AMENDMENT NO. 1
Dated as of August 30, 2018
To the banks, financial institutions
and other lenders
(collectively, the "Lenders") parties
to the Term Loan Agreement referred to
below and to Wells Fargo Bank, National Association, as agent
(the "Administrative Agent") for the Lenders
Ladies and Gentlemen:
We refer to the Term Loan Agreement, dated as of June 5, 2018 (the "Loan Agreement") among Whirlpool Corporation, a Delaware corporation, Whirlpool EMEA Finance S.à r.l., a société à responsabilité limitée organized under the laws of the Grand Duchy of Luxembourg, having its registered office at 560A, rue de Neudorf, L-2220 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Trade and Companies Register under number B223.569, the Lenders from time to time party thereto, Wells Fargo Bank, National Association, as Administrative Agent and the other agents party thereto. Capitalized terms not otherwise defined in this Letter Amendment have the same meanings as specified in the Term Loan Agreement.
It is hereby agreed by you and us as follows:
The Term Loan Agreement is, effective as of the date of the Amendment Effective Date (as defined below), hereby amended as follows:
1. Section 7.12 of the Term Loan Agreement is hereby amended and restated in its entirety as follows:
"Section 7.12. Debt to Capitalization Ratio.
Whirlpool shall maintain, as of the last day of each fiscal quarter of Whirlpool, a Debt to Capitalization Ratio of less than or equal to 0.65 to 1.00."
2. Section 7.15 of the Term Loan Agreement is hereby amended and restated in its entirety as follows:
"Section 7.15. Transactions with Affiliates.
Whirlpool will not, and will not permit any Subsidiary to, directly or indirectly, pay any material amount of funds to or for the account of, make any material investment (whether by acquisition of stock or indebtedness, by loan, advance, transfer of property, guarantee or other agreement to pay, purchase or service, directly or indirectly, any Indebtedness, or otherwise) in, lease, sell, transfer or otherwise dispose of any material assets, tangible or intangible, to, or participate in, or effect, any material transaction with, any Affiliate except (a) on an arms-length basis on terms at least as favorable to Whirlpool or such Subsidiary as would have been obtained from a third party who was not an Affiliate and (b) any such transaction between or among Whirlpool and its Subsidiaries, or between or among any Subsidiaries, in each case not involving any Affiliate that is not Whirlpool or a Subsidiary."
This Letter Amendment shall become effective when the Administrative Agent shall have received counterparts of this Letter Amendment executed by each Borrower and the Required Lenders (the "Amendment Effective Date").
Whirlpool hereby represents and warrants, as of the Amendment Effective Date, that (i) there exists no Default or Unmatured Default; and (ii) the representations and warranties contained in Article 6 of the Term Loan Agreement are true and correct in all material respects (other than any representation or warranty qualified by
materiality or Material Adverse Effect, which shall be true and correct in all respects) (except for the representations and warranties set forth in Sections 6.06 and 6.12 solely as such representations and warranties relate to any Subsidiary acquired in connection with a Material Acquisition (including any Subsidiary of the target of such Material Acquisition) consummated within 30 days prior to the Amendment Effective Date).
On and after the effectiveness of this Letter Amendment, each reference in the Term Loan Agreement to "this Agreement", "hereunder", "hereof" or words of like import referring to the Term Loan Agreement, and each reference in each of the other Loan Documents to "the Term Loan Agreement", "thereunder", "thereof" or words of like import referring to the Term Loan Agreement, shall mean and be a reference to the Term Loan Agreement, as amended by this Letter Amendment. This Letter amendment shall be deemed to constitute a "Loan Document".
The Term Loan Agreement and each of the other Loan Documents, as specifically amended by this Letter Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Letter Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under the Term Loan Agreement, nor constitute a waiver of any provision of the Term Loan Agreement.
If you agree to the terms and provisions hereof, please evidence such agreement by executing and returning a counterpart of this Letter Amendment to Susan L. Hobart, Shearman & Sterling LLP, email: firstname.lastname@example.org.
This Letter 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 one and the same agreement. Delivery of an executed counterpart of a signature page to this Letter Amendment by telecopier shall be effective as delivery of a manually executed counterpart of this Letter Amendment.
This Letter Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
Very truly yours,
By /s/ Jennifer L. Powers
Name: Jennifer L. Powers
Title: Assistant Treasurer
WHIRLPOOL EMEA FINANCE S.À R.L.
By /s/ Carlos E. Carvalho
Name: Carlos E. Carvalho
Agreed as of the date first above written:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as Lender
By: /s/ Meara Kelley
Name: Meara Kelley
Title: Managing Director
Bank of America, N.A.,
By: /s/ J. Casey Cosgrove
Name: J. Casey Cosgrove
HSBC Bank Plc, U.K.,
By: /s/ Laurynas Spangevicius
Name: Laurynas Spangevicius
Title: Associate Relationship Director
ING Bank N.V., Dublin Branch,
By: /s/ Barry Fehily
Name: Barry Fehily
Title: Managing Director
By: /s/ Sean Hassett
Name: Sean Hassett
MUFG BANK, LTD.,
as a Lender
By: /s/ Mark Maloney
Name: Mark Maloney
Title: Authorized Signatory