Documents; provided that should any payment, in whole or in part,
of the Obligations be rescinded or otherwise required to be restored
or returned by the Administrative Agent or any Lender, whether as a
result of any proceedings in bankruptcy or reorganization or
otherwise, then the Loan Documents shall automatically be reinstated
and all amounts required to be restored or returned and all costs and
expenses incurred by the Administrative Agent or a Lender in
connection therewith shall be deemed included as part of the
Obligations.
Section 10.14. Confidentiality.
Each of the Administrative Agent and the Lenders agrees to maintain
the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential); (b) to
the extent requested by any regulatory authority; (c) to the extent
required by applicable laws or regulations or by any subpoena or similar
legal process; (d) to any other party to this Credit Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action
or proceeding relating to this Credit Agreement or the enforcement of
rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section 10.14, to (i) any Purchaser
of or Participant in, or any prospective Purchaser of or Participant in,
any of its rights or obligations under this Credit Agreement or (ii) any
direct or indirect contractual counterparty or prospective counterparty (or
such contractual counterparty's or prospective counterparty's professional
advisor) to any credit derivative transaction relating to Obligations; (g)
with the consent of Whirlpool; (h) to the extent such Information (i)
becomes publicly available other than as a result of a breach of this
Section 10.14 or (ii) becomes available to the Administrative Agent or any
Lender on a nonconfidential basis from a source other than Whirlpool and
its Subsidiaries; or (i) to the National Association of Insurance
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Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. For the purposes of this Section,
"Information" means all information received from the Borrowers relating to
Whirlpool and its Subsidiaries or their business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by Whirlpool and its Subsidiaries. Any
Person required to maintain the confidentiality of Information as provided in
this Section 10.14 shall be considered to have complied with its obligation to
do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
ARTICLE 11
THE AGENTS
Section 11.01. Appointment.
Bank of America, N.A. is hereby appointed Administrative Agent hereunder
and under each other Loan Document, and each of the Lenders authorizes the
Administrative Agent to act as the agent of such Lender. The Administrative
Agent agrees to act as such upon the express conditions contained in this
Article 11. The Administrative Agent shall not have a fiduciary relationship in
respect of any Lender by reason of this Credit Agreement.
Section 11.02. Powers.
The Administrative Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Administrative Agent by the
terms of each thereof, together with such powers as are reasonably incidental
thereto. The Administrative Agent shall have no implied duties to the Lenders or
any obligation to the Lenders to take any action thereunder except any action
specifically provided by the Loan Documents to be taken by the Administrative
Agent.
Section 11.03. General Immunity.
Neither the Administrative Agent, the Syndication Agent, any Documentation
Agent nor any of their respective directors, officers, agents or employees shall
be liable to any of the Borrowers, the Lenders or any Lender for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents except for its or their own gross negligence or willful misconduct.
Section 11.04. No Responsibility for Loans, Recitals, etc.
Neither the Administrative Agent, the Syndication Agent, any Documentation
Agent nor any of their respective directors, officers, agents or employees shall
be responsible for or have
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any duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made by any other Person in connection with any Loan Document or
any extension of credit hereunder; (ii) the performance or observance of any of
the covenants or agreements of any other Person under any Loan Document; (iii)
the satisfaction of any condition specified in Article 5, except receipt of
items required to be delivered to the Administrative Agent; or (iv) the
validity, effectiveness (other than its own execution and delivery) or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith. Neither the Administrative Agent, the Syndication Agent
nor any Documentation Agent shall have any duty to disclose to the Lenders
information that is not required to be furnished by a Borrower to the
Administrative Agent at such time, but is voluntarily furnished by any Borrower
to the Administrative Agent, the Syndication Agent or any Documentation Agent
(either in its capacity as Administrative Agent, Syndication Agent or
Documentation Agent, as the case may be, or in its individual capacity). Neither
the Syndication Agent, any Documentation Agent, the Co-Lead Arrangers nor the
Joint Book Managers shall have any duties or obligations in that capacity under
the Loan Documents.
Section 11.05. Action on Instructions of Lenders.
The Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder and under any other Loan Document in
accordance with written instructions signed by the Required Lenders or all the
Lenders, as applicable, and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of the Lenders. The Administrative
Agent shall be fully justified in failing or refusing to take any action
hereunder and under any other Loan Document unless it shall first be indemnified
to its satisfaction by the Lenders pro rata against any and all liability, cost
and expense that it may incur by reason of taking or continuing to take any such
action, provided that such indemnity shall not include liability, costs and
expenses arising from the gross negligence or willful misconduct of the
Administrative Agent.
Section 11.06. Employment of Agents and Counsel.
The Administrative Agent may execute any of its duties as Administrative
Agent hereunder and under any other Loan Document by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Lenders, except
as to money or securities received by it or its authorized agents, for the
default or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The Administrative Agent shall be entitled to advice of
counsel concerning all matters pertaining to the agency hereby created and its
duties hereunder and under any other Loan Document.
Section 11.07. Reliance on Documents; Counsel.
The Administrative Agent shall be entitled to rely upon any Note, LOC
Document, notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document reasonably and in good faith believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and, in
respect to legal matters, upon the opinion of counsel selected by the
Administrative Agent, which counsel may be employees of the Administrative
Agent.
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Section 11.08. Administrative Agent's Reimbursement and Indemnification.
The Lenders agree to reimburse and indemnify the Administrative Agent
ratably in proportion to their respective Commitments for (i) any amounts not
reimbursed by the Borrowers for which the Administrative Agent (acting as such)
is entitled to reimbursement by the Borrowers under the Loan Documents, (ii) for
any other expenses not reimbursed by the Borrowers incurred by the
Administrative Agent on behalf of the Lenders, in connection with the
preparation, execution, delivery, administration and enforcement of the Loan
Documents, and (iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever and not reimbursed by the Borrowers which may be
imposed on, incurred by or asserted against the Administrative Agent (acting as
such) in any way relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions contemplated
thereby, or the enforcement of any of the terms thereof or of any such other
documents, provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful misconduct of the
Administrative Agent.
Section 11.09. Rights as a Lender.
With respect to its respective Commitment, Loans made by it, and any Notes
issued to it, the Administrative Agent, the Syndication Agent and each
Documentation Agent shall have the same rights and powers hereunder and under
any other Loan Document as any Lender and may exercise the same as though it
were not the Administrative Agent, the Syndication Agent or a Documentation
Agent, as the case may be, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Administrative Agent, the Syndication
Agent and each Documentation Agent in its individual capacity. The
Administrative Agent, the Syndication Agent, each Documentation Agent and each
Lender may accept deposits from, lend money to, and generally engage in any kind
of trust, debt, equity or other transaction, in addition to those contemplated
by this Credit Agreement or any other Loan Document, with any Borrower or any
Subsidiary of a Borrower.
Section 11.10. Lender Credit Decision.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent, the Syndication Agent, any Documentation Agent or
any other Lender and based on the financial statements prepared by Whirlpool and
the other Borrowers and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this Credit
Agreement and the other Loan Documents. Each Lender also acknowledges that it
will independently and without reliance upon the Administrative Agent, the
Syndication Agent, any Documentation Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this Credit
Agreement and the other Loan Documents.
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Section 11.11. Successor Administrative Agent.
The Administrative Agent may resign at any time by giving written notice
thereof to the Lenders and the Borrowers, such resignation to be effective upon
the appointment of a successor Administrative Agent. Upon any such resignation,
the Required Lenders shall have the right to appoint (with, so long as no
Default shall have occurred and be continuing, the consent of Whirlpool, which
consent shall not be unreasonably withheld), on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty days after the resigning Administrative Agent's
giving notice of its resignation, then such resignation shall nevertheless
become effective and thereafter the Lenders shall perform all duties of the
Administrative Agent until such time as the Required Lenders appoint a successor
Administrative Agent in accordance with the terms above. No successor
Administrative Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any successor Administrative Agent
shall be a commercial bank having capital and retained earnings of at least
$100,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the resigning Administrative Agent. Upon the
effectiveness of the resignation of an Administrative Agent, the resigning
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After the effectiveness of the
resignation of any Administrative Agent, the provisions of this Article 11 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as the Administrative Agent hereunder and
under the other Loan Documents.
ARTICLE 12
SETOFF; RATABLE PAYMENTS
Section 12.01. Setoff.
In addition to, and without limitation of, any rights of the Lenders under
applicable law, if any Borrower becomes insolvent, however evidenced, or any
Default (or Unmatured Default pursuant to Section 8.02, 8.05 or 8.06) occurs,
any and all deposits (including all account balances, whether provisional or
final and whether or not collected or available) and any other indebtedness at
any time held or owing by any Lender to or for the credit or account of any
Borrower may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part thereof, shall then
be due.
Section 12.02. Ratable Payments.
If, after the occurrence of a Default, any Lender, whether by setoff or
otherwise, has payment made to it upon its share of any Advance or LOC
Obligations (other than payments received pursuant to Article 3) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a portion of the Loans comprising that
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Advance held by the other Lenders or to purchase a Participation Interest in
such LOC Obligations so that after such purchase each Lender will hold its
ratable proportion of Loans comprising that Advance or Participation Interests
in such LOC Obligations. The Lenders further agree among themselves that if
payment to a Lender obtained by such Lender through the exercise of a right of
setoff, banker's lien, counterclaim or other event as aforesaid shall be
rescinded or must otherwise be restored, each Lender which shall have shared the
benefit of such payment shall, by payment in cash or a repurchase of a
participation theretofore sold, return its share of that benefit (together with
its share of any accrued interest payable with respect thereto) to each Lender
whose payment shall have been rescinded or otherwise restored. The Borrowers
agree that any Lender so purchasing such a participation may, to the fullest
extent permitted by law, exercise all rights of payment, including setoff,
banker's lien or counterclaim, with respect to such participation as fully as if
such Lender were a holder of such Loan, LOC Obligation or other obligation in
the amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender or the Administrative Agent shall fail to remit
to the Administrative Agent or any other Lender an amount payable by such Lender
or the Administrative Agent to the Administrative Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon if paid within two
Business Days of the date when such amount is due at a per annum rate equal to
the Federal Funds Effective Rate and thereafter at a per annum rate equal to the
Alternate Base Rate until the date such amount is paid to the Administrative
Agent or such other Lender. If under any applicable bankruptcy, insolvency or
other similar law, any Lender receives a secured claim in lieu of a setoff to
which this Section 12.02 applies, such Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Lenders under this Section 12.02 to share in the benefits of
any recovery on such secured claim.
ARTICLE 13
BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS
Section 13.01. Successors and Assigns.
The terms and provisions of the Loan Documents shall be binding upon and
inure to the benefit of the Borrowers, the Lenders, the Issuing Lender and the
Administrative Agent and their respective successors and assigns, except that
(i) no Borrower shall have the right to assign its rights or obligations under
the Loan Documents, and (ii) any assignment by any Lender must be made in
compliance with Section 13.03. Notwithstanding clause (ii) of this Section, any
Lender may at any time, without the consent of any Borrower, the Syndication
Agent, the Documentation Agents or the Administrative Agent, assign all or any
portion of its rights under this Credit Agreement and its Notes, if any, to a
Federal Reserve Bank; provided, however, that no such assignment shall release
the transferor Lender from its obligations hereunder. The Administrative Agent
may treat the payee of any Note as the owner thereof for all purposes hereof
unless and until such payee complies with Section 13.03 in the case of an
assignment thereof or, in the case of any other transfer, a written notice of
the transfer is filed with the Administrative Agent. Any assignee or transferee
of a Lender's rights or obligations hereunder
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agrees by acceptance thereof to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the holder of any
Note, shall be conclusive and binding on any subsequent holder, transferee or
assignee of such Note or of any Note or Notes issued in exchange therefor.
Section 13.02. Participations.
(a) Permitted Participations; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in all or a portion of its rights, obligations or rights and obligations under
the Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, all amounts payable by
the Borrowers under this Credit Agreement shall be determined as if such Lender
had not sold such participating interests, and the Borrowers and the
Administrative Agent shall continue to deal solely and directly with such Lender
in connection with such Lender's rights and obligations under the Loan
Documents.
(b) Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Loan or Commitment in which such Participant has an
interest which forgives principal, interest or fees or reduces the interest rate
or fees payable with respect to any such Loan, Letter of Credit or Commitment,
postpones any date fixed for any regularly-scheduled payment of principal of, or
interest or fees on, any such Loan, Letter of Credit or Commitment, releases any
guarantor of any such Loan or releases any substantial portion of collateral, if
any, securing any such Loan.
(c) Benefit of Setoff. The Borrowers agree that each Participant shall be
deemed to have the right of setoff provided in Section 12.01 in respect of its
participating interest in amounts owing under the Loan Documents to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under the Loan Documents, provided that each Lender shall retain the
right of setoff provided in Section 12.01 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to share
with each Participant, and each Participant, by exercising the right of setoff
provided in Section 12.01, agrees to share with each Lender, any amount received
pursuant to the exercise of its right of setoff, such amounts to be shared in
accordance with Section 12.02 as if each Participant were a Lender.
Section 13.03. Assignments.
(a) Permitted Assignments. Any Lender may, in the ordinary course of its
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Purchasers") any part of its rights and
obligations under the Loan Documents; provided that (i) unless such Lender is
assigning all of its Commitment, each Lender retains at all times a Commitment
which, is not less than $15,000,000, and (ii) each assignment of any portion of
any Lender's Commitment shall be in an amount which is not less than $15,000,000
(or, if less, the
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remaining amount of its Commitment) and in integral multiples of $1,000,000 in
excess thereof. Each such assignment shall be substantially in the form of
Exhibit "F" hereto or in such other form as may be agreed to by the parties
thereto. The consent of Whirlpool and the Administrative Agent shall be required
prior to an assignment becoming effective with respect to a Purchaser which is
not a Lender or an affiliate thereof; provided, however, that if a Default has
occurred and is continuing, the consent of Whirlpool shall not be required. No
such consent shall be unreasonably withheld.
(b) Effect; Effective Date. Upon (i) delivery to the Administrative Agent
of a notice of assignment substantially in the form attached as Annex "I" to
Exhibit "F" hereto (a "Notice of Assignment"), together with any consent
required by Section 13.03(a), and (ii) payment of a $5,000 processing fee to the
Administrative Agent for processing such assignment, such assignment shall
become effective on the effective date specified in such Notice of Assignment.
The Notice of Assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the
Commitment, Loans and Participation Interests under the applicable assignment
agreement are "plan assets" as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents will not be "plan
assets" under ERISA. On and after the effective date of such assignment, such
Purchaser shall for all purposes be a Lender party to this Credit Agreement and
any other Loan Document executed by the Lenders and shall have all the rights
and obligations of a Lender under the Loan Documents, to the same extent as if
it were an original party hereto, and no further consent or action by the
Borrowers, the Lenders or the Administrative Agent shall be required to release
the transferor Lender with respect to the percentage of the Aggregate
Commitment, Loans and Participation Interests assigned to such Purchaser.
Section 13.04. Dissemination of Information.
Each Borrower authorizes each Lender to disclose to any Participant or
Purchaser or any other Person acquiring an interest in the Loan Documents by
operation of law (each a "Transferee") and any prospective Transferee any and
all information in such Lender's possession concerning the creditworthiness of
the Borrowers and their Subsidiaries.
Section 13.05. Tax Treatment.
If any interest in any Loan Document is transferred to any Transferee, the
transferor Lender shall cause such Transferee, as a condition to such transfer,
to comply with the provisions of Section 2.07(l).
Section 13.06. SPC's.
Notwithstanding anything to the contrary contained herein, any Lender (a
"Granting Lender") may grant to a special purpose funding vehicle (an "SPC") the
option to fund all or any part of any Advance that such Granting Lender would
otherwise be obligated to fund pursuant to this Credit Agreement; provided that
(i) nothing herein shall constitute a commitment by any SPC to fund any Advance,
(ii) if an SPC elects not to exercise such option or otherwise fails to fund all
or any part of such Advance, the Granting Lender shall be obligated to fund such
77
Advance pursuant to the terms hereof, (iii) no SPC shall have any voting
rights pursuant to Section 9.03 (all such voting rights shall be retained
by the Granting Lenders) and (iv) with respect to notices, payments and
other matters hereunder, the Credit Parties, the Administrative Agent and
the Lenders shall not be obligated to deal with an SPC, but may limit their
communications and other dealings relevant to such SPC to the applicable
Granting Lender. The funding of an Advance by an SPC hereunder shall
utilize the Commitment of the Granting Lender to the same extent that, and
as if, such Advance were funded by such Granting Lender. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or payment
under this Credit Agreement for which a Lender would otherwise be liable
for so long as, and to the extent, the Granting Lender provides such
indemnity or makes such payment. In furtherance of the foregoing, each
party hereto hereby agrees (which agreements shall survive termination of
this Credit Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other
senior indebtedness of any SPC, it will not institute against, or join any
other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under
the laws of the United States or any State thereof. Notwithstanding
anything to the contrary contained in this Credit Agreement, any SPC may
disclose on a confidential basis any non-public information relating to its
funding of Advances to any rating agency, commercial paper dealer or
provider of any surety, guarantee or credit or liquidity enhancements to
such SPC. This Section may not be amended without the prior written consent
of each Granting Lender, all or any part of whose Advance is being funded
by an SPC at the time of such amendment.
ARTICLE 14
NOTICES
Section 14.01. Giving Notice.
Except as otherwise permitted by Section 2.07(g), all notices and
other communications provided to any party hereto under this Credit
Agreement or any other Loan Document shall be in writing or by telecopy
(and promptly confirmed) and addressed or delivered to such party at its
address set forth on Schedule V hereto or at such other address as may be
designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid, or sent overnight
delivery via a reputable carrier, shall be deemed given when received; any
notice, if transmitted by telecopy, shall be deemed given when transmitted.
Section 14.02. Change of Address.
Each Borrower, the Administrative Agent and each Lender may change the
address for service of notice upon it by a notice in writing to the other
parties hereto.
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ARTICLE 15
COUNTERPARTS
This Credit Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Credit Agreement by signing any such counterpart. This
Credit Agreement shall be effective when it has been executed by the Borrowers,
the Administrative Agent and the Lenders and the Administrative Agent has either
received such executed counterparts or has been notified, by telecopy, that such
party has executed its counterparts. Delivery of an executed counterpart by
facsimile shall be effective as an original executed counterpart and shall be
deemed a representation that an original executed counterpart will be delivered.
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IN WITNESS WHEREOF, the Borrowers, the Administrative Agent and the Lenders
have caused this Long-Term Credit Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
WHIRLPOOL CORPORATION
By:
-----------------------------------------
Xxxxx Xxxxx
Title: Vice President and Treasurer
0000, X-00
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Vice President and Treasurer
Telecopy No.: 000-000-0000
WHIRLPOOL EUROPE B.V.
By:
-----------------------------------------
Xxxxx Xxxxx
Title: Treasurer
c/o Whirlpool Corporation
0000, X-00
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Treasurer
Telecopy No.: 000-000-0000
BANK OF AMERICA, N.A., as Administrative Agent
and a Lender
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
CITIBANK, N.A., as Syndication Agent
and a Lender
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
