EXHIBIT 10.1
EXECUTION COPY
AMENDED AND RESTATED
LONG-TERM FIVE-YEAR CREDIT AGREEMENT
dated as of December 1, 2005
among
WHIRLPOOL CORPORATION
WHIRLPOOL EUROPE B.V.
WHIRLPOOL FINANCE B.V.
CERTAIN FINANCIAL INSTITUTIONS
and
CITIBANK, N.A.,
as Administrative Agent and Fronting Agent
------------------------------------------
and
JPMORGAN CHASE BANK, N.A.,
as Syndication Agent
--------------------
ABN AMRO BANK N.V.,
THE ROYAL BANK OF SCOTLAND PLC
and
BANK OF AMERICA, N.A.,
as Documentation Agents
-----------------------
CITIGROUP GLOBAL MARKETS INC.
and
X.X. XXXXXX SECURITIES INC.,
Lead Arrangers and Joint Bookrunners
------------------------------------
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 DEFINITIONS........................................................................................1
Section 1.01. Definitions.........................................................................1
Section 1.02. Accounting Terms and Determinations................................................19
ARTICLE 2 THE FACILITY......................................................................................19
Section 2.01. Description of Facility............................................................19
Section 2.02. Availability of Facility; Required Payments........................................20
Section 2.03. Committed Advances.................................................................20
Section 2.04. Letter of Credit Subfacility.......................................................23
Section 2.05. Competitive Bid Advances...........................................................29
Section 2.06. Fronted Advance Subfacility........................................................33
Section 2.07. Fees...............................................................................35
Section 2.08. General Facility Terms.............................................................36
Section 2.09. Borrowing Subsidiaries; Additional Borrowing Subsidiaries..........................46
Section 2.10. Regulation D Compensation..........................................................47
ARTICLE 3 CHANGE IN CIRCUMSTANCES...........................................................................47
Section 3.01. Taxes..............................................................................47
Section 3.02. Increased Costs....................................................................49
Section 3.03. Changes in Capital Adequacy Regulations............................................49
Section 3.04. Availability of Types and Currencies...............................................50
Section 3.05. Funding Indemnification............................................................50
Section 3.06. Mitigation of Additional Costs or Adverse Circumstances............................51
Section 3.07. Lender Statements; Survival of Indemnity...........................................51
ARTICLE 4 GUARANTY..........................................................................................52
Section 4.01. Guaranty...........................................................................52
Section 4.02. Waivers............................................................................52
Section 4.03. Guaranty Absolute..................................................................52
Section 4.04. Continuing Guaranty................................................................53
Section 4.05. Delay of Subrogation...............................................................54
Section 4.06. Acceleration.......................................................................54
Section 4.07. Reinstatement......................................................................54
ARTICLE 5 CONDITIONS PRECEDENT..............................................................................54
Section 5.01. Effectiveness......................................................................54
Section 5.02. Initial Advance to Each Additional Borrowing Subsidiary............................56
Section 5.03. Each Extension of Credit...........................................................57
ARTICLE 6 REPRESENTATIONS AND WARRANTIES........................................................... ........57
Section 6.01. Existence and Standing.............................................................57
Section 6.02. Authorization and Validity.........................................................58
Section 6.03. No Conflict; Government Consent....................................................58
Section 6.04. Financial Statements...............................................................58
i
Section 6.05. Material Adverse Change............................................................58
Section 6.06. Taxes..............................................................................59
Section 6.07. Litigation and Contingent Obligations..............................................59
Section 6.08. ERISA..............................................................................59
Section 6.09. Accuracy of Information............................................................59
Section 6.10. Material Agreements................................................................59
Section 6.11. Compliance with Laws...............................................................60
Section 6.12. Public Utility Holding Company Act.................................................60
Section 6.13. Investment Company Act.............................................................60
Section 6.14. Environmental Matters..............................................................60
Section 6.15 Proper Legal Form..................................................................61
Section 6.16 Solvency...........................................................................61
Section 6.17 Tax Shelter Regulations............................................................61
Section 6.18 Representations of Dutch Borrowers.................................................62
ARTICLE 7 COVENANTS.........................................................................................62
Section 7.01. Financial Reporting................................................................62
Section 7.02. Use of Proceeds....................................................................63
Section 7.03. Notice of Default..................................................................64
Section 7.04. Existence..........................................................................64
Section 7.05. Taxes..............................................................................64
Section 7.06. Insurance..........................................................................64
Section 7.07. Compliance with Laws...............................................................65
Section 7.08. Inspection.........................................................................65
Section 7.09. Consolidations, Mergers, Dissolution and Sale of Assets............................65
Section 7.10. Liens..............................................................................65
Section 7.11. Subsidiary Indebtedness............................................................68
Section 7.12. Leverage Ratio.....................................................................68
Section 7.13. Interest Coverage Ratio............................................................68
Section 7.14. Ownership of Borrowing Subsidiaries................................................68
Section 7.15. Transactions with Affiliates.......................................................68
Section 7.16. Limitation on Restricted Actions...................................................69
Section 7.17. Limitation on Negative Pledges.....................................................69
Section 7.18. Material Contracts.................................................................70
ARTICLE 8 DEFAULTS..........................................................................................70
Section 8.01. Representations and Warranties.....................................................70
Section 8.02. Payment............................................................................70
Section 8.03. Covenants..........................................................................70
Section 8.04. Other Obligations..................................................................71
Section 8.05. Bankruptcy.........................................................................72
Section 8.06. Receivership, Etc..................................................................72
Section 8.07. Condemnation.......................................................................72
Section 8.08. Judgments..........................................................................72
Section 8.09. ERISA..............................................................................73
Section 8.10. Guaranty...........................................................................73
Section 8.11. Change of Control..................................................................73
ii
ARTICLE 9 ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES....................................................73
Section 9.01. Acceleration; Allocation of Payments after Acceleration............................73
Section 9.02. Judgment Currency..................................................................75
Section 9.03. Amendments.........................................................................75
Section 9.04. Preservation of Rights.............................................................76
ARTICLE 10 GENERAL PROVISIONS...............................................................................77
Section 10.01. Survival of Representations........................................................77
Section 10.02. Governmental Regulation............................................................77
Section 10.03. Headings...........................................................................77
Section 10.04. Entire Agreement...................................................................77
Section 10.05. Several Obligations................................................................77
Section 10.06. Expenses; Indemnification..........................................................77
Section 10.07. Severability of Provisions.........................................................78
Section 10.08. Nonliability of Lenders............................................................78
Section 10.09. CHOICE OF LAW......................................................................78
Section 10.10. CONSENT TO JURISDICTION............................................................78
Section 10.11. WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES..............................80
Section 10.12. Binding Effect; Termination........................................................80
Section 10.13. Confidentiality....................................................................81
ARTICLE 11 THE AGENTS.......................................................................................82
Section 11.01. Appointment........................................................................82
Section 11.02. Powers.............................................................................82
Section 11.03. General Immunity...................................................................82
Section 11.04. No Responsibility for Loans, Recitals, etc.........................................82
Section 11.05. Action on Instructions of Lenders..................................................83
Section 11.06. Employment of Agents and Counsel...................................................83
Section 11.07. Reliance on Documents; Counsel.....................................................83
Section 11.08. Reimbursement and Indemnification..... ............................................84
Section 11.09. Rights as a Lender.................................................................84
Section 11.10. Lender Credit Decision.............................................................84
Section 11.11. Successor Administrative Agent/Fronting Agent......................................85
ARTICLE 12 SETOFF; RATABLE PAYMENTS.........................................................................85
Section 12.01. Setoff.............................................................................85
Section 12.02. Ratable Payments...................................................................86
ARTICLE 13 BENEFIT OF AGREEMENT; PARTICIPATIONS; ASSIGNMENTS................................................86
Section 13.01. Successors and Assigns.............................................................86
Section 13.02. Participations.....................................................................87
Section 13.03. Assignments........................................................................88
Section 13.04. Dissemination of Information.......................................................89
Section 13.05. Tax Treatment......................................................................89
Section 13.06. SPC's..............................................................................89
Section 13.07 Representation of the Lenders......................................................90
iii
ARTICLE 14 NOTICES..........................................................................................90
Section 14.01. Giving Notice......................................................................90
Section 14.02. Change of Address..................................................................91
ARTICLE 15 COUNTERPARTS.....................................................................................91
ARTICLE 16 PATRIOT ACT NOTICE...............................................................................92
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
Exhibit H - Committed Borrowing Notice
Exhibit I - Dollar Continuation/Conversion Notice
Exhibit J - Non-Dollar Continuation/Conversion Notice
Exhibit K - Fronted Borrowing Notice
Exhibit L - Competitive Bid Borrowing Notice
SCHEDULES
Schedule I - Commitments
Schedule II - Eurocurrency Payment Offices of
the Administrative Agent
Schedule III - MLA Cost
Schedule IV - Pricing Schedule
Schedule V - Notices
iv
AMENDED AND RESTATED
LONG-TERM FIVE-YEAR CREDIT AGREEMENT
This Credit Agreement, dated as of December 1, 2005, is among
Whirlpool Corporation, a Delaware corporation, Whirlpool Europe B.V., a
Netherlands corporation, Whirlpool Finance B.V., a Netherlands corporation, the
other Borrowers from time to time party hereto, the Lenders from time to time
party hereto, Citibank, N.A., as Administrative Agent for such Lenders,
Citibank, N.A., as Fronting Agent, JPMorgan Chase Bank, N.A., as Syndication
Agent, and ABN AMRO Bank, N.V., The Royal Bank of Scotland plc and Bank of
America, N.A., as Documentation Agents.
W IT X X X X X X X
WHEREAS, Whirlpool, certain other borrowers, Citibank, N.A.,
individually and as Administrative Agent, and certain lenders named therein
entered into that certain Amended and Restated Long Term Credit Agreement, dated
as of May 28, 2004 (the "Existing Long Term Credit Agreement") and
WHEREAS, pursuant to the terms of this Credit Agreement, on the
Closing Date, the Existing Long Term Credit Agreement shall be amended and
restated as hereafter set forth.
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.
"Accordion Facility Effective Date" means the date that the
Administrative Agent receives a certificate executed by the chief
financial officer, treasurer, secretary or assistant treasurer of
Whirlpool stating that the Requisite Approvals have been obtained.
"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 2.09 to
request Advances hereunder, which Subsidiary shall have satisfied the
conditions precedent set forth in Section 5.02.
"Administrative Agent" means Citibank 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 each of a Committed Advance
and a Competitive Bid Advance and a Fronted 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.
"Aggregate Commitment" means the aggregate of the Commitments of
all the Lenders hereunder (which, as of the date of this Credit
Agreement, is $1,200,000,000 and, on and after the Accordion Facility
Effective Date, is $2,200,000,000), as reduced from time to time
pursuant to the terms hereof.
2
"Aggregate Fronting Sublimit" means the aggregate of the Fronting
Commitments of all the Fronting Lenders hereunder (which, as of the
date of this Credit Agreement, is $200,000,000), as reduced from time
to time pursuant to the terms hereof.
"Agreed Currency" means, subject to Section 3.04, (i) Dollars,
(ii) euros, (iii) Sterling and (iv) 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 (iv) 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.
"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 "Borrowers" means collectively, Whirlpool and each
Borrowing Subsidiary.
3
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Subsidiary" means, individually, Whirlpool Europe,
Whirlpool Finance or any Additional Borrowing Subsidiary, and
"Borrowing Subsidiaries" means, collectively, Whirlpool Europe,
Whirlpool Finance 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 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, (ii) with respect to any borrowing, payment or rate
selection of Fronted Advances, a day other than Saturday or Sunday on
which banks are open for business in London and (a) where funds are to
be paid or made available in an Agreed Currency other than euros, a
day on which commercial banks are open for domestic and international
business (including dealings in deposits in such Agreed Currency) in
the principal financial center of the country of such Agreed Currency
and (b) where funds are to be paid or made available in euros, a day
on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer system is open for business and (iii) for all other
purposes, a day other than Saturday or Sunday on which banks are open
for business in 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.
"Citibank" means Citibank, N.A. and its successors.
"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 under this Credit Agreement,
(b) to purchase Participation Interests in Letters of Credit in
accordance with Section 2.04(c), or (c) to purchase Participation
Interests in Fronted Advances in accordance with Section 2.06(f), in
each case not exceeding the amount set forth on Schedule I hereto or
as set forth in an applicable Assignment Agreement in the form of
Exhibit "F" hereto received by the Administrative Agent under the
4
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. Prior to the
Accordion Facility Effective Date, the maximum Commitment of each
Lender shall be the amount set forth under "Prior to the Accordion
Facility Effective Date" on Schedule I hereto and on and after the
Accordion Facility Effective Date, the maximum Commitment of each
Lender shall be the amount set forth under "On and After the Accordion
Facility Effective Date" on Schedule I hereto.
"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.
"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
and (c) without duplication, identifiable and verifiable non-cash,
5
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 EBITDA" 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) without duplication, identifiable and verifiable non-cash,
non-recurring pre-tax charges taken by Whirlpool during such period
and (d) depreciation and amortization expense for 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 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 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 Amended and Restated Long Term
Five-Year 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., The Royal
Bank of Scotland plc or Bank of America, N.A., 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
6
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 or the
Fronting Agent by three foreign exchange dealers of recognized
standing in the United States selected by the Administrative Agent or
the Fronting 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.
"Dollar Continuation/Conversion Notice" is defined in Section
2.03(f).
"Dollars" and "$" each mean lawful money of the United States of
America.
"Dutch Banking Act" means the Credit System Supervision Act 1992
(Wet toezicht kredietwezen 1992).
"Dutch Borrower" means each Borrower that is incorporated or
established in The Netherlands.
"Dutch Exemption Regulation" means the Exemption Regulation
relating to the Credit System Supervision Act 1992
(Vrijstellingsregeling Wet toezicht kredietwezen 1992) dated 26 June
2002.
"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.
"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, (i) with respect to (a) a
Eurocurrency Committed Advance or a Eurocurrency Committed Loan and
(b) a Eurocurrency Bid Rate Advance or a Eurocurrency Bid Rate Loan,
7
in each case denominated in a particular Agreed Currency (pursuant to
Sections 2.01 and 2.05) for the relevant Eurocurrency Interest Period:
(1) 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 (2) if the rate referenced in
the preceding clause (1) 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 (3) in the case of a
Eurocurrency Committed Advance or a Eurocurrency Committed Loan, if
the rates referenced in the preceding clauses (1) and (2) 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 Citibank and with a term equivalent to such Eurocurrency
Interest Period would be offered by Citibank'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 and (ii) with respect
to a Fronted Advance or a Fronted Loan, the rate per annum determined
by the Fronting 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 Citibank and with a term equivalent to
such Eurocurrency Interest Period would be offered by Citibank's
London Branch to major banks in the offshore Agreed Currency market at
their request at approximately 11:00 A.M. (London time) on 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).
"Eurocurrency Bid Rate Advance" means a Competitive Bid Advance
which bears interest at a Eurocurrency Bid Rate.
8
"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, (i) 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 and (ii) with
respect to a Fronted Advance or a Fronted Loan, a period of one to
seven days commencing on a Business Day selected by Whirlpool or
Whirlpool Finance, as applicable, pursuant to Section 2.06(e) this
Credit Agreement. Except with respect to Fronted Advances and Fronted
Loans, 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. With respect to Fronted Advances and Fronted Loans, such
Eurocurrency Interest Period shall end on a day that is the selected
number of days from the beginning of such Eurocurrency Interest
Period, but in no event later than the scheduled Termination Date. 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, except with respect
to Fronted Advances and Fronted Loans, 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, a
Eurocurrency Bid Rate Loan or a Fronted Loan, as applicable.
"Eurocurrency Margin" means a rate per annum determined in
accordance with the Pricing Schedule.
"Eurocurrency Payment Office" means (i) with respect to the
Administrative Agent for each of the Agreed Currencies (a) the office,
branch or affiliate of the Administrative Agent specified as its
"Eurocurrency Payment Office" for such currency in Schedule II hereto
or (b) 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 and (ii) with respect to the Fronting Agent for each of the
Agreed Currencies (a) the office, branch or affiliate of the Fronting
Agent specified as its "Eurocurrency Payment Office" for such currency
in Schedule II hereto or (b) such other office, branch, affiliate or
correspondent bank of the Fronting Agent as it may from time to time
specify to each Borrower and each Lender as its Eurocurrency Payment
Office for such currency.
9
"Eurocurrency Rate" means, (i) with respect to a Eurocurrency
Committed Advance or a Eurocurrency Committed Loan for each day during
the relevant Eurocurrency Interest Period, the sum of (a) the
Eurocurrency Base Rate applicable to such Eurocurrency Interest Period
plus (b) the Eurocurrency Margin for such day plus (c) the applicable
MLA Cost and (ii) with respect to a Fronted Advance or a Fronted Loan
for each day during the relevant Eurocurrency Interest Period, the sum
of (a) the Eurocurrency Base Rate applicable to such Eurocurrency
Interest Period plus (b) the Eurocurrency Margin for such day plus (c)
the applicable MLA Cost.
"European Community" means the European countries that are
signatories to the Treaty on European Union.
"European Economic Area member state" means Austria, Belgium,
Cyprus, the Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania,
Luxembourg, Malta, The Netherlands, Poland, Portugal, Slovakia,
Slovenia, Spain, Sweden, United Kingdom, Iceland, Norway and
Liechtenstein.
"Existing Long-Term Credit Agreement" 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 Citibank 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.
10
"Floating Rate Loan" means a Loan which bears interest at the
Alternate Base Rate.
"Foreign Borrower" is defined in Section 10.11(b).
"Foreign Subsidiary" means a Subsidiary of Whirlpool that is
organized and domiciled (and the majority of whose assets are located)
outside of the United States of America.
"Fronted Advance" means a borrowing hereunder consisting of the
aggregate amount of the several Fronted Loans made by the Fronting
Lenders to Whirlpool or Whirlpool Finance, as applicable, at the same
time, of the same Type and for the same Interest Period.
"Fronted Loan" means a Loan made by a Lender pursuant to Section
2.06.
"Fronting Agent" means Citibank, N.A. in its capacity as fronting
agent for the Lenders pursuant to Article 11, and not in its
individual capacity as a Lender, and any successor Fronting Agent
appointed pursuant to Article 11.
"Fronted Borrowing Notice" is defined in Section 2.06(e).
"Fronting Commitment" means, for each Fronting Lender, the
obligation of such Lender to make Fronting Loans to Whirlpool and
Whirlpool Finance not exceeding the amount set forth on Schedule I
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.
"Fronting Lender" means each Lender that has a Fronting
Commitment.
"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.
11
"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 (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 Citibank or any other Lender approved by
Whirlpool.
"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 or the Fronting
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.
"Leverage Ratio" means, as of any date of calculation thereof,
the ratio of (i) consolidated Indebtedness of Whirlpool and its
Consolidated Subsidiaries on such date to (ii) Consolidated EBITDA for
the twelve month period ending on such date.
"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.
12
"Loan Documents" means this Credit Agreement, each Note, the LOC
Documents and the Assumption Agreements.
"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 $200,000,000, 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.
"Maytag Corporation" means Maytag Corporation, a Delaware
corporation.
"MLA Cost" means an addition to the interest rate on any Loan
made by any Lender to compensate such Lender for the cost imputed to
the Lender resulting from the imposition from time to time under or
pursuant to the Bank of England Act 1998 (the "Act") and/or by the
Bank of England and/or the Financial Services Authority ("FSA") (or
other United Kingdom governmental authorities or agencies) of a
requirement to place non-interest bearing cash ratio deposits or
special deposits (whether interest bearing or not) with the Bank of
England and/or fees to the FSA calculated by reference to liabilities
used to fund the Loans, expressed as a rate per annum and determined
in accordance with Schedule III.
13
"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 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. 1111(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), the
Administrative Agent or the Fronting Agent arising under the Loan
Documents.
14
"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 2.04(c) or in Fronted Advances as provided in Section 2.06(f).
"Payment Date" means the last Business Day of each March, June,
September and December.
"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 Citibank as its "Base Rate." Such rate is a rate
set by Citibank based upon various factors including Citibank'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 Citibank shall take effect at the opening of
business on the day specified in the public announcement of such
change.
"Professional Market Party" means a professional market party
(professionele marktpartij) as defined in the Dutch Exemption
Regulation, which as of the date of this Agreement includes, without
limitation, (i) credit institutions, insurance companies, pension
funds, securities intermediaries, asset managers and investment
institutions that are registered and subject to government supervision
in The Netherlands, any other European Economic Area member state,
Monaco, Puerto Rico, Saudi Arabia, Turkey, South Korea, the United
States, Japan, Australia, Canada, Mexico, New Zealand or Switzerland
15
and subsidiaries thereof which are subject to government supervision,
(ii) central governments, international treaty organizations and
supranational public institutions, (iii) companies which have assets
with a book value of EUR500,000,000 or more, according to their annual
accounts as per the end of their financial year preceding the year in
which they grant or obtain the relevant loan or a portion thereof,
(iv) companies or natural persons with net assets of EUR10,000,000 or
more as per the end of the preceding calendar year and which have been
active on the financial markets with an average of at least two
transactions per month during the preceding two consecutive years, (v)
persons under supervision of the regulatory authority as referred to
in section 1 subsection f of the Decree on the Supervision of the
Securities Trade 1995 (Besluit toezicht effectenverkeer 1995), or
under supervision of the regulatory authority of another state to be
active on the financial markets, (vi) legal entities or partnerships
which, pursuant to their latest (consolidated) financial statements
meet two of the following three criteria: (a) an average number of
employees during the financial year of 250 or more, (b) according to
their balance sheet having an asset-value of at least EUR43,000,000,
and (c) yearly turnover of at least EUR50,000,000, (vii) a legal
entity or partnership having the sole corporate purpose of investing
in securities and (viii) collective investment institutions that are
exempt from the Act on the Supervision of Collective Investment
Schemes pursuant to section 1 or 2 of the Regulation of the Minister
of Finance of 9 October 1990 implementing section 14 of that Act.
"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.
"Purchasing Lender" is defined in Section 2.06(f).
"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.
16
"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, 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 and
Fronted Advances.
"Requisite Approvals" means all consents and approvals required
under the Xxxx-Xxxxx-Xxxxxx Anti-Trust Improvements Act of 1976, as
amended, or any other material domestic or foreign anti-trust or
similar laws, on terms and conditions acceptable to Whirlpool, for the
acquisition of Maytag Corporation.
"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 or Fronted 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.
"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.
"Sterling" means the lawful money of the United Kingdom.
"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.
17
"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 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 JPMorgan Chase Bank, N.A. so long as it
is a Lender under this Credit Agreement.
"Taxes" is defined in Section 3.01(a).
"Termination Date" means the earlier of (i) December 1, 2010 and
(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 or Fronted 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.
"Utilization Fee Rate" means a rate per annum determined in
accordance with the Pricing Schedule.
"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.
"Whirlpool Finance" means Whirlpool Finance B.V., a Netherlands
corporation, and its successors and assigns.
18
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 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, 2004); 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
(iiii) the Fronting Lenders agree to make Fronted Loans in Agreed
Currencies for the account of Whirlpool and Whirlpool Finance in
accordance with Section 2.06; and
(iv) 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;
19
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), (C) in no event may the
Dollar Amount of the aggregate principal amount of all outstanding Fronted
Advances exceed the Aggregate Fronting Sublimit, (D) 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 and (E) in no event
may the Dollar Amount of the aggregate principal amount of all outstanding
Committed Advances made by a Lender plus such Lender's ratable share of the
outstanding LOC Obligations plus such Lender's participation interests in the
outstanding Fronted Loans exceed such Lender's 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 Advances and its other unpaid Obligations in full on the Termination
Date.
SECTION 2.03. COMMITTED ADVANCES.
(a) Committed Advances. From and including the Closing Date 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 and Fronted 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.
20
(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 an
irrevocable notice substantially in the form of Exhibit "H" hereto (a
"Committed Borrowing Notice") not later than 11:30 a.m. (New York City
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:
(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 (x) unless such Eurocurrency
Committed Advance is paid by the applicable Borrower or the applicable
Borrower shall have given the Administrative Agent an irrevocable
21
notice substantially in the form of Exhibit "I" hereto (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 or (y) if any Event of Default shall have occurred and be
continuing. 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
11:30 A.M. (New York City 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;
(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 (provided that if no Interest Period is
specified, the applicable Borrower shall be deemed to have
requested an Interest Period of one month).
(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
substantially in the form of Exhibit "J" hereto (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
22
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 11:30 A.M. (New York City 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:
(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;
(iii) the amount(s) of the Eurocurrency Committed Advance(s)
into which such Eurocurrency Committed Advance is to be continued
or converted; and
(iv) the Interest Period applicable to each new Eurocurrency
Committed Advance (provided that if no Interest Period is
specified or if an Event of Default has occurred and is
continuing, the applicable Borrower shall be deemed to have
requested an Interest Period of one month).
(h) Notice to Lenders. The Administrative Agent shall give prompt
notice to each Lender of each Dollar Continuation/Conversion Notice
and each Non-Dollar Continuation/Conversion Notice received by it.
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
23
the Closing Date until the date thirty 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 not 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) or (y) such Letter of Credit
has an expiry date extending beyond the Termination Date. The Issuing
Lender shall be under no obligation to issue any Letter of Credit if
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 appropriate application forms of the
Issuing Lender) at least three 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
24
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 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 11:00
A.M. (New York City time), and otherwise such payment shall be made at
or before 1:00 P.M. (New York City 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 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
25
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 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
26
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
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 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
the Issuing 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").
27
(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 by the
Issuing Lender to pay any drawing under any Letter of Credit as a
result of any Government Acts or any other cause beyond the
control of the Issuing 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 the Issuing Lender in respect of any liability incurred
by the Issuing Lender (A) arising solely out of the gross
28
negligence or willful misconduct of the Issuing Lender, as
determined by a court of competent jurisdiction, or (B) caused by
the Issuing 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 or received written
notice from the Borrower, the Administrative Agent or any Lender 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. Citibank 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 addition to Committed Advances pursuant to Section 2.03
and Fronted Advances pursuant to Section 2.06, 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.
29
(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 11:30
A.M. (New York City 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 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) 1:45 P.M. (New York City time) in the case of
Citibank and (B) 2:00 p.m. (New York City time) in the case of each
30
other Lender, at least four Business Days prior to the proposed
Borrowing Date in the case of a Eurocurrency Auction, or (ii) (A)
10:15 A.M. (New York City time) in the case of Citibank and (B) 10:30
A.M. (New York City 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 Citibank 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
(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
31
(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 11:30 A.M. (New York City 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 substantially in the form or Exhibit "L" hereto (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:
(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.
32
(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 12:30 P.M. (New York City
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. FRONTED ADVANCE SUBFACILITY.
(a) Fronted Advances. From and including the Closing Date and
prior to the Termination Date, each Fronting 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
Fronting Lender, to make Fronted Loans to Whirlpool and Whirlpool
Finance 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 Fronting Commitment. Each Fronted Advance hereunder shall
consist of borrowings made from the several Fronting Lenders ratably
in proportion to the ratio that their respective Fronting Commitments
bear to the Aggregate Fronting Sublimit. The Fronted Advances shall be
repaid as provided by the terms of Sections 2.02 and 2.06(f).
(b) Types of Fronted Advances. The Fronted Advances shall be
Fixed Rate Advances.
(c) Reductions in Aggregate Fronting Sublimit. Whirlpool may
permanently reduce the Aggregate Fronting Sublimit in whole, or in
part ratably among the Fronting 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
Fronting Sublimit may not be reduced below the Dollar Amount of the
aggregate principal amount of the outstanding Fronted Advances.
(d) Minimum Amount of Each Fronted Advance. Each Fronted Advance
made or continued hereunder shall be in the minimum Dollar Amount of
$25,000,000.
(e) Method of Requesting New Fronted Advances. Whirlpool or
Whirlpool Finance, as applicable, shall give the Fronting Agent, with
a copy to the Administrative Agent, an irrevocable notice
substantially in the form of Exhibit "K" hereto (a "Fronted Borrowing
33
Notice") not later than 9:30 a.m. (London, England time) on the
Borrowing Date of each Fronted Advance. A Fronted Borrowing Notice
shall in accordance with all the terms and conditions of this Credit
Agreement specify:
(i) the Borrower to which such Fronted Advance is to be
made;
(ii) the Borrowing Date, which shall be a Business Day, of
such Fronted Advance;
(iii) the Agreed Currency of such Fronted Advance;
(iv) the aggregate amount of such Fronted Advance; and
(v) the Interest Period of such Fronted Advance, which shall
be for a period of one to seven days.
(f) Payment and Participations of Fronted Advances. At the time
that a Fronting Lender makes a Fronted Loan, each Lender (a
"Purchasing Lender") shall be deemed, without any further action by
any Person, to have purchased from such Fronting Lender an unfunded
participation (ratably in proportion to the ratio that such Purchasing
Lender's Commitment bears to the Aggregate Commitment), without
recourse or warranty of such Fronting Lender, in such Fronted Loan.
Whirlpool and Whirlpool Finance each agree to repay all Fronted
Advances obtained by such Borrower on the earlier of (i) the last day
of the Interest Period for such Advance or (ii) the Termination Date.
Notwithstanding anything to the contrary contained herein, neither
Whirlpool nor Whirlpool Finance shall be permitted to request a new
Fronted Advance to repay an outstanding Fronted Advance if the period
from the date of the first outstanding Fronted Advance to the date of
the repayment of the new Fronted Advance would exceed seven days.
Each repayment of a Fronted Advance may be accomplished by
requesting a Committed Advance, which request is not subject to the
conditions set forth in Section 5.03. In the event that Whirlpool or
Whirlpool Finance, as applicable, shall fail to timely repay any
Fronted Advance, and in any event upon (A) a request by the Fronting
Agent, (B) the occurrence of a Default described in Section 8.05 or
8.06 or (C) the acceleration of any Obligations or termination of any
Commitment pursuant to Section 9.01, each Purchasing Lender shall fund
its participation in accordance with the preceding paragraph in such
Fronted Advance (regardless of (1) whether the conditions precedent
thereto set forth in Section 5.03 hereof are then satisfied, (2)
whether or not Whirlpool or Whirlpool Finance, as applicable, has
submitted a Committed Borrowing Notice and whether or not the
Commitments are then in effect, (3) whether an Unmatured Default or a
Default exists or (4) whether all the Obligations have been
accelerated) and pay the proceeds thereof to the Fronting Agent, for
the account of the Fronting Lenders, at the Fronting Agent's
Eurocurrency Payment Office, or at such other Lending Installation of
the Fronting Agent as may be specified in writing by the Fronting
Agent, in the applicable Agreed Currency and in immediately available
funds. If such amount is not in fact made available to the Fronting
34
Agent, for the account of the Fronting Lenders, by any Purchasing
Lender, the Fronting Lenders shall be entitled to recover such amount
on demand from such Purchasing Lender, together with accrued interest
thereon for each day from the date of demand thereof, if paid within
two Business Days after demand at the Federal Funds Effective Rate and
thereafter at the Alternate Base Rate. If a Purchasing Lender does not
pay such amount forthwith as required by this Section 2.06(f), and
until such time as such Purchasing Lender makes the required payment,
the Fronting Lenders shall be deemed to continue to have outstanding
Fronted Advances in the amount of such unpaid participation obligation
for all purposes of the Loan Documents other than those provisions
requiring the other Purchasing Lenders to purchase a participation
therein. Further, such Purchasing Lender shall be deemed to have
assigned any and all payments made of principal and interest on its
Loans, and any other amounts due to it hereunder to the Fronting
Lenders to fund Fronted Advances in the amount of the participation in
Fronted Advances that such Purchasing Lender failed to purchase
pursuant to this Section 2.06(f) until such amount has been purchased
(as a result of such assignment or otherwise).
SECTION 2.07. 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 December 31, 2005, 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-half (1/2) 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 the Utilization Fee Rate 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 December 31, 2005, and on the
Termination Date.
(c) Administration Fees. Whirlpool hereby agrees to pay to the
Administrative Agent and the Fronting Agent for their respective
accounts such arrangement and administration fees as are heretofore
and hereafter agreed upon in writing by Whirlpool and the
Administrative Agent or the Fronting Agent, as applicable.
(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.
35
(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 December 31, 2005, 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 December 31, 2005, 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.
(f) Fronting Fees. Whirlpool hereby agrees to pay to the Fronting
Agent, for the account of the Fronting Lenders, ratably in proportion
to their Fronting Commitments, a fronting fee at a per annum rate
equal to 0.125% on the Dollar Amount of the aggregate outstanding
principal amount of the Fronted Loans on each such day, which fee
shall be payable quarterly in arrears on each Payment Date, commencing
December 31, 2005, and on the Termination Date.
SECTION 2.08. GENERAL FACILITY TERMS.
(a) Method of Borrowing. On each Borrowing Date, each applicable
Lender shall make available its Loan or Loans, if any, in the
requested Agreed Currency, (i) if such Loan is denominated in Dollars,
not later than 1:00 P.M. (New York City time) in funds immediately
available to the Administrative Agent, at its address specified in or
pursuant to Article 14, (ii) if such Loan (other than a Fronted 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 funds immediately available to the
Administrative Agent, at the Administrative Agent's Eurocurrency
Payment Office for such currency and (iii) if such Loan is a Fronted
Loan, not later than 12:00 noon (London, England time), in funds
immediately available to the Fronting Agent, at the Fronting Agent's
Eurocurrency Payment Office for such currency. The Administrative
Agent or Fronting Agent, as applicable, will make the funds so
received from the applicable Lenders available to the applicable
36
Borrower at the Administrative Agent's or Fronting Agent's aforesaid
address, as applicable. Notwithstanding the foregoing provisions of
this Section 2.08(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 prepay 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 prepay 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.
Whirlpool or Whirlpool Finance, as applicable, may from time to
time prepay all of its outstanding Fronted Advances, or, in a
minimum aggregate Dollar Amount of $5,000,000, any portion of the
outstanding Fronted Advances upon three Business Days' prior
notice to the Fronting Agent (with a copy 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 2.08 of a Eurocurrency Committed
Advance, a Fronted 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) Aggregate Fronting Sublimit. If at any time, the
Dollar Amount of the aggregate outstanding principal amount
of Fronted Advances shall exceed the Aggregate Fronting
Sublimit, the Borrowers immediately shall prepay outstanding
Fronted Advances in an amount sufficient to eliminate such
excess.
37
(c) Interest Rates; Interest Periods. Subject to Section
2.08(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 per
annum equal to the Alternate Base Rate for such day, (ii) each
Eurocurrency Committed Advance (and each Eurocurrency Loan making
up such Eurocurrency Committed 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 Fronted Advance (and each
Fronted Loan making up such Fronted 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 Fronted Advance for each day during such
Interest Period, (iv) 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 (v) 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 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
38
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
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
(other than Fixed Rate Advances denominated in Sterling), 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
Fixed Rate Advances denominated in Sterling shall be calculated for
the actual number of days elapsed on the basis of a 365/366 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 2.08(e).
(f) Method of Payment.
(i) General. 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
39
to the last sentence of Section 2.08(a), (A) all amounts of
principal, interest, fees and other Obligations payable by the
Borrowers in Dollars under the Loan Documents (other than in
respect of Fronted Advances) shall be made in Dollars by 1:00
P.M. (New York City 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, (B) all
amounts of principal and interest payable by Whirlpool or
Whirlpool Finance, as applicable, with respect to Fronted
Advances shall be made in the applicable currency by 12:00 noon
(London, England time or, in the case of amounts payable in
Dollars, New York time) on the date when due, in funds
immediately available, without condition or deduction for any
counterclaim, defense, recoupment or setoff, for the account of
the Fronting Agent, at the Fronting Agent's Eurocurrency Payment
Office for such currency and (C) all other 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 funds immediately available, without condition or
deduction for any counterclaim, defense, recoupment or setoff,
for the account of the Administrative Agent or the Fronting
Agent, as applicable, at its Eurocurrency Payment Office for such
currency. Prior to the existence of a Default, all 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,
payments of principal and interest in respect of Fronted Advances
(which are subject to Section 2.08(f)(ii) below) and fronting
fees retained by the Fronting Lenders for their own accounts, the
administrative and auction fees retained by the Administrative
Agent for its own account and the administrative fee retained by
the Fronting Agent for its own account). Except as provided in
Section 9.01(b), during the existence of any Default, all
payments of principal due hereunder and all payments of
reimbursement obligations 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 or the Fronting Agent, as applicable, 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 or the Fronting Agent, as applicable,
if received by the Administrative Agent or the Fronting Agent, as
applicable, by 12:00 noon (local time), by the Administrative
Agent or the Fronting Agent, as applicable, to such Lender in the
same type and currency of funds which the Administrative Agent or
the Fronting Agent, as applicable, 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 or the Fronting Agent, as
applicable. If the Administrative Agent or the Fronting Agent, as
40
applicable, shall fail to pay any Lender the amount due such
Lender pursuant to this Section when due, the Administrative
Agent or the Fronting Agent, as applicable, 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 2.08(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 or the Fronting Agent, as
applicable, for the account of the applicable 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 2.08(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
or the Fronting Agent, as applicable, for the account of the
applicable 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. In the event any amount paid to any Lender hereunder
is rescinded or must otherwise be returned by the Administrative
Agent or the Fronting Agent, as applicable, each Lender shall,
upon the request of the Administrative Agent or the Fronting
Agent, as applicable, repay to the Administrative Agent or the
Fronting Agent, as applicable, the amount so paid to such Lender,
with interest for the period commencing on the date such payment
is returned by the Administrative Agent or the Fronting Agent, as
applicable, until the date the Administrative Agent or the
Fronting Agent, as applicable, 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.
(ii) Allocation Among the Lenders of Payments Received in
Respect of Fronted Loans and Fronted Advances. Each Fronting
Lender shall receive, for its own account, all payments or
prepayments of principal with respect to its Fronted Loans;
provided, however, upon the funding of the Purchasing Lenders'
Participation Interests with respect to a Fronted Loan pursuant
41
to Section 2.06(f), such Purchasing Lenders shall be deemed
Fronting Lenders with respect to such Fronted Loan and shall be
entitled to receive their pro rata share of any payment or
prepayment of principal with respect to such Fronted Loan. Until
the Purchasing Lenders are required to fund their Participation
Interest in a Funded Loan, subject to Section 2.08(d), (i) the
Fronting Lender that made such Fronted Loan shall receive
interest on such Fronted Loan equal to (A) the Eurocurrency Base
Rate for such Fronted Loan plus (B) its ratable share of the
Eurocurrency Margin (in proportion to the ratio that its
Commitment bears to the Aggregate Commitment) for such Fronted
Loan plus (C) its MLA Cost for such Fronted Loan and (ii) each
Purchasing Lender shall receive interest on such Fronted Loan in
an amount equal to its ratable share of the Eurocurrency Margin
(in proportion to the ratio that its Commitments bear to the
Aggregate Commitment) for such Fronted Loan. After the Purchasing
Lenders fund their Participation Interests in a Fronted Loan,
subject to Section 2.08(d), each Fronting Lender with respect to
such Fronted Loan shall receive interest on such Fronted Loan
equal to (A) the Eurocurrency Base Rate for such Fronted Loan
plus (B) its ratable share of the Eurocurrency Margin for such
Fronted Loan plus (C) its MLA Cost for such Fronted Loan. For
purposes of clarification, this Section 2.08(f)(ii) is intended
to address the allocation among the Lenders of payments of
principal and interest on Fronted Loans and Fronted Advances
received from the Borrowers and is not intended to create any
additional obligation of any Borrower hereunder.
(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, the Fronting
Agent or any Lender reasonably believes to be an Authorized
Representative. If requested by the Administrative Agent or the
Fronting Agent, as applicable, or any Lender, each Borrower agrees to
deliver promptly to the Administrative Agent or the Fronting Agent, as
applicable, 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, the Fronting Agent and the Lenders, the records
of the Administrative Agent, the Fronting Agent and the Lenders shall
govern absent manifest error.
(h) Notification of Advances, Interest Rates and Prepayments.
Promptly after receipt thereof, (i) the Administrative Agent will
notify each Lender of the contents of each Aggregate Commitment
reduction notice, Aggregate Fronting Sublimit reduction notice,
Committed Borrowing Notice, Dollar Continuation/Conversion Notice,
Non-Dollar Continuation Conversion Notice, Competitive Bid Borrowing
42
Notice, and repayment notice received by it hereunder and (ii) the
Fronting Agent will notify each Fronting Lender of the contents of
each Fronted Borrowing Notice and repayment notice received by it
hereunder. In addition, (A) 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 and (B) with respect to each Fronted Borrowing
Notice, the Fronting Agent shall notify each Fronting Lender of its
pro rata share of the Advance to be made pursuant to such Fronted
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. The Fronting Agent will notify Whirlpool, Whirlpool Finance and
each Fronting Lender of the interest rate applicable to each Fronted
Advance promptly upon determination of such interest rate; provided,
however, that the Fronting Agent's failure to give any such notice
will not affect Whirlpool's or Whirlpool Finance's obligation to pay
interest to the Fronting Lenders at the applicable interest rate.
(i) Non-Receipt of Funds by the Administrative Agent or the
Fronting Agent. Unless the applicable Borrower or Lender, as the case
may be, notifies the Administrative Agent or the Fronting Agent, as
applicable, prior to the date on which it is scheduled to make payment
to the Administrative Agent or the Fronting Agent, as applicable, 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 or the Fronting Agent, as applicable, for the
account of the applicable Lenders, that it does not intend to make
such scheduled payment, the Administrative Agent or the Fronting
Agent, as applicable, may assume that such scheduled payment has been
made. The Administrative Agent or the Fronting Agent, as applicable,
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 or the
Fronting Agent, as applicable, the recipient of such scheduled payment
shall, on demand by the Administrative Agent or the Fronting Agent, as
applicable, repay to the Administrative Agent or the Fronting Agent,
as applicable, 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 or
the Fronting Agent, as applicable, until the date the Administrative
Agent or the Fronting Agent, as applicable, 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
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
43
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 or Fronted Loans, as applicable,
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, in the case of
Eurocurrency Committed Loans, be made on such Borrowing Date as
Floating Rate Loans or issued on such date in Dollars, in the case of
Letters of Credit, be issued on such date in Dollars and, in the case
of Fronted Loans, be made on such Borrowing Date as Fixed Rate Loans
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, LOC
Documents or Fronted Borrowing Notice, as applicable, 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, if applicable, the
Fronting 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, if applicable, the Fronting 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,
including any fees, without deduction or withholding of any
United States federal income taxes;
(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
44
(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, the Administrative Agent and the Fronting 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-8BEN, 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, the Administrative Agent
and the Fronting 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; provided, that any
Lender that delivers the forms and representation provided
in this clause (B) must also deliver to the Borrower or
Administrative Agent two accurate, complete and signed
copies of either Internal Revenue Service Form W-8BEN or
W-8ECI, or, in each case, an applicable successor form,
establishing a complete exemption from withholding of United
States federal income tax imposed on the payment of any
fees, if applicable, to such Lender.
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.
45
(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, requests for the
issuance of Letters of Credit and Fronted Borrowing Notices in the
order received by the Administrative Agent or the Fronting Agent, as
applicable, 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 2.09. 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 (other than any Subsidiary having its seat or
its center of management in Austria) 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.
46
SECTION 2.10. REGULATION D COMPENSATION.
Each Lender may require each Borrower to pay, contemporaneously with
each payment of interest on its Eurocurrency Committed Loans and Fronted Loans,
additional interest on the related Eurocurrency Committed Loan or Fronted 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 (x) shall so notify the Borrower and the
Administrative Agent, in which case such additional interest on the Eurocurrency
Committed Loans or Fronted Loans of such Lender to such Borrower shall be
payable to such Lender 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 or
Fronted 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;
47
(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;
(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 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 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 or Fronting Agent to comply with its
obligations pursuant to Section 2.08(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. Nothing in this Section shall be deemed
to require any Lender to disclose confidential tax information.
48
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 Installation (other
than amounts paid pursuant to Section 2.10 and other than reserves and
assessments taken into account in determining the interest rate
applicable to Eurocurrency Committed Advances or Fronted 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 or Whirlpool 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 days prior to the
date that such Lender makes such demand; and provided, further, that
any amount payable pursuant to this Section 3.02 shall be paid by the
applicable Borrower to the extent that such amount is reasonably
allocable to such Borrower and the Advances made to it and shall
otherwise be payable by Whirlpool.
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 or
Whirlpool 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 days prior to the date that
49
such Lender makes such demand; and provided, further, that any amount payable
pursuant to this Section 3.02 shall be paid by the applicable Borrower to the
extent that such amount is reasonably allocable to such Borrower and the
Advances made to it and shall otherwise be payable by Whirlpool. "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.
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 and the Fronting 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 Loan 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 or
Fronted Advances denominated in any Agreed Currency are not available, then the
affected currency shall cease to be an Agreed Currency and the Administrative
Agent and the Fronting Agent shall suspend the availability of Eurocurrency
Committed Advances or Fronted Advances denominated in the affected currency. If
any Lender determines that the combination of the interest rate applicable to
Eurocurrency Committed Advances, Letters of Credit and Fronted Advances
denominated in any Agreed Currency and payments due pursuant to Sections 3.01
and 3.02 with respect to such Eurocurrency Committed Advances, such Letters of
Credit or such Fronted Advances does not accurately reflect the cost of making
or maintaining Eurocurrency Committed Advances, Letters of Credit and Fronted
Advances in the affected currency, then the affected currency shall cease to be
an Agreed Currency and the Administrative Agent and the Fronting Agent shall
suspend the availability of Eurocurrency Committed Advances, Letters of Credit
and Fronted Advances 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).
50
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 or Fronted Advance under Section 3.04; or
(iii) a Lender being unable to deliver the forms required by
Section 2.08(l);
then, without in any way limiting, reducing or otherwise qualifying
the applicable 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 and expense of Whirlpool, to assign all its rights and obligations
hereunder to another Person nominated by Whirlpool with the approval of the
Administrative Agent and each Issuing Lender (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 2.08(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.
51
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 otherwise,
and at all times thereafter, of any and all existing and future obligations of
each of the Borrowing Subsidiaries to the Administrative Agent, the Fronting
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, the Fronting 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
52
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, the
Fronting 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 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.
53
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, the Fronting Agent 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) 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, the Fronting 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, the Fronting 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 Secretary or Assistant Secretary or other Authorized
Representative of each Original Borrower or by the appropriate
governmental officer in the jurisdiction of incorporation or
organization of each Original Borrower within ten days of the Closing
Date;
54
(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 or other Authorized Representative 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 or other Authorized Representative 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 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 or other Authorized
Representative 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 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) Since December 31, 2004, 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
(x) Such other documents and information as any Lender or its
counsel may have reasonably requested.
55
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 2.09;
(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
(viii) Documentation and other evidence as is reasonably
requested by the Administrative Agent or any Lender in order for the
Administrative Agent or such Lender to carry out and be satisfied it
has complied with the results of all necessary "know your customer" or
other similar checks under all applicable laws and regulations.
56
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);
(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), 2.05(f) or 2.06(e).
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; provided that for purposes of this Section
6.01, "Material Subsidiaries" shall not include Maytag Corporation and its
Subsidiaries for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
57
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 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, 2004 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, 2004 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.
58
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. For purposes of this Section 6.06,
"Subsidiaries" of Whirlpool shall not include Maytag Corporation and its
Subsidiaries for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
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.
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. For purposes of this Section 6.08,
the "Controlled Group" shall not include Maytag Corporation and its Subsidiaries
for the period commencing with the acquisition thereof by Whirlpool and ending
30 days thereafter.
SECTION 6.09. ACCURACY OF INFORMATION.
No information or report furnished by it to the Administrative Agent,
the Fronting 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 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
59
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, provided that for purposes of this
clause (ii), "Subsidiaries" of Whirlpool shall not include Maytag Corporation
and its Subsidiaries for the period commencing with the acquisition thereof by
Whirlpool and ending 30 days thereafter.
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 company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended;
provided that for purposes of this Section 6.12, "Subsidiaries" of Whirlpool
shall not include Maytag Corporation and its Subsidiaries for the period
commencing with the acquisition thereof by Whirlpool and ending 30 days
thereafter.
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; provided that for purposes of this Section 6.13,
"Subsidiaries" of Whirlpool shall not include Maytag Corporation and its
Subsidiaries for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
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
60
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. For purposes of this Section 6.14, "Subsidiaries" of
Whirlpool shall not include Maytag Corporation and its Subsidiaries for the
period commencing with the acquisition thereof by Whirlpool and ending 30 days
thereafter.
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 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.
SECTION 6.17 TAX SHELTER REGULATIONS.
The Borrowers do not intend to treat the Advances as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event any Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Administrative Agent thereof.
If any Borrower so notifies the Administrative Agent, such Borrower acknowledges
that one or more of the Lenders may treat its Advances as part of a transaction
that is subject to Treasury Regulation Section 301.6112-1, and such Lender or
Lenders, as applicable, will maintain the lists and other records required by
such Treasury Regulation.
61
SECTION 6.18 REPRESENTATIONS OF DUTCH BORROWERS.
(a) Each Dutch Borrower is in compliance with the applicable
provisions of the Dutch Banking Act and any implementing regulations,
including, without limitation, the Dutch Exemption Regulation; and
(b) Each Dutch Borrower has verified the status of each Lender as
a Professional Market Party.
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;
62
(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 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;
(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 days, such other information (including non-financial
information) as the Administrative Agent or any Lender may from time
to time reasonably request; and
(viii) Promptly after a Borrower has notified the Administrative
Agent of any intention by such Borrower to treat the Advances as being
a "reportable transaction" (within the meaning of Treasury Regulation
Section 1.6011-4), a duly completed copy of IRS Form 8886 or any
successor form.
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.
63
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 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;
provided that for purposes of this Section 7.05, "Subsidiaries" of Whirlpool
shall not include Maytag Corporation and its Subsidiaries for the period
commencing with the acquisition thereof by Whirlpool and ending 30 days
thereafter.
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; provided that for purposes of this Section 7.06,
"Subsidiaries" of Whirlpool shall not include Maytag Corporation and its
Subsidiaries for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
64
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 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; provided that for purposes of this Section 7.08, "Subsidiaries"
of Whirlpool shall not include Maytag Corporation and its Subsidiaries for the
period commencing with the acquisition thereof by Whirlpool and ending 30 days
thereafter.
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;
65
(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 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;
66
(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;
(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; and
(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;
67
provided that for purposes of this Section 7.10, "Subsidiaries" of
Whirlpool shall not include Maytag Corporation and its Subsidiaries
for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
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; provided that for
purposes of this Section 7.11, "Subsidiaries" of Whirlpool shall not include
Maytag Corporation and its Subsidiaries for the period commencing with the
acquisition thereof by Whirlpool and ending 30 days thereafter.
SECTION 7.12. LEVERAGE RATIO.
Whirlpool shall maintain, as of the last day of each fiscal quarter of
Whirlpool, a Leverage Ratio of less than or equal to 3.0 to 1.0.
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; provided that for purposes of this Section 7.15,
"Subsidiaries" of Whirlpool shall not include Maytag Corporation and its
Subsidiaries for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
68
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; provided, further, that for purposes of this Section 7.16,
"Subsidiaries" of Whirlpool shall not include Maytag Corporation and its
Subsidiaries for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
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 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, (vi)
customary non-assignment provisions in contracts and (vii) in connection with
Indebtedness incurred by a Foreign Subsidiary that is otherwise permitted
hereunder, encumbrances or restrictions that are required by applicable law or
governmental regulation on the ability of such Foreign Subsidiary to pay
dividends or make distributions; provided that for purposes of this Section
7.17, "Subsidiaries" of Whirlpool shall not include Maytag Corporation and its
Subsidiaries for the period commencing with the acquisition thereof by Whirlpool
and ending 30 days thereafter.
69
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, the Fronting Agent 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, fronting 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 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.
70
SECTION 8.04. OTHER OBLIGATIONS.
(a) 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; provided that for
purposes of this Section 8.04(a), "Subsidiaries" of Whirlpool shall
not include Maytag Corporation and its Subsidiaries for the period
commencing with the acquisition thereof by Whirlpool and ending 30
days thereafter.
(b) Failure of Maytag Corporation or a Subsidiary of Maytag
Corporation to pay when due 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); or the default by
Maytag Corporation or a Subsidiary of Maytag Corporation in the
performance of any term, provision or condition contained in any
agreement under which any 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) was created or is
governed, the effect of which is 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 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.
71
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.
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.
72
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.
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, the Fronting
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
73
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, the Fronting 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, the Fronting Agent or any of the Lenders in
connection with enforcing the rights of the Lenders under the Loan
Documents;
SECOND, to payment of any fees owed to the Administrative Agent,
the Fronting 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.
74
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, the Fronting Agent or a Lender of the full
amount of the Obligation Currency expressed to be payable to the
Administrative Agent, the Fronting 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").
(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;
75
(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 of any provision of this Credit Agreement
relating to the Fronting Agent shall be effective without the written consent of
the Fronting 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. No amendment to Section 2.06 or any other provision hereof
relating to the Fronting Lenders shall be effective without the written consent
of the Fronting Lenders holding at least a majority of the Fronting Commitments.
The Administrative Agent may waive payment of the fee required under Section
13.03(b) without obtaining the consent of any of the Lenders.
SECTION 9.04. PRESERVATION OF RIGHTS.
No delay or omission of the Lenders, the Fronting Agent 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, the Fronting Agent and the Lenders until the
Obligations have been paid in full.
76
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, the Fronting Agent and the Lenders and
supersede all prior agreements and understandings among the Borrowers, the
Administrative Agent, the Fronting Agent and the Lenders relating to the subject
matter thereof except as contemplated in Section 2.07(c).
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 or the Fronting 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 and the Fronting
Agent for any costs, internal charges and out-of-pocket expenses (including
reasonable attorneys' fees) paid or incurred by the Administrative Agent and the
Fronting 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, the
Fronting Agent and the Lenders for any costs, internal charges and out-of-
77
pocket expenses (including attorneys' fees and time charges of attorneys for the
Administrative Agent, the Fronting Agent and the Lenders, which attorneys may be
employees of the Administrative Agent, the Fronting Agent or any Lender) paid or
incurred by the Administrative Agent, the Fronting Agent or any Lender in
connection with the collection and enforcement of the Loan Documents. Whirlpool
further agrees to indemnify the Administrative Agent, the Fronting Agent, the
Issuing Lender and each Lender and each of their respective directors, officers,
affiliates, agents 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 Fronting 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. 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 Documents are declared to be severable.
SECTION 10.08. NONLIABILITY OF LENDERS.
The relationship between the Borrowers and the Lenders and the
Administrative Agent and the Fronting 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, the Fronting
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 10.09. CHOICE OF LAW.
THE LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 10.10. 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
78
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, THE FRONTING 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, THE
FRONTING AGENT OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, THE
FRONTING 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 Borrowing Subsidiary 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 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 10.10, 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.
79
(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 10.11. WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
AS AN INDUCEMENT TO ENTER INTO THIS CREDIT AGREEMENT, EACH BORROWER,
THE ADMINISTRATIVE AGENT, THE FRONTING 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 Fronting Agent, the Issuing Lender, any Lender, any of
their Affiliates, or any of their 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 10.12. 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 Fronting
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, the Fronting 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
80
(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, the Fronting 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, the Fronting Agent or a Lender in connection therewith shall be
deemed included as part of the Obligations.
SECTION 10.13. CONFIDENTIALITY.
Each of the Administrative Agent, the Fronting 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 10.13, 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 10.13 or (ii)
becomes available to the Administrative Agent, the Fronting 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 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, the Fronting 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 10.13 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.
81
ARTICLE 11
THE AGENTS
SECTION 11.01. APPOINTMENT.
Citibank, 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, and Citibank, N.A. is
hereby appointed Fronting Agent hereunder and under each other Loan Document,
and each of the Lenders authorizes the Fronting Agent to act as the fronting
agent of such Lender. Each of the Administrative Agent and the Fronting Agent
agrees to act as such upon the express conditions contained in this Article 11.
Neither the Administrative Agent nor the Fronting Agent shall have any fiduciary
relationship in respect of any Lender by reason of this Credit Agreement.
SECTION 11.02. POWERS.
Each of the Administrative Agent and the Fronting Agent shall have and
may exercise such powers under the Loan Documents as are specifically delegated
to the Administrative Agent or the Fronting Agent, as applicable, by the terms
of each thereof, together with such powers as are reasonably incidental thereto.
Neither the Administrative Agent nor the Fronting Agent shall have any 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 or the Fronting Agent, as applicable.
SECTION 11.03. GENERAL IMMUNITY.
Neither the Administrative Agent, the Fronting 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 Fronting Agent, the Syndication
Agent, any Documentation Agent nor any of their respective directors, officers,
agents or employees shall be responsible for or have 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 the Fronting Agent, as applicable; or
(iv) the due execution, legality, validity, enforceability (other than its own
execution and delivery), genuineness, sufficiency or value of, or the perfection
or priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other instrument or document
82
furnished pursuant hereto. Neither the Administrative Agent, the Fronting 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 or the Fronting Agent at such time, but is
voluntarily furnished by any Borrower to the Administrative Agent, the Fronting
Agent, the Syndication Agent or any Documentation Agent (either in its capacity
as Administrative Agent, the Fronting 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 and the Fronting 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. Each of the Administrative Agent and the Fronting 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 or the
Fronting Agent, as applicable.
SECTION 11.06. EMPLOYMENT OF AGENTS AND COUNSEL.
Each of the Administrative Agent and the Fronting Agent may execute
any of its duties as Administrative Agent or as the Fronting Agent, as
applicable, hereunder and under any other Loan Document by or through 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. Each of the Administrative Agent and the Fronting 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.
Each of the Administrative Agent and the Fronting 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 or the Fronting Agent,
which counsel may be employees of the Administrative Agent or the Fronting
Agent.
83
SECTION 11.08. REIMBURSEMENT AND INDEMNIFICATION.
The Lenders agree to reimburse and indemnify the Administrative Agent
and the Fronting 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) or the Fronting 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 or
the Fronting 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) or the Fronting
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 or the Fronting Agent, as
applicable.
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 Fronting 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 Fronting
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 Fronting Agent, the Syndication Agent and
each Documentation Agent in its individual capacity as a Lender. The
Administrative Agent, the Fronting 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 Fronting 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 Fronting 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.
84
SECTION 11.11. SUCCESSOR ADMINISTRATIVE AGENT/FRONTING AGENT.
Each of the Administrative Agent or the Fronting 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 or Fronting Agent, as applicable. 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 or Fronting Agent, as applicable. If no successor
Administrative Agent or Fronting Agent, as applicable, shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty days after the resigning Administrative Agent's or Fronting
Agent's, as applicable, giving notice of its resignation, then such resignation
shall nevertheless become effective and thereafter the Lenders shall perform all
duties of the Administrative Agent or the Fronting Agent, as applicable, until
such time as the Required Lenders appoint a successor in accordance with the
terms above. No successor Administrative Agent or Fronting Agent shall be deemed
to be appointed hereunder until such successor 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 or as Fronting Agent, as applicable,
hereunder by a successor Administrative Agent or Fronting Agent, as applicable,
such successor shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning Administrative Agent or resigning
Fronting Agent, as applicable. Upon the effectiveness of the resignation of an
Administrative Agent or a Fronting Agent, the resigning Person 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 or Fronting 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 or Fronting 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, matured or unmatured, contingent or non-contingent.
85
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 (other than a
Competitive Bid 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 such 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 such 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, the
Fronting Agent 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, the Fronting Agent or the
86
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 and the Fronting 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 and the Fronting Agent. Any assignee or transferee of a
Lender's rights or obligations hereunder 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 and the Fronting 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.
87
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, no assignment may be made
without the prior written consent of Whirlpool and the Administrative Agent in
their sole discretion, unless (i) such Lender retains at all times a Commitment
which, is not less than $15,000,000 (unless such Lender is assigning all of its
Commitment), (ii) each such assignment to any Purchaser of any portion of such
Lender's Commitment shall be in an amount which is not less than $15,000,000
(or, if less, the remaining amount of its Commitment) and in integral multiples
of $1,000,000 in excess thereof and (iii) such Lender has provided Whirlpool
with three Business Days prior notice of such assignment, including such
information regarding the Purchaser as Whirlpool may reasonably request, and
Whirlpool has confirmed, on behalf of the Dutch Borrowers, that the Purchaser
has the status of a Professional Market Party. For purposes of clause (iii)
above, if Whirlpool does not raise any objection within the three Business Day
period, it shall be deemed to have confirmed that the Purchaser is a
Professional Market Party. 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, and the consent of each Issuing
Lender shall be required prior to any assignment becoming effective; provided,
however, that if a Default has occurred and is continuing, the consent of
Whirlpool shall not be required. No consents required by this Section 13.03(a)
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), (ii) payment of a $3,500 processing fee to the
Administrative Agent for processing such assignment and (iii) recordation of
such assignment in the Register as required by Section 13.03(c), 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.
88
(c) Register. The Borrowers hereby designate the Administrative Agent
to serve as the Borrowers' agent, solely for the purpose of this paragraph, to
maintain a register (the "Register") on which the Administrative Agent will
record each Lender's Commitment, the Loans made by each Lender, and each
repayment in respect of the principal amount of the Loans of each Lender and
annexed to which the Administrative Agent shall retain a copy of Notice of
Assignment delivered to the Administrative Agent pursuant to Section 13.03(b).
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrowers, the Administrative Agent and the Lenders shall treat
each Person in whose name a Loan is registered as the owner thereof for all
purposes of this Agreement, notwithstanding notice or any provisions herein to
the contrary. A Lender's Commitment and the Loans made pursuant thereto may be
assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer in the Register. Any assignment or transfer of a
Lender's Commitment or the Loans made pursuant thereto shall be registered in
the Register only upon delivery to the Administrative Agent of a Notice of
Assignment duly executed by the assignor thereof. No assignment or transfer of a
Lender's Commitment or the Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section. The Register shall be
available for inspection by the Borrowers and any Lender at any reasonable time
and from time to time upon reasonable prior notice.
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 2.08(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 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), (iv) with respect to notices, payments and other
matters hereunder, the Credit Parties, the Administrative Agent, the Fronting
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 and (v) the Granting Lender has provided Whirlpool with three
89
Business Days prior notice of such assignment, including such information
regarding the SPC as Whirlpool may reasonably request, and Whirlpool has
confirmed, on behalf of the Dutch Borrowers, that the SPC has the status of a
Professional Market Party. For purposes of clause (v) above, if Whirlpool does
not raise any objection within the three Business Day period, it shall be deemed
to have confirmed that the SPC is a Professional Market Party. 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.
SECTION 13.07 REPRESENTATION OF THE LENDERS.
Each Lender represents and warrants to each of the Dutch Borrowers
that such Lender is a Professional Market Party.
ARTICLE 14
NOTICES
SECTION 14.01. GIVING NOTICE.
(a) Except as otherwise permitted by Section 2.07(g) or as provided in
subsection (b) below, 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.
(b) So long as Citibank or any of its Affiliates is the Administrative
Agent, materials required to be delivered pursuant to Section 7.01(i), (ii),
(iii), (iv) and (v) shall be delivered to the Administrative Agent in an
electronic or other acceptable medium in a format acceptable to the
90
Administrative Agent and the Lenders by e-mail at xxxxxxxxxxxxxxx@xxxxxxxxx.xxx
or if by another medium to the address of the Administrative Agent. In the event
such materials are transmitted to such e-mail address such transmission shall
satisfy the Borrowers' obligation to deliver such materials. The Borrowers agree
that the Administrative Agent may make such materials, as well as any other
written information, documents, instruments and other material relating to the
Borrowers, any of their Subsidiaries or any other materials or matters relating
to this Credit Agreement, the Notes or any of the transactions contemplated
hereby (collectively, the "Communications") available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the
"Platform"). The Borrowers acknowledge that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the
Administrative Agent nor any of its Affiliates warrants the accuracy, adequacy
or completeness of the Communications or the Platform and each expressly
disclaims liability for errors or omissions in the Communications or the
Platform. No warranty of any kind, express, implied or statutory, including,
without limitation, any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or other
code defects, is made by the Administrative Agent or any of its Affiliates in
connection with the Platform.
(c) Each Lender agrees that notice to it (as provided in the next
sentence) (a "Notice") specifying that any Communications have been posted to
the Platform shall constitute effective delivery of such information, documents
or other materials to such Lender for purposes of this Credit Agreement;
provided that if requested by any Lender the Administrative Agent shall deliver
a copy of the Communications to such Lender by email or telecopier. Each Lender
agrees (i) to notify the Administrative Agent in writing of such Lender's e-mail
address to which a Notice may be sent by electronic transmission (including by
electronic communication) on or before the date such Lender becomes a party to
this Agreement (and from time to time thereafter to ensure that the
Administrative Agent has on record an effective e-mail address for such Lender)
and (ii) that any Notice may be sent to such e-mail address.
SECTION 14.02. CHANGE OF ADDRESS.
Subject to Section 10.10(b), each Borrower, the Administrative Agent,
the Fronting Agent and each Lender may change the address for service of notice
upon it by a notice in writing to the other parties hereto.
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, the Fronting 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.
91
ARTICLE 16
PATRIOT ACT NOTICE
Each Lender hereby notifies the Borrowers that pursuant to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act"), it is required to obtain, verify and record
information that identifies each borrower, guarantor or grantor (the "Loan
Parties"), which information includes the name and address of each Loan Party
and other information that will allow such Lender to identify such Loan Party in
accordance with the Act.
92
IN WITNESS WHEREOF, the Borrowers, the Administrative Agent and the
Lenders have caused this Credit Agreement to be duly executed by their duly
authorized officers, all as of the day and year first above written.
WHIRLPOOL CORPORATION
By: /s/ Xxxxxxxx X. XxXxxx
--------------------------------------------------------
Xxxxxxxx X. XxXxxx
Title: Assistant Treasurer
0000, X-00
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Assistant Treasurer
Telecopy No.: 000-000-0000
WHIRLPOOL EUROPE B.V.
By: /s/ Xxxxxxxx X. XxXxxx
-------------------------------------------------------
Xxxxxxxx X. XxXxxx
Title: Attorney-in-Fact
c/o Whirlpool Corporation
0000, X-00
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Assistant Treasurer
Telecopy No.: 000-000-0000
WHIRLPOOL FINANCE B.V.
By: /s/ Xxxxxxxx X. XxXxxx
-------------------------------------------------------
Xxxxxxxx X. XxXxxx
Title: Attorney-in-Fact
c/o Whirlpool Corporation
0000, X-00
Xxxxxx Xxxxxx, Xxxxxxxx 00000
Attn: Assistant Treasurer
Telecopy No.: 000-000-0000
CITIBANK, N.A., as Administrative Agent, Fronting Agent,
Issuing Lender, Fronting Lender and a Lender
By: /s/ Xxxxxxx Xxx
----------------------------------------------------
Name: Xxxxxxx Xxx
Title: Vice President
JPMORGAN CHASE BANK, N.A., as Syndication Agent, Fronting
Lender and a Lender
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Director
ABN AMRO BANK N.V., as Documentation Agent and a Lender
By: /s/ Xxxxxxxx Xxxx
----------------------------------------------------
Name: Xxxxxxxx Xxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Documentation Agent and a Lender
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
THE ROYAL BANK OF SCOTLAND PLC, as Documentation Agent
and a Lender
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
BARCLAYS BANK PLC
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Director
THE BANK OF TOKYO-MITSUBISHI , LTD.,
NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxx
Title: Authorized
ING BANK N.V., DUBLIN BRANCH
By: /s/ Xxxx Xxxxx
----------------------------------------------------
Name: Xxxx Xxxxx
Title: Director
By: /s/ Xxxxx Xxxxx
----------------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Joint General Manager
FORTIS CAPITAL CORP.
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
BANK OF MONTREAL
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK OF MONTREAL IRELAND PLC
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxx
Title: General Manager
CREDIT INDUSTRIEL ET COMMERCIAL
By: /s/ X. Xxxxxxxxxx
----------------------------------------------------
Name: X. Xxxxxxxxxx
Title: SVP
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: SVP
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President
STANDARD CHARTERED BANK
By: /s/ Xxxxx Xxxxx
----------------------------------------------------
Name: Xxxxx Xxxxx
Title: Head - Corporate Client Relationships
By: /s/ Xxxxxx Xxxxxxxxxx
----------------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Assistant Vice President
UNICREDITO ITALIANO S.P.A., NEW YORK BRANCH
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: First Vice President
BANK AUSTRIA CREDITANSTALT AG
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxx
----------------------------------------------------
Name: Xxxxx Xxxxx
Title: Manager
BANCA INTESA S.P.A.
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: First Vice President
BANCA NAZIONALE DEL LAVORO S.p.A.,
NEW YORK BRANCH
By: /s/ Xxxxx Xx Xxxxx
----------------------------------------------------
Name: Xxxxx Xx Xxxxx
Title: Relationship Manager
By: /s/ Luigi Concordia
----------------------------------------------------
Name: Luigi Concordia
Title: Senior Manager
NORDEA BANK FINLAND PLC
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: SVP Credit
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: First Vice President
UBS LOAN FINANCE LLC
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Associate Director - Banking Products Services, US
By: /s/ Xxxxx Xxxx
----------------------------------------------------
Name: Xxxxx Xxxx
Title: Associate Director - Banking Products Services, US
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
WESTPAC INSTITUTIONAL BANK
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Head of Relationship Management
