Whirlpool Corp S-3ASR, filed Apr 20, 2021
Whirlpool Corp (WHR)
Table of Contents
As filed with the Securities and Exchange Commission on April 20, 2021
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
WHIRLPOOL CORPORATION
(Exact name of registrant as specified in its charter)
| Delaware | 38-1490038 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
2000 North M-63
Benton Harbor, Michigan 49022-2692
(Address, including zip code, of registrant’s principal executive offices)
SEE TABLE OF ADDITIONAL REGISTRANTS
Bridget K. Quinn
Assistant General Counsel & Corporate Secretary
Whirlpool Corporation
2000 North M-63
Benton Harbor, Michigan 49022-2692
(269) 923-5000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Robert M. Hayward, P.C.
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
(312) 861-2000
Approximate date of commencement of proposed sale to the public: From time to time on or after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
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If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☒ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☐ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
| Emerging growth company | ☐ | |||||
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered(2) |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Security(1) |
Proposed Maximum Aggregate Offering Price(1) |
Amount of Registration Fee(3) | ||||
| Senior Debt Securities(4) |
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| Subordinated Debt Securities(4) |
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| Preferred Stock, par value $1.00 per share, of Whirlpool Corporation(4)(5) |
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| Common Stock, par value $1.00 per share, of Whirlpool Corporation(4)(5) |
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| Warrants of Whirlpool Corporation(6) |
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| Purchase Contracts of Whirlpool Corporation(7) |
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| Units of Whirlpool Corporation(8) |
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| Guarantees of Whirlpool Corporation(9) |
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| (1) | Omitted pursuant to General Instructions II.E of Form S-3. An indeterminate amount of securities is being registered as may from time to time be issued at indeterminate prices. Separate consideration may or may not be received for securities that are issuable upon exercise, conversion or exchange of other securities. |
| (2) | The securities registered under this registration statement may be sold separately, together or as units with other securities registered under this registration statement and may include hybrid securities consisting of a combination of elements of any of the securities listed in the table. |
| (3) | In accordance with Rules 456(b) and 457(r), Whirlpool Corporation is deferring payment of the Registration Fee. |
| (4) | Debt securities, preferred stock and common stock registered under this registration statement may be issuable upon (i) conversion or redemption of debt securities or preferred stock registered under this registration statement, or (ii) the exercise of warrants registered under this registration statement. |
| (5) | Shares of preferred stock and common stock may also be issued by Whirlpool Corporation upon settlement of purchase contracts or units of Whirlpool Corporation. |
| (6) | Warrants may represent rights to purchase debt securities, preferred stock or common stock registered under this registration statement. |
| (7) | Purchase contracts may be issued separately or as units. |
| (8) | Units may consist of a purchase contract and debt securities or preferred stock registered under this registration statement or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase the common stock or preferred stock under the purchase contracts. |
| (9) | Whirlpool Corporation will fully, unconditionally and irrevocably guarantee on an unsecured basis the senior debt securities issued by one or more of the additional registrants under this registration statement. No separate consideration will be paid in respect of any such guarantees. Pursuant to Rule 457(n) of the Securities Act of 1933, as amended, no separate fee is payable with respect to the guarantees of the senior debt securities. |
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TABLE OF ADDITIONAL REGISTRANTS
| Exact Name of Registrant |
State or Other |
I.R.S. Employer |
Address, Including Zip |
Phone Number | ||||
| Whirlpool Finance Luxembourg S.à r.l. | Grand Duchy of Luxembourg | 98-1329359 | 16, rue Erasme, L-1468 Luxembourg, Grand Duchy of Luxembourg | +352 691 890 273 | ||||
| Whirlpool EMEA Finance S.à r.l. | Grand Duchy of Luxembourg | 98-1420019 | 16, rue Erasme, L-1468 Luxembourg, Grand Duchy of Luxembourg | +352 691 890 273 | ||||
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PROSPECTUS
Senior Debt Securities
Subordinated Debt Securities
Preferred Stock
Common Stock
Warrants
Purchase Contracts
Units
Hybrid Securities Combining Elements of the Foregoing
of
WHIRLPOOL CORPORATION
Senior Debt Securities
of
WHIRLPOOL FINANCE LUXEMBOURG S.À R.L.
WHIRLPOOL EMEA FINANCE S.À R.L.
fully, unconditionally and irrevocably guaranteed by Whirlpool Corporation
Whirlpool Corporation may offer from time to time, in one or more offerings, any combination of its senior debt securities, subordinated debt securities, preferred stock, common stock, warrants, purchase contracts, units and hybrid securities combining elements of the foregoing.
Whirlpool Finance Luxembourg S.à r.l. and Whirlpool EMEA Finance S.à r.l. (together, the “Luxembourg Issuers” and collectively with Whirlpool Corporation, the “issuers”) may offer from time to time, in one or more offerings, senior debt securities, which will be fully, unconditionally and irrevocably guaranteed on an unsecured basis by Whirlpool Corporation.
The issuers will provide the specific terms of any offering of these securities in a supplement to this prospectus. The applicable prospectus supplement will also describe the specific manner in which the issuer will offer these securities and may also supplement, update or amend information contained in this prospectus. You should carefully read this prospectus and the applicable prospectus supplement, as well as the documents incorporated by reference herein or therein, before you purchase these securities.
The issuers may sell these securities on a continuous or delayed basis, directly, through agents, dealers or underwriters as designated from time to time, or through a combination of these methods. If any agents, dealers or underwriters are involved in the sale of any securities, the applicable prospectus supplement will set forth their names and any applicable commissions or discounts. The issuer’s net proceeds from the sale of securities also will be set forth in the applicable prospectus supplement.
Whirlpool Corporation’s common stock is listed on the New York Stock Exchange and Chicago Stock Exchange under the trading symbol “WHR”.
See “Risk Factors” on page 2 of this prospectus to read about factors you should consider before investing in these securities.
Neither the Securities and Exchange Commission, the supervisory authority of Luxembourg, the Commission de Surveillance du Secteur Financier, nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is April 20, 2021.
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This prospectus is part of a shelf registration statement that Whirlpool Corporation and the Luxembourg Issuers have filed with the Securities and Exchange Commission (the “SEC”). By using a shelf registration statement, Whirlpool Corporation may, at any time and from time to time, in one or more offerings, sell any combination of its senior debt securities, subordinated debt securities, preferred stock, common stock, warrants, purchase contracts, units and hybrid securities combining elements of the foregoing, and the Luxembourg Issuers may, at any time and from time to time, in one or more offerings, sell senior debt securities guaranteed on an unsecured basis by Whirlpool Corporation. The senior debt securities, subordinated debt securities, preferred stock, common stock, warrants, purchase contracts, units and hybrid securities combining elements of the foregoing of Whirlpool Corporation and the senior debt securities of the Luxembourg Issuers and guarantees thereof by Whirlpool Corporation are collectively referred to as “registered securities” and each of Whirlpool Corporation and the Luxembourg Issuers is referred to as an “issuer” or a “Registrant,” and they are collectively referred to as “issuers” or “Registrants” in this prospectus.
Each time a Registrant uses this prospectus to offer securities, that Registrant will provide you with a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered. The prospectus supplement may also supplement, update or change information contained in this prospectus. Therefore, if there is any inconsistency between the information in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement.
The Registrants have not authorized anyone to provide you with different information. The Registrants are not making an offer of registered securities in any jurisdiction where the offer is not permitted. You should not assume that the information in this prospectus or any applicable prospectus supplement is accurate as of any date other than the date of such document.
To understand the terms of the registered securities described in this prospectus, you should carefully read the applicable prospectus supplement. You should also read the documents we have referred you to under “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” below for information about us. The shelf registration statement, including the exhibits thereto, can be read at the SEC’s website or at the SEC’s Public Reference Room as described under “Where You Can Find More Information.”
The terms “Whirlpool Corporation,” “Whirlpool,” “we,” “us,” and “our” as used in this prospectus refer to Whirlpool Corporation and its subsidiaries, including the Luxembourg Issuers, unless the context otherwise requires. The phrase “this prospectus” refers to this prospectus and any applicable prospectus supplement, unless the context otherwise requires.
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Whirlpool Corporation, the world’s leading kitchen and laundry appliance company, was incorporated in 1955 under the laws of Delaware and was founded in 1911. Whirlpool manufactures products in 13 countries and markets products in nearly every country around the world. We have received worldwide recognition for accomplishments in a variety of business and social efforts, including leadership, diversity, innovative product design, business ethics, social responsibility and community involvement. We conduct our business through four operating segments, which we define based on geography. Whirlpool Corporation’s operating and reportable segments consist of North America, Europe, Middle East and Africa (“EMEA”), Latin America and Asia. Whirlpool had approximately $19 billion in annual sales and approximately 78,000 employees in 2020.
Our principal executive offices are located at 2000 North M-63, Benton Harbor, Michigan 49022-2692 and our telephone number is (269) 923-5000. The world’s leading kitchen and laundry appliance company claim is based on most recently available publicly reported annual product sales, parts and support revenues among leading appliance manufacturers.
We maintain an Internet website at http://www.whirlpoolcorp.com. We have not incorporated by reference into this prospectus the information on our website, and you should not consider it to be a part of this prospectus.
WHIRLPOOL FINANCE LUXEMBOURG S.À R.L.
Legal and organizational status
Whirlpool Finance Luxembourg S.à r.l. is a private limited liability company (société à responsabilité limitée) incorporated on October 6, 2016 under the laws of the Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 209.573. Whirlpool Finance Luxembourg S.à r.l.’s registered office is at 16, rue Erasme, L-1468 Luxembourg, Grand Duchy of Luxembourg and its telephone number is +352 691 890 273.
All of the shares of Whirlpool Finance Luxembourg S.à r.l. are owned indirectly by Whirlpool Corporation.
Activities
Whirlpool Finance Luxembourg S.à r.l.’s principal activities are debt issuance and intercompany group financing and it has no subsidiaries. Whirlpool Finance Luxembourg S.à r.l. holds no material assets and does not engage in any other business activities or operations.
WHIRLPOOL EMEA FINANCE S.À R.L.
Legal and organizational status
Whirlpool EMEA Finance S.à r.l. is a private limited liability company (société à responsabilité limitée) incorporated on April 4, 2018 under the laws of the Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 223.569. Whirlpool EMEA Finance S.à r.l.’s registered office is at 16, rue Erasme, L-1468 Luxembourg, Grand Duchy of Luxembourg and its telephone number is +352 691 890 273.
All of the shares of Whirlpool EMEA Finance S.à r.l. are owned indirectly by Whirlpool Corporation.
Activities
Whirlpool EMEA Finance S.à r.l.’s principal activities are debt issuance and intercompany group financing and it has no subsidiaries. Whirlpool EMEA Finance S.à r.l. holds no material assets and does not engage in any other business activities or operations.
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Our business is subject to uncertainties and risks. You should carefully consider and evaluate all of the information included and incorporated by reference in this prospectus, including the risk factors incorporated by reference from our most recent annual report on Form 10-K, as updated by our quarterly reports on Form 10-Q, current reports on Form 8-K and other filings we make with the SEC. It is possible that our business, financial condition, liquidity or results of operations could be materially adversely affected by any of these risks.
This prospectus and the documents we incorporate by reference contain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. From time to time, we may also provide oral or written forward-looking statements in other materials we release to the public. Forward-looking statements set forth our current expectations or forecasts of future events. You can identify these statements by forward-looking words such as “expect,” “anticipate,” “plan,” “believe,” “seek,” “estimate,” “outlook,” “trends,” “future benefits,” “strategies,” “goals” and similar words. In addition, statements that we make in this prospectus and the documents we incorporate herein by reference that are not statements of historical fact may also be forward-looking statements.
Forward-looking statements are not guarantees of our future performance and involve risks, uncertainties and assumptions that may cause our actual results, performance or achievement to differ materially from the expectations we describe in our forward-looking statements. You should not place undue reliance on forward-looking statements. You should be aware that the factors we discuss in “Risk Factors,” and elsewhere in this prospectus, could cause our actual results to differ from future results expressed or implied by any forward-looking statements. In addition to causing our actual results to differ, these factors may cause our intentions to change from those that have been stated. Such changes in our intentions may also cause our actual results to differ. We may change our intentions at any time and without notice.
Forward-looking statements included or incorporated by reference in this prospectus are made as of the date of this prospectus or the date of such documents incorporated by reference herein, as applicable, and we undertake no obligation to update them, whether as a result of new information, future events or otherwise.
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The validity of the registered securities offered pursuant to this prospectus and any prospectus supplement will be passed upon for us by Kirkland & Ellis LLP, Chicago, Illinois, and Baker McKenzie, Luxembourg, and for any underwriters, dealers or agents by counsel named in the applicable prospectus supplement.
Ernst & Young LLP, independent registered public accounting firm, has audited our consolidated financial statements and schedule included in our Annual Report on Form 10-K for the year ended December 31, 2020, and the effectiveness of our internal control over financial reporting as of December 31, 2020, as set forth in their reports which are incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements and schedule are incorporated by reference in reliance on Ernst & Young LLP’s reports given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Whirlpool Corporation files periodic reports, proxy statements and other information with the SEC. The SEC maintains an Internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC at http://www.sec.gov. Copies of certain information filed by us with the SEC are also available on our website at www.whirlpoolcorp.com. Our website is not part of this prospectus and is not incorporated by reference into this prospectus.
Pursuant to Rule 3-10(b) of Regulation S-X (“Rule 3-10(b)”), this prospectus does not contain separate financial statements for the Luxembourg Issuers since the Luxembourg Issuers are subsidiaries of Whirlpool Corporation that are 100% owned by Whirlpool Corporation, and Whirlpool Corporation files consolidated financial information under the Securities Exchange Act of 1934, as amended. Each of Whirlpool Finance Luxembourg S.à r.l., which was incorporated on October 6, 2016, and Whirlpool EMEA Finance S.à r.l., which was incorporated on April 4, 2018, is a “finance subsidiary” of Whirlpool Corporation as defined in Rule 3-10(b) with no independent function other than financing activities. The financial condition, results of operations and cash flows of the Luxembourg Issuers are consolidated into the financial statements of Whirlpool Corporation.
This prospectus is part of a registration statement filed on Form S-3 with the SEC under the Securities Act. This prospectus does not contain all of the information set forth in the registration statement and the exhibits and schedules to the registration statement. For further information concerning us and the securities, you should read the entire registration statement and the additional information described under “Incorporation of Certain Information by Reference” below. The registration statement has been filed electronically and may be obtained in any manner listed above. Any statements contained herein concerning the provisions of any document are not necessarily complete, and, in each instance, reference is made to the copy of such document filed as an exhibit to the registration statement or otherwise filed with the SEC. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows Whirlpool Corporation to “incorporate by reference” information into this prospectus, which means that Whirlpool Corporation can disclose important information about it by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be a part of this prospectus. This prospectus incorporates by reference the documents and reports listed below filed by Whirlpool Corporation with the SEC (File No. 001-03932) (other than portions of these documents that
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are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, including any exhibits included with such Items):
| • | our Annual Report on Form 10-K for the fiscal year ended December 31, 2020; and |
| • | the description of our common stock contained in our Current Report on Form 8-K filed on April 23, 2009, including any amendments or reports filed for the purpose of updating such description. |
Whirlpool Corporation also incorporates by reference the information contained in all other documents it files with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (other than portions of these documents that are furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K, including any exhibits included with such Items, unless otherwise indicated therein) after the date of this prospectus and prior to the termination of this offering. The information contained in any such document will be considered part of this prospectus from the date the document is filed with the SEC.
Any statement contained in this prospectus or in a document incorporated or deemed to be incorporated by reference in this prospectus will be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
Whirlpool Corporation undertakes to provide without charge to you, upon oral or written request, a copy of any or all of the documents that have been incorporated by reference in this prospectus, other than exhibits to such other documents (unless such exhibits are specifically incorporated by reference therein), by request directed to Whirlpool’s Investor Relations Department, 2000 North M-63, Benton Harbor, Michigan 49022-2692, telephone number (269) 923-2641.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
| Item 14. | Other Expenses of Issuance and Distribution. |
The following is a statement of the estimated expenses, to be paid solely by Whirlpool Corporation, of the issuance and distribution of the securities being registered hereby:
| Amount to be paid |
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| Securities and Exchange Commission registration fee |
$ | (1 | ) | |
| Printing expenses |
(1 | ) | ||
| Accounting fees and expenses |
(1 | ) | ||
| Rating agency fees and expenses |
(1 | ) | ||
| Trustee’s fees and expenses (including counsel’s fees) |
(1 | ) | ||
| Legal fees and expenses |
(1 | ) | ||
| Miscellaneous expenses |
(1 | ) | ||
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| Total |
$ | (1 | ) | |
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| (1) | Because an indeterminate amount of securities is covered by this registration statement, the expenses in connection with the issuance and distribution of securities are not currently determinable. An estimate of the aggregate expenses in connection with each sale of the securities being offered will be included in the applicable prospectus supplement. |
| Item 15. | Indemnification of Directors and Officers. |
Whirlpool Corporation
Section 145 of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal action and proceeding, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or contemplated action or suit by or in the right of such corporation, under the same conditions, except that such indemnification is limited to expenses (including attorneys’ fees) actually and reasonably incurred by such person, and except that no indemnification is permitted without judicial approval if such person is adjudged to be liable to such corporation. Where an officer or director of a corporation is successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to above, or any claim, issue or matter therein, the corporation must indemnify that person against the expenses (including attorneys’ fees) that such officer or director actually and reasonably incurred in connection therewith.
Section 145 of the DGCL further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
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The rights provided in Section 145 of the DGCL are not exclusive, and the corporation may also provide for indemnification under by-law, agreement, vote of stockholders or disinterested directors or otherwise.
Whirlpool Corporation’s Restated Certificate of Incorporation provides for indemnification of its current and former directors and officers to the fullest extent permitted by the DGCL. Whirlpool Corporation also maintains directors’ and officers’ liability insurance policies covering certain liabilities that may be incurred by directors and officers in the performance of these duties.
Section 102(b)(7) of the DGCL provides that a corporation may relieve its directors from personal liability to such corporation or its stockholders for monetary damages for any breach of their fiduciary duty as directors except for (i) a breach of the duty of loyalty, (ii) failure to act in good faith, (iii) intentional misconduct or knowing violation of law, (iv) willful or negligent violations of certain provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemptions and dividends, or (v) any transactions from which the director derived an improper personal benefit.
As permitted by the DGCL, Whirlpool Corporation’s Restated Certificate of Incorporation provides that none of its directors will be personally liable to it or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL.
Whirlpool Finance Luxembourg S.à r.l. and Whirlpool EMEA Finance S.à r.l.
The managers of the Luxembourg Issuers shall not be held personally liable by reason of their mandate for any commitment they have validly made in the name of the Luxembourg Issuers, provided that any such commitment complies with the Articles of Association of Luxembourg Issuers and applicable Luxembourg law. Under Luxembourg law, Luxembourg Issuers may not indemnify its managers (each a “Manager” and together the “Managers”) against any matter arising from a Manager’s fraud, negligence, willful misconduct or any criminal acts.
Under Luxembourg law, the duties of the Managers are owed to the Luxembourg Issuers. The Managers must, in exercising their powers and performing their duties, act in good faith and in the interest of the Luxembourg Issuers as a whole and must exercise due care and diligence. Managers have a duty not to place themselves in a position in which their duties to the Luxembourg Issuers may conflict with their personal interests and are furthermore obliged to disclose any personal interest they may have in any written or oral arrangement with the Luxembourg Issuers or any of their subsidiaries. Any breach by a Manager of his or her duties owed to the Luxembourg Issuers will result in such Manager incurring personal liability to the Luxembourg Issuers and/or their shareholders with respect to that breach of duty, either individually or jointly and severally with other Managers who are implicated in the same breach of duty. Any person who suffers a loss or a damage has the right under Luxembourg law of taking on action on any tortious grounds against the Managers but such action could be successful only provided that such person proves the existence of (i) the fault (e.g. misconduct or negligence of the relevant Manager), (ii) the loss or damage and (iii) the causal link between the fault and the loss or damage.
| Item 16. | Exhibits. |
| Exhibit No. |
Description | |
| 1.1 | Form of Underwriting Agreement (1). | |
| 3.1 | Restated Certificate of Incorporation of Whirlpool Corporation (incorporated by reference from Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission file number 1-3932) filed with the SEC on April 23, 2009). | |
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| (1) | To be filed, if necessary, by a post-effective amendment to the registration statement or as an exhibit to a document incorporated by reference herein. |
| Item 17. | Undertakings. |
| (a) | Each undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
| (i) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
| (ii) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of |
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| the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
| (5) | That, for the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
Each undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
| (b) | Each undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of a registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (c) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of a registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, each registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
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| (d) | The undersigned registrant hereby further undertakes that: |
| (1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective; and |
| (2) | For purposes of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Benton Harbor, State of Michigan, on April 20, 2021.
| WHIRLPOOL CORPORATION | ||
| By: | /S/ MARC R. BITZER | |
| Name: | Marc R. Bitzer | |
| Title: | Chairman of the Board, President and Chief Executive Officer | |
* * *
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ MARC R. BITZER Marc R. Bitzer |
Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) | April 20, 2021 | ||
| /s/ JAMES W. PETERS James W. Peters |
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
April 20, 2021 | ||
| /s/ CHRISTOPHER S. CONLEY Christopher S. Conley |
Vice President and Corporate Controller (Principal Accounting Officer) | April 20, 2021 | ||
| * Samuel R. Allen |
Director |
April 20 2021 | ||
| * Greg Creed |
Director |
April 20, 2021 | ||
| * Gary T. DiCamillo |
Director |
April 20, 2021 | ||
| * Jennifer A. LaClair |
Director |
April 20, 2021 | ||
| * John D. Liu |
Director |
April 20, 2021 | ||
| * Harish Manwani |
Director |
April 20, 2021 | ||
| * Michael D. White |
Director |
April 20, 2021 | ||
| * By: | /S/ JAMES W. PETERS | |
| James W. Peters, as Attorney-in-Fact | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Benton Harbor, State of Michigan, April 20, 2021.
| WHIRLPOOL FINANCE LUXEMBOURG S.À R.L. | ||
| By: | /s/ JENNIFER L. POWERS | |
| Name: | Jennifer L. Powers | |
| Title: | Class A Manager | |
* * *
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ JENNIFER L. POWERS Jennifer L. Powers |
Class A Manager (Principal Executive Officer and Principal Financial Officer) | April 20, 2021 | ||
| /s/ CAIO HENRIQUE LIMA REINIG Caio Henrique Lima Reinig |
Principal Accounting Officer |
April 20, 2021 | ||
| /s/ MEGAN A. BLAZINA Megan A. Blazina |
Class A Manager |
April 20, 2021 | ||
| /s/ DIMITRI MAURICE W. STORME Dimitri Maurice W. Storme |
Class A Manager |
April 20, 2021 | ||
| /s/ ANDREW MACDONALD HUDSON Andrew Macdonald Hudson |
Class B Manager |
April 20, 2021 | ||
| /s/ TONY ANDREW WHITEMAN Tony Andrew Whiteman |
Class B Manager |
April 20, 2021 | ||
| /s/ MICHAEL FRIEDRICH LANGE Michael Friedrich Lange |
Class B Manager |
April 20, 2021 | ||
| /s/ JENNIFER L. POWERS Jennifer L. Powers |
Authorized Representative in the United States | April 20, 2021 | ||
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Benton Harbor, State of Michigan, April 20, 2021.
| WHIRLPOOL EMEA FINANCE S.À R.L. | ||
| By: | /s/ JENNIFER L. POWERS | |
| Name: | Jennifer L. Powers | |
| Title: | Class A Manager | |
* * *
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ JENNIFER L. POWERS Jennifer L. Powers |
Class A Manager (Principal Executive Officer and Principal Financial Officer) | April 20, 2021 | ||
| /s/ CAIO HENRIQUE LIMA REINIG Caio Henrique Lima Reinig |
Principal Accounting Officer |
April 20, 2021 | ||
| /s/ MEGAN A. BLAZINA Megan A. Blazina |
Class A Manager |
April 20, 2021 | ||
| /s/ DIMITRI MAURICE W. STORME Dimitri Maurice W. Storme |
Class A Manager |
April 20, 2021 | ||
| /s/ ANDREW MACDONALD HUDSON Andrew Macdonald Hudson |
Class B Manager |
April 20, 2021 | ||
| /s/ TONY ANDREW WHITEMAN Tony Andrew Whiteman |
Class B Manager |
April 20, 2021 | ||
| /s/ MICHAEL FRIEDRICH LANGE Michael Friedrich Lange |
Class B Manager |
April 20, 2021 | ||
| /s/ JENNIFER L. POWERS Jennifer L. Powers |
Authorized Representative in the United States | April 20, 2021 | ||
II-9
Exhibit 5.1
|
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| 300 North LaSalle Chicago, IL 60654 United States |
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| +1 312 862 2000 | Facsimile: +1 312 862 2200 | |||
|
www.kirkland.com |
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|
April 20, 2021 |
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Whirlpool Corporation
2000 North M-63
Benton Harbor, Michigan 49022-2692
Whirlpool Finance Luxembourg S.à r.l.
16, rue Erasme,
L-1468 Luxembourg,
Grand Duchy of Luxembourg
Whirlpool EMEA Finance S.à r.l.
16, rue Erasme,
L-1468 Luxembourg,
Grand Duchy of Luxembourg
Ladies and Gentlemen:
We are acting as special counsel to Whirlpool Corporation, a Delaware corporation (“Whirlpool”), Whirlpool Finance Luxembourg S.à r.l. (“Whirlpool Finance”) and Whirlpool EMEA Finance S.à r.l. (“Whirlpool EMEA” and together with Whirlpool and Whirlpool Finance, the “Companies”), in connection with the preparation of the Registration Statement on Form S-3 (such Registration Statement, as amended or supplemented, is hereinafter referred to as the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on or about April 20, 2021 under the Securities Act of 1933, as amended (the “Securities Act”), by the Companies. The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations promulgated under the Securities Act, of an unspecified amount of the following securities: (i) common stock of Whirlpool, par value $1.00 per share (the “Common Stock”), (ii) preferred stock of Whirlpool, par value $1.00 per share (the “Preferred Stock”), (iii) senior debt securities of Whirlpool, which may be secured or unsecured and which may be convertible into Common Stock or Preferred Stock (“Senior Debt Securities”), (iv) subordinated debt securities of Whirlpool, which may be secured or unsecured and which may be convertible into Common Stock or Preferred Stock (“Subordinated Debt Securities” and, together with the Senior Debt Securities, the “Debt Securities”), (v) warrants or other rights to purchase or otherwise acquire Common Stock,
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Preferred Stock or Debt Securities of Whirlpool (“Warrants”), (vi) contracts obligating holders to purchase from Whirlpool, and/or Whirlpool to purchase from holders, a specified amount of Common Stock, Preferred Stock or Debt Securities at a future date or dates (“Purchase Contracts”), (vii) units consisting of a Purchase Contract as well as Debt Securities, Preferred Stock or debt obligations of third parties, including U.S. treasury securities, securing the holders’ obligations to purchase the Common Stock or Preferred Stock under the Purchase Contracts, as applicable (“Units”), (viii) guarantees by Whirlpool of the Senior Debt Securities of Whirlpool Finance and Whirlpool EMEA (the “Guarantees” and, together with the Common Stock, Preferred Stock, Debt Securities, Warrants, Purchase Contracts and Units, the “Whirlpool Securities”), (ix) senior debt securities of Whirlpool Finance, which may be secured or unsecured (the “Whirlpool Finance Senior Debt Securities”), and (x) senior debt securities of Whirlpool EMEA, which may be secured or unsecured (the “Whirlpool EMEA Senior Debt Securities” and together with the Whirlpool Securities and Whirlpool Finance Senior Debt Securities, the “Securities”), each of which shall include such indeterminate number of Securities as may be determined to be issuable upon the conversion of any Securities or the exercise of Warrants, Purchase Contracts or Units to purchase or otherwise acquire securities of the Companies, as the case may be, in one or more offerings from time to time on a delayed or continuous basis (the “Offerings”).
You have advised us that: (i) the Senior Debt Securities will be issued under the indenture filed as an exhibit to the Registration Statement (as amended or supplemented from time to time, the “Senior Debt Indenture”) dated March 20, 2000, between the Company and U.S. Bank National Association (as successor to Citibank, N.A.), as trustee (the “Senior Debt Trustee”); (ii) the Subordinated Debt Securities will be issued under the form of indenture filed as an exhibit to the Registration Statement (as amended or supplemented from time to time, the “Subordinated Debt Indenture” and, together with the Senior Debt Indenture, the “Indentures”), to be entered into between the Company and U.S. Bank National Association, as trustee (the “Subordinated Debt Trustee”); (iii) the Warrants will be issued under one or more warrant agreements by and between the Company and a financial institution named therein as the warrant agent (each, a “Warrant Agent”), in a form that will be filed as an exhibit to a post-effective amendment to the Registration Statement or incorporated by reference therein (each, a “Warrant Agreement”); (iv) the Purchase Contracts will be issued under a purchase contract agreement by and among the Company and the other parties named therein, in a form that will be filed as an exhibit to a post-effective amendment to the Registration Statement or incorporated by reference therein (each, a “Purchase Contract Agreement”); (v) the Units will be issued under a purchase agreement by and among the Company and the other parties named therein, in a form that will be filed as an exhibit to a post-effective amendment to the Registration Statement or incorporated by reference therein (each, a “Unit Purchase Agreement”); (vi) the Whirlpool Finance Senior Debt Securities and Guarantees will be issued under the indenture filed as an exhibit to the Registration Statement (as amended or
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supplemented from time to time, the “Whirlpool Finance Senior Debt Securities Indenture”), dated as of November 2, 2016, among Whirlpool, Whirlpool Finance and U.S. Bank National Association, as trustee (the “Whirlpool Finance Senior Debt Securities Trustee”); and (vii) the Whirlpool EMEA Senior Debt Securities and Guarantees will be issued under the indenture filed as an exhibit to the Registration Statement (as amended or supplemented from time to time, the “Whirlpool EMEA Senior Debt Securities Indenture”), dated as of February 21, 2020, among Whirlpool, Whirlpool EMEA and U.S. Bank National Association, as trustee (the “Whirlpool EMEA Senior Debt Securities Trustee”, and, together with the Senior Debt Trustee and Subordinated Debt Trustee and the Whirlpool Finance Senior Debt Securities Trustee, the “Trustees”). Each Warrant Agreement, Purchase Contract Agreement and Unit Purchase Agreement as well as the Senior Debt Indenture, the Subordinated Debt Indenture, the Whirlpool Finance Senior Debt Securities Indenture and the Whirlpool EMEA Senior Debt Securities Indenture shall be referred to herein as a “Governing Document”). Each Trustee, Warrant Agent and counterparty to a Purchase Contract or a Unit Purchase Agreement shall be referred to herein as a “Governing Document Counterparty”).
In connection with the registration of the Securities, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary for the purposes of this opinion, including: (i) the organizational documents of the Companies, (ii) minutes and records of the corporate proceedings of the Companies and (iii) the Registration Statement and the exhibits thereto.
For purposes of this opinion, we have assumed the authenticity of all documents submitted to us as originals, the conformity to the originals of all documents submitted to us as copies and the authenticity of the originals of all documents submitted to us as copies. We have also assumed the legal capacity of all natural persons, the genuineness of the signatures of persons signing all documents in connection with which this opinion is rendered, the authority of such persons signing on behalf of the parties thereto other than the Companies and the due authorization, execution and delivery of all documents by the parties thereto other than the Companies. We have not independently established or verified any facts relevant to the opinions expressed herein, but have relied upon statements and representations of the officers and other representatives of the Companies.
We have also assumed that:
(i) the Registration Statement will have become effective and comply with all applicable laws;
(ii) the Registration Statement will be effective and will comply with all applicable laws at the time the Securities are offered or issued as contemplated by the Registration Statement;
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(iii) a prospectus supplement or term sheet (“Prospectus Supplement”) will have been prepared and filed with the Commission describing the Securities offered thereby and will comply with all applicable laws;
(iv) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate Prospectus Supplement;
(v) the Securities will be issued and sold in the form and containing the terms set forth in the Registration Statement, the appropriate Prospectus Supplement and the relevant Governing Document;
(vi) the Securities offered as well as the terms of the applicable Governing Document, as executed and delivered, do not violate any law applicable to the Companies or result in a default under or breach of any agreement or instrument binding upon the Companies;
(vii) the Companies will have obtained any legally required consents, approvals, authorizations and other orders of the Commission and any other regulatory authorities necessary to issue and sell the Securities being offered and to execute and deliver the applicable Governing Document;
(viii) the Securities offered as well as the terms of the applicable Governing Document, as executed and delivered, comply with all requirements and restrictions, if any, applicable to the Companies, whether imposed by any court or governmental or regulatory body having jurisdiction over the Companies;
(ix) a definitive purchase, underwriting, sales agent or similar agreement (each, a “Purchase Agreement”) with respect to any Securities offered or issued will have been duly authorized and validly executed and delivered by the Companies and the other parties thereto;
(x) any applicable indenture and indenture trustee will have been qualified under the Trust Indenture Act of 1939, as amended; and
(xi) any Securities issuable upon conversion, exchange, or exercise of any Security being offered or issued will be duly authorized, created, and, if appropriate, reserved for issuance upon such conversion, exchange, or exercise.
Based upon and subject to the foregoing qualifications, assumptions and limitations and the further limitations set forth below, we are of the opinion that:
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1. When the specific terms of any offering or offerings of Common Stock have been duly established by the Board of Directors of Whirlpool or a committee thereof and in accordance with provisions of any applicable Purchase Agreement so as not to violate any applicable law or agreement or instrument then binding on Whirlpool, and when certificates representing the shares of Common Stock have been duly executed, countersigned, registered and delivered against payment therefor in accordance with the applicable Purchase Agreement (which shall be in an amount at least equal to the par value of the shares being issued and sold) or upon exchange in accordance with the terms of any other Security that has been duly authorized, issued, paid for and delivered, such shares will be validly issued, fully paid and non-assessable.
2. Upon designation of the preferences and relative, participating, optional and other special rights, and qualifications, limitations or restrictions, of any series of Preferred Stock by the Board of Directors of Whirlpool or a committee thereof and proper filing with the Secretary of State of the State of Delaware of a certificate of designations relating to such series of Preferred Stock, all necessary corporate action on the part of Whirlpool will have been taken to authorize the issuance and sale of such series of Preferred Stock proposed to be sold by the Whirlpool, and when certificates representing the shares of Preferred Stock have been duly executed, countersigned, registered and delivered against payment therefor in accordance with the applicable Purchase Agreement (which shall be in an amount at least equal to the par value of the shares being issued and sold) or upon exchange in accordance with the terms of any other Security that has been duly authorized, issued, paid for and delivered, such shares will be validly issued, fully paid and non-assessable.
3. When, as and if (a) the terms of any particular series of Senior Debt Securities have been duly authorized and duly established in accordance with the Senior Debt Indenture and applicable law, (b) the appropriate corporate or organizational action has been taken to authorize the form, terms, execution and delivery of such Senior Debt Securities (and any required amendment or supplement to the Senior Debt Indenture), and (c) the applicable Senior Debt Securities have been duly executed, attested, issued and delivered by duly authorized officers against payment in accordance with such authorization, the Senior Debt Indenture, the applicable Purchase Agreement and applicable law and authenticated by the Senior Debt Trustee, such Senior Debt Securities (including any Senior Debt Securities duly executed and delivered (i) upon the exchange or conversion of Senior Debt Securities that are exchangeable or convertible into another series of Debt Securities or (ii) upon the exercise of Warrants pursuant to the terms thereof that are exercisable for the purchase of Senior Debt Securities) will constitute valid and binding obligations of Whirlpool enforceable against Whirlpool in accordance with their terms.
4. When, as and if (a) the terms of any particular series of Subordinated Debt Securities have been duly authorized and duly established in accordance with the Subordinated
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Debt Indenture and applicable law, (b) the appropriate corporate or organizational action has been taken to authorize the form, terms, execution and delivery of such Subordinated Debt Securities (and any required amendment or supplement to the Subordinated Debt Indenture), and (c) the applicable Subordinated Debt Securities have been duly executed, attested, issued and delivered by duly authorized officers against payment in accordance with such authorization, the Subordinated Debt Indenture, the applicable Purchase Agreement and applicable law and authenticated by the Subordinated Debt Trustee, such Subordinated Debt Securities (including any Subordinated Debt Securities duly executed and delivered (i) upon the exchange or conversion of Subordinated Debt Securities that are exchangeable or convertible into another series of Debt Securities or (ii) upon the exercise of Warrants pursuant to the terms thereof that are exercisable for the purchase of Subordinated Debt Securities) will constitute valid and binding obligations of Whirlpool enforceable against Whirlpool in accordance with their terms.
5. When, as and if (a) the appropriate corporate action has been taken by Whirlpool to authorize the form, terms, execution and delivery of the Warrant Agreement (including a form of certificate evidencing the Warrants), (b) Warrants with such terms have been duly executed, attested, issued and delivered by duly authorized officers of Whirlpool against payment in accordance with such authorization, the applicable Purchase Agreement and applicable law, and (c) the Securities issuable upon exercise of such Warrants have been duly authorized and reserved for issuance by all necessary corporate or organizational action and, in the case of Warrants to purchase Debt Securities, when the terms of such Debt Securities have been duly authorized and duly established in accordance with the terms of the applicable indenture, applicable law and the appropriate corporate or organizational action and, in the case of Warrants to purchase Common Stock or Preferred Stock, that the exercise price of such Warrants consists of legal consideration in excess of the par value of such securities, such Warrants will constitute valid and binding obligations of Whirlpool, enforceable against Whirlpool in accordance with their terms.
6. When, as and if (a) the appropriate corporate action has been taken by Whirlpool to authorize the form, terms, execution and delivery of the Purchase Contracts, (b) the Purchase Contracts with such terms have been duly executed, attested, issued and delivered by duly authorized officers of the Company against payment in accordance with such authorization and the applicable Purchase Agreement, and (c) the Securities issuable upon exercise of such Purchase Contracts have been duly authorized and reserved for issuance by all necessary corporate or organizational action and, in the case of Purchase Contracts to purchase Debt Securities, when the terms of such Debt Securities have been duly authorized and duly established in accordance with the terms of the applicable indenture, applicable law and the appropriate corporate or organizational action and, in the case of Purchase Contracts to purchase Common Stock or Preferred Stock, that the consideration payable in connection with such Purchase Contracts consists of legal consideration in excess of the par value of such securities, such Purchase Contracts
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will constitute valid and binding obligations of Whirlpool, enforceable against Whirlpool in accordance with their terms.
7. When, as and if (a) the appropriate corporate action has been taken by Whirlpool to authorize the form, terms, execution and delivery of the Units (including a form of certificate evidencing the Units) and the related Purchase Contracts, (b) the Units and the related Purchase Contracts with such terms have been duly executed, attested, issued and delivered by duly authorized officers of the Company against payment in accordance with such authorization and the applicable Purchase Agreement, and (c) the Securities issuable upon exercise of such Units and Purchase Contracts have been duly authorized and reserved for issuance by all necessary corporate or organizational action and, in the case of Units or Purchase Contracts to purchase Common Stock or Preferred Stock, that the consideration payable in connection with such Units or Purchase Contracts consists of legal consideration in excess of the par value of such securities, such Units and Purchase Contracts will constitute valid and binding obligations of Whirlpool, enforceable against Whirlpool in accordance with their terms.
8. When, as and if (a) the terms of any particular series of Whirlpool Finance Senior Debt Securities have been duly authorized and duly established in accordance with the Whirlpool Finance Senior Debt Securities Indenture and applicable law, (b) the appropriate corporate or organizational action has been taken to authorize the form, terms, execution and delivery of such Whirlpool Finance Senior Debt Securities (and any required amendment or supplement to the Whirlpool Finance Senior Debt Securities Indenture), and (c) the applicable Whirlpool Finance Senior Debt Securities have been duly executed, attested, issued and delivered by duly authorized officers or duly authorized agents of Whirlpool Finance against payment in accordance with such authorization, the Whirlpool Finance Senior Debt Securities Indenture, the applicable Purchase Agreement and applicable law and authenticated by the Whirlpool Finance Senior Debt Securities Trustee, such Whirlpool Finance Senior Debt Securities will constitute valid and binding obligations of Whirlpool Finance enforceable against Whirlpool Finance in accordance with their terms.
9. When, as and if (a) the terms of any particular series of Whirlpool EMEA Senior Debt Securities have been duly authorized and duly established in accordance with the Whirlpool EMEA Senior Debt Securities Indenture and applicable law, (b) the appropriate corporate or organizational action has been taken to authorize the form, terms, execution and delivery of such Whirlpool EMEA Senior Debt Securities (and any required amendment or supplement to the Whirlpool EMEA Senior Debt Securities Indenture), and (c) the applicable Whirlpool EMEA Senior Debt Securities have been duly executed, attested, issued and delivered by duly authorized officers or duly authorized agents of Whirlpool EMEA against payment in accordance with such authorization, the Whirlpool EMEA Senior Debt Securities Indenture, the applicable Purchase
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Agreement and applicable law and authenticated by the Whirlpool EMEA Senior Debt Securities Trustee, such Whirlpool EMEA Senior Debt Securities will constitute valid and binding obligations of Whirlpool EMEA enforceable against Whirlpool EMEA in accordance with their terms.
10. When, as and if (a) the terms of any Guarantee have been duly authorized and duly established in accordance with the Whirlpool Finance Senior Debt Securities Indenture or Whirlpool EMEA Senior Debt Securities Indenture, as applicable, and applicable law, (b) the appropriate corporate or organizational action has been taken to authorize the form, terms, execution and delivery of such Guarantee, and (c) the applicable Guarantee has been duly executed, attested, issued and delivered by duly authorized officers against payment for the Whirlpool Finance Senior Debt Securities or Whirlpool EMEA Senior Debt Securities, as applicable, in accordance with such authorization, the Whirlpool Finance Senior Debt Securities Indenture or the Whirlpool EMEA Senior Debt Securities Indenture, as applicable, the applicable Purchase Agreement and applicable law, such Guarantee will constitute a valid and binding obligation of Whirlpool enforceable against Whirlpool in accordance with its terms.
Our opinions expressed above are subject to the qualifications that we express no opinion as to the applicability of, compliance with, or effect of (i) any bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other similar law affecting the enforcement of creditors’ rights generally, (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law), (iii) public policy considerations which may limit the rights of parties to obtain certain remedies, and (iv) any laws except the federal securities laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, including the applicable provisions of the Delaware constitution and reported judicial decisions interpreting these laws. For purposes of our opinion that the Whirlpool Finance Debt Securities will be a binding obligation of Whirlpool Finance and that the Whirlpool EMEA Debt Securities will be a binding obligation of Whirlpool EMEA, we have, without conducting any research or investigation with respect thereto, relied on the opinion of Baker & Mackenzie LLP, with respect to Whirlpool Finance and Whirlpool EMEA, that the Whirlpool Finance Debt Securities and the Whirlpool EMEA Debt Securities have been duly authorized and duly established under the laws of Luxembourg. We are not licensed to practice in Luxembourg, and we have made no investigation of, and do not express or imply an opinion on, the laws of Luxembourg.
We express no opinion with respect to the enforceability of (i) consents to, or restrictions upon, judicial relief or jurisdiction or venue; (ii) waivers of rights or defenses with respect to stay, extension or usury laws; (iii) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (iv) waivers of broadly or vaguely stated rights; (v) provisions for
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April 20, 2021
Page 9
exclusivity, election or cumulation of rights or remedies; (vi) provisions authorizing or validating conclusive or discretionary determinations; (vii) grants of setoff rights; (viii) provisions for the payment of attorneys’ fees where such payment is contrary to law or public policy; (ix) proxies, powers and trusts; (x) restrictions upon non-written modifications and waivers; (xi) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property; (xii) any provision to the extent it requires any party to indemnify any other person against loss in obtaining the currency due following a court judgment in another currency; and (xiii) provisions for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty. In addition, we express no opinion with respect to (i) whether acceleration of the Debt Securities, Whirlpool Finance Senior Debt Securities or Whirlpool EMEA Senior Debt Securities may affect the collectability of that portion of the stated principal amount thereof that might be determined to constitute unearned interest thereon, (ii) compliance with laws relating to permissible rates of interest or (iii) the creation, validity, perfection or priority of any security interest or lien.
To the extent that the obligations of the Companies under any Governing Document may be dependent on such matters, we assume for purposes of this opinion that the applicable Governing Document Counterparty is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; that the applicable Governing Document Counterparty is duly qualified to engage in the activities contemplated by applicable Governing Document; that the applicable Governing Document has been duly authorized, executed and delivered by the applicable Governing Document Counterparty and constitutes the legally valid and binding obligations of such Governing Document Counterparty, enforceable against such Governing Document Counterparty in accordance with its terms; that the applicable Governing Document Counterparty is in compliance, generally and with respect to acting as trustee, warrant agent, depositary or other counterparty, as the case may be, under the applicable Governing Document, with all applicable laws and regulations; and that the applicable Governing Document Counterparty has the requisite organizational and legal power and authority to perform its obligations under the applicable Governing Document.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the heading “Legal Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky” laws of the various states to the sale of the Securities.
Whirlpool Corporation
Whirlpool Finance Luxembourg S.à r.l.
Whirlpool EMEA Finance S.à r.l.
April 20, 2021
Page 10
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the present federal securities laws of the United States, laws of the State of New York or the General Corporation Law of the State of Delaware be changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the Registration Statement, and is not to be used, circulated, quoted or otherwise relied upon for any other purpose.
| Sincerely,
|
| /s/ Kirkland & Ellis LLP
|
| KIRKLAND & ELLIS LLP |
| 2 |
| 3 |
| 4 |
| 5 |
| 6 |
| 7 |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Whirlpool Corporation for the registration of various debt, equity and other securities and to the incorporation by reference therein of our reports dated February 11, 2021, with respect to the consolidated financial statements and schedule of Whirlpool Corporation, and the effectiveness of internal control over financial reporting of Whirlpool Corporation, included in its Annual Report (Form 10-K) for the year ended December 31, 2020, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Chicago, Illinois
April 20, 2021
Exhibit 24.1
POWER OF ATTORNEY
Each of the undersigned, being a director and/or officer of Whirlpool Corporation, a Delaware corporation, hereby constitutes and appoints James W. Peters and Bridget K. Quinn as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place, and stead, in any and all capacities, to sign this registration statement on Form S-3 filed by Whirlpool Corporation pursuant to the Securities Act of 1933, as amended (the “Securities Act”), and any and all amendments to this registration statement (including post-effective amendments and registration statements filed pursuant to Rule 462(b) under the Securities Act, and otherwise), and to file the same, with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done to the end that such registration statement or registration statements shall comply with the Securities Act and the applicable rules and regulations adopted or issued pursuant thereto, as fully and to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them or their substitutes or resubstitutes, may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in two or more counterparts, each of which shall be an original and all of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the undersigned has subscribed these presents, this 20th day of April, 2021.
| /s/ Marc R. Bitzer |
Chairman of the Board, President and Chief Executive Officer (Principal Executive Officer) | |
| Marc R. Bitzer | ||
| /s/ James W. Peters |
Executive Vice President and Chief Financial Officer (Principal Financial Officer) | |
| James W. Peters | ||
| /s/ Christopher S. Conley |
Vice President and Corporate Controller (Principal Accounting Officer) | |
| Christopher S. Conley | ||
| /s/ Samuel R. Allen |
Director | |
| Samuel R. Allen | ||
| /s/ Greg Creed |
Director | |
| Greg Creed | ||
| /s/ Gary T. DiCamillo |
Director | |
| Gary T. DiCamillo | ||
| /s/ Jennifer A. LaClair |
Director | |
| Jennifer A. LaClair | ||
| /s/ John D. Liu |
Director | |
| John D. Liu | ||
| /s/ Harish Manwani |
Director | |
| Harish Manwani | ||
| /s/ Michael D. White |
Director | |
| Michael D. White | ||
Exhibit 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Benjamin J. Krueger
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
(651) 466-6299
(Name, address and telephone number of agent for service)
WHIRLPOOL CORPORATION
(Issuer with respect to the Securities)
| Delaware | 38-1490038 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 2000 North M-63 Benton Harbor, Michigan | 49022-2692 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Senior Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * | Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
| ** | Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 20th of April, 2021.
| By: | /s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
3
Exhibit 2
|
Office of the Comptroller of the Currency | |
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia
2021-00217-C
4
Exhibit 3
| .
|
Office of the Comptroller of the Currency | |
| Washington, DC 20219 |
CERTIFICATE OF FIDUCIARY POWERS
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
2021-00217-C
5
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: April 20, 2021
| By: |
/s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
6
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 12/31/2020
($000’s)
| 12/31/2020 | ||||
| Assets |
||||
| Cash and Balances Due From Depository Institutions |
$ | 62,424,852 | ||
| Securities |
135,372,305 | |||
| Federal Funds |
149 | |||
| Loans & Lease Financing Receivables |
299,153,643 | |||
| Fixed Assets |
7,454,095 | |||
| Intangible Assets |
12,786,750 | |||
| Other Assets |
27,582,366 | |||
|
|
|
|||
| Total Assets |
$ | 544,774,160 | ||
| Liabilities |
||||
| Deposits |
$ | 442,835,836 | ||
| Fed Funds |
1,175,229 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
1,036,903 | |||
| Other Borrowed Money |
27,992,840 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
3,850,000 | |||
| Other Liabilities |
14,494,315 | |||
|
|
|
|||
| Total Liabilities |
$ | 491,385,123 | ||
| Equity |
||||
| Common and Preferred Stock |
18,200 | |||
| Surplus |
14,266,915 | |||
| Undivided Profits |
38,303,599 | |||
| Minority Interest in Subsidiaries |
800,323 | |||
|
|
|
|||
| Total Equity Capital |
$ | 53,389,037 | ||
| Total Liabilities and Equity Capital |
$ | 544,774,160 | ||
7
Exhibit 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Benjamin J. Krueger
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
(651) 466-6299
(Name, address and telephone number of agent for service)
Whirlpool Finance Luxembourg S.àr.l.
(Issuer with respect to the Securities)
| Luxembourg | 98-1329359 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 16 rue Erasme, Luxembourg | L-1468 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Whirlpool Corporation
(Issuer with respect to the Securities)
| Delaware | 38-1490038 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 2000 North M-63 Benton Harbor, Michigan |
49022-2692 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Senior Debt Securities of Whirlpool Finance Luxembourg S.à r.l.
Guarantees of Senior Debt Securities of Whirlpool Finance Luxembourg S.àr.l.
by Whirlpool Corporation
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * | Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
| ** | Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 20th of April, 2021.
| By: | /s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
3
Exhibit 2
|
|
Office of the Comptroller of the Currency | |||
| Washington, DC 20219 | ||||
CERTIFICATE OF CORPORATE EXISTENCE
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia
2021-00217-C
4
Exhibit 3
|
|
Office of the Comptroller of the Currency | |||
| Washington, DC 20219 | ||||
CERTIFICATE OF FIDUCIARY POWERS
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
2021-00217-C
5
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: April 20, 2021
| By: | /s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
6
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 12/31/2020
($000’s)
| 12/31/2020 | ||||
| Assets |
||||
| Cash and Balances Due From Depository Institutions |
$ | 62,424,852 | ||
| Securities |
135,372,305 | |||
| Federal Funds |
149 | |||
| Loans & Lease Financing Receivables |
299,153,643 | |||
| Fixed Assets |
7,454,095 | |||
| Intangible Assets |
12,786,750 | |||
| Other Assets |
27,582,366 | |||
|
|
|
|||
| Total Assets |
$ | 544,774,160 | ||
| Liabilities |
||||
| Deposits |
$ | 442,835,836 | ||
| Fed Funds |
1,175,229 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
1,036,903 | |||
| Other Borrowed Money |
27,992,840 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
3,850,000 | |||
| Other Liabilities |
14,494,315 | |||
|
|
|
|||
| Total Liabilities |
$ | 491,385,123 | ||
| Equity |
||||
| Common and Preferred Stock |
18,200 | |||
| Surplus |
14,266,915 | |||
| Undivided Profits |
38,303,599 | |||
| Minority Interest in Subsidiaries |
800,323 | |||
|
|
|
|||
| Total Equity Capital |
$ | 53,389,037 | ||
| Total Liabilities and Equity Capital |
$ | 544,774,160 | ||
7
Exhibit 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Benjamin J. Krueger
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
(651) 466-6299
(Name, address and telephone number of agent for service)
Whirlpool EMEA Finance S.àr.l.
(Issuer with respect to the Securities)
| Luxembourg | 98-1420019 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
| 16 rue Erasme, Luxembourg | L-1468 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Whirlpool Corporation
(Issuer with respect to the Securities)
| Delaware | 38-1490038 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 2000 North M-63 Benton Harbor, Michigan |
49022-2692 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Senior Debt Securities of Whirlpool EMEA Finance S.à r.l.
Guarantees of Senior Debt Securities of Whirlpool EMEA Finance S.àr.l.
by Whirlpool Corporation
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * | Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
| ** | Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 20th of April, 2021.
| By: | /s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
3
Exhibit 2
|
|
Office of the Comptroller of the Currency | |
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia
2021-00217-C
4
Exhibit 3
|
|
Office of the Comptroller of the Currency | |
| Washington, DC 20219 |
CERTIFICATE OF FIDUCIARY POWERS
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
2021-00217-C
5
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: April 20, 2021
| By: |
/s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
6
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 12/31/2020
($000’s)
| 12/31/2020 | ||||
| Assets |
||||
| Cash and Balances Due From Depository Institutions |
$ | 62,424,852 | ||
| Securities |
135,372,305 | |||
| Federal Funds |
149 | |||
| Loans & Lease Financing Receivables |
299,153,643 | |||
| Fixed Assets |
7,454,095 | |||
| Intangible Assets |
12,786,750 | |||
| Other Assets |
27,582,366 | |||
|
|
|
|||
| Total Assets |
$544,774,160 | |||
| Liabilities |
||||
| Deposits |
$ | 442,835,836 | ||
| Fed Funds |
1,175,229 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
1,036,903 | |||
| Other Borrowed Money |
27,992,840 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
3,850,000 | |||
| Other Liabilities |
14,494,315 | |||
|
|
|
|||
| Total Liabilities |
$491,385,123 | |||
| Equity |
||||
| Common and Preferred Stock |
18,200 | |||
| Surplus |
14,266,915 | |||
| Undivided Profits |
38,303,599 | |||
| Minority Interest in Subsidiaries |
800,323 | |||
|
|
|
|||
| Total Equity Capital |
$ | 53,389,037 | ||
| Total Liabilities and Equity Capital |
$544,774,160 | |||
7
Exhibit 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY UNDER
THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
| ☐ | Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2) |
U.S. BANK NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
| 800 Nicollet Mall Minneapolis, Minnesota |
55402 | |
| (Address of principal executive offices) | (Zip Code) |
Benjamin J. Krueger
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
(651) 466-6299
(Name, address and telephone number of agent for service)
WHIRLPOOL CORPORATION
(Issuer with respect to the Securities)
| Delaware | 38-1490038 | |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
| 2000 North M-63 Benton Harbor, Michigan |
49022-2692 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Subordinated Debt Securities
(Title of the Indenture Securities)
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee’s knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of December 31, 2020 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
| * | Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005. |
| ** | Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014. |
2
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of St. Paul, State of Minnesota on the 20th of April, 2021.
| By: | /s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
3
Exhibit 2
|
|
Office of the Comptroller of the Currency | |
| Washington, DC 20219 |
CERTIFICATE OF CORPORATE EXISTENCE
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), is a national banking association formed under the laws of the United States and is authorized thereunder to transact the business of banking on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia
2021-00217-C
4
Exhibit 3
|
|
Office of the Comptroller of the Currency | |
| Washington, DC 20219 |
CERTIFICATE OF FIDUCIARY POWERS
I, Brian Brooks, Acting Comptroller of the Currency, do hereby certify that:
1. The Office of the Comptroller of the Currency, pursuant to Revised Statutes 324, et seq, as amended, and 12 USC 1, et seq, as amended, has possession, custody, and control of all records pertaining to the chartering, regulation, and supervision of all national banking associations.
2. “U.S. Bank National Association,” Cincinnati, Ohio (Charter No. 24), was granted, under the hand and seal of the Comptroller, the right to act in all fiduciary capacities authorized under the provisions of the Act of Congress approved September 28, 1962, 76 Stat. 668, 12 USC 92a, and that the authority so granted remains in full force and effect on the date of this certificate.
IN TESTIMONY WHEREOF, today, December 4, 2020, I have hereunto subscribed my name and caused my seal of office to be affixed to these presents at the U.S. Department of the Treasury, in the City of Washington, District of Columbia.
2021-00217-C
5
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: April 20, 2021
| By: |
/s/ Benjamin J. Krueger | |
| Benjamin J. Krueger | ||
| Vice President |
6
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 12/31/2020
($000’s)
| 12/31/2020 | ||||
| Assets |
||||
| Cash and Balances Due From Depository Institutions |
$ | 62,424,852 | ||
| Securities |
135,372,305 | |||
| Federal Funds |
149 | |||
| Loans & Lease Financing Receivables |
299,153,643 | |||
| Fixed Assets |
7,454,095 | |||
| Intangible Assets |
12,786,750 | |||
| Other Assets |
27,582,366 | |||
|
|
|
|||
| Total Assets |
$544,774,160 | |||
| Liabilities |
||||
| Deposits |
$ | 442,835,836 | ||
| Fed Funds |
1,175,229 | |||
| Treasury Demand Notes |
0 | |||
| Trading Liabilities |
1,036,903 | |||
| Other Borrowed Money |
27,992,840 | |||
| Acceptances |
0 | |||
| Subordinated Notes and Debentures |
3,850,000 | |||
| Other Liabilities |
14,494,315 | |||
|
|
|
|||
| Total Liabilities |
$ | 491,385,123 | ||
| Equity |
||||
| Common and Preferred Stock |
18,200 | |||
| Surplus |
14,266,915 | |||
| Undivided Profits |
38,303,599 | |||
| Minority Interest in Subsidiaries |
800,323 | |||
|
|
|
|||
| Total Equity Capital |
$ | 53,389,037 | ||
| Total Liabilities and Equity Capital |
$ | 544,774,160 | ||
7