Exhibit 10
EXECUTION COPY
AMENDMENT NO. 1 TO
THE
CREDIT AGREEMENT
Dated as of February 27,
2009
AMENDMENT NO. 1 TO THE CREDIT
AGREEMENT among Whirlpool
Corporation, a Delaware corporation, Whirlpool Europe B.V., a
Netherlands corporation, Whirlpool Finance B.V., a Netherlands
corporation (the “ Borrowers ”), the banks,
financial institutions and other institutional lenders parties to
the Credit Agreement referred to below (collectively, the “
Lenders ”) and Citibank, N.A., as administrative agent
(the “ Agent ”) for the Lenders.
PRELIMINARY
STATEMENTS:
(1) The Borrowers, the Lenders and
the Agent have entered into an Amended and Restated Long-Term
Five-Year Credit Agreement dated as of December 1, 2005 (the
“ Credit Agreement ”). Capitalized terms not
otherwise defined in this Amendment have the same meanings as
specified in the Credit Agreement.
(2) The Borrower and the Required
Lenders have agreed to amend the Credit Agreement as hereinafter
set forth.
SECTION 1. Amendments to Credit
Agreement . The Credit Agreement is, effective as of the date
hereof and subject to the satisfaction of the conditions precedent
set forth in Section 2, hereby amended as follows:
(a) The definition of “
Alternate Base Rate ” in Section 1.01 is amended
in full to read as follows:
“ 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.
(b) The definition of “
Consolidated EBIT ” in Section 1.01 is amended by
restating clause (c) thereof in full to read “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”.
(c) The definition of “
Consolidated EBITDA ” in Section 1.01 is amended
by restating clause (c) thereof in full to read “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) The definition of “
Facility Fee Rate ” in Section 1.01 is deleted in
full.
(e) The definition of “
Leverage Ratio ” in Section 1.01 is amended by
adding to the end thereof a proviso to read “ 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”.
(f) Section 1.01 is further
amended by adding the following definitions in appropriate
alphabetical order:
“ Alternate Base Rate
Margin ” means a rate per annum determined in accordance
with the Pricing Schedule.
“ Unused Commitment Fee
Rate ” means a rate per annum determined in accordance
with the Pricing Schedule.
(g) Section 2.07(a) is amended
in full to read as follows:
(a) Unused Commitment Fee .
Whirlpool hereby agrees to pay to the Administrative Agent for the
account of the Lenders, ratably in proportion to their Commitments,
a commitment fee at the Unused Commitment Fee Rate on the excess of
(i) the daily actual amount of the Aggregate Commitment over
(ii) all Loans plus LOC Obligations, for the period from and
including February 27, 2009 to but excluding the Termination Date,
which fee shall be payable quarterly in arrears on each Payment
Date, commencing March 31, 2009, and on the Termination
Date.
(h) Section 7.10 is amended by
(i) deleting the word “and” at the end subsection
(xv), (ii) by adding a new subsection numbered (xvi) to
read “Liens on assets located outside of the United States of
America arising by operation of law” and
(iii) renumbering subsection (xvi) as subsection
(xvii) and restating such subsection in full to read as
follows:
(xvii) Liens in addition to the
Liens permitted by Sections 7.10(i) through (xvi), inclusive;
provided that such Liens may not exist if: (a) the value of
all assets subject to such Liens at any time exceeds an amount
equal $200,000,000, as shown on its most recent audited
consolidated balance sheet and as determined in accordance with
generally accepted accounting principles or (b) the incurrence
of the Indebtedness or Off-Balance Sheet Obligations to be secured
by such Liens would cause a violation of
Section 7.11.
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(i) Section 7.12 is amended in
full to read as follows:
Whirlpool shall maintain, at all
times, a Leverage Ratio of less than or equal to (a) 3.5 to
1.0 for each fiscal quarter ended on or prior to December 31,
2009 and (b) 3.0 to 1.0 for each fiscal quarter ended
thereafter.
(j) Section 7.13 is amended in
full to read as follows:
Whirlpool shall maintain, at all
times, an Interest Coverage Ratio of greater than or equal to
(a) 1.5 to 1.0 for each fiscal quarter ended on or prior to
December 31, 2009 and (b) 2.0 to 1.0 for each fiscal
quarter ended thereafter.
(k) Schedule IV is amended in full
to read as set forth as Annex A hereto.
SECTION 2. Conditions of
Effectiveness . This Amendment shall become effective as of the
date first above written when, and only when, the Agent shall have
received (a) counterparts of this Amendment executed by the
Borrowers and the Required Lenders, (b) an amendment fee equal
to 0.25% of the aggregate Commitments of each Lender that provides
a counterpart signature page to this Amendment on or prior to the
date hereof and (c) all of the following documents, each such
document (unless otherwise specified) dated the date of receipt
thereof by the Agent (unless otherwise specified) and in sufficient
copies for each Lender, in form and substance satisfactory to the
Agent (unless otherwise specified) and in sufficient copies for
each Lender:
(i) A copy, certified by the
Secretary or Assistant Secretary or other Authorized Representative
of each Borrower, of the resolutions of its Board of Directors (and
resolutions of other bodies, if any are reasonably deemed necessary
by counsel for any Lender) authorizing the execution of this
Amendment and the performance of the Credit Agreement and the other
Loan Documents to be executed by it, each as amended
hereby;
(ii) An incumbency certificate,
executed by the Secretary or an Assistant Secretary or other
Authorized Representative of each Borrower, which shall identify by
name and title and bear the signature of the officers of such
Borrower authorized to sign this Amendment;
(iii) A certificate, signed by an
Authorized Officer stating that (A) no Default or Unmatured
Default has occurred and is continuing, and (B) the
representations and warranties contained in Article 6 are true
and correct in all material respects; and
(iv) Written opinions of counsel to
each Borrower given upon the express instructions of each Borrower,
addressed to the Agent and each of the Lenders, in form and
substance satisfactory to the Agent.
SECTION 3. Amendment Fees .
Whirlpool hereby agrees to pay to the Agent, on or before
March 5, 2009, an amendment fee equal to 0.25% of the
aggregate Commitments of each Lender that provides a counterpart
signature page to this Amendment on or prior to March 5, 2009.
Such amendment fees shall be payable in two installments: first,
such amount as is required to be paid as a condition precedent to
the effectiveness of this Amendment as set forth in Section 2
above, and second, the remainder on March 5, 2009.
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SECTION 4. Representations and
Warranties of the Borrower . Each of he Borrowers represents
and warrants as follows:
(a) It and each of its Material
Subsidiaries is duly incorporated or otherwise organized, validly
existing and (to the extent applicable) in good standing under the
laws of its jurisdiction of incorporation or organization and has
all requisite authority to conduct its business in each
jurisdiction in which its business is conducted.
(b) It has the power and authority
and legal right to execute and deliver this Amendment and to
perform its obligations under the Loan Documents, as amended
hereby, to which it is a party. Its execution and delivery of this
Amendment and the performance of its obligations under the Loan
Documents, as amended hereby, to which it is a party have been duly
authorized by proper corporate or other proceedings, and this
Amendment and the Loan Documents, as amended hereby, to which it is
a party constitute its legal, valid and binding obligations
enforceable against it in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors’ rights generally
and the availability of equitable remedies for the enforcement of
certain obligations (other than the payment of money) contained
herein or therein may be limited by equitable principles generally
and by principles of good faith and fair dealing.
(c) Neither its execution and
delivery of this Amendment, nor its compliance with the provisions
of the Loan Documents, as amended hereby, to which it is a party,
will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on it or any of its
Subsidiaries or the articles, certificate or charter of
incorporation or by-laws or other organizational documents of it or
any of its Subsidiaries or the provisions of any indenture,
instrument or agreement to which it or any of its Subsidiaries is a
party or is subject, or by which it or its Property is bound, or
conflict with or constitute a default thereunder, or result in the
creation or imposition of any Lien in, of or on the Property of it
or any of its Subsidiaries pursuant to the terms of any such
indenture, instrument or agreement, in any such case which
violation, conflict, default, creation or imposition has not had or
could not reasonably be expected to have a Material Adverse Effect.
No order, consent, approval, license, authorization, or validation
of, or filing, recording or registration with or exemption by, any
governmental or public body or authority, or any subdivision
thereof, is required to authorize, or is required in connection
with, its execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, this Amendment or
any of the Loan Documents, as amended hereby, to which it is a
party other than those the absence of which has not had or could
not reasonably be expected to have a Material Adverse
Effect.
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SECTION 5. Reference to and
Effect on the Loan Documents . (a) On and after the
effectiveness of this Amendment, each reference in the Credit
Agreement to “this Agreement”, “hereunder”,
“hereof” or words of like import referring to the
Credit Agreement, and each reference in the Notes and each of the
other Loan Documents to “the Credit Agreement”,
“thereunder”, “thereof” or words of like
import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this
Amendment.
(a) The Credit Agreement and each of
the other Loan Documents, as specifically amended by this
Amendment, are and shall continue to be in full force and effect
and are hereby in all respects ratified and confirmed.
(b) The execution, delivery and
effectiveness of this Amendment shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy
of any Lender or the Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan
Documents.
SECTION 6. Costs and Expenses
. The Borrower agrees to pay on demand all reasonable costs and
expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be
delivered hereunder (including, without limitation, the reasonable
fees and expenses of counsel for the Agent) in accordance with the
terms of Section 8.04 of the Credit Agreement.
SECTION 7. Execution in
Counterparts . This Amendment may be executed in any number of
counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart of
a signature page to this Amendment by telecopier shall be effective
as delivery of a manually executed counterpart of this
Amendment.
SECTION 8. Governing Law .
This Amendment shall be governed by, and construed in accordance
with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties
hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first
above written.
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WHIRLPOOL
CORPORATION
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By:
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Margaret M.
McLeod
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Title:
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Vice President
and Treasurer
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WHIRLPOOL
EUROPE B.V.
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By:
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Margaret M.
McLeod
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Title:
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Attorney-in-Fact
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WHIRLPOOL
FINANCE B.V.
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By:
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Margaret M.
McLeod
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Title:
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Attorney-in-Fact
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CITIBANK,
N.A. , as Agent and a
Lender
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By
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/s/
MAUREEN R. MARONEY
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Name:
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Maureen R.
Maroney
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Title:
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Authorized
Signatory
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ABN AMRO Bank N.V.
, as a Lender
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By
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/s/ MICHELE
COSTELLO
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Name:
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Michele
Costello
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Title:
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Director
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By
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/s/ SUNEEL
GILL
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Name:
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Suneel
Gill
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Title:
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Assistant Vice
Pr
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