AMENDED AND RESTATED LONG-TERM CREDIT AGREEMENT

Exhibit 10.1

EXECUTION COPY

AMENDED AND RESTATED

LONG-TERM CREDIT AGREEMENT

dated as of August 13, 2009

among

WHIRLPOOL CORPORATION

WHIRLPOOL EUROPE B.V.

WHIRLPOOL FINANCE B.V.

WHIRLPOOL CANADA HOLDING COMPANY

CERTAIN FINANCIAL INSTITUTIONS

and

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent and Fronting Agent

and

CITIBANK, N.A.,

as Syndication Agent

THE ROYAL BANK OF SCOTLAND PLC,

FORTIS CAPITAL CORP.

and

BANK OF AMERICA, N.A.,

as Documentation Agents

J.P. MORGAN SECURITIES INC.

and

CITIGROUP GLOBAL MARKETS INC.,

as Lead Arrangers and Joint Bookrunners

TABLE OF CONTENTS

 

 

i

 

ii

 

iii

EXHIBITS

SCHEDULES

 

iv

AMENDED AND RESTATED

LONG-TERM CREDIT AGREEMENT

This Credit Agreement, dated as of August 13, 2009, is among Whirlpool Corporation, a Delaware corporation, Whirlpool Europe B.V., a Netherlands corporation having its corporate seat in Breda, The Netherlands, Whirlpool Finance B.V., a Netherlands corporation having its corporate seat in Breda, The Netherlands, Whirlpool Canada Holding Company, a Nova Scotia unlimited company, the other Borrowers from time to time party hereto, the Lenders from time to time party hereto, JPMorgan Chase Bank, N.A., as Administrative Agent and Fronting Agent for such Lenders, Citibank, N.A., as Syndication Agent, and The Royal Bank of Scotland plc, Fortis Capital Corp. and Bank of America, N.A., as Documentation Agents.

W I T N E S S E T H

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 Five-Year Credit Agreement, dated as of December 1, 2005, as amended by Amendment No. 1 to the Credit Agreement dated as of February 27, 2009 (the “ Existing Long-Term Credit Agreement ”) and

WHEREAS, pursuant to the terms of this Credit Agreement, on the Amendment Effective 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:

“ 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 JPMorgan Chase Bank, N.A., 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 and, in the case of Eurocurrency Rate Advances, for the same Interest Period and includes each of a Committed Advance and a Fronted Advance.

“ Affected Lender ” means any Lender that (a) is a Defaulting Lender, (b) has made a public statement to the effect that it does not intend to comply with its funding obligations generally under agreements in which it commits to extend credit, (c) has failed, within three Business Days after written request by the Administrative Agent, to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Advances and participations in then outstanding Letters of Credit and Fronted Loans provided that, any such Lender shall cease to be an Affected Lender under this clause (c) upon receipt of such confirmation by the Administrative Agent, or (d) (i) become or is insolvent or has a parent company that has become or is insolvent or (ii) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a parent company that has become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment; provided that a Lender shall not be an Affected Lender solely by virtue of the ownership or acquisition of an equity interest in such Lender or parent company thereof by a governmental authority or an instrumentality thereof or the exercise of control over such Lender or parent company by a governmental authority or an instrumentality thereof.

“ 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 $[            ]), as amended 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 sum of (a) 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 plus (b) the Alternate Base Rate Margin for such day.

“ Alternate Base Rate Margin ” means (a) with respect to Advances made by Non-Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part I) and (b) with respect to Advances made by Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part II).

“ Amendment Effective Date ” is defined in Section 5.01.

“ 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.

 

3

“ Bankruptcy Code ” means Title 11, United States 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.

“ Borrowing Date ” means a date on which an Advance is made hereunder.

“ Borrowing Subsidiary ” means, individually, Whirlpool Europe, Whirlpool Finance, Whirlpool Canada or any Additional Borrowing Subsidiary, and “ Borrowing Subsidiaries ” means, collectively, Whirlpool Europe, Whirlpool Finance, Whirlpool Canada and each Additional Borrowing Subsidiary.

“ Business Day ” means (i) with respect to any borrowing, payment or rate selection of Eurocurrency Committed 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.

“ 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

 

4

Agent under the terms of Section 13.03, as such amount may be modified from time to time pursuant to the terms of this Credit Agreement and (ii) with respect to each Issuing Lender, the LOC Commitment. On the Amendment Effective Date, the maximum Commitment of each Non-Extending Lender shall be the amount set forth under “Unextended Commitment” on Schedule I hereto. On the Amendment Effective Date, the maximum Commitment of each Extending Lender shall be the amount set forth under “Extended Commitment” 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 Eurocurrency 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.

“ 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-recurring cash restructuring charges in an amount not to exceed $100,000,000 in any twelve month period, and non-cash, non-recurring pre-tax charges taken by Whirlpool during such period, (d) depreciation and amortization expense for such period, and (e) non-cash charges and expenses and fees related to class action lawsuits, product recalls, regulatory proceedings and governmental investigations, 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, and minus (iii) to the extent not deducted in the determination of such net income, cash charges and expenses and fees related to class action lawsuits, product recalls, regulatory proceedings and governmental investigations.

“ 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.

 

5

“ Credit Agreement ” means this Amended and Restated Long-Term Credit Agreement, as it may be amended, supplemented or otherwise modified from time to time.

“ Default ” means an event described in Article 8.

“ Defaulted Loan ” means, with respect to any Lender at any time, the portion of any Loan required to be made by such Lender to a Borrower pursuant to Article 2 at or prior to such time which has not been made by such Lender as of such time. In the event that a portion of a Defaulted Loan shall be deemed made pursuant to Section 2.11(a), the remaining portion of such Defaulted Loan shall be considered a Defaulted Loan originally required to be made pursuant to Section 2.03 on the date of set off by the Borrower of the Defaulted Loan so deemed made in part.

“ Defaulting Lender ” means any Lender, as determined by the Administrative Agent, that has (a) failed to fund any portion of its Advances or participations in Letters of Credit or Fronted Loans within three Business Days of the date required to be funded by it hereunder, (b) notified the Borrower, the Administrative Agent, the Issuing Lenders, the Fronting Lenders or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement or (c) otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid or funded by it hereunder within three Business Days of the date when due, unless the subject of a good faith dispute.

“ Documentation Agent ” means any of The Royal Bank of Scotland plc, Fortis Capital Corp. 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 Reuters Screen on the date of determination; provided that if more than one rate is listed then the applicable conversion rate shall be the arithmetic average of such rates. If for any reason such conversion rates are not available, the Dollar Amount shall be calculated using the arithmetic average of the spot buying rates for such currency in Dollars as quoted to the Administrative Agent 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).

 

6

“ Dollars ” and “ $ ” each mean lawful money of the United States of America.

“ Dutch Financial Supervision Act ” means the Dutch Financial Supervision Act ( Wet op het financieel toezicht ) and the rules an regulations promulgated thereunder.

“ Dutch Borrower ” means each Borrower that is incorporated, established or organized under the laws of The Netherlands.

“ 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 Base Rate ” means, (i) with respect to a Eurocurrency Committed Advance or a Eurocurrency Committed Loan, denominated in a particular Agreed Currency (pursuant to Sections 2.01) for the relevant Interest Period: (1) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on the page of the Reuters 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 Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such 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 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 Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 A.M. (London time) two Business Days prior to the first day of such Interest Period, or (3) 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 Interest Period in same day funds in the approximate amount of the Eurocurrency Loan being made, continued or converted by JPMCB and with a term equivalent to such

 

7

Interest Period would be offered by JPMCB’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 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 Interest Period in same day funds in the approximate amount of the Eurocurrency Loan being made, continued or converted by JPMCB and with a term equivalent to such Interest Period would be offered by JPMCB’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 Interest Period. The Eurocurrency Base Rate shall be rounded upward to the next  ¹ / 100 of 1%.

“ 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 Loan ” means a Eurocurrency Committed Loan or a Fronted Loan, as applicable.

“ Eurocurrency Margin ” means (a) with respect to Advances made by Non-Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part I) and (b) with respect to Advances made by Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part II).

“ 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.

“ Eurocurrency Rate ” means, (i) with respect to a Eurocurrency Committed Advance or a Eurocurrency Committed Loan for each day during the relevant Interest Period, the sum of (a) the Eurocurrency Base Rate applicable to such 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 Interest Period, the sum of (a) the Eurocurrency Base Rate applicable to such Interest Period plus (b) the Eurocurrency Margin for such day plus (c) the applicable MLA Cost.

 

8

“ Eurocurrency Rate Advance ” means an Advance which bears interest at the Eurocurrency Rate.

“ Eurocurrency Rate Loan ” means a Loan which bears interest at the Eurocurrency Rate.

“ European Community ” means the European countries that are signatories to the Treaty on European Union.

“ Existing Long-Term Credit Agreement ” is defined in the preamble to this Credit Agreement.

“ Existing Termination Date ” means, with respect to the Non-Extending Lenders and their respective Commitments, the earlier of (i) December 1, 2010 and (ii) the date on which the Commitments terminate pursuant to the terms of this Credit Agreement.

“ Extending Lender ” means each Lender that, as of the Amendment Effective Date or in accordance with Section 2.11, has agreed to extend its Commitment to the Extension Termination Date and Banco Santander, Wells Fargo, N.A. and Deutsche Bank AG New York Branch.

“ Extension Termination Date ” means, with respect to the Extending Lenders and their respective Commitments, the earlier of (a) the third anniversary of the Amendment Effective Date and (b) the date on which the Commitments terminate pursuant to the terms of this Agreement.

“ Facility Office ” means the Lending Installation notified by a party to the Credit Agreement to the Administrative Agent or the Fronting Agent in writing on or before the date it becomes a party the Credit Agreement (or, following that date, by not less than five Business Days’ written notice) as the Lending Installation through which it perform its obligations under this Agreement.

“ 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 JPMCB on such day on such transactions as determined by the Administrative Agent.

“ Floating Rate Advance ” means an Advance which bears interest at the Alternate Base Rate.

“ Floating Rate Loan ” means a Loan which bears interest at the Alternate Base Rate.

 

9

“ 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 JPMorgan Chase Bank, 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.

“ 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

 

10

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.

“ Initial Termination Date ” means, with respect to the Non-Extending Lenders and their respective Commitments, the earlier of (a) December 1, 2010 and (ii) the date on which the Commitments terminate pursuant to the terms of this Agreement.

“ Interest Coverage Ratio ” means, as of any date of calculation thereof, the ratio of (i) Consolidated EBITDA 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, (i) with respect to a Eurocurrency Committed Advance or a Eurocurrency Committed Loan, a period of one week or 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 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 Extension Termination Date; provided , however , that if there is no such numerically corresponding day in such next, second, third or sixth succeeding month, such 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 Interest Period shall end on a day that is the selected number of days from the beginning of such Interest Period, but in no event later than the scheduled Extension Termination Date. If an Interest Period would otherwise end on a day which is not a Business Day, such 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 Interest Period shall end on the immediately preceding Business Day.

“ Issuing Lender ” means any of JPMCB, Wells Fargo, N.A. and any other Lender approved by Whirlpool (and consented to by such Lender).

“ JPMCB ” means JPMorgan Chase Bank, N.A., and its successors.

 

11

“ Lenders ” means each Extending Lender, each Non-Extending Lender, each commercial bank that shall become a party hereto pursuant to Section 2.03(c)(iii), each Issuing Lender and each Person that shall become a party hereto pursuant to Section 13.01.

“ 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 an 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; provided , that for purposes of calculating the Leverage Ratio, (a) Indebtedness shall be determined by allowing clause (vi) to be either positive or negative, determined by reference to the aggregate position of Whirlpool and its Subsidiaries in respect of all such agreements, devices or arrangements referred to in such clause and (b) there shall be excluded from clause (vi) of the definition of “Indebtedness” an amount (whether positive or negative) of not more than $200,000,000.

“ Lien ” means any lien (statutory or other), mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including, without limitation, the interest of a vendor or lessor under any conditional sale, Capitalized Lease or other title retention agreement).

“ Loan ” means, with respect to a Lender, such Lender’s portion, if any, of any Advance.

“ Loan Documents ” means this Credit Agreement, each Note, the LOC Documents and the Assumption Agreements.

“ LOC Commitment ” means, for each Issuing Lender, the commitment of such Lender to issue Letters of Credit not exceeding the amount set forth on Schedule I hereto, provided that the aggregate face amount of all such issuances at any time outstanding (together with the amounts of any unreimbursed drawings thereon) shall not exceed 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.

 

12

“ 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 applicable 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.

“ 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 .

“ 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-Extending Lender ” means each Lender that is not an Extending Lender.

“ 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

 

13

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 any Issuing Lender), the Administrative Agent or the Fronting Agent arising under the Loan Documents.

“ Off-Balance Sheet Obligations ” means, with respect to each Borrower and each Subsidiary of a Borrower, (i) the principal portion of such Person’s obligations under any synthetic lease, tax retention operating lease, off-balance sheet loan or similar off-balance sheet financing product and (ii) the aggregate amount of uncollected accounts receivable of such Person subject at such time to a sale of receivables (or similar transaction) regardless of whether such transaction is effected without recourse to such Person.

“ Original Borrowers ” is defined in Section 5.01.

“ Participant ” is defined in Section 13.02.

“ Participating Member State ” means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relation to Economic and Monetary Union.

“ 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).

 

14

“ 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-Part I and Schedule IV-Part II attached hereto.

“ Prime Rate ” means the per annum rate of interest established from time to time by JPMCB as its “Base Rate.” Such rate is a rate set by JPMCB based upon various factors including JPMCB’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 JPMCB shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Property ” of a Person means any and all property and assets, whether real, personal, tangible, intangible, or mixed, of such Person.

“ Purchaser ” is defined in Section 13.03.

“ Purchasing Lender ” is defined in Section 2.06(f).

“ Ratable Share ” means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment; provided that in the case of Section 2.11 when a Defaulting Lender shall exist, “Ratable Share” shall mean the percentage of the total Commitments (disregarding any Defaulting Lender’s Commitment) represented by such Lender’s Commitment. If the Commitments have terminated or expired, the Ratable Shares shall be determined based upon the Commitments most recently in effect, giving effect to any assignments and to any Lender’s status as a Defaulting Lender at the time of determination.

“ Reference Banks ” means in relation to MLA Cost, the principal London offices of JPMorgan Chase Bank, N.A., Citibank, N.A. and The Royal Bank of Scotland plc or such other banks as may be appointed by the Administrative Agent or the Fronting Agent as the case may be.

 

15

“ Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System from time to time in effect and shall include any successor or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.

“ Regulation U ” means Regulation U of the Board of Governors of the Federal Reserve System from time to time in effect and shall include any successor or other regulations or official interpretations of said Board of Governors relating to the extension of credit by banks for the purpose of purchasing or carrying margin stock applicable to member banks of the Federal Reserve System.

“ Regulation X ” means Regulation X of the Board of Governors of the Federal Reserve System from time to time in effect and shall include any successor or other regulations or official interpretations of said Board of Governors relating to the obtaining of credit for the purpose of purchasing or carrying margin stock from (among others) member banks of the Federal Reserve System.

“ Reportable Event ” means a reportable event as defined in Section 4043 of ERISA and the regulations issued under such section with respect to a Plan, excluding, 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 and Participation Interests in LOC Obligations and Fronted Advances.

“ Reserve Requirement ” means, with respect to an 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.

 

16

“ 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.

“ 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 Citibank, N.A., so long as it is a Lender under this Credit Agreement.

“ Taxes ” is defined in Section 3.01(a).

“ Termination Date ” means the Initial Termination Date or the Extension Termination Date, as applicable.

“ Treaty on European Union ” means the Treaty of Rome of March 25, 1957, as amended by the Single European Act 1986 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 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.

 

17

“ Unused Commitment Fee Rate ” means (a) with respect to Commitments of the Non-Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part I) and (b) with respect to Commitments of the Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part II).

“ Utilization Fee Rate ” means (a) with respect to Advances made by Non-Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part I) and (b) with respect to Advances made by Extending Lenders, a rate per annum determined in accordance with the Pricing Schedule (Part II).

“ Whirlpool ” means Whirlpool Corporation, a Delaware corporation, and its successors and assigns.

“ Whirlpool Canada ” means Whirlpool Canada Holding Company, unlimited company amalgated under the laws of the Province of Nova Scotia, Canada, and its successors and assigns.

“ Whirlpool Europe ” means Whirlpool Europe B.V., a Netherlands corporation having its corporate seat in Breda, The Netherlands, and its successors and assigns.

“ Whirlpool Finance ” means Whirlpool Finance B.V., a Netherlands corporation having its corporate seat in Breda, The Netherlands, and its successors and assigns.

The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.

Section 1.02. Accounting Terms and Determinations .

Unless otherwise specified herein, all accounting terms used herein shall be interpreted, all accounting determinations hereunder shall be made, and all financial statements required to be delivered hereunder shall be prepared in accordance with generally 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; 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.

 

18

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) each 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;

provided that (A) Floating Rate 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, each Borrower may borrow, repay, reborrow and, subject to Section 2.04(a), request Letters of Credit at any time prior to the Extension Termination Date. The Commitments to lend and issue and participate in Letters of Credit hereunder of each Non-Extending Lender shall expire on the Initial Termination Date and the Commitments to lend and issue and participate in Letters of Credit hereunder of each Extending Lender shall expire on the Extension Termination Date. Each applicable Borrower promises to pay its outstanding Advances and its other unpaid Obligations owing to the Non-Extending Lenders in full on the Initial Termination Date and to pay its outstanding Advances and its other unpaid Obligations owing to the Extending Lenders in full on the Extension Termination Date.

Section 2.03. Committed Advances .

(a) Committed Advances . Each Non-Extending Lender severally agrees, on the terms and conditions set forth in this Credit Agreement and notwithstanding the amount

 

19

of Fronted Loans made by such Lender, to make Committed Loans to the Borrowers from time to time, from and including the Amendment Effective Date and prior to the Initial Termination Date, in amounts the Dollar Amount of which shall not exceed in the aggregate at any one time outstanding the amount equal to the excess of (i) its Commitment over (ii) its Participation Interests. Each Extending Lender severally agrees, on the terms and conditions set forth in this Credit Agreement and notwithstanding the amount of Fronted Loans made by such Lender, to make Committed Loans to the Borrowers from time to time, from and including the Amendment Effective Date and prior to the Extension Termination Date, in amounts the Dollar Amount of which shall not exceed in the aggregate at any one time outstanding the amount equal to the excess of (i) its Commitment over (ii) its Participation Interests. 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 or Increases in Aggregate Commitment . (i)  Ratable Reductions . 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.

(ii) Non-Ratable Reduction . As long as no Default or Unmatured Default exists at the time of such request and at the time of reduction, Whirlpool shall have the right, at any time, upon at least ten Business Days’ notice to a Defaulting Lender (with a copy to the Agent), to terminate in whole such Lender’s Commitment. Such termination shall be effective, (x) with respect to such Lender’s unused Commitment, on the date set forth in such notice, provided , however , that such date shall be no earlier than ten Business Days after receipt of such notice and (y) with respect to each Advance outstanding to such Lender, in the case of a Base Rate Advance, on the date set forth in such notice and, in the case of a Eurodollar Rate Advance, on the last day of the then current Interest Period relating to such Advance. Upon termination of a Lender’s Commitment under this Section 2.03(c), the Borrowers will pay or cause to be paid all principal of, and interest accrued to the date of such payment on, Advances owing to such Lender and pay any accrued Commitment Fees or Letter of Credit issuance fees payable to such Lender pursuant to the provisions of Section 2.07, and all other amounts payable to such Lender hereunder (including, but not limited to, any indemnification for Taxes under Section 3.01 and any increased costs or other amounts owing under Section 3.02 or 3.03); and upon such payments, the obligations of such Lender hereunder shall, by the provisions hereof, be released

 

20

and discharged; provided , however , that such Lender’s rights under Sections 3.01, 3.02, 3.03, and 10.06, and its obligations under Section 11.08 shall survive such release and discharge as to matters occurring prior to such date. Subject to Section 2.03(c)(iii), the aggregate amount of the Commitment of the Lenders once reduced pursuant to this Section 2.03(c)(ii) may not be reinstated.

(iii) Increase . Whirlpool may request at any time and from time to time that the Aggregate Commitment be increased up to a maximum amount of $200,000,000; provided that (i) no increase in the Aggregate Commitment shall be made at a time when a Default or Unmatured Default shall have occurred and be continuing or would result from the requested increase, (ii) no increase in the Aggregate Commitment shall be made at any time after the Aggregate Commitment has been terminated or reduced in accordance with Section 2.03(c)(i), (iii) each partial increase shall be made in an aggregate amount at least equal to $10,000,000 and in integral multiples of $5,000,000 above such amount, (iv) Whirlpool shall have delivered to the Administrative Agent certified resolutions of the Board of Directors of Whirlpool authorizing such increase and borrowings in connection therewith and (v) all of the representations and warranties set forth in Article 6 (except for those contained in Sections 6.04, 6.05 and 6.07) shall be true and correct in all material respects as of the date of such request and as of the effective date of such increase. Any Lender may refuse to participate in any proposed increase in the Aggregate Commitment, and failure to respond to any request to participate in an increase in the Aggregate Commitments shall be deemed to constitute a refusal to so participate. In the event of such a requested increase in the Commitment, Whirlpool shall consult with the Administrative Agent as to the number, identity and requested Commitments of Extending Lenders and additional financial institutions that the Administrative Agent may invite to participate in the aggregate Commitment. The Administrative Agent will not unreasonably refuse to so invite a commercial bank organized, identified and requested by Whirlpool, that has capital and surplus reasonably satisfactory to the Administrative Agent in light of the Commitment which such commercial bank would assume hereunder; provided that each such assuming commercial bank shall, upon becoming a party to this Agreement, become an Extending Lender. The Administrative Agent shall promptly notify Whirlpool and the Lenders of any increase in the amount of the Aggregate Commitment pursuant to this Section and of the respective adjusted Commitment and Ratable Share of each Lender after giving effect thereto. Each Borrower acknowledges that, in order to maintain Advances in accordance with the Ratable Share of each Lender, a non-pro-rata increase in the aggregate Commitment may require prepayment or funding of all or portions of certain Loans on the date of such increase (and any such prepayment or funding shall be subject to the other provisions of this Credit Agreement).

(d) Minimum Amount of Each Committed Advance . Each Committed Advance made or continued hereunder shall be in the minimum Dollar Amount of $5,000,000 or a higher integral multiple of $1,000,000; provided , however , that any Floating Rate Advance may be in the aggregate amount of the unused Aggregate Commitment.

 

21

(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;

(vi) in the case of each Eurocurrency Committed Advance, the Interest Period applicable thereto; and

(vii) the account information for the account of the Borrower that shall be credited with the proceeds of such Committed Advance.

(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 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

 

22

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 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

 

23

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, each Issuing Lender agrees to issue, and each Lender severally agrees to participate in the issuance by such Issuing Lender of, standby Letters of Credit in Agreed Currencies from time to time from the Amendment Effective Date until the date thirty days prior to the Extension Termination Date as any Borrower may request, in a form acceptable to such Issuing Lender; provided , however , that (i) the Dollar Amount

 

24

of the LOC Obligations outstanding shall not at any time exceed the LOC Committed Amount, (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 and (iii) after giving effect to each issuance, the sum of the LOC Obligations that mature after the Initial Termination Date plus the principal amount of outstanding Advances owed to the Extending Lenders shall not exceed the Aggregate Commitments of the Extending Lenders. No Issuing Lender shall 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 such 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 Extension Termination Date. No Issuing Lender shall be under any 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 such 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 such 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 such Issuing Lender that prohibits, or requests that such Issuing Lender refrain from the issuance of letters of credit generally or such Letter of Credit in particular or that imposes upon such Issuing Lender with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Lender is not otherwise compensated hereunder) not in effect on the Amendment Effective Date, or that imposes upon such Issuing Lender any unreimbursed loss, cost or expense which was not applicable on the Amendment Effective Date and which such Issuing Lender in good faith deems 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 applicable Issuing Lender (by completion of the appropriate application forms of such Issuing Lender) at least three Business Days prior to the requested date of issuance. At least quarterly (and more frequently upon request) such Issuing Lender shall provide to the Administrative Agent a detailed report specifying the Letters of Credit issued by such Issuing Lender which are then issued and outstanding. The Administrative Agent shall disseminate promptly to each of the Lenders the information provided by such 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 applicable 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 such Issuing Lender and discharge when due, its pro rata share of the obligations arising under such Letter of Credit. Without

 

25

limiting the scope and nature of each Lender’s Participation Interest in any Letter of Credit, to the extent that the applicable 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 such 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 each 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 applicable Issuing Lender under any Letter of Credit, together with interest as hereinafter provided. Each Lender acknowledges and agrees that its participation in each Letter of Credit will be automatically adjusted to reflect such Lender’s ratable share of the obligations under such Letter of Credit at each time such Lender’s Commitment is amended pursuant to an assignment in accordance with Section 13.01 or otherwise pursuant to this Agreement. Notwithstanding anything contained in this Section 2.04(c) to the contrary, each Non-Extending Lender’s participations in Letters of Credit that expire after the Initial Termination Date shall terminate upon the Initial Termination Date.

(d) Reimbursement . In the event of any drawing under any Letter of Credit, the applicable Issuing Lender will promptly notify the applicable Borrower and the Administrative Agent. The applicable Borrower promises to reimburse the applicable Issuing Lender (such reimbursement to be made to the Administrative Agent for the account of such 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 applicable Issuing Lender that such Borrower intends to otherwise reimburse such 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 any 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. Each 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 such 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

 

26

does not pay such amount to the Administrative Agent for the account of the applicable Issuing Lender in full upon such request, such Lender shall, on demand, pay to the Administrative Agent for the account of such 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 such 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 and thereafter at a rate equal to the Alternate Base Rate. Each Lender’s obligation to make such payment to the applicable Issuing Lender, and the right of such 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 applicable Issuing Lender, such Lender shall, automatically and without any further action on the part of the Administrative Agent, such 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 such 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 applicable 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

 

27

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 applicable Issuing Lender such Participation Interests in the outstanding LOC Obligations as shall be necessary to cause each such Lender to share in such LOC Obligations ratably in proportion to the ratio that their respective Commitments bear to the Aggregate Commitment (determined before giving effect to any termination of the Commitments pursuant to Section 9.01)), provided that at the time any purchase of Participation Interests pursuant to this sentence is actually made, the purchasing Lender shall be required to pay to the Administrative Agent for the account of such Issuing Lender, to the extent not paid to such 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 Lenders 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 Lenders’ 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

 

28

issuance of any Letter of Credit or (B) the failure of the applicable 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 ”).

(ii) As between the Borrowers and the Lenders (including the Issuing Lenders), 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 Lenders) 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 any 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 a Issuing Lenders), 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 Lenders) 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 Lenders) shall, in any way, be liable for any failure by any 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 such 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 Lenders) to enforce any right, power or benefit under this Credit Agreement.

 

29

(v) Notwithstanding anything to the contrary contained in this Section 2.04(i), no Borrower shall have any obligation to indemnify any Issuing Lender in respect of any liability incurred by such Issuing Lender (A) arising solely out of the gross negligence or willful misconduct of such Issuing Lender, as determined by a court of competent jurisdiction, or (B) caused by such 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 Lenders . It is expressly understood and agreed that the obligations of the Issuing Lenders hereunder to the Lenders are only those expressly set forth in this Credit Agreement and that the Issuing Lenders 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 any Issuing Lender any amounts made available by such Lender to such 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 such 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 . Each of the Lenders listed on Schedule I hereto as having “LOC Commitments” is hereby appointed as Issuing Lender hereunder and under each other Loan Document and each of the Lenders authorizes each Issuing Lender to act on behalf of the Lenders with respect to any Letters of Credit and related LOC Documents.

Section 2.05. Reserved .

Section 2.06. Fronted Advance Subfacility .

(a) Fronted Advances . From and including the Amendment Effective Date and prior to the Extension Termination Date, each Fronting Lender severally agrees, on the terms and conditions set forth in this Credit Agreement, 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).

 

30

(b) Types of Fronted Advances . The Fronted Advances shall be Eurocurrency 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 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;

(v) the Interest Period of such Fronted Advance, which shall be for a period of one to seven days; and

(vi) the account information for the account of the Borrower that shall be credited with the proceeds of such Fronted Advance.

(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

 

31

day of the Interest Period for such Advance or (ii) the next occurring 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 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) Unused Commitment Fee . (i) Whirlpool hereby agrees to pay to the Administrative Agent for the account of the Non-Extending Lenders, ratably in proportion to their Commitments, a commitment fee at the Unused Commitment Fee Rate on the excess of (A) the daily actual amount of the Aggregate Commitment of the Non-Extending Lenders over (B) all Loans plus LOC Obligations of the Non-Extending Lenders, for the

 

32

period from and including the Amendment Effective Date to but excluding the Initial Termination Date, which fee shall be payable quarterly in arrears on each Payment Date, commencing August 13, 2009, and on the Initial Termination Date. (ii) Whirlpool hereby agrees to pay to the Administrative Agent for the account of the Extending Lenders (other than Defaulting Lenders under clause (a) or (b) of the definition thereof), ratably in proportion to their Commitments, a commitment fee at the Unused Commitment Fee Rate on the excess of (A) the daily actual amount of the Aggregate Commitment of the Extending Lenders over (B) all Loans plus LOC Obligations of the Extending Lenders, for the period from and including the Amendment Effective Date to but excluding the Extension Termination Date, which fee shall be payable quarterly in arrears on each Payment Date, commencing August 13, 2009, and on the Extension 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 August 13, 2009, and, in the case of Non-Extending Lenders, on the Initial Termination Date and in the case of Extending Lenders, on the Extension 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) Reserved .

(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 Extending Lender (other than a Defaulting Lender) and each Non-Extending 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 August 13, 2009, in the case of Non-Extending Lenders, on the Initial Termination Date and in the case of Extending Lenders, on the Extension Termination Date.

(ii) In addition to the issuance fee payable pursuant to clause (i) above,

 

33

each Borrower hereby agrees to pay to each Issuing Lender, without sharing by the other Lenders (A) a letter of credit fronting fee 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 as agreed between Whirlpool and such Issuing Lender, 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 August 13, 2009, and on the Extension Termination Date) and (B) the customary charges from time to time of such 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 to be mutually agreed between Whirlpool and the Fronting Agent.

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 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. The applicable Borrower shall give the Administrative Agent notice with respect to each such prepayment not later than 3:00 p.m. (New York City time) one Business Day prior to the date of the requested prepayment. Each Borrower may from time to time prepay all of its outstanding Eurocurrency Committed Advances, or, in a minimum aggregate

 

34

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. The applicable Borrower shall give the Administrative Agent notice with respect to each such prepayment not later than 3:00 p.m. (New York City time) three Business Days prior to the date of the requested prepayment. 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). Any such prepayment pursuant to the foregoing provisions of this Section 2.08 of a Eurocurrency Committed Advance or a Fronted Advance 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.

(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

 

35

each day during such Interest Period, and (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. 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 Extension 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 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 . (i)  Generally . 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 Eurocurrency Rate Advance shall be payable on the last day of its applicable Interest Period, on any date on which such Eurocurrency Rate Advance is prepaid, whether due to acceleration or otherwise, at maturity and thereafter on demand. Interest accrued on each Eurocurrency Rate Advance having an Interest Period longer than three months shall also be payable on the last day of each three-month interval (in the case of Eurocurrency Committed Advances) during such Interest Period. Interest on all Eurocurrency Rate Advances (other than Eurocurrency 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.

 

36

Interest on all Eurocurrency Rate Advances denominated in Sterling shall be calculated for the actual number of days elapsed on the basis of a 365 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).

(ii) Interest Act (Canada) . With respect to Advances made to Whirlpool Canada, whenever any interest under this Agreement is calculated using a rate based on a year of 360 or 365 days, as the case may be, the rate determined pursuant to such calculation, when expressed as an annual rate, is equivalent to the applicable rate based on a year of 360 or 365, as the case may be, multiplied by a fraction, the numerator of which is the actual number of days in the calendar year in which the period for which such interest is payable (or compounded) ends and the denominator of which is 360 or 365, as the case may be.

(iii) Nominal Rates; No Deemed Reinvestment . With respect to Advances made to Whirlpool Canada, the principle of deemed reinvestment of interest shall not apply to any interest calculation under this Agreement; all interest payments to be made hereunder shall be paid without allowance or deduction for reinvestment or otherwise, before and after maturity, default and judgment. The rates of interest specified in this Agreement are intended to be nominal rates and not effective rates. Interest calculated hereunder shall be calculated using the nominal rate method and not the effective rate method of calculation.

(iv) Interest Paid by Whirlpool Canada . Notwithstanding any provision of this Agreement, in no event shall the aggregate “interest” (as defined in Section 347 of the Criminal Code (Canada)) payable by Whirlpool Canada under this Agreement exceed the effective annual rate of interest on the “credit advanced” (as defined in that Section) under this Agreement lawfully permitted by that Section and, if any payment, collection or demand pursuant to this Agreement in respect of “interest” (as defined in that Section) is determined to be contrary to the provisions of that Section, such payment, collection or demand shall be deemed to have been made by mutual mistake of Whirlpool Canada and the Lenders and the amount of such payment or collection shall be refunded to Whirlpool Canada. For the purposes of this Agreement, the effective annual rate of interest shall be determined in accordance with generally accepted actuarial practices and principles over the relevant term and, in the event of a dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Lenders will be prima facie evidence of such rate.

 

37

(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 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 all of the Lenders in the case of all payments (other than reimbursement obligations under Letters of Credit paid to and fronting fees retained by the applicable 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 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

 

38

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 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.

 

39

(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 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. Notwithstanding the foregoing, no telephonic notice may be given to the Administrative Agent or the Fronting Agent if such notice is to be given to the Eurocurrency Payment Office of the Administrative Agent or the Eurocurrency Payment Office of the Fronting Agent.

 

40

(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, 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 Eurocurrency 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.

 

41

(j) Market Disruption . Notwithstanding the satisfaction of all conditions referred to in Article 5 with respect to any Advance or any Letter of Credit in any currency other than Dollars, if there shall occur on or prior to the date of such Advance or issuance of such Letter of Credit any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which would in the reasonable opinion of the Administrative Agent or the Required Lenders make it impracticable for the Eurocurrency Committed Loans 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 Eurocurrency 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;

 

42

(2) deliver to the Borrowers and the Administrative Agent two further copies of any such form or certification on or before the date that any such form or certification expires or becomes obsolete and after the occurrence of any event requiring a change in the most recent form previously delivered by it to the Borrowers; and

(3) obtain such extensions of time for filing and complete such forms or certifications as may reasonably be requested by the Borrowers or the Administrative Agent; or

(B) in the case of any such Lender that is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (1) represent to the Borrowers (for the benefit of the Borrowers, 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

 

43

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.

(ii) If any withholding, deduction or other taxes (whether United States, Netherlands, Canada 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, 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 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.

If Whirlpool shall designate as a Borrowing Subsidiary hereunder any Subsidiary not organized under the laws of the United States or any State thereof, any Lender may, with notice to the Agent and Whirlpool, fulfill its Commitment by causing an Affiliate of such Lender to act as the Lender in respect of such Borrowing Subsidiary (and such Lender shall, to the extent of Advances made to such Borrowing Subsidiary, be deemed for all purposes hereof to have pro tanto assigned such Advances and participations to such Affiliate in compliance with the provisions of Section 8.07).

As soon as practicable after receiving notice from Whirlpool or the Administrative Agent of Whirlpool’s intent to designate a Subsidiary as a Borrowing Subsidiary, and in any event no later than five Business Days after the delivery of such notice, if such Borrowing Subsidiary is organized under the laws of a jurisdiction other than of the United States or a political subdivision thereof, any Lender that may not legally lend to, establish credit for the account of and/or do any

 

44

business whatsoever with such Borrowing Subsidiary directly or through an Affiliate of such Lender as provided in the immediately preceding paragraph (a “Protesting Lender”) shall so notify Whirlpool and the Administrative Agent in writing. If each Protesting Lender is unable to assign its Commitment in full in accordance with Section 13.03 to a Person that is not a Protesting Lender prior to such the date that such Borrowing Subsidiary shall have the right to borrow hereunder, Whirlpool shall, effective on or before such date, cancel its request to designate such Subsidiary as a “Borrowing Subsidiary” hereunder.

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 applicable Issuing Lender), Whirlpool may, by not less than five Business Days’ prior notice to the Administrative Agent (which shall promptly notify the Lenders thereof), terminate such Borrowing Subsidiary’s status as a Borrower hereunder; provided , however , that Whirlpool shall concurrently terminate, if applicable, the status as a Borrower hereunder of any Subsidiary of the terminated Borrowing Subsidiary.

Section 2.10. 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.

Section 2.11. Defaulting Lenders .

Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:

(a) in the event that, at any time, (i) such Defaulting Lender has failed to make a Defaulted Loan to a Borrower and (ii) such Borrower shall be required to make any payment hereunder or under any other Loan Document to or for the account of such Defaulting Lender, then

 

45

such Borrower may, to the fullest extent permitted by applicable law, set off and otherwise apply the Obligation of such Borrower to make such payment to or for the account of such Defaulting Lender against the obligation of such Defaulting Lender to make such Defaulted Loan. In the event that, on any date, a Borrower shall so set off and otherwise apply its obligation to make any such payment against the obligation of such Defaulting Lender to make any such Defaulted Loan on or prior to such date, the amount so set off and otherwise applied by such Borrower shall constitute for all purposes of this Agreement and the other Loan Documents an Advance by such Defaulting Lender made on the date of such set off. Such Advance shall be considered, for all purposes of this Agreement, to comprise part of the Advance in connection with which such Defaulted Loan was originally required to have been made pursuant to Section 2.01. A Borrower shall notify the Agent at any time such Borrower exercises its right of set off pursuant to this subsection (a) and shall set forth in such notice (A) the name of the Defaulting Lender and the Defaulted Loan required to be made by such Defaulting Lender and (B) the amount set off and otherwise applied in respect of such Defaulted Loan pursuant to this subsection (a). Any portion of such payment otherwise required to be made by a Borrower to or for the account of such Defaulting Lender which is paid by such Borrower, after giving effect to the amount set off and otherwise applied by such Borrower pursuant to this subsection (a), may be applied by the Agent as specified in subsection (b) of this Section 2.11;

(b) if any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(d), 2.06(f), 2.08(i) or 11.08, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, apply any amounts thereafter received by the Administrative Agent for the account of such Lender under this Agreement and for the benefit of the Administrative Agent, the Fronting Lenders or the Issuing Lenders to satisfy such Lender’s unsatisfied obligations under such Sections until all such unsatisfied obligations are fully paid;

(c) if any Fronted Loans or LOC Obligations are outstanding at the time a Lender becomes a Defaulting Lender then:

(i) all or any part of the Participation Interests of such Defaulting Lender in the Fronted Loans and LOC Obligations shall be reallocated among the non-Defaulting Lenders in accordance with their respective Ratable Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ outstanding Advances and Participation Interests in Fronted Loans and LOC Obligations plus such Defaulting Lender’s Participation Interest in Fronted Loans and LOC Obligations does not exceed the total of all non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 5.03 are satisfied at such time; and

(ii) if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrowers shall within one Business Day following notice by the Administrative Agent (x)  first , prepay outstanding Fronted Loans and (y)  second , cash collateralize such Defaulting Lender’s Ratable Share of LOC Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 9.01 for so long as such Ratable Share of LOC Obligations is outstanding; and

 

46

(iii) if the Ratable Shares of the non-Defaulting Lenders is reallocated pursuant to Section 2.11(c), then the fees payable to the Lenders pursuant to Section 2.07(a) and Section 2.07(e) shall be adjusted in accordance with such non-Defaulting Lenders’ Ratable Shares; and

(d) so long as any Lender is a Defaulting Lender, the Fronting Lenders shall not be required to fund any Fronted Loan and the Issuing Lenders shall not be required to issue, amend or increase any Letter of Credit, unless it is satisfied that the related exposure will be 100% covered by the Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Borrowers in accordance with Section 2.11(c), and Participating Interests in any such newly issued or increased Letter of Credit or newly made Fronted Loan shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.11(c)(i) (and Defaulting Lenders shall not participate therein).

In the event that the Administrative Agent, the Borrowers, the Issuing Lenders and the Fronting Lenders each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Participation Interests of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Fronted Loans) as the Administrative shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Ratable Share.

Nothing in this Article 2 shall be deemed or construed as a waiver, release or limitation of any rights and remedies that any Borrower may have against any Defaulting Lender, and all such rights and remedies are hereby reserved.

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),

 

47

if: (i) any Borrower or any other Person is required by law to make any deduction or withholding on account of any Taxes from any sum paid or expressed to be payable by such Borrower to any Lender under this Credit Agreement, or (ii) any party to this Credit Agreement (or any Person on its behalf) other than a Borrower is required by law to deduct or withhold any Tax from, or make a payment of Taxes with respect to, any such sum received or receivable by any Lender under this Credit Agreement:

(A) the applicable party shall notify the Administrative Agent and, if such party is not the applicable Borrower, the Administrative Agent will notify the applicable Borrower of any such requirement or any change in any such requirement as soon as such party becomes aware of it;

(B) the applicable Borrower shall pay all Taxes before the date on which penalties attached thereto become due and payable, such payment to be made (if the liability to pay is imposed on such Borrower) for its own account or (if that liability is imposed on any other party to this Credit Agreement) on behalf of and in the name of that party;

(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.

 

48

(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.

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 , ho