UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark one)
(X) Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (Fee Required)
For the fiscal year ended December 31, 1993
or
( ) Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (No Fee Required)
For the transition period from _____________________ to _____________________
Commission file Number 1-655
MAYTAG CORPORATION
403 West Fourth Street North, Newton, Iowa 50208
A Delaware Corporation I.R.S. Employer Identification No. 42-0401785
Registrant's telephone number, including area code: 515-792-8000
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange on
Title of Each Class Which Registered
Common Stock, $1.25 per share par value New York Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. (X)
The aggregate market value of the voting stock held by non-affiliates of the
registrant as of March 1, 1994:
Common Stock, $1.25 Par Value - $1,858,556,733
The number of shares outstanding of the registrant's Common Stock, as of
March 1, 1994:
Common Stock, $1.25 Par Value - 106,967,294
1
<PAGE>
1993 FORM 10-K CONTENTS
Item Page
_____________________________________________________________________________
Part I:
1. Business 3
Business - Home Appliances . . . . . . . . . . . . . . . . . . 3
Business - Vending Equipment . . . . . . . . . . . . . . . . . 4
2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . 6
4. Submission of Matters to a Vote of Security Holders . . . . . 6
Executive Officers of the Registrant . . . . . . . . . . . . . 6
Part II:
5. Market for the Registrant's Common Equity and Related Stockholder
Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Selected Financial Data . . . . . . . . . . . . . . . . . . . 8
7. Management's Discussion and Analysis of Financial Condition and
Results of Operations . . . . . . . . . . . . . . . . . . . . 9
8. Financial Statements and Supplementary Data . . . . . . . . 12
9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure . . . . . . . . . . . . . . . . . . . . 30
Part III:
10. Directors and Executive Officers of the Registrant . . . . . 30
11. Executive Compensation . . . . . . . . . . . . . . . . . . . 30
12. Security Ownership of Certain Beneficial Owners and Management 30
13. Certain Relationships and Related Transactions . . . . . . . 31
Part IV:
14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K 31
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Company's definitive proxy statement dated March 22, 1994
(the "Proxy Statement"), which has been filed with the Securities and
Exchange Commission pursuant to regulation A, are incorporated by reference
into Part III.
Part I
Item 1. Business.
Maytag Corporation (the "Company") was organized as a Delaware corporation in
1925. In 1989, the Company completed the acquisition of Chicago Pacific
Corporation ("CPC"), a furniture and international home appliance company,
through a cash tender offer followed by a stock merger. CPC operated in two
segments, home appliances and furniture; however, the Company later sold the
furniture companies segment.
The Company is engaged in two industry segments: home appliances and vending
equipment. Financial and other information relating to industry segment and
geographic data is included in Part II, Item 7 and Item 8.
HOME APPLIANCES
The home appliances segment comprises approximately 95% of 1993 consolidated
net sales.
The Company, through its various business units, manufactures and distributes
a broad line of home appliances including laundry equipment, gas and electric
ranges, refrigerators, freezers, dishwashers, and floor care products. In
1992, the Company sold its microwave oven and dehumidifier manufacturing
operations. The Company continues to distribute microwave ovens and
dehumidifiers, as well as compactors. Maytag Customer Service (formerly
Maycor Appliance Parts & Service Co.) provides product service and parts
distribution in the United States and Canada for all of the Company's
appliance brands, except Hoover. Maytag International Inc., the Company's
international marketing subsidiary, handles the sales of appliances and
licensing of certain home appliance brands in markets outside the United
States and Canada. Maytag Financial Services Corporation provides financing
programs primarily to certain customers of the Company in North America.
The Company markets its home appliances to all major United States and many
major international markets, including the replacement market, the commercial
laundry market, the new home and apartment builder market, the manufactured
housing (mobile home) market, the recreational vehicle market, the private
label market and the household/commercial floor care market. Products are
primarily sold directly to dealers but are also sold through independent
distributors, mass merchandisers and large national department stores. Sales
of appliances to manufacturers of mobile homes and recreational vehicles are
made directly by specialized marketing personnel. Most home appliance sales
are made within North America.
A portion of the Company's operations and sales are outside the United
States. The risks involved in foreign operations vary from country to
country and include tariffs, trade restrictions, changes in currency values,
economic conditions and international relations. Geographic information is
included in Part II, Item 8, Page 29.
3
<PAGE>
The Company uses basic raw materials such as steel, copper, aluminum, rubber
and plastic in its manufacturing process in addition to purchased motors,
compressors, timers, valves and other components. These materials are
supplied by established sources and the Company anticipates that such sources
will, in general, be able to meets its future requirements.
The Company holds a number of patents which are important in the manufacture
of its products. The licenses it holds on other patents are not considered to
be critical to its business. The Company holds a number of trademark
registrations of which the most important are ADMIRAL, HOOVER, JENN-AIR,
MAGIC CHEF, MAYTAG, NORGE and the associated corporate symbols.
The Company's home appliance business is not seasonal.
The Company is not dependent upon a single home appliance customer or a few
customers. Therefore, the loss of any one customer would not have a material
adverse effect on its business.
The dollar amount of backlog orders of the Company is not considered
significant for home appliances in relation to the total annual dollar volume
of sales. Because it is the Company's practice to maintain a level of
inventory sufficient to cover anticipated shipments and since orders are
generally shipped upon receipt, a large backlog would be unusual.
The home appliance market is highly competitive with the principal
competitors being larger than the Company. Because of continued
competitiveness within the industry, price increases continue to be difficult
to implement. There were no significant increases in the costs of the
Company's raw materials or components in 1993. Information regarding the
Company's improvement in gross margin over 1992 is included in Part II, Item
7. The Company uses product quality, customer service, advertising and sales
promotion, warranty and pricing as its principal methods of competition.
Although the Company has many manufacturing sites with environmental
concerns, compliance with laws and regulations regarding the discharge of
materials into the environment or relating to the protection of the
environment has not had a material effect on capital expenditures, earnings
or the Company's competitive position. The scheduled phase-out of
chlorofluorocarbons ("CFCs", an aerosol propellant and refrigerant) by the
mid-1990s, mandated by government standards, continues to cause concern
throughout the refrigeration industry. In addition, alternative washing
machine designs to meet anticipated future government regulations dealing
with energy and water usage are being evaluated by the Company and the
industry. Because compliance with these current and anticipated laws and
regulations is essentially prospective, it has not had a significant impact
on current operations. It is anticipated that the industry and the Company
will meet all final standards.
The number of employees of the Company within the home appliances segment as
of December 31, 1993 was 19,661.
VENDING EQUIPMENT
The vending equipment segment comprises approximately 5% of 1993 consolidated
net sales.
The Company manufactures, through its Dixie-Narco subsidiary, a variety of
soft drink vending machines and money changers. The products are sold
primarily to companies bottling soft drinks such as Coca-Cola, Dr. Pepper,
Pepsi Cola, Royal Crown Cola and Seven-Up.
4
<PAGE>
The Company uses steel as a basic raw material in its manufacturing processes
in addition to purchased motors, compressors and other components made of
copper, aluminum, rubber and plastic. These materials are supplied by
established sources and the Company anticipates that such sources will, in
general, be able to meet its future requirements.
The Company holds a number of patents which are important in the manufacture
of its products. The Company holds a DIXIE-NARCO trademark registration and
its associated corporate symbol.
Vending equipment sales, though stronger in the first six months of the year,
are considered by the Company to be essentially nonseasonal.
The Company's vending equipment segment is dependent upon a few major soft
drink suppliers. Therefore, the loss of one or more of these customers could
have a material adverse effect on this segment. The Company manufactures and
sells its vending machines in competition with a small number of other
manufacturers and is the major manufacturer of such equipment. The principal
methods of competition utilized by the vending equipment segment are product
quality, customer service, delivery, warranty and price. Positive factors
pertaining to the Company's competitive position include product design,
manufacturing efficiency and superior service, while new product innovations
by competitors and severe price competition negatively impact its position.
The dollar amount of backlog orders of the Company is not considered
significant for vending equipment in relation to the total annual dollar
volume of sales. Because it is the Company's practice to maintain a level of
inventory sufficient to cover shipments and since orders are generally
shipped upon receipt, a large backlog would be unusual.
Although the Company has manufacturing sites with environmental concerns,
compliance with laws and regulations regarding the discharge of materials
into the environment or relating to the protection of the environment has not
had a material effect on capital expenditures, earnings or the Company's
competitive position. The scheduled phase-out of chlorofluorocarbons
("CFCs', an aerosol propellant and refrigerant) by the mid-1990s, mandated by
government standards, will also not affect the production technology in the
vending equipment industry. This has not had a significant impact on current
operations, and it is anticipated that the industry and the Company will meet
all final standards.
The number of employees of the Company within the vending equipment segment
as of December 31, 1993 was 1,136.
Item 2. Properties.
The Company's corporate headquarters is located in Newton, Iowa. Major
offices and manufacturing facilities in the United States related to the home
appliances segment are located at: Galesburg, Illinois; Jackson, Tennessee;
Indianapolis, Indiana; Cleveland, Tennessee; Herrin, Illinois; Newton, Iowa;
North Canton, Ohio; and El Paso, Texas. Maytag Customer Service, which is
located in Cleveland, Tennessee, operates an automated national parts
distribution center in Milan, Tennessee which services all of the Company's
appliance brands, except Hoover. In addition to manufacturing facilities in
the United States, the Company has three other North American manufacturing
facilities located in Canada and Mexico. The Company also has five
manufacturing facilities outside North America in Australia, Portugal and the
United Kingdom. A sixth manufacturing facility in Dijon, France was closed
in 1993. Major facilities related to the vending equipment segment are:
Dixie-Narco, Inc., with offices and manufacturing facilities located in
5
<PAGE>
Williston, South Carolina and Eastlake, Ohio.
The manufacturing facilities are well maintained, suitably equipped and in
good operating condition. The facilities used in the production of home
appliances and vending equipment had sufficient capacity to meet production
needs in 1993, and the Company expects that such capacity will be adequate
for planned production in 1994. The Company's 1993 capital expenditures and
the planned 1994 capital expenditures include an ongoing program of product
improvements and enhanced manufacturing efficiencies.
The Company also owns or leases sales offices in many large metropolitan
areas throughout the United States, Australia, Canada, the United Kingdom and
Western Europe. Lease commitments were not material at December 31, 1993.
Item 3. Legal Proceedings.
The Company is involved in contractual disputes, environmental,
administrative and legal proceedings and investigations of various types.
Although any litigation, proceeding or investigation has an element of
uncertainty, the Company believes that the outcome of any proceeding, lawsuit
or claim which is pending or threatened, or all of them combined, will not
have a material adverse effect on its consolidated financial position.
Item 4. Submission of Matters to a Vote of Security Holders.
The Company did not submit any matters to a vote of security holders during
the fourth quarter of 1993 through a solicitation of proxies or otherwise.
Executive Officers of the Registrant
The following sets forth the names of all executive officers of the Company,
the offices held by them, the year they first became an officer of the
Company and their ages:
First Became
Name Office Held an Officer Age
- ----------------- ----------------------- ------------ ---
Leonard A. Hadley Chairman and
Chief Executive Officer 1979 59
John P. Cunningham Executive Vice President
and Chief Financial Officer 1994 56
Joseph F. Fogliano Executive Vice President and
President North American
Appliance Group 1993 54
Jon O. Nicholas Senior Vice President,
Human Resources 1993 54
Carleton F. Zacheis Senior Vice President,
Planning 1988 60
and Business Development
Terry A. Carlson Vice President, Purchasing 1991 51
Janis C. Cooper Vice President, Public 1989 46
Affairs
Randall J. Espeseth Vice President, Taxes 1992 47
6
<PAGE>
Mark A. Garth Vice President - Controller
and Chief Accounting Officer 1994 34
Edward H. Graham Vice President, General
Counsel 1990 58
and Assistant Secretary
Douglass C. Horstman Vice President, Government
Affairs 1993 54
John H. Jansen Vice President, Technology 1992 54
Thomas C. Vice President and Treasurer 1989 55
Ringgenberg
Steven H. Wood Vice President, Information
Services 1992 36
E. James Bennett Secretary and Assistant
General Counsel 1985 52
The executive officers were elected to serve in the indicated office until
the organizational meeting of the Board of Directors following the annual
meeting of shareholders on April 26, 1994 or until their successors are
elected.
Each of the executive officers has served the Company or an acquired company
in various executive or administrative positions for at least five years
except for:
Name Company/Position Period
- -------------------- ---------------------------- --------
Terry A. Carlson Estee Lauder, Inc
- Vice President, Corporate
Purchasing 1987-1991
John P. Cunningham IBM Corporation
- Vice President and Assistant
General Manager, Main Frame
Division 1992-1993
- Vice President, Member Europe
Executive Committee, Paris, 1990-1992
France
- Vice President, Corporate 1988-1990
Controller
Joseph F. Fogliano Thomson Consumer Electronics,
Inc. 1988-1993
- President and CEO
Douglass C. Horstman D. C. Horstman & Associates
(government affairs consulting
firm) 1973-1993
- Owner/Operator
John H. Jansen Ridge Tool Company (a division of
Emerson Electric Company)
- Vice President, Engineering 1985-1992
Steven H. Wood Ernst & Young, Chicago, Illinois
- Senior Manager 1985-1989
7
<PAGE>
Part II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters.
MARKET AND DIVIDEND INFORMATION
- -------------------------------------------------------------------------------
Sales Price of Common Shares Dividends
In Whole Dollars Per Share
------------------------------------------ ----------------
1993 1992 1993 1992
----------------- ----------------- ---- ----
Quarter High Low High Low
- ------- ---- --- ---- ---
First $16 $13 $20 $15 $.125 $.125
Second 16 13 21 16 .125 .125
Third 18 15 18 13 .125 .125
Fourth 19 15 16 13 .125 .125
The principal U.S. market in which the Company's common stock is traded is
the New York Stock Exchange. As of March 1, 1994 the Company had 32,334
shareowners of record.
Item 6. Selected Financial Data.
Thousands of Dollars Except Per Share Data
(1) (2) (3)
1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ----------
Net sales $2,987,054 $3,041,223 $2,970,626 $3,056,833 $3,088,753
Cost of sales 2,262,942 2,339,406 2,254,221 2,309,138 2,312,645
Income taxes 38,600 15,900 44,400 60,500 75,500
Income (loss) from
continuing
operations 51,270 (8,354) 79,017 98,905 131,472
Percent of income
(loss) from
continuing
operations to net
sales 1.7% (.3%) 2.7% 3.2% 4.3%
Income (loss) from
continuing
operations per
share $ .48 $ (.08) $ .75 $ .94 $ 1.27
Dividends paid per
share .50 .50 .50 .95 .95
Average shares
outstanding (in
thousands) 106,252 106,077 105,761 105,617 103,694
Working capital $ 406,181 $ 452,626 $ 509,025 $ 612,802 $ 650,905
Depreciation of
property, plant
and equipment 102,459 94,032 83,352 76,836 68,077
Additions to
property, plant and
equipment 99,300 129,891 143,372 141,410 127,838
Total assets 2,469,498 2,501,490 2,535,068 2,586,541 2,436,319
Long-term debt 724,695 789,232 809,480 857,941 876,836
Total debt to
capitalization 60.6% 58.7% 45.9% 47.7% 50.6%
Shareowners' equity
per share of Common
stock $ 5.50 $ 5.62 $ 9.50 $ 9.60 $ 8.89
8
<PAGE>
(1) Includes $60.4 million in pretax charges ($50 million in a special charge
and $10.4 million in selling, general and administrative expenses) for
additional costs associated with two Hoover Europe "free flights" promotion
programs.
(2) Includes a $95 million pretax charge relating to the reorganization of the
North American and European business units and before cumulative effect of
accounting changes.
(3) These amounts reflect the acquisition of Hoover on January 26, 1989.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
_____________________________________________________________________________
COMPARISON OF 1993 WITH 1992
The Company operates in two business segments, home appliances and vending
equipment. The operations of the home appliance segment represented 95.0
percent of net sales in 1993 and 1992.
Consolidated net sales decreased 1.8 percent in 1993 compared to 1992.
Although sales volumes in the United States increased due to improved
consumer confidence, the overall decline in sales resulted from a decrease in
European sales, less favorable currency conversions of sales outside the
United States, and the absence of sales from the microwave oven operation
that was sold in June 1992. North American home appliance sales increased 3.1
percent in spite of the absence of sales from the microwave oven operation.
European sales decreased 22.1 percent from 1992 due to less favorable
currency conversions and lower sales volumes due to some market share
declines. Lower sales volumes in Europe are expected in 1994 compared to
1993. Sales in the Company's vending equipment segment declined 5.3 percent
from 1992 due to slow economic activity in Europe, cutbacks by domestic
bottlers and increased competition.
Gross profit as a percent of sales increased to 24.2 percent from 23.1
percent in 1992. The increase in margins resulted principally from
improvements in the North American Appliance Group. The improvement in the
North American Appliance Group was primarily due to production efficiencies,
reductions of certain employee-related costs and some selective price
increases. In addition, 1992 results for the North American Appliance Group
included plant start-up costs. Gross margins in Hoover Europe declined
primarily due to operating inefficiencies associated with previously
announced plans to close a factory in Dijon, France and higher pension costs.
Vending equipment margins improved in 1993 due to reductions in material,
distribution and warranty costs from 1992. In 1994, although consolidated
pension and postretirement medical costs are expected to increase due to a
reduction in the discount rate assumption and lower pension assets, this is
expected to be offset by other cost reductions.
Selling, general and administrative (S,G&A) expenses decreased to 17.2
percent in 1993 from 17.4 percent in 1992. The decline was principally due to
cost efficiencies resulting from the reorganization of the North American
Appliance Group. Special charges consisted of a $50 million pretax charge in
the first quarter of 1993 to cover anticipated additional costs associated
with two "free flights" promotional programs in Europe and a $95 million
pretax charge in the third quarter of 1992 for a reorganization of U.S. and
European operations. Total pretax charges relating to the "free flights"
promotion programs in 1993 were $60.4 million ($50 million in a special
charge and $10.4 million in S,G&A) and in 1992 were $12.2 million. See the
notes to the financial statements for a discussion of this matter.
Offsetting a portion of the 1993 European "free flights" expenses in S,G&A
was a $5 million reversal of excess reorganization reserves in Europe.
Operating income for 1993 totaled $158.9 million compared to $78.6 million
in 1992. Before special charges, operating income would have been $208.9
million or 7.0 percent of sales in 1993 compared to $173.6 million or 5.7
percent of sales in 1992.
The decrease in the effective tax rate for 1993 was primarily due to the
1992 tax rate reflecting the impact of non-recoverable losses outside the
9
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - continued
_____________________________________________________________________________
United States. The notes to the financial statements include a
reconciliation between the statutory tax and the actual tax provided.
Excluding special charges in 1993 and 1992 and the cumulative effect of
accounting changes in 1992, net income would have been $81.3 million or $.76
per share in 1993 compared to net income of $65.4 million or $.62 per share
in 1992.
In November 1992, the Financial Accounting Standards Board issued Statement
No. 112 (FAS 112), "Employers' Accounting for Postemployment Benefits." The
new rules require recognition of specified postemployment benefits provided
to former or inactive employees, such as severance pay, workers'
compensation, supplemental unemployment benefits, disability benefits and
continuation of healthcare and life insurance coverages. The Company has
estimated that the cumulative effect of adopting FAS 112, which will be
recorded in the first quarter of 1994, will be between $.02-$.04 per share.
The ongoing expenses associated with the adoption of the new rules are not
expected to be material.
_____________________________________________________________________________
COMPARISON OF 1992 WITH 1991
The Company operates in two business segments, home appliances and vending
equipment. The operations of the home appliance segment represented 95.0
percent of net sales in 1992 and 1991.
Effective January 1, 1992, the Company adopted Statement of Financial
Accounting Standards No. 106 (FAS106) "Employers' Accounting for
Postretirement Benefits Other than Pensions." FAS 106 requires companies to
recognize the cost of postretirement benefits over an employee's service
period. The Company's previous practice had been to recognize these costs as
claims were received. The one-time transitional cost for adopting FAS106
resulted in an aftertax charge of $222 million or $2.09 per share in the
first quarter of 1992. FAS106 also resulted in an additional pretax charge
of approximately $24 million in 1992. Implementation of FAS106 had no impact
on cash flows and the Company continues to pay the cost of postretirement
benefits as claims are received. Also effective January 1, 1992, the Company
adopted Statement of Financial Accounting Standards No. 109 (FAS109)
"Accounting for Income Taxes." The adoption of FAS109 required a one-time
aftertax charge of $85 million or $.80 per share. However, there was no cash
flow impact of adopting the pronouncement since deferred taxes changed by a
like amount. The one-time cumulative impact of adopting both FAS106 and
FAS109 totaled $307 million or $2.89 per share.
Consolidated net sales increased 2.4 percent in 1992 compared to 1991. The
overall sales increase, although partially offset by lower prices, was due to
market share gains in most product categories and increased volume as a
result of improved consumer confidence in the United States. Sales of the
Company's home appliances within North America increased 2.7 percent from
1991. While European sales were 1.3 percent higher in 1992 compared to 1991,
the majority of the increase is due to favorable currency translation with
volume remaining flat. The Company's vending sales increased 10.4 percent in
1992, primarily due to increased volume within the United States.
Gross profit as a percent of sales decreased to 23.1 percent from 24.1
percent in 1991. The deterioration in margins was principally caused by
additional expenses arising from the use of FAS106 as well as expenses
related to a plant start-up, new product introductions and price reductions.
Excluding FAS106 charges, gross profit as a percent of sales would have been
23.8 percent for 1992.
Selling, general and administrative expenses as a percent of sales and
10
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - continued
_____________________________________________________________________________
before reorganization remained relatively level at 17.4 percent in 1992 and
17.7 percent in 1991. The slight decrease was caused primarily by increased
sales in 1992.
During the third quarter of 1992, the Company provided for the costs of
reorganizing its North American and European operations. In North America,
several manufacturing facilities are being realigned, effectively combining
expertise in research, engineering and product development. In addition,
sales forces were reorganized and streamlined. The Company was also
implementing a centralized distribution and order system for its North
American operations designed to enhance customer service and operational
efficiency. The effort in Europe was aimed at downsizing production capacity
and streamlining sales, marketing, administration and distribution
activities. This special charge reduced income before income taxes by $95
million or $.70 per share after tax.
Operating income for 1992 amounted to $78.6 million compared to $191.5
million in 1991. Before the special reorganization charge, 1992 operating
income would have been $173.6 million or 5.7 percent of sales, down $17.9
million or 9.4 percent from 1991. The net operating loss of the Company's
European operations in 1992 increased $66.2 million from 1991 primarily due
to a provision of $55 million for reorganization expenses relating to plant
closings and other organizational changes and the continuing recession in the
United Kingdom.
The increase in the effective tax rate was primarily due to the effect of
non-recoverable losses outside of the United States. The notes to the
financial statements contain a reconciliation between the statutory tax and
the actual tax provided.
Excluding the cumulative effect of accounting changes and reorganization
expenses, for comparative purposes, net income would have been $65.4 million
or $.62 per share compared to net income of $79 million or $.75 per share in
1991.
_____________________________________________________________________________
LIQUIDITY AND CAPITAL RESOURCES
Cash provided by operations in 1993 totaled $71.3 million compared to $183.1
million in 1992. The overall decrease resulted from the funding of
expenditures relating to the reorganization of the North American and
European operations, the Hoover Europe "free flights" promotions and working
capital needs in the North American Appliance Group. Offsetting this
decrease was a $42 million withdrawal from an over-funded pension plan in
Europe and lower funding of an employee benefit trust. Current assets were
1.6 times current liabilities at December 31, 1993 and 1.8 times at December
31, 1992.
Gross capital expenditures in 1993 were $99.3 million compared to $129.9
million in 1992. The expenditures in 1993 were mainly related to
improvements in product design and manufacturing processes and increases in
manufacturing capacity. Capital spending in 1992 was higher as it included
major plant start-up projects. Planned capital expenditures for 1994
approximate $110 million and relate to ongoing production improvements and
product enhancements. Depreciation expense increased to $102.5 million in
1993 from $94.0 million in 1992 resulting from major capital projects
completed near the end of 1992.
11
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS - continued
_____________________________________________________________________________
Significant investing and financing transactions related to capital
expenditures, debt retirement and dividend payments were funded through
operations and the issuance of $5.5 million in medium term notes and a $139.0
million increase in notes payable and commercial paper borrowings. The
Company also reduced long term debt by $94.4 million during 1993.
The Company has two credit facilities which support the Company's
commercial paper program. Subject to certain exceptions, the credit
agreements require the Company to maintain certain quarterly levels of
consolidated tangible net worth, leverage ratios and interest coverage
ratios. The Company was in compliance with all covenants at December 31,
1993 and expects to be in compliance with all covenants. The covenants
become more stringent commencing in the first quarter of 1994. Additional
funds available at December 31, 1993 under all credit agreements, applying
the terms of the most restrictive covenant above, totaled $243 million.
Dividend payments in both 1993 and 1992 amounted to $53 million or $.50
per share. Dividends amounted to nine percent of average shareowners' equity
in 1993 and seven percent in 1992.
Any funding requirements for future capital expenditures and other cash
requirements in excess of cash generated from operations will be supplemented
with issuance of debt securities and bank borrowings.
_____________________________________________________________________________
IMPACT OF INFLATION
The Company uses the LIFO method of accounting for approximately 79 percent
of its inventories. Under this method, the cost of sales reported in the
financial statements approximates current costs. The charges to operations
for depreciation represent the allocation of historical costs incurred over
past years and are significantly less than if they were based upon current
costs of productive capacity being consumed. Assets acquired in prior years
will, of course, be replaced at higher costs but this will take place over
several years. New higher-cost assets will result in higher depreciation
charges, but in many cases due to technological improvements, there will be
operating cost savings as well.
Item 8. Financial Statements and Supplementary Data.
Page
----
Report of Independent Auditors 13
Statements of Consolidated Income--Years ended
December 31, 1993, 1992 and 1991 14
Statements of Consolidated Financial Condition--
December 31, 1993 and 1992 15
Statements of Consolidated Cash Flows--Years ended
December 31, 1993, 1992 and 1991 17
Notes to Consolidated Financial Statements 18
Quarterly Results of Operations--Years 1993 and 1992 30
12
<PAGE>
Report of Independent Auditors
Shareowners and Board of Directors
Maytag Corporation
We have audited the accompanying statements of consolidated financial
condition of Maytag Corporation and subsidiaries as of December 31, 1993 and
1992, and the related statements of consolidated income and consolidated cash
flows for each of the three years in the period ended December 31, 1993. Our
audits also included the financial statement schedules listed in the Index at
Item 14(a). These financial statements and related schedules are the
responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements and related schedules based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. These standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements.
An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Maytag
Corporation and subsidiaries at December 31, 1993 and 1992, and the
consolidated results of their operations and their cash flows for each of the
three years in the period ended December 31, 1993, in conformity with
generally accepted accounting principles. Also, in our opinion, the related
financial statement schedules, when considered in relation to the basic
financial statements taken as a whole, present fairly in all material
respects the information set forth therein.
As discussed in notes to consolidated financial statements, in 1992 the
Company changed its method of accounting for postretirement benefits other
than pensions and income taxes.
Ernst & Young
February 1, 1994 Chicago, Illinois
13
<PAGE>
STATEMENTS OF CONSOLIDATED INCOME (LOSS)
Thousands of Dollars Except Per Share Data
Year ended December 31
1993 1992 1991
--------- --------- ---------
Net sales $2,987,054 $3,041,223 $2,970,626
Cost of Sales 2,262,942 2,339,406 2,254,221
--------- --------- ---------
GROSS PROFIT 724,112 701,817 716,405
Selling, general and administrative
expenses 515,234 528,250 524,898
Special charges 50,000 95,000
--------- --------- ---------
OPERATING INCOME 158,878 78,567 191,507
Interest expense (75,364) (75,004) (75,159)
Other--net 6,356 3,983 7,069
--------- --------- ---------
INCOME BEFORE INCOME TAXES AND
CUMULATIVE EFFECT OF ACCOUNTING
CHANGES 89,870 7,546 123,417
Income taxes 38,600 15,900 44,400
--------- --------- ---------
INCOME (LOSS) BEFORE CUMULATIVE
EFFECT OF ACCOUNTING CHANGES 51,270 (8,354) 79,017
Cumulative effect of accounting changes
for postretirement benefits other
than pensions and income taxes (307,000)
--------- --------- --------
NET INCOME (LOSS) $ 51,270 $ (315,354) $ 79,017
========= ========= ========
Income (loss) per average share of
Common stock:
Income (loss) before cumulative
effect of accounting changes $ .48 $ (.08) $ .75
Cumulative effect of accounting
changes $ (2.89)
Net income (loss) per Common share $ .48 $ (2.97) $ .75
See notes to consolidated financial statements.
14
<PAGE>
STATEMENTS OF CONSOLIDATED FINANCIAL CONDITION
Thousands of Dollars
December 31
--------------------
ASSETS 1993 1992
- ------ --------- ---------
CURRENT ASSETS
Cash and cash equivalents $ 31,730 $ 57,032
Accounts receivable, less allowance--
(1993--$15,629; 1992--$16,380) 532,353 476,850
Inventories 429,154 401,083
Deferred income taxes 46,695 52,261
Other current assets 16,919 28,309
---------- ----------
Total current assets 1,056,851 1,015,535
NONCURRENT ASSETS
Deferred income taxes 68,559 71,442
Pension investments 168,103 215,433
Intangibles, less allowance for amortization--
(1993--$46,936; 1992--$37,614) 319,657 328,980
Other noncurrent assets 35,266 35,989
----------- ----------
Total noncurrent assets 591,585 651,844
PROPERTY, PLANT AND EQUIPMENT
Land 46,149 47,370
Buildings and improvements 288,590 286,368
Machinery and equipment 1,068,199 962,006
Construction in progress 44,753 90,847
---------- ----------
1,447,691 1,386,591
Less allowance for depreciation 626,629 552,480
---------- ----------
Total property, plant and equipment 821,062 834,111
---------- ----------
TOTAL ASSETS $2,469,498 $2,501,490
========== ==========
15
<PAGE>
December 31
----------------------
LIABILITIES AND SHAREOWNERS' EQUITY 1993 1992
---------- ----------
CURRENT LIABILITIES
Notes payable $ 157,571 $ 19,886
Accounts payable 195,981 218,142
Compensation to employees 84,405 89,245
Accrued liabilities 178,015 180,894
Income taxes payable 16,193 11,323
Current maturities of long-term debt 18,505 43,419
--------- ----------
Total current liabilities 650,670 562,909
NONCURRENT LIABILITIES
Deferred income taxes 44,882 89,011
Long-term debt 724,695 789,232
Postretirement benefits other than pensions 391,635 380,376
Other noncurrent liabilities 70,835 80,737
--------- ----------
Total noncurrent liabilities 1,232,047 1,339,356
SHAREOWNERS' EQUITY
Common stock:
Authorized--200,000,000 shares (par value $1.25)
Issued--117,150,593 shares, including shares in
treasury 146,438 146,438
Additional paid-in capital 480,067 478,463
Retained earnings 325,823 328,122
Cost of Common stock in treasury (1993--10,430,833
shares; 1992--10,545,915 shares) (232,510) (234,993)
Employee stock plans (62,342) (65,638)
Foreign currency translation (70,695) (53,167)
--------- ----------
Total shareowners' equity 586,781 599,225
--------- ----------
TOTAL LIABILITIES AND SHAREOWNERS' EQUITY $2,469,498 $2,501,490
========= =========
See notes to consolidated financial statements.
16
<PAGE>
STATEMENTS OF CONSOLIDATED CASH FLOWS
Thousands of Dollars
Year ended December 31
------------------------------
1993 1992 1991
-------- -------- --------
OPERATING ACTIVITIES
Net income (loss) $ 51,270 $(315,354) $ 79,017
Adjustments to reconcile net income (loss) to
net cash provided by operating activities:
Cumulative effect of accounting changes 307,000
Depreciation and amortization 111,781 103,351 92,667
Deferred income taxes (35,833) (30,210) 1,700
Reorganization expenses (5,000) 95,000
"Free flights" promotion expenses 60,379 12,235
Changes in selected working capital items:
Inventories (29,323) 80,731 37,075
Receivables and other current assets (48,609) (6,051) 12,867
Reorganization reserve (39,671) (15,530)
"Free flights" promotion reserve (42,981) (1,604)
Other current liabilities (17,383) (70,422) 46,623
Net change in pension assets and
liabilities 43,513 (12,149) (22,385)
Postretirement benefits 11,259 21,254
Other--net 11,913 14,814 (12,894)
--------- -------- --------
NET CASH PROVIDED BY OPERATIONS 71,315 183,065 234,670
INVESTING ACTIVITIES
Capital expenditures--net (95,990) (120,364) (138,100)
--------- -------- --------
TOTAL INVESTING ACTIVITIES (95,990) (120,364) (138,100)
FINANCING ACTIVITIES
Proceeds from credit agreements and long-term
borrowings 5,500 73,712 57,900
Increase (decrease) in notes payable 138,951 (2,378) (31,023)
Reduction in long-term debt (94,449) (70,158) (92,832)
Stock options exercised and other Common stock
transactions 5,903 5,558 3,421
Dividends (53,569) (53,269) (53,150)
--------- --------- --------
TOTAL FINANCING ACTIVITIES 2,336 (46,535) (115,684)
Effect of exchange rates on cash (2,963) (7,886) (1,721)
INCREASE (DECREASE) IN CASH AND CASH
EQUIVALENTS (25,302) 8,280 (20,835)
Cash and cash equivalents at beginning of year 57,032 48,752 69,587
--------- --------- --------
CASH AND CASH EQUIVALENTS
AT END OF YEAR $ 31,730 $ 57,032 $ 48,752
========= ======== =========
See notes to consolidated financial statements.
17
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
______________________________________________________________________
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Consolidation: The consolidated financial statements include
the accounts and transactions of the Company and its wholly owned
subsidiaries. Certain subsidiaries located outside the United States are
consolidated as of a date one month earlier than subsidiaries in the United
States. Intercompany accounts and transactions are eliminated in
consolidation.
Exchange rate fluctuations from translating the financial statements of
subsidiaries located outside the United States into U.S. dollars and exchange
gains and losses from designated foreign currency transactions are recorded
in a separate component of shareowners' equity. All other foreign exchange
gains and losses are included in income.
Certain reclassifications have been made to prior years' financial
statements to conform with the 1993 presentation.
Cash Equivalents: Highly liquid investments with a maturity of 90 days or
less when purchased are considered by the Company to be cash equivalents.
Inventories: Inventories are stated at the lower of cost or market. Cost is
determined by the last-in, first-out (LIFO) method for approximately 79% and
76% of the Company's inventories at December 31, 1993 and 1992. The
remaining inventories, which are primarily outside the United States, are
stated using the first-in, first-out (FIFO) method.
Intangibles: Intangibles principally represent goodwill, which is the cost
of business acquisitions in excess of the fair value of identifiable net
tangible assets. Goodwill is amortized over 40 years on the straight-line
basis and the carrying value is reviewed annually. If this review indicates
that goodwill will not be recoverable as determined based on the undiscounted
cash flows of the entity acquired over the remaining amortization period, the
Company's carrying value of the goodwill will be reduced by the estimated
shortfall of cash flows.
Income Taxes: Certain expenses (principally related to accelerated tax
depreciation, employee benefits and various other accruals) are recognized in
different periods for financial reporting and income tax purposes.
Property, Plant and Equipment: Property, plant and equipment is stated on
the basis of cost. Depreciation expense is calculated principally on the
straight-line method for financial reporting purposes. The depreciation
methods are designed to amortize the cost of the assets over their estimated
useful lives.
Short and Long-Term Debt: The carrying amounts of the Company's borrowings
under its short-term revolving credit agreements, including multicurrency
loans, approximate their fair value. The fair values of the Company's long-
term debt are estimated based on quoted market prices of comparable
instruments.
- ------------------------------------------------------------------------------
INVENTORIES
In thousands 1993 1992
-------- --------
Finished products $282,841 $249,289
Work in process, raw materials and supplies 146,313 151,794
-------- --------
$429,154 $401,083
======== ========
If the first-in, first-out (FIFO) method of inventory accounting, which
approximates current cost, had been used for all inventories, they would have
been $76.3 million and $78.1 million higher than reported at December 31, 1993
and 1992.
18
<PAGE>
___________________________________________________________________________
PENSION BENEFITS
The Company and its subsidiaries have noncontributory defined benefit pension
plans covering most employees. Plans covering salaried and management
employees generally provide pension benefits that are based on an average of
the employee's earnings and credited service. Plans covering hourly
employees generally provide benefits of stated amounts for each year of
service. The Company's funding policy is to contribute amounts to the plans
sufficient to meet minimum funding requirements.
A summary of the components of net periodic pension expense (income) for the
defined benefit plans is as follows:
Year ended December 31
--------------------------------
In thousands 1993 1992 1991
--------- ---------- ---------
Service cost--benefits earned during the
period $ 24,067 $ 21,469 $ 23,520
Interest cost on projected benefit
obligation 90,322 87,654 85,325
Actual return on plan assets (167,539) (87,263) (141,918)
Net amortization and deferral 59,315 (25,239) 23,602
--------- --------- ---------
Net pension expense (income) $ 6,165 $ (3,379) $ (9,471)
========= ========= =========
The change in pension expense (income) from 1992 to 1993 resulted from pension
benefit improvements, a reduction in the discount rate and lower expected
return on assets resulting from lower asset values at the beginning of the
year.
Assumptions used in determining net periodic pension expense (income) for the
defined benefit plans in the United States were:
1993 1992 1991
---- ---- ----
Discount rates 8.5% 9% 9%
Rates of compensation increase 6 6 6
Expected long-term rates of return on
assets 9.5 9.5 9.5
For the valuation of pension obligations at the end of 1993 and for
determining pension expense in 1994, the discount rate and rate of
compensation increase have been decreased to 7.5% and 5.0% respectively.
Assumptions for defined benefit plans outside the United States are
comparable to the above in all periods.
As of December 31, 1993, approximately 87% of the plan assets are
invested in listed stocks and bonds. The balance is invested in real estate
and short term investments.
Certain pension plans in the United States provide that in the event of a
change of Company control and plan termination, any excess funding may be
used only to provide pension benefits or to fund retirees' health care
benefits. The use of all pension assets for anything other than providing
employee benefits is either limited by legal restrictions or subject to
severe taxation.
The following table sets forth the funded status and amounts recognized
in the statements of consolidated financial condition for the Company's
defined benefit pension plans:
19
<PAGE>
<TABLE>
<CAPTION>>
December 31, 1993 December 31, 1992
--------------------------------- ---------------------------------
Plans in Which Plans in Which Plans in Which Plans in Which
Assets Exceed Accumulated Assets Exceed Accumulated
Accumulated Benefits Exceed Accumulated Benefits Exceed
Benefits Assets Benefits Assets
-------------- --------------- -------------- ---------------
In thousands
Actuarial present value of
benefit obligation:
<S> <C> <C> <C> <C>
Vested benefit obligation $(1,004,740) $ (15,474) $ (889,570) $ (28,990)
=========== ============= ============== ============
Accumulated benefit
obligation $(1,084,352) $ (16,380) $ (942,303) $ (29,009)
=========== ============= ============== ============
Projected benefit
obligation $(1,163,073) $ (18,989) $ (1,015,813) $ (31,186)
Plan assets at fair value 1,213,315 569 1,156,506 12,897
----------- ------------- -------------- ------------
Projected benefit obligation
less than (in excess of)
plan assets 50,242 (18,420) 140,693 (18,289)
Unrecognized net loss 41,037 1,046 47,244 1,087
Prior service cost not yet
recognized in net periodic
pension cost 110,024 3,272 66,571 2,066
Unrecognized net obligation
(asset) at adoption of FASB
87, net of amortization (38,128) 1,647 (43,602) 1,729
----------- ------------ -------------- ------------
Net pension investment
(liability) 163,175 (12,455) 210,906 (13,407)
Minimum liability adjustment 4,928 (4,928) 4,527 (4,527)
------------ ------------ -------------- ------------
Pension investment
(liability) recognized in
the statements of
consolidated financial
condition $ 168,103 $ (17,383) $ 215,433 $ (17,934)
=========== =========== ============== ============
</TABLE>
Pension investments above of approximately $104 million and $142 million at
December 31, 1993 and 1992, and pension income of $5.4 million, $10.9 million
and $7.1 million in 1993, 1992 and 1991 relate to pension plans covering
employees in Europe.
In 1993 and 1992, the Company recorded $4.9 million and $4.5 million,
respectively, to recognize the minimum pension liability required by the
provisions of Statement of Financial Accounting Standards No. 87, "Employers'
Accounting for Pensions." The transaction, which had no effect on income,
was offset by recording an intangible asset of an equivalent amount.
____________________________________________________________________________
POSTRETIREMENT BENEFITS OTHER THAN PENSIONS
In addition to providing pension benefits, the Company provides
postretirement health care and life insurance benefits for its employees in
the United States. Most of the postretirement plans are contributory, and
contain certain other cost sharing features such as deductibles and
coinsurance. The plans are unfunded. Employees are not vested and these
benefits are subject to change. Death benefits for certain retired employees
are funded as part of, and paid out of, pension plans.
In 1992, the Company adopted Statement of Financial Accounting Standards
No. 106, "Employers' Accounting for Postretirement Benefits Other Than
Pensions," which requires employers to accrue the cost of such retirement
benefits during the employee's service with the Company. Prior to 1992, the
20
<PAGE>
cost of providing these benefits to retired employees was recognized as a
charge to income as claims were received. The transition obligation of $355
million as of January 1, 1992 was recorded as a one-time charge in the first
quarter of 1992 and reduced net income by $222 million or $2.09 per share.
The ongoing effect of adopting the new standard increased 1993 and 1992
periodic postretirement benefit cost by $11.3 and $23.9 million respectively.
Postretirement benefit costs in 1991 of approximately $11.7 million were
recorded on a cash basis and have not been restated.
A summary of the components of net periodic postretirement benefit cost is as
follows:
In thousands 1993 1992
------- -------
Service cost $10,225 $ 8,258
Interest cost 26,939 30,421
Net amortization and deferral (8,228) 2,106
------- -------
Net periodic postretirement benefit cost $28,936 $40,785
======= =======
Postretirement benefit costs for 1993 decreased primarily due to a plan
amendment to eligibility requirements.
Assumptions used in determining net periodic postretirement benefit cost
were:
1993 1992
Health care cost trend rates (1): ---- ----
Current year 14% 15%
Decreasing gradually to 6% 6%
Until the year 2009 2009
Each year thereafter 6% 6%
Discount rates 8.5% 9.0%
(1) Weighted-average annual assumed rate of increase in the per capita cost
of covered benefits.
For the valuation of the accumulated benefit obligation at December 31, 1993
and for determining postretirement benefit costs in 1994, the health care
cost trend rates were decreased. This results in a health care cost trend
rate of 12.5 percent in 1994, decreasing gradually to 6 percent until 2001
and remaining at that level thereafter. In addition, the discount rate was
reduced to 7.5 percent.
The health care cost trend rate assumption has a significant impact on
the amounts reported. For example, increasing the assumed health care cost
trend rates by one percentage point in each year would increase the
accumulated postretirement benefit obligation as of December 31, 1993 by
$43.6 million and the aggregate of the service and interest cost components
of net periodic postretirement benefit cost for 1993 by $5.9 million.
The following table presents the status of the plans reconciled with
amounts recognized in the statements of consolidated financial condition for
the Company's postretirement benefits.
21
<PAGE>
December 31
----------------
1993 1992
In thousands ---- ----
Accumulated postretirement benefit obligation:
Retirees $284,524 $189,764
Fully eligible active plan participants 58,709 60,236
Other active plan participants 56,465 76,587
-------- --------
399,698 326,587
Unamortized plan amendment 54,248 62,476
Unrecognized net loss (62,311) (8,687)
Postretirement benefit liability recognized in the -------- --------
the statements of consolidated financial condition $391,635 $380,376
======== ========
__________________________________________________________________________
OTHER EMPLOYEE BENEFITS
The Company has a leveraged employee stock ownership plan (ESOP) for eligible
United States employees. The ESOP is designed to fund the Company's
contribution to an existing salaried savings plan. The Company made
contributions to the plan of $5.5 million, $5.2 million and $4.9 million for
loan payments in 1993, 1992 and 1991, the majority of which represents
interest on the ESOP debt. With each loan and interest payment, a portion of
the Common stock in the ESOP becomes available for allocation to
participating employees.
The Company also sponsors other defined contribution plans.
Contributions to these plans are generally based on employees' compensation.
Expenses of the Company related to these plans, including the ESOP, amounted
to $8.6 million in 1993, $7.9 million in 1992 and $7.8 million in 1991.
In November 1992, the Financial Accounting Standards Board issued
Statement No. 112 (FAS 112), "Employers' Accounting for Postemployment
Benefits." The new rules require recognition of specified postemployment
benefits provided to former or inactive employees, such as severance pay,
workers' compensation, supplemental employment benefits, disability benefits
and continuation of healthcare and life insurance coverages. The Company has
estimated the cumulative effect of adopting FAS 112, which will be recorded
in the first quarter of 1994, will not have a material impact on the annual
results for 1994. The ongoing expenses associated with the new statement are
not expected to be material.
______________________________________________________________________________
ACCRUED LIABILITIES
In thousands 1993 1992
------ ------
Warranties $ 46,281 $ 50,877
Advertising/sales promotion 51,946 30,054
Other 79,788 99,963
------ ------
$178,015 $180,894
======= =======
______________________________________________________________________________
INCOME TAXES
Effective January 1, 1992, the Company adopted Statement of Financial
Accounting Standards No. 109, "Accounting for Income Taxes," which requires
recognition of deferred tax liabilities and assets for the expected future
tax consequences of events that have been included in the financial statements
or tax returns. Under this method, deferred tax liabilities and assets are
are determined based on the difference between the financial statement and tax
bases of assets and liabilities using enacted tax rates in effect for the year
in which the differences are expected to reverse. Prior to 1992, the provision
22
<PAGE>
for income taxes was based on income and expenses included in the accompanying
consolidated statements of income. As permitted under the new rules, prior
years' financial statements have not been restated. The cumulative effect of
adopting Statement 109 was to decrease net income by $85 million or $.80 per
share as of January 1, 1992.
At December 31, 1993, the Company has available for tax purposes
approximately $177 million of net operating loss carryforwards outside the
United States, of which $38 million expire in various years through 1999 and
$139 million is available indefinitely. Of this amount, $30 million relates
to pre-acquisition net operating losses which will be used to reduce
intangibles when utilized.
Deferred income taxes reflect the net tax effects of temporary
differences between the amount of assets and liabilities for financial
reporting purposes and the amounts used for income tax purposes. Significant
components of the Company's deferred tax assets and liabilities as of
December 31, 1993 and 1992 are as follows:
In thousands 1993 1992
---------- ---------
Deferred tax assets (liabilities):
Tax over book depreciation $(118,973) $(116,725)
Postretirement benefit obligation 151,424 143,197
Product warranty accruals 20,021 20,221
Pensions and other employee benefits (38,753) (58,704)
Reorganization accrual 8,856 23,586
Net operating loss carryforwards 48,817 23,178
Other 14,937 15,812
--------- ---------
86,329 50,565
Less valuation allowance for deferred tax assets (15,957) (15,873)
--------- ---------
Net deferred tax assets $ 70,372 $ 34,692
Recognized in statements of consolidated ========= =========
financial condition:
Deferred tax assets-current $ 46,695 $ 52,261
Deferred tax assets-noncurrent 68,559 71,442
Deferred tax liabilities (44,882) (89,011)
--------- ---------
Net deferred tax assets $ 70,372 $ 34,692
========= =========
Income (loss) before income taxes and cumulative effect of accounting changes
consists of the following:
Year ended December 31
-------------------------------
In thousands 1993 1992 1991
------- ------ ------
United States $162,554 $ 80,013 $112,988
Non-United States (72,684) (72,467) 10,429
------- ------- -------
$ 89,870 $ 7,546 $123,417
======= ======= =======
23
<PAGE>
Significant components of the provision for income taxes are as follows:
Year ended December 31
----------------------------
In thousands 1993 1992 1991
Current provision: ---- ---- ----
Federal $ 51,700 $ 37,000 $ 28,600
State 9,100 7,100 6,000
Non-United States 20,000 2,000 8,100
------ ------ ------
80,800 46,100 42,700
Deferred provision:
Federal 400 (13,800) 7,600
State 700 (3,100)
Non-United States (43,300) (13,300) (5,900)
------ ------ ------
(42,200) (30,200) 1,700
------ ------ ------
Provision for income taxes $ 38,600 $ 15,900 $ 44,400
====== ====== ======
Significant items impacting the effective income tax rate follow:
Year ended December 31
-------------------------------
In thousands 1993 1992 1991
------ ------ ------
Income before cumulative effect of
accounting changes computed at the
statutory United States income tax rate $31,500 $ 2,600 $42,000
Increase (reduction) resulting from:
Acquisitions:
Intangibles amortization 3,200 3,100 3,100
Depreciation 2,400
The effect of statutory rate differences
outside the United States 2,500 2,600 600
Non-United States losses with no tax
benefit 10,700
State income taxes, net of federal tax
benefit 6,400 2,700 4,000
Tax credits arising outside the United
States (800) (5,400) (7,300)
Effect of tax rate changes on deferred
taxes (2,500)
Other-net (1,700) (400) (400)
-------- ------- -------
Provision for income taxes $38,600 $15,900 $44,400
======== ======= =======
Since the Company plans to continue to finance expansion and operating
requirements of subsidiaries outside the United States through reinvestment
of the undistributed earnings of these subsidiaries (approximately $81
million at December 31, 1993), taxes which would result from distribution
have not been provided on such earnings. If such earnings were distributed,
additional taxes payable would be significantly reduced by available tax
credits arising from taxes paid outside the United States.
Income taxes paid, net of refunds received, during 1993, 1992 and 1991
were $68.3 million, $28.5 million, and $34.5 million, respectively.
24
<PAGE>
______________________________________________________________________________
LONG-TERM DEBT AND NOTES PAYABLE
In thousands
The following sets forth the long-term debt in the statements of
consolidated financial condition:
1993 1992
Notes payable with interest payable semiannually:
Due May 15, 2002 at 9.75% $200,000 $200,000
Due July 15, 1999 at 8.875% 175,000 175,000
Due July 1, 1997 at 8.875% 100,000 100,000
Medium-term notes, maturing from 1994 to 2010, from
7.69% to 9.03% with interest payable semiannually 177,750 197,250
Employee stock ownership plan notes payable
semiannually through July 2, 2004 at 9.35% 59,129 60,307
Multicurrency loans at 5.4% to 9.475% 63,631
Other 31,321 36,463
--------- --------
743,200 832,651
Less current portion 18,505 43,419
--------- --------
$724,695 $789,232
========= ========
The 9.75% notes, the 8.875% notes due in 1999 and the medium-term notes grant
the holders the right to require the Company to repurchase all or any portion
of their notes at 100% of the principal amount thereof, together with accrued
interest, following the occurrence of both a change in Company control and a
credit rating decline.
The Company has established a trust to administer a leveraged employee
stock ownership plan (ESOP) within an existing employee savings plan. The
Company has guaranteed the debt of the trust and will service the repayment
of the notes, including interest, through the Company's employee savings plan
contribution and from the quarterly dividends paid on stock held by the ESOP.
Dividends paid by the Company on stock held by the ESOP totaled $1.4 million
in 1993, 1992 and 1991. The ESOP notes are secured by the Common stock owned
by the ESOP trust.
The fair value of the Company's long-term debt, based on public quotes if
available, exceeded the amount recorded in the statements of consolidated
financial condition at December 31, 1993 and 1992 by $83.7 million and $50
million, respectively.
Notes payable at December 31, 1993 and 1992 consisted of notes payable to
banks, in addition to $112 million in commercial paper borrowings at December
31, 1993. The Company's commercial paper program is supported by two credit
agreements totaling $300 million, which were entered into on June 25, 1993.
The $100 million agreement expires June 24, 1994 and the $200 million
agreement expires June 25, 1996. Subject to certain exceptions, the credit
agreements require the Company to maintain certain quarterly levels of
consolidated tangible net worth, leverage ratios and interest coverage
ratios. At December 31, 1993, the Company was in compliance with all
covenants. Additional funds available at December 31, 1993 under all credit
agreements, applying the terms of the most restrictive covenant, totaled $243
million.
Interest paid during 1993, 1992 and 1991 was $76.2 million, $77.4
million, and $78.4 million. The aggregate maturities of long-term debt in
each of the next five fiscal years is as follows (in thousands): 1994-
$18,505; 1995-$45,185; 1996-$5,308; 1997-$106,535; 1998-$7,147.
25
<PAGE>
______________________________________________________________________________
STOCK PLANS
In 1992, the shareowners approved the 1992 stock option plan for executives
and key employees. The plan provides that options could be granted to key
employees for not more than 3.6 million shares of the Common stock of the
Company. The option price under the plan is the fair market value at the
date of the grant. Options may not be exercised until one year after the
date granted.
Under the Company's 1986 plan which expired in 1991, options to purchase
1.6 million shares of Common stock were granted at the market value at the
date of grant. Some options were also granted under this plan with stock
appreciation rights (SAR) which entitle the employee to surrender the right
to receive up to one-half of the shares covered by the option and to receive
a cash payment equal to the difference between the option price and the
market value of the shares being surrendered. Under a plan which expired in
1986, options to purchase 800,000 shares of Common stock were granted at the
market value at date of grant.
In April 1990, the Company's shareowners approved the Maytag Corporation
1989 Stock Option Plan for Non-Employee Directors which authorizes the issuance
of up to 250,000 shares of Common stock to the Company's non-employee
directors. Options under this plan are immediately exercisable upon grant.
The following is a summary of certain information relating to these plans:
Average Option
Price Shares SAR
------- ------- -------
Outstanding December 31, 1990 $14.81 966,851 459,131
Granted 14.76 885,920 246,240
Exercised 10.49 (7,526)
Canceled or expired 17.59 (18,450) (12,988)
--------- -------
Outstanding December 31, 1991 14.76 1,826,795 692,383
Granted 14.54 411,910
Exercised 9.86 (179,736) (11,192)
Exchanged for SAR 11.16 (11,192)
Canceled or expired 12.63 (34,640) (93,242)
--------- -------
Outstanding December 31, 1992 15.09 2,013,137 587,949
Granted 15.92 599,060
Exercised 12.89 (101,156) (5,360)
Exchanged for SAR 12.53 (5,360)
Canceled or expired 16.26 (147,080) (85,728)
--------- -------
Outstanding December 31, 1993 15.33 2,358,601 496,861
========= =======
Options for 1,777,361 shares, 1,623,227 shares and 964,875 shares were
exercisable at December 31, 1993, 1992 and 1991. There were 2,784,030 shares
available for future grants at December 31, 1993. In the event of a change
in Company control, all stock options granted become immediately exercisable.
In 1991, the shareowners approved the 1991 Stock Incentive Award Plan For
Key Executives. This plan authorizes the issuance of up to 2.5 million shares
of Common stock to certain key employees of the Company, of which 1,980,338
shares are available for future grants as of December 31, 1993. Under the
terms of the plan, the granted stock vests three years after the award date and
is contingent upon pre-established performance objectives. In the event of a
change in Company control, all incentive stock awards become fully vested. No
incentive stock awards may be granted under this plan on or after May 1, 1996.
Incentive stock award shares outstanding at December 31, 1993 under a 1993
26
<PAGE>
grant total 459,957, and $3.6 million has been expensed during 1993 for the
the anticipated payout on these awards. Under a 1991 grant which expired in
1993, 53,068 shares are vested and outstanding and $1.1 million has been
expensed during 1993. No amounts were expensed in 1992 and 1991 under these
awards.
______________________________________________________________________________
SHAREOWNERS' EQUITY
<TABLE>
<CAPTION>
Common Stock Additional Treasury Stock Employee Foreign
__________________ Paid-in Retained ___________________ Stock Currency
In thousands Shares Amount Capital Earnings Shares Amount Plans Translation
------ ------ ---------- ---------- -------- -------- -------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance 12/31/90 117,151 $146,438 $487,034 $670,878 (11,424) $(254,576) $(63,590) $ 28,547
Net income 79,017
Cash dividends (53,150)
Stock issued under
employee
stock plans (50) 8 168
Stock awards:
Granted (6,953) 588 13,110 (6,157)
Earned or
canceled 96 (17) (376) 2,130
Conversion of
subordinated
debentures 7 (1) (22)
ESOP:
Issued (301) 38 848
Allocated 906
Translation
adjustments (33,419)
_______ _______ _______ _______ ________ _________ ________ _______
Balance 12/31/91 117,151 146,438 479,833 696,745 (10,808) (240,848) (66,711) (4,872)
Net loss (315,354)
Cash dividends (53,269)
Stock issued under
employee
stock plans (1,221) 178 3,970
Stock awards:
Granted (204) 41 921 (718)
Earned or
canceled 524 (44) (970) 446
ESOP:
Issued (469) 87 1,934
Allocated 1,345
Translation
adjustments (48,295)
_______ _______ _______ _______ _______ _______ ______
Balance 12/31/92 117,151 146,438 478,463 328,122 (10,546) (234,993) (65,638) (53,167)
Net income 51,270
Cash dividends (53,569)
Stock issued under
employee
stock plans (911) 92 2,111
Stock awards:
Granted (3,645) 491 10,939 (7,294)
Earned or
canceled 6,136 (550) (12,403) 9,102
ESOP:
Issued (651) 82 1,836
Allocated 1,488
Tax benefit of
ESOP
dividends and
stock options 675
Translation
adjustments (17,528)
-------- -------- -------- -------- -------- -------- -------- -------
Balance 12/31/93 117,151 $ 146,438 $ 480,067 $ 325,823 (10,431) $(232,510) $ (62,342) $ (70,695)
======== ======== ======== ======== ======== ======== ======== ========
</TABLE>
The Company has 24 million authorized shares of Preferred stock, par value $1
per share, none of which is issued.
Pursuant to a Shareholder Rights Plan approved by the Company in 1988,
each share of Common stock carries with it one Right. Until exercisable, the
Rights will not be transferable apart from the Company's Common stock. When
exercisable, each Right will entitle its holder to purchase one one-hundredth
of a share of Preferred stock of the Company at a price of $75. The Rights
will only become exercisable if a person or group acquires 20% or more of the
Company's Common stock which may be reduced to not less than 10% at the
discretion of the Board of Directors. In the event the Company is acquired in
a merger or 50% or more of its consolidated assets or earnings power are sold,
27
<PAGE>
each Right entitles the holder to purchase Common stock of either the
surviving or acquired company at one-half its market price. The Rights may
be redeemed in whole by the Company at a purchase price of $.01 per Right.
The Preferred shares will be entitled to 100 times the aggregate per share
dividend payable on the Company's Common stock and to 100 votes on all
matters submitted to a vote of shareowners. The Rights expire May 2, 1998.
______________________________________________________________________________
INDUSTRY SEGMENT AND GEOGRAPHIC INFORMATION
Principal financial data by industry segment is as follows:
In thousands 1993 1992 1991
Net Sales --------- --------- ---------
Home appliances $2,830,457 $2,875,902 $2,820,828
Vending equipment 156,597 165,321 149,798
--------- --------- ---------
Total $2,987,054 $3,041,223 $2,970,626
========= ========= =========
Income (Loss) Before Income Taxes and
Cumulative Effect of Accounting Changes
Home appliances $ 160,431 $ 62,568 $ 187,018
Vending equipment 17,566 16,311 4,498
Corporate (including interest expense) (88,127) (71,333) (68,099)
--------- --------- ---------
Total $ 89,870 $ 7,546 $ 123,417
========= ========= =========
Capital Expenditures-net
Home appliances $ 92,194 $ 115,676 $ 133,504
Vending equipment 1,028 771 4,612
Corporate 2,768 3,917 (16)
--------- --------- ---------
Total $ 95,990 $ 120,364 $ 138,100
========= ========= =========
Depreciation and Amortization
Home appliances $ 105,916 $ 98,116 $ 86,928
Vending equipment 4,377 4,236 4,805
Corporate 1,488 999 934
--------- --------- ---------
Total $ 111,781 $ 103,351 $ 92,667
========= ========= =========
Identifiable Assets
Home appliances $2,147,174 $2,135,961 $2,200,227
Vending equipment 103,765 104,119 119,752
Corporate 218,559 261,410 215,089
--------- --------- ---------
Total $2,469,498 $2,501,490 $2,535,068
========= ========= =========
28
<PAGE>
Information about the Company's operations in different geographic locations is
as follows:
In thousands 1993 1992 1991
Net Sales --------- --------- ---------
North America $2,468,374 $2,407,591 $2,332,365
Europe 390,761 501,857 495,517
Other 127,919 131,775 142,744
--------- --------- ---------
Total $2,987,054 $3,041,223 $2,970,626
========= ========= =========
Income (Loss) Before Income Taxes and
Cumulative Effect of Accounting Changes
North America $ 246,981 $ 145,991 $ 190,820
Europe (72,358) (67,061) (865)
Other 3,374 (51) 1,561
Corporate (including interest expense) (88,127) (71,333) (68,099)
--------- --------- ---------
Total $ 89,870 $ 7,546 $ 123,417
========= ========= =========
Identifiable Assets
North America $1,794,271 $1,677,131 $1,681,304
Europe 359,323 452,995 507,746
Other 97,345 109,954 130,929
Corporate 218,559 261,410 215,089
--------- ---------- ---------
Total $2,469,498 $2,501,490 $2,535,068
========= ========= =========
Sales between affiliates of different geographic regions are not significant.
The amount of exchange gain or loss included in operations in any of the
years presented was not material.
In 1993 the Company incurred $60.4 million in pretax charges for two
"free flights" promotion programs in Europe ($50 million in a special charge
and $10.4 million in selling, general and administrative expenses). In 1992
the Company incurred $95 million of reorganization expenses for marketing and
distribution changes in North America and plant closings and other
organizational changes in Europe. Of the $95 million allocated to Home
Appliances, $40 million was allocated to North America and $55 million to
Europe.
_____________________________________________________________________________
CONTINGENT LIABILITIES
In 1993 and 1992, the Company made provisions to cover the cost of two Hoover
Europe "free flights" promotion programs, including a $50 million special
charge in the first quarter of 1993. The promotions began in August, 1992
and included qualified purchases through January, 1993. The terms of the
promotions require all flights to be completed by the end of the second
quarter of 1994. The Company believes that it has made adequate provisions
for any costs to be incurred relating to these promotions. Although the
final costs of the promotions cannot be determined at this time, management
does not believe that any additional costs that may be incurred will have a
material adverse effect on the financial condition of the Company.
At December 31, 1993, the Company is contingently liable for guarantees
of indebtedness owed by a third party ("the borrower") of $21.3 million
relating to the sale of one of its manufacturing facilities in 1992. The
borrower is performing under the payment terms of the loan agreement;
however, it had been out of compliance with certain financial covenants at
December 31, 1993 for which it has requested a waiver from the lender
involved. The indebtedness is collateralized by the assets of the borrower.
Other contingent liabilities arising in the normal course of business,
including guarantees, repurchase agreements, pending litigation,
environmental issues, taxes and other claims are not considered to be
material in relation to the Company's financial position.
29
<PAGE>
QUARTERLY RESULTS OF OPERATIONS (Unaudited)
________________________________________________________________________________
The following is a summary of unaudited quarterly results of operations for the
years ended December 31, 1993 and 1992.
December 31 September 30 June 30 March 31
----------- ------------ ---------- ---------
In thousands except per share data
1993
Net sales $746,723 $770,222 $753,256 $716,853
Gross profit 179,066 188,501 183,812 172,733
Net income (loss) 17,469 23,040 21,307 (10,546)
Per average share $ .16 $ .22 $ .20 $ (.10)
1992
Net sales $782,446 $735,540 $770,060 $753,177
Gross profit 173,495 161,871 176,803 189,648
Income (loss) before cumulative
effect of accounting change 11,238 (63,234) 18,937 24,705
Per average share .11 (.60) .18 .23
Net income (loss) 11,238 (63,234) 18,937 (282,295)
Per average share $ .11 $ (.60) $ .18 $ (2.66)
The quarter ended March 31, 1993 includes a $50 million pretax special
charge for additional costs associated with two Hoover Europe "free flights"
promotion programs.
The quarter ended September 30, 1992 includes a nonrecurring $95 million
pretax charge relating to the reorganization of the Company's North American
and European operations.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None
Part III
Item 10. Directors and Executive Officers of the Registrant.
Information concerning directors and officers on pages 1 through 6 of the Proxy
Statement of the Company is incorporated herein by reference. Additional
information concerning executive officers of the Company is included under
"Executive Officers of the Registrant" included in Part I,Item 4.
Item 11. Executive Compensation.
Information concerning executive compensation on pages 7 through 12 of the
Proxy Statement, is incorporated herein by reference; provided that the
information contained in the Proxy Statement under the heading "Compensation
Committee Report on Executive Compensation" is specifically not incorporated
herein by reference. Information concerning director compensation on pages
15 and 16 of the Proxy Statement is incorporated herein by reference,
provided that the information contained in the Proxy Statement under the
headings "Shareholder Return Performance" and "Shareholder Proposal
Concerning Chief Executive Officer Compensation" is specifically not
incorporated herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
The security ownership of certain beneficial owners and management is
incorporated herein by reference from pages 4 through 6 of the Proxy Statement.
30
<PAGE>
Item 13. Certain Relationships and Related Transactions.
Information concerning certain relationships and related transactions is
incorporated herein by reference from pages 2 through 4 of the Proxy Statement.
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
(a)(1) and (2) The response to this portion of Item 14 is submitted as a
separate section of this report in the "List of Financial
Statements and Financial Statement Schedules" on page 34.
(3) The response to this portion of Item 14 is submitted as a
separate section of this report in the "List of Exhibits" on
pages 35 through 38.
(b) No reports on Form 8-K were filed during the fourth quarter of 1993.
(c) Exhibits--The response to this portion of Item 14 is submitted as a
separate section of this report in the "List of Exhibits" on pages 35
through 38.
(d) Financial Statement Schedules--The response to this portion of Item 14 is
submitted as a separate section of this report in the "List of Financial
Statements and Financial Statement Schedules" on page 34.
31
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
MAYTAG CORPORATION
(Registrant)
Leonard A. Hadley
Leonard A. Hadley
Chairman and Chief Executive Officer
Director
Pursuant to the requirement of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the date indicated.
John P. Cunningham John A. Sivright
John P. Cunningham John A. Sivright
Executive Vice President and Director
Chief Financial Officer
Mark A. Garth Lester Crown
Mark A. Garth Lester Crown
Vice President-Controller and Director
Chief Accounting Officer
Fred G. Steingraber Edward C. Cazier, Jr.
Fred G. Steingraber Edward C. Cazier, Jr.
Director Director
Neele E. Stearns, Jr. Peter S. Willmott
Neele E. Stearns, Jr. Peter S. Willmott
Director Director
Date: March 30, 1994
32
<PAGE>
ANNUAL REPORT ON FORM 10-K
Item 14(a)(1), (2) and (3), (c) and (d)
LIST OF FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES
LIST OF EXHIBITS
FINANCIAL STATEMENT SCHEDULES
Year Ended December 31, 1993
MAYTAG CORPORATION
NEWTON, IOWA
33
<PAGE>
FORM 10-K--ITEM 14(a)(1) AND ITEM 14(d)
MAYTAG CORPORATION
LIST OF FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES
The following consolidated financial statements and supplementary data of
Maytag Corporation and subsidiaries are included in Part II, Item 8:
Page
----
Statements of Consolidated Income--Years Ended
December 31, 1993, 1992 and 1991 . . . . . . . . . . . . . 14
Statements of Consolidated Financial Condition--
December 31, 1993 and 1992 . . . . . . . . . . . . . . . . 15
Statements of Consolidated Cash Flows--Years Ended
December 31, 1993, 1992 and 1991 . . . . . . . . . . . . . 17
Notes to Consolidated Financial Statements . . . . . . . . . 18
Quarterly Results of Operations--Years 1993 and 1992 . . . . 30
The following consolidated financial statement schedules of Maytag
Corporation and subsidiaries are included in Item 14(d):
Schedule V Property, Plant and Equipment . . . . . . . . . 39
Schedule VI Accumulated Depreciation, Depletion and
Amortization of Property, Plant and Equipment . 40
Schedule VIII Valuation and Qualifying Accounts . . . . . . 41
Schedule IX Short-Term Borrowings . . . . . . . . . . . . . 42
Schedule X Supplementary Income Statement Information . . 43
All other schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been
omitted.
34
<PAGE>
FORM 10-K--ITEM 14(a) (3) AND ITEM 14(c)
MAYTAG CORPORATION
LIST OF EXHIBITS
The following exhibits are filed herewith or incorporated by reference.
Items indicated by (1) are considered a compensatory plan or arrangement
required to be filed pursuant to Item 14 of Form 10-K.
Incorporated Filed with
Exhibit Herein by Electronic
Number Description of Document Reference to Submission
- ------- ----------------------- ------------ ----------
3(a) Restated Certificate of Incorporation of X
Registrant.
3(b) Certificate of Designations of Series A 1988 Annual
Junior Participating Preferred Stock of Report on
Registrant. Form 10-K.
3(c) Certificate of Increase of Authorized 1988 Annual
Number of Shares of Series A Junior Report on
Participating Preferred Stock of Form 10-K.
Registrant.
3(d) By-Laws of Registrant, as amended through X
February 7, 1991.
4(a) Rights Agreement dated as of May 2, 1988 Current
between Registrant and The First National Report on
Bank of Boston. Form 8-K
dated May 5,
1988,
Exhibit 1.
4(b) Amendment, dated as of September 24, 1990 Current
to the Rights Agreement, dated as of May Report on
2, 1988 between the Registrant and The Form 8-K
First National Bank of Boston. dated October
3, 1990,
Exhibit 1.
4(c) Indenture dated as of June 15, 1987 Quarterly
between Registrant and The First National Report on
Bank of Chicago. Form 10-Q for
the quarter
ended June
30, 1987.
4(d) First Supplemental Indenture dated as of Current
September 1, 1989 between Registrant and Report on
The First National Bank of Chicago. Form 8-K
dated
September 28,
1989, Exhibit
4.3.
35
<PAGE>
Incorporated Filed with
Exhibit Herein by Electronic
Number Description of Document Reference to Submission
- ------ ----------------------- ------------ ----------
4(e) Second Supplemental Indenture dated as of Current
November 15, 1990 between Registrant and Report on
The First National Bank of Chicago. Form 8-K
dated
November 29,
1990.
4(f) U.S. $100,000,000 Credit Agreement Dated X
as of June 25, 1993 Among Registrant, the
Banks Party Hereto and Bank of Montreal,
Chicago Branch as Agent and Royal Bank of
Canada.
4(g) U.S. $200,000,000 Credit Agreement Dated X
as of June 25, 1993 Among Registrant, the
Banks Party Hereto and Bank of Montreal,
Chicago Branch as Agent and Royal Bank of
Canada.
4(h) First Amendment, Dated as of March 4, X
1994 to the U.S. $100,000,000 Credit
Agreement, Dated as of June 25, 1993
among Registrant, the Banks party Hereto
and Bank of Montreal, Chicago Branch as
Agent and Royal Bank of Canada as Co-
Agent.
4(i) First Amendment, Dated as of March 4, X
1994 to the U.S. $200,000,000 Credit
Agreement, dated as of June 25, 1993
among Registrant, the banks Party Hereto
and Bank of Montreal, Chicago Branch as
Agent and Royal Bank of Canada as Co-
Agent.
4(j) Copies of instruments defining the rights
of holders of long-term debt not required
to be filed herewith or incorporated
herein by reference will be furnished to
the Commission upon request.
10(a) Annual Management Incentive Plan, as 1990 Annual
amended through December 21, 1990 (1). Report on
Form 10-K
10(b) Executive Severance Agreements (1). X
10(c) Corporate Severance Agreements (1). 1989 Annual
Report on
Form 10-K.
10(d) Termination Agreement with Harvey 1989 Annual
Kapnick, Director and former Chief Report on
Executive Officer of Chicago Pacific Form 10-K.
Corporation (1).
36
<PAGE>
Incorporated Filed with
Exhibit Herein by Electronic
Number Description of Document Reference to Submission
- ------- ----------------------- ------------ ----------
10(e) 1989 Non-Employee Directors Stock Option Exhibit A to
Plan (1). Registrant's
Proxy
Statement
dated March
18, 1990.
10(f) 1981 Stock Option Plan for Executives 1992 Annual
and Key Employees (1). Report on
Form 10-K.
10(g) 1986 Stock Option Plan for Executives Exhibit A to
and Key Employees (1). Registrant's
Proxy
Statement
dated March
14, 1986.
10(h) 1992 Stock Option Plan for Executives Exhibit A to
and Key Employees (1). Registrant's
Proxy
Statement
dated March
16, 1992.
10(i) 1987 Stock Incentive Award Plan for Key Exhibit B to
Executives (1). Registrant's
Proxy
Statement
dated March
25, 1987.
10(j) 1991 Stock Incentive Award Plan for Key Exhibit A to
Executives (1). Registrant's
Proxy
Statement
dated March
15, 1991.
10(k) Directors Deferred Compensation Plan (1). Amendment
No. 1 on
Form 8 dated
April 5, 1990 to
1989 Annual
Report on
Form 10-K.
10(l) 1988 Capital Accumulation Plan for Key Amendment No.
Employees (1). 1 on Form 8
dated April
5, 1990 to
1989 Annual
Report on
Form 10-K.
37
<PAGE>
Incorporated Filed with
Exhibit Herein by Electronic
Number Description of Document Reference to Submission
- ------- ----------------------- ------------ ----------
10(m) Directors Retirement Plan (1). Amendment No.
1 on Form 8
dated April
5, 1990 to
1989 Annual
Report on
Form 10-K.
11 Computation of Per Share Earnings. X
12 Ratio of Earnings to Fixed Charges. X
21 List of Subsidiaries of the Registrant. X
23 Consent of Ernst & Young. X
99(a) Annual Report on Form 11-K of the Maytag X
Corporation Salary Savings Plan.
99(b) Annual Report on Form 11-K of the Hoover X
Company Retirement Savings Plan for
Hourly-Rated Employees.
38
<PAGE>
<TABLE>
SCHEDULE V--PROPERTY, PLANT AND EQUIPMENT
Thousands of Dollars
<CAPTION>
COL. A COL. B COL. C COL. D COL. E COL. F
Balance at Beginning Other Changes--Add Balance at End
CLASSIFICATION of Period Additions at Cost Retirements (Deduct)--Describe of Period
- ---------------------------- -------------------- ----------------- ------------ ------------------- ---------------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 1993:
Land $ 47,370 $ 10 $ 174 $ (1,057) $ 46,149
Buildings and improvements 286,368 5,766 1,549 (1,994) 288,591
Machinery and equipment 962,006 122,420 14,350 (1,875) <F5> 1,068,201
Construction in progress 90,847 (28,896) <F1> (17,201) <F5> 44,750
--------- ------- ------ ------- ---------
TOTAL $1,386,591 $ 99,300 $ 16,073 $ (22,127) <F2><F4> $1,447,691
========= ======= ====== ======= =========
Year ended December 31, 1992:
Land $ 51,147 $ 588 $ 838 $ (3,527) $ 47,370
Buildings and improvements 296,684 5,242 3,662 (11,896) 286,368
Machinery and equipment 895,025 124,376 35,765 (21,630) 962,006
Construction in progress 92,954 (315) <F1> (1,792) 90,847
--------- ------- ------ ------- ---------
TOTAL $1,335,810 $129,891 $ 40,265 $ (38,845) <F2><F3> $1,386,591
========= ======= ====== ======= =========
Year ended December 31, 1991:
Land $ 50,613 $ 913 $ 64 $ (315) $ 51,147
Buildings and improvements 282,828 19,615 1,891 (3,868) 296,684
Machinery and equipment 828,464 91,581 14,840 (10,180) 895,025
Construction in progress 61,775 31,263 <F1> (84) 92,954
--------- ------- ------ ------- -------
TOTAL $3,895,300 $403,154 $ 97,325 $ (92,137)<F2> $4,108,992
========= ======= ====== ======= =========
The annual provisions for depreciation have been computed principally in accordance with the following ranges
in rates:
Buildings and improvements 2% to 10%
Machinery and equipment 7% to 20%
<FN>
<F1> Note 1 - Net of transfers to buildings and improvements and machinery and equipment
<F2> Note 2 - Effect of foreign currency translation
<F3> Note 3 - Reclassifications to other assets
<F4> Note 4 - Reclassifications associated with plant closing
<F5> Note 5 - Reclassifications between machinery and equipment and construction in progress
</TABLE>
39
<PAGE>
<TABLE>
SCHEDULE VI--ACCUMULATED DEPRECIATION, DEPLETION AND AMORTIZATION
OF PROPERTY, PLANT AND EQUIPMENT
Thousands of Dollars
<CAPTION>
COL. A COL. B COL. C COL. D COL. E COL. F
Balance at Beginning Additions Charged to Other Changes--Add Balance at End
DESCRIPTION of Period Costs and Expenses Retirements (Deduct)--Describe of Period
- -------------------- -------------------- -------------------- ----------- ------------------ --------------
Year ended December 31, 1993:
<S> <C> <C> <C> <C> <C>
Buildings and improvements $ 98,755 $ 11,297 $ 780 $ (477) $ 108,795
Machinery and equipment 453,725 91,162 11,542 (15,511) 517,834
------- ------- ------ ------- -------
TOTAL $552,480 $102,459 $ 12,322 $ (15,988)<F1><F3> $ 626,629
======= ======= ====== ======= =======
Year ended December 31, 1992:
Buildings and improvements $ 93,033 $ 11,833 $ 2,327 $ (3,784) $ 98,755
Machinery and equipment 407,284 82,199 28,411 (7,347) 453,725
------- ------- ------ ------ -------
TOTAL $500,317 $ 94,032 $ 30,738 $ (11,131)<F1><F2> $ 552,480
======= ======= ====== ======= =======
Year ended December 31, 1991:
Buildings and improvements $ 83,006 $ 11,711 $ 1,288 $ (396) $ 93,033
Machinery and equipment 350,217 71,641 10,235 (4,339) 407,284
------- ------- ------ ------- -------
TOTAL $433,223 $ 83,352 $ 11,523 $ (4,735)<F1> $ 500,317
======= ======= ====== ======= =======
<FN>
<F1> Note 1 - Effect of foreign currency translation
<F2> Note 2 - Reclassifications to other assets
<F3> Note 3 - Reclassifications associated with plant closing
</TABLE>
40
<PAGE>
<TABLE>
SCHEDULE VIII--VALUATION AND QUALIFYING ACCOUNTS
Thousands of Dollars
COL. A COL. B COL. C COL. D COL. E
ADDITIONS
DESCRIPTION Balance at Beginning ----------------- Deductions--Describe Balance at End
of Period Charged to Costs Charged to Other of Period
and Expenses Accounts--Describe
- ------------------------ ------------------- --------------- ------------------ -------------------- --------------
<S> <C> <C> <C> <C>
Year ended December 31, 1993:
Allowance for doubtful $16,380 $ 6,678 $ 7,054 <F2> $ 15,629
accounts receivable 375 <F3>
------- ------- ----- ------
$16,380 $ 6,678 $ 7,429 $ 15,629
======= ====== ===== ======
Year ended December 31, 1992:
Allowance for doubtful $14,119 $10,974 $ 7,969 <F2> $ 16,380
accounts receivable 744 <F3>
------ ------ ----- ------
$14,119 $10,974 $ 8,713 $ 16,380
====== ====== ===== ======
Year ended December 31, 1991:
Allowance for doubtful $17,600 $ 8,670 $(3,493) <F1> $ 8,283 <F2> $ 14,119
accounts receivable 375 <F3>
------ ------ ------- ----- ------
$17,600 $ 8,670 $(3,493) $ 8,658 $ 14,119
====== ====== ======= ===== ======
<FN>
<F1> Note 1 - Reclassifications
<F2> Note 2 - Uncollectible accounts written off
<F3> Note 3 - Effect of foreign currency translation
</TABLE>
41
<PAGE>
<TABLE>
SCHEDULE IX--SHORT-TERM BORROWINGS
Thousands of Dollars
<CAPTION>
COL. A COL. B COL. C COL. D COL. E COL. F
Balance Weighted Average Maximum Amount Average Amount Weighted Average
CATEGORY OF AGGREGATE SHORT-TERM BORROWINGS<F1> at End of Interest Rate Outstanding During Outstanding During Interest Rate
Period the Period<F2> the Period(f3> During the Period<F4>
- ---------------------------------------------- --------- --------------- ---------------- ---------------- ---------------------
<S> <C> <C> <C> <C> <C>
1993:
Notes Payable to Banks $157,571 3.98% $215,181 $136,233 5.22%
======= ===== ======= ======= ====
1992:
Notes Payable to Banks $ 19,886 11.36% $130,085 $ 77,288 8.62%
======= ===== ======= ======= ====
1991:
Notes Payable to Banks $ 23,504 11.98% $ 91,465 $ 48,500 11.81%
======= ===== ======= ======= =====
<FN>
<F1> Note 1 - The Company maintains both secured and unsecured lines of credit and utilizes the issuance of commercial paper
for short-term borrowing requirements.
<F2> Note 2 - The maximum amount outstanding as of any month-end during the fiscal year.
<F3> Note 3 - The average amount outstanding during the period was calculated by dividing fiscal month-end balances by the
number of months during the period.
<F4> Note 4 - The weighted average interest rate during the period was calculated by dividing interest expense relating to
short-term debt by the average amount outstanding during the period. The rate differs from the weighted average
interest rate in Column C due to changes in the composition of borrowings (United States and non-United States)
during the year.
</TABLE>
42
<PAGE>
SCHEDULE X--SUPPLEMENTARY INCOME STATEMENT INFORMATION
Thousands of Dollars
COL. A COL. B
ITEM Charged to Costs and Expenses
- ------------------------ ------------------------------------------------
1993 1992 1991
---- ---- ----
Maintenance and repairs $ 53,128 $ 54,982 $ 50,504
Advertising costs 136,452 134,024 119,391
NOTE - All other items are not stated as such amounts are less than 1% of total
sales and revenues.
43
<PAGE>
MAYTAG CORPORATION
Exhibit 3(a)
Restated Certificate of Incorporation of Registrant.
<PAGE>
MAYTAG CORPORATION
Incorporated Under the Laws of the State of Delaware
RESTATED CERTIFICATE OF INCORPORATION
November 6, 1989
<PAGE>
RESTATED
CERTIFICATE OF INCORPORATION
of
MAYTAG CORPORATION
Maytag Corporation was originally incorporated as The Maytag Company by
filing its original Certificate of Incorporation with the Secretary of State
on the 15th day of August, A.D. 1925.
FIRST. The name of this corporation is Maytag Corporation.
SECOND. Its principal office in the State of Delaware is located at No.
1209 Orange Street, in the City of Wilmington, County of New Castle. The name
and address of its resident agent is The Corporation Trust Company, No. 1209
Orange Street, Wilmington, Delaware.
THIRD. The nature of the business, or objects or purposes proposed to be
transacted, promoted or carried on are:
To manufacture, obtain, use and operate under licenses or otherwise, and
to sell, license others to manufacture or use, lease or otherwise acquire, use
or in any manner dispose of any and all kinds of equipment, devices, machines
or machinery, motors, adjuncts and appurtenances, manufactured or used under
any one or more inventions, processes, methods or otherwise, relating to or
useful in domestic, industrial, manufacturing, mercantile, agricultural and
other pursuits; also metal, electrical, mechanical and mercantile specialties
and machines, appliances, utilities, devices, mechanical or otherwise, cast-
ings, implements, tools, fixtures, instruments and apparatus of every kind and
nature, and any other articles of commerce ordinarily made or used in a thor-
oughly equipped plant, machine shop, foundry, factory or laboratory, and more
particularly to manufacture, buy, sell, repair, alter and generally deal in
washing machines, laundry machinery, refrigerators and refrigerating devices
and household or other equipment, supplies, specialities and articles of every
kind and nature.
To carry on the business of mechanical, laundry engineers and electrical
engineers, toolmakers, machinists, founders, metal workers, smiths, builders,
fitters, cutlers, and merchants, and any other business or businesses which
may seem calculated, directly or indirectly, to enhance the value of or render
profitable any of the company's property or rights, or conducive to any of the
company's objects.
To design, manufacture, buy, sell, make, repair, alter, let on hire and
deal in apparatus, machinery, hardware and articles of all kinds capable of
being used for the purpose of any business herein mentioned or likely to be
required by customers of any such business.
<PAGE>
To manufacture, purchase or otherwise acquire, hold, own, mortgage,
pledge, sell, assign and transfer or otherwise dispose of, to invest, trade,
deal in and deal with goods, wares, merchandise and real and personal property
of every class and description, and in particular, in lands, buildings, busi-
ness concerns and undertakings, mortgages, shares, stocks, debentures, securi-
ties, scrip, concessions, produce, policies, book debts and claims against
such property or against any person or corporation and to carry on any busi-
ness, concern or undertaking so acquired.
To acquire the good will, rights and property, and to undertake the whole
or any part of the assets and liabilities of any person, firm, association, or
corporation and to pay for the some in cash, stocks, or bonds of this corpora-
tion or otherwise.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patents, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating
to or useful in connection with any business of this corporation.
To purchase, subscribe for or in any manner acquire, own, hold, receive,
dispose of the income from, sell, assign, transfer, pledge, mortgage or in any
manner dispose of and to exercise all the rights of individuals or natural
persons with respect to bonds, securities, evidences of indebtedness of, or
shares of stock or interest in any corporation, association or joint stock
company of the State of Delaware, or any other state, territory or country,
and while the owners of shares of stock of or interest in any corporation,
joint stock company, firm or association, to exercise all the rights and
privileges of such ownership, including the right to vote thereon, and to do
anything needful or convenient for the protection, improvement, betterment or
enhancement in value of such shares of stock or interest or bonds or obliga-
tions owned by the company, and to aid, in any manner, any such corporation,
joint stock company, firm or association, the stock, bonds, or other obliga-
tions of or interest in which are held by the company.
To enter into, make, perform and carry out contracts of every kind neces-
sary and incidental to the business of the corporation, for any lawful pur-
pose, without limit as to amount, with any person, firm, association or corpo-
ration.
To draw, make, accept, endorse, discount, execute and issue promissory
notes, bills of exchange, warrants, scrip and other negotiable or transferable
instruments or obligations.
To guarantee the payment of dividends or interest on any shares of stock,
debentures, bonds or other securities, issued by this corporation or by any
other person, firm or corporation or on any contract or obligation of the
corporation, firm or individual whatever, which may be proper or necessary for
the business of the corporation.
<PAGE>
To lend and advance money or give credit to such persons, firms, or
corporations and on such terms as may seem expedient, and in particular to
customers and others having dealings with this company, to give, guarantee or
become surety for such person, firm or corporation.
To issue bonds, debentures or obligations of the corporation, from time
to time, for any of the objects or purposes of the corporation, and to secure
the same by mortgage, pledge, deed of trust or otherwise.
To purchase, hold, acquire and reissue the shares of its capital stock;
provided it shall not use its funds or property for the purchase of its own
shares of capital stock when such use would cause any impairment of its capi-
tal; and provided further that shares of its own capital stock belonging to it
shall not be voted upon directly or indirectly.
To have one or more offices, to carry on all or any part of its opera-
tions and business, without restriction or limit as to amount, and to purchase
or otherwise acquire, take, hold, own, mortgage, sell, convey or otherwise
dispose of real and personal property of every class and description in any of
the States, Districts, Territories, Possessions or Colonies of the United
States, and in any and all foreign countries.
The foregoing clauses shall be construed both as objects and powers; and
it is hereby expressly provided that the foregoing enumeration of specific
powers shall not be held to limit or restrict in any manner the powers of this
corporation.
In general, to carry on any other business in connection with the forego-
ing, whether manufacturing or otherwise, and to have and to exercise all the
powers conferred by the lows of Delaware upon corporations formed under the
act hereinafter referred to.
FOURTH. The total number of shares of all classes of capital stock which
the Corporation shall have the authority to issue is 224,000,000 shares which
shall be divided into two classes as follows: (a) 24,000,000 shares of Pre-
ferred Stock ("Preferred Stock") of the par value of $1.00 per share; and (b)
200,000,000 shares of Common Stock ("Common Stock") of the par value of $1.25
per share. Each share of Common Stock, par value $1.25 per share, issued
immediately prior to the taking effect of said amendment including shares held
by the Corporation as treasury shares, shall, upon the taking effect thereof,
be changed and reclassified into two (2) shares of Common Stock, par value
$1.25 per share (hereinafter called "New Common Stock"), and such shares of
New Common Stock shall thereupon be deemed to be validly issued, fully paid
and nonassessable. Each certificate representing shares of Common Stock issued
immediately prior to the taking effect of the amendment shall thereafter
continue to represent the same number of shares of New Common Stock. The
Corporation shall issue to or upon the order of each person who held shares of
Common Stock of record immediately prior to the taking effect of the amend-
ment, a new certificate or certificates representing one (1) additional share
of New Common Stock for each share so held of record by the holder.
The designations, voting powers, preferences and relative, participating,
optional or other special rights, and the qualifications, limitations or
restrictions of the above classes of stock shall be as follows:
A. PREFERRED STOCK
(i) Shares of Preferred Stock may be issued in one or more series at
<PAGE>
such time or times, and for such consideration as the Board of Directors may
determine.
(ii) The Board of Directors is expressly authorized at any time, and
from time to time, to provide for the issuance of shares of Preferred Stock in
one or more series with such designations, preferences and relative, partici-
pating, optional or other special rights and qualifications, limitations or
restrictions thereof as shall be stated and expressed in the resolution or
resolutions providing for the issue thereof adopted by the Board of Directors,
and as are not stated and expressed in this Certificate of Incorporation or
any amendment hereto including, but not limited to, determination of any of
the following:
(a) The distinctive designation and the number of shares constituting
a series, which number may (except as otherwise provided by the Board
of Directors) be increased or decreased (but not below the number of
shares then outstanding) from time to time by like action of the
Board of Directors;
(b) the dividend rate or rates and the preferences, if any, over any
other class or series (or of any other class or series over such
series) with respect to dividends, the terms and conditions upon
which and the periods in respect of which dividends shall be payable,
whether and upon what conditions such dividends shall be cumulative
and, if cumulative, the date or dates from which dividends shall
accumulate;
(c) the voting powers, multiple, full or limited, if any, of the
shares of such series and the extent of such voting powers;
(d) whether the shares shall be redeemable and, if so, the terms and
conditions on which the shares may be redeemed, including the time or
times when, the price or prices at which and the manner in which such
shares shall be redeemable (including the manner of selecting shares
for redemption if less than all shares are to be redeemed);
(e) the rights of the holders of the shares of such series, and the
preferences, if any, over any other class or series (or of any other
class or series over such series), upon the voluntary or involuntary
liquidation, dissolution or winding up or merger, consolidation or
distribution or sale of assets of the corporation;
(f) whether the shares shall be entitled to the benefit of a sinking
or retirement fund and, if so, the terms and conditions of such fund;
(g) whether the shares shall be convertible into, or exchangeable
for, shares of any other class or classes or of any other series of
the same or any other class or classes of stock of the corporation or
any other corporation, and if so convertible or exchangeable, the
conversion price or prices, or the rate or rates of exchange, and the
adjustments thereof, if any, at which such conversion or exchange may
be made, and any other terms and conditions of such conversion or
exchange; and
<PAGE>
(h) any other preferences, privileges and powers, and relative,
participating, optional or other special rights, and qualifications,
limitations or restrictions of such series, as the Board of Directors
may deem advisable and as shall not be inconsistent with the
provisions of this Certificate of Incorporation or any amendment
hereto.
(iii) Shares of Preferred Stock which have been issued and reacquired
in any manner by the corporation (excluding, until the corporation elects to
retire them, shares which are held as treasury shares, but including shares
redeemed, shares purchased and retired and shares which have been converted
into or exchanged for shares of any other class or classes or any other series
of the same or any other class or classes of stock of the corporation or any
other corporation) shall have the status of authorized but unissued shares of
Preferred Stock and may be reissued.
B. COMMON STOCK
(i) Subject to the preferential rights of the Preferred Stock, the
holders of the Common Stock shall be entitled to receive, to the extent per-
mitted by law, such dividends as may be declared from time to time by the
Board of Directors.
(ii) Except as may be otherwise required by law or this Certificate
of Incorporation, each holder of Common Stock shall have one vote in respect
of each share of stock held by such holder of record on the books of the
corporation on all matters voted upon by the stockholders.
(iii) In the event of the voluntary or involuntary liquidation,
dissolution, distribution of assets or winding up of the corporation, after
distribution in full of the preferential amount to be distributed to the
holders of shares of the Preferred Stock, holders of the Common Stock shall be
entitled to receive all the remaining assets of the corporation of whatever
kind available for distribution to stockholders, ratably in proportion to the
number of shares of Common Stock held by them respectively.
C. OTHER PROVISIONS
(i) Subject to the conditions and restrictions of any outstanding
Preferred Stock, any amendment to this Certificate of Incorporation which
shall increase or decrease the authorized capital stock of any class or class-
es may be adopted by the affirmative vote of the holders of a majority of the
outstanding shares of the stock of the corporation entitled to vote thereon.
(ii) No holder of Preferred Stock or Common Stock shall have any
right, as such holder, to purchase or subscribe for any security of the corpo-
ration now or hereafter authorized or issued. All such securities may be
issued and disposed of by the Board of Directors to such persons, firms,
corporations and associations for such lawful consideration, and on such
terms, as the Board of Directors in its discretion may determine, without
first offering the same, or any part thereof, to the holders of Preferred
Stock or Common Stock.
<PAGE>
FIFTH.
Section 1. No person who is or was at any time a director of the Company
shall be personally liable to the Company or its stockholders for monetary
damages for any breach of fiduciary duty by such person as a director; provid-
ed, however, that, unless and except to the extent otherwise permitted from
time to time by applicable law. The provisions of this Section shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for any
act or omission by the director which is not in good faith or which involves
intentional misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, (iv) for any transaction from which
the director derived an improper personal benefit, or (v) for any act or
omission occurring prior to the date this Section becomes effective. If the
Delaware General Corporation Law is amended after approval by the stockholders
of this provision to authorize corporate action further limiting or eliminat-
ing the personal liability of directors, then the liability of a director of
the Company shall be limited or eliminated to the fullest extent permitted by
the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders
of the Company shall not adversely affect any right or protection of a direc-
tor of the Company existing at the time of such repeal or modification.
Section 2. Any person who is or was a director, officer, employee, or
agent of the Company, or of any other corporation, partnership, joint venture,
trust, or other enterprise which he served as such at the request of the
Company shall in accordance with the provisions of this Article hereinafter
set forth be indemnified by the Company against expenses (including attorneys'
fees), judgments, fines, and amounts paid in settlement actually and reason-
ably incurred by him in connection with any threatened, pending, or completed
action, suit or proceeding, whether civil, criminal, administrative, or inves-
tigative (other than an action by or in the right of the Company), to which he
was or is a party, or is threatened to be made a party, by reason of his being
or having been a director, officer, employee, or agent of the Company or of
such other corporation, partnership, joint venture, trust, or other enter-
prise. The director, officer, employee, or agent shall be entitled to such
indemnification if he acted in good faith and in a manner he reasonably be-
lieved to be in, or not opposed to, the best interests of the Company, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit, or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendre or its equivalent, shall not, in itself create a presumption that
the person did not meet the standards of conduct set forth herein. In the case
of any action or suit by or in the right of the Company to procure a judgment
in its favor, such director, officer, employee, or agent shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection with the defense or settlement of such action if he acted
in good faith and in a manner he reasonably believed to be in, or not opposed
to, the best interests of the Company, and except that no indemnification
shall be made in respect of any claim, issue, or matter as to which such
person shall have been adjudged to be liable to the Company unless and only to
the extent that the Court of Chancery or the court in which such action or
suit was brought shall determine upon application that, despite the adjudica-
<PAGE>
tion of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to such expenses which the Court of
Chancery or such other court shall deem proper.
Section 3. To the extent that a director, officer, employee, or agent of
the Company has been successful on the merits or otherwise in defense of any
action, suit, or proceeding referred to in the preceding paragraph, or in
defense of any claim, issue, or matter therein, he shall be entitled, as of
right, to indemnification as provided in this Article. Any indemnification
under this Article (unless ordered by a court) shall be made by the Company as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee, or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in Section 2
of this Article. Such determination shall be made (1) by the board of direc-
tors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit, or proceeding; or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel (who shall not be regular counsel of the
Company and shall have generally recognized competence to advise upon the
matter) in a written opinion; or (3) by the stockholders.
Section 4. Expenses incurred in defending a civil or criminal action,
suit, or proceeding of the character described in this Article may be paid by
the Company in advance of the final disposition thereof upon receipt of an
undertaking by or on behalf of the director, officer, employee, or agent to
repay such amount if it shall be ultimately determined that he is not entitled
to indemnification under this Article.
Section 5. The rights of indemnification and advancement of expenses
provided in or granted pursuant to this Article shall be in addition to any
other rights to which any such director, officer, employee, or agent may be
entitled as a matter of law, under any contract, bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and in the event of such person's death, such rights shall extend to
his heirs and legal representatives. The foregoing rights shall be available
whether or not such person continues to be a director, officer, employee, or
agent at the time of incurring or becoming subject to such liability or ex-
penses and whether or not the claim asserted against him is based on matters
which antedate the adoption of this Article.
Section 6. The Company shall have power to purchase and maintain insur-
ance on behalf of any person who is or was a director, officer, employee, or
agent of the Company, or is or was serving at the request of the Company as a
director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Company would have the power to indemnify
him against such liability under the provisions of this Article.
Section 7. For purposes of Sections 2 through 8 of this Article, refer-
ences to "the Company" shall include, in addition to the resulting corpora-
tion, any constituent corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate existence had
<PAGE>
continued, would have had power and authority to indemnify its directors,
officers, and employees or agents, so that any person who is or was a direc-
tor, officer, employee, or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a director, officer,
employee, or agent of another corporation, partnership, joint venture, trust,
or other enterprise, shall stand in the same position under the provisions of
this Article with respect to such constituent corporation if its separate
existence had continued.
Section 8. For purposes of this Article, references to "other enterpris-
es" shall include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to an employee benefit
plan; and references to "serving at the request of the Company" shall include
any service as a director, officer, employee or agent of the Company which
imposes duties on, or involves services by, such director, officer, employee,
or agent with respect to an employee benefit plan, its participants, or bene-
ficiaries; and a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the Company" as referred to in this Article.
SIXTH. This corporation is to have perpetual existence.
SEVENTH. The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
EIGHTH. In furtherance, and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized:
To make and alter the bylaws of this corporation, to fix the amount to
be reserved as working capital over and above its capital stock paid in, to
authorize and cause to be executed mortgages and liens upon the real and
personal property of this corporation.
From time to time to determine whether and to what extent, and at what
times and places and under what conditions and regulations, the accounts and
books of this corporation (other than the stock ledger), or any of them, shall
be open to inspection of stockholders; and no stockholder shall have any right
of inspecting any account, book or document of this corporation, except as
conferred by statute, unless authorized by a resolution of the stockholders or
directors.
If the bylaws so provide, to designate two or more of its number to
constitute an executive committee, which committee shall for the time being,
as provided in said resolution or in the bylaws of this corporation, have and
exercise any or all of the powers of the Board of Directors in the management
of the business and affairs of this corporation, and have power to authorize
the seal of this corporation to be affixed to all papers which may require it.
This corporation may in its bylaws confer powers upon its directors in
addition to the foregoing, and in addition to the powers and authorities
expressly conferred upon them by the statute.
<PAGE>
Both stockholders and directors shall have power, if the bylaws so pro-
vide, to hold their meetings, and to have one or more offices within or with-
out the State of Delaware, and to keep the books of this corporation (subject
to the provisions of the statutes), outside of the State of Delaware at such
places as may be from time to time designated by the Board of Directors.
The number, classification, qualifications and election of the Board of
Directors and the filling of vacancies thereon shall be as provided in the
bylaws. This final paragraph of Article EIGHTH shall not be amended or re-
scinded except by the affirmative vote of the holders of at least two-thirds
of the stock of the corporation issued and outstanding and entitled to vote,
at any regular or special meeting of the stockholders if notice of the pro-
posed alteration or amendment be contained in the notice of the meeting.
NINTH. Except as otherwise expressly provided in this Article NINTH:
(i) any merger or consolidation of the corporation with or into any other
corporation; or (ii) any sale, lease, exchange or other disposition of all or
substantially all of the assets of the corporation to or with any other corpo-
ration, person or other entity, shall require the affirmative vote of the
holders of at least two-thirds of the outstanding shares of capital stock of
the corporation issued and outstanding and entitled to vote if, as of the
record date for the determination of stockholders entitled to notice thereof
and to vote thereon, such other corporation, person or entity is the benefi-
cial owner, directly or indirectly, of 5 percent or more of the outstanding
shares of capital stock of the corporation issued and outstanding and entitled
to vote.
The provisions of this Article NINTH shall not apply to any transaction
described in clauses (i) or (ii) of this Article, (a) with another corpora-
tion, person or other entity if the Board of Directors of the corporation
shall by resolution have approved a memorandum of understanding with such
other corporation, person, or other entity with respect to and substantially
consistent with such transaction prior to the time such other corporation,
person or other entity became the beneficial owner, directly or indirectly, of
5 percent or more of the outstanding shares of capital stock of the corpora-
tion entitled to vote; or (b) which has been approved by resolution unanimous-
ly adopted by the whole Board of Directors of the corporation at any time
prior to the consummation thereof.
For the purposes of this Article NINTH, a corporation, person or other
entity shall be deemed to be the beneficial owner of any shares of capital
stock of the corporation (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, or (ii) which are beneficially owned, directly or indirectly (in-
cluding shares deemed owned through application of clause (i) of this para-
graph above), by any other corporation, person or other entity (a) with which
it or its "affiliate" or "associate" (as referenced below) has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of capital stock of the corporation or (b) which is its "affiliate"
or "associate" as those terms were defined in Rule 12B-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934 as in effect on
March 1, 1977. For the purposes of this Article NINTH, the outstanding shares
of capital stock of the corporation shall include shares deemed owned through
<PAGE>
the application of clauses (i) and (ii) of this paragraph but shall not in-
clude any other shares which may be issuable pursuant to any agreement, or
upon exercise of conversion rights, warrants or options, or otherwise.
The Board of Directors of the corporation shall have the power and duty
to determine for the purposes of this Article NINTH, on the basis of informa-
tion then known to it, whether (a) any corporation, person or other entity
beneficially owns, directly or indirectly, 5 percent or more of the outstand-
ing shares of capital stock of the corporation entitled to vote, (b) any sale,
lease, exchange or other disposition of part of the assets of the corporation
involves substantially all of the assets of the corporation, and (c) the
memorandum of understanding referred to above is substantially consistent with
the transaction to which it relates. Any such determination by the Board shall
be conclusive and binding for all purposes of this Article NINTH.
This Article NINTH may not be amended or rescinded except by the affirma-
tive vote of the holders of at least two-thirds of the outstanding shares of
capital stock of the corporation issued and outstanding and entitled to vote
at any regular or special meeting of the stockholders if notice of the pro-
posed alteration or amendment be contained in the notice of the meeting.
TENTH. This corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ELEVENTH.
Section 1. Vote Required for Certain Business Combinations.
A. Higher Vote for Certain Business Combinations. In addition to any
affirmative vote required by law or this Certificate of Incorporation (includ-
ing, without limitation, Article NINTH hereof), and except as otherwise ex-
pressly provided in Section 2 of this Article ELEVENTH:
(i) any merger or consolidation of the corporation or any subsidiary (as
hereinafter defined) with (a) any Interested Shareholder (as hereinafter
defined) or (b) any other corporation or other person (whether or not
itself an Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate (as hereinafter defined) of an
Interested Shareholder; or
(ii) any plan of exchange for all outstanding shares of the corporation
or any subsidiary or for any class of shares of either with (a) any
Interested Shareholder or (b) any other corporation or other person
(whether or not itself an Interested Shareholder) which is, or after such
plan of exchange would be, an Affiliate of an Interested Shareholder; or
(iii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
any Interested Shareholder or any Affiliate of any Interested Shareholder
of any assets of the corporation or any subsidiary having an aggregate
Fair Market Value of 10% or more of the total assets of the corporation
and its subsidiaries on a consolidated basis; or
<PAGE>
(iv) the issuance or transfer by the corporation or any subsidiary (in
one transaction or a series of transactions) of any securities of the
corporation or any subsidiary to any Interested Shareholder or any Affil-
iate of any Interested Shareholder in exchange for cash, securities or
other property (or a combination thereof) having an aggregate Fair Market
Value of 10% or more of the total assets of the corporation and its
subsidiaries on a consolidated basis; or
(v) the adoption of any plan or proposal for the liquidation or dissolu-
tion of the corporation proposed by or on behalf of an Interested Share-
holder or any Affiliate of any Interested Shareholder; or
(vi) any reclassification of securities (including any reverse stock
split), or recapitalization of the corporation, or any merger or consoli-
dation of the corporation with any of its subsidiaries or any other
transaction (whether or not with or into or otherwise involving an Inter-
ested Shareholder) which has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares of any class
of equity or convertible securities of the corporation or any subsidiary
which is directly or indirectly owned by an Interested Shareholder or any
Affiliate of any Interested Shareholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the corpora-
tion entitled to vote generally in the election of directors ("Voting Stock"),
voting together as a single class (it being understood that for purposes of
this Article ELEVENTH each share of the Voting Stock shall have the number of
votes granted to it pursuant to bylaw or this Certificate of Incorporation).
Such affirmative vote shall be required notwithstanding the fact that no vote
may be required, or that a lesser vote may be specified by law, this Certifi-
cate of Incorporation or in any agreement with any national securities ex-
change or otherwise.
B. Definition of "Business Combination". The term "Business Combination"
as used in this Article ELEVENTH shall mean any transaction which is referred
to in any one or more of clauses (i) through (vi) of paragraph A of this
Section 1.
Section 2. When Higher Vote is Not Required. The provisions of Section I
of this Article ELEVENTH shall not be applicable to any particular Business
Combination, and such Business Combination shall require only such affirmative
vote as is required by law and any other provision of this Certificate of
Incorporation, if all of the conditions specified in either of the following
paragraphs A and B are met:
A. Approval by Continuing Directors. The Business Combination shall have
been approved by a majority of the Continuing Directors (as hereinafter de-
fined), it being understood that this condition shall not be capable of satis-
faction unless there is at least one Continuing Director.
B. Price and Procedure Requirements. All of the following conditions
shall have been met:
(i) The aggregate amount of the cash and the Fair Market Value (as here-
inafter defined) as of the date of the consummation of the Business Combina-
tion of consideration other than cash to be received per share by holders of
<PAGE>
each class of Voting Stock in such Business Combination shall be at least
equal to the highest of the following:
(a) (if applicable) the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid by the
Interested Shareholder for any shares of such class of Voting Stock
acquired by it (1) within the two-year period immediately prior to the
first public announcement of the proposed Business Combination (the
"Announcement Date") or (2) in the transaction in which it became an
Interested Shareholder, whichever is higher;
(b) the Fair Market Value per share of such class of Voting Stock on the
Announcement Date or on the date on which the Interested Shareholder
became an Interested Shareholder (such latter date is referred to in this
Article ELEVENTH as the "Determination Date"), whichever is higher;
(c) (if applicable) the price per share equal to the Fair Market Value
per share of such class of Voting Stock determined pursuant to paragraph
B (i) (b) above, multiplied by the ratio of (1) the highest per share
price (including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Shareholder for any shares of such
class of Voting Stock acquired by it within the two-year period immedi-
ately prior to the Announcement Date to (2) the Fair Market Value per
share of such class of Voting Stock on the first day in such two-year
period upon which the Interested Shareholder acquired any shares of such
class of Voting Stock; and
(d) (if applicable) the highest preferential amount per share to which
the holders of shares of such class of Voting Stock are entitled in the
event of any voluntary or involuntary liquidation, dissolution or winding
up of the corporation.
Shares acquired or paid for by an Affiliate of the Interested Shareholder
shall be deemed to have been acquired or paid for at the same time by the
Interested Shareholder.
(ii) The consideration to be received by holders of such class of Voting
Stock shall be in cash or in the same form as the Interested Shareholder has
previously paid for shares of such class. If the Interested Shareholder has
paid for shares of a class of Voting Stock with varying forms of considera-
tion, the form of consideration for such Voting Stock shall be either cash or
the form used to acquire the largest number of shares of such class previously
acquired by it.
(iii) After such Interested Shareholder has become an Interested Share-
holder and prior to the consummation of such Business Combination: (a) except
as approved by a majority of the Continuing Directors, there shall have been
no failure to declare and pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on then outstanding shares of Preferred
Stock; (b) there shall have been (1) no reduction in the annual rate of divi-
dends paid on the Common Stock (except as necessary to reflect any subdivision
of the Common Stock), except as approved by a majority of the Continuing
Directors, and (2) an increase in such annual rate of dividends as necessary
to reflect any reclassification (including any reverse stock split), recapi-
<PAGE>
talization, reorganization or any similar transaction which has the effect of
reducing the number of outstanding shares of Common Stock, unless the failure
so to increase such annual rate is approved by a majority of the Continuing
Directors; and (c) such Interested Shareholder shall have not become the
beneficial owner of any additional shares of Voting Stock except as part of
the transaction which results in such Interested Shareholder becoming an
Interested Shareholder.
(iv) After such Interested Shareholder has become an Interested Share-
holder, such Interested Shareholder shall not have received the benefit,
directly or indirectly (except proportionately as a shareholder), of any
loans, advances, guarantees, pledges or other financial assistance or any tax
credits or other tax advantages provided by the corporation, whether in antic-
ipation of or in connection with such Business Combination or otherwise.
(v) A proxy or information statement describing the proposed Business
Combination and complying with the requirements of the Securities Exchange Act
of 1934 and the rules and regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be mailed to all holders of
Voting Stock at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to such Act, rules or regulations or subsequent provi-
sions).
The requirements of subparagraphs (i) and (ii) above shall not apply to
any class of Voting Stock (other than Common Stock) hereafter authorized if
the provision creating or authorizing such class so provides and such provi-
sion has been approved by a majority of the Continuing Directors.
Section 3. Certain Definitions. For the purposes of this Article
ELEVENTH:
A. A "person" shall mean any individual, firm, corporation or other
entity.
B. "Interested Shareholder" shall mean any person (other than the corpo-
ration or any subsidiary) who or which:
(i) is the beneficial owner, directly or indirectly, of more than 10% of
the voting power of the outstanding Voting Stock; or
(ii) is an Affiliate of the corporation and at any time within the two-
year period immediately prior to the date in question was the beneficial
owner, directly or indirectly, of 10% or more of the voting power of the
then outstanding Voting Stock; or
(iii) is an assignee of or has otherwise succeeded to any shares of
Voting Stock which were at any time within the two-year period immediate-
ly prior to the date in question beneficially owned by any Interested
Shareholder, if such assignment or succession shall have occurred in the
course of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
<PAGE>
C. A person shall be a "beneficial owner" of any Voting Stock:
(i) which such person or any of its Affiliates or Associates (as herein-
after defined) beneficially owns, directly or indirectly; or
(ii) which such person or any of its Affiliates or Associates has (a) the
right to acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote pursuant to
any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly, by any other
person with which such person or any of its Affiliates or Associates has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of any shares of Voting Stock.
D. For the purpose of determining whether a person is an Interested
Shareholder pursuant to paragraph B of this Section 3, the number of shares of
Voting Stock deemed to be outstanding shall include shares deemed owned
through application of paragraph C of this Section 3 but shall not include any
other shares of Voting Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants
or options, or otherwise.
E. "Affiliate" or "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on March 1, 1984.
F. "Subsidiary" means any corporation of which a majority of any class of
equity security is owned, directly or indirectly, by the corporation; provid-
ed, however, that for the purposes of the definition of Interested Shareholder
set forth in paragraph B of this Section 3, the term "subsidiary" shall mean
only a corporation of which a majority of each class of equity security is
owned, directly or indirectly, by the corporation.
G. "Continuing Director" means any member of the Board of Directors of
the corporation (the "Board") who is unaffiliated with the Interested Share-
holder and was a member of the Board prior to the time that the Interested
Shareholder became an Interested Shareholder, and any successor of a Continu-
ing Director who is unaffiliated with the Interested Shareholder and is recom-
mended to succeed a Continuing Director by a majority of Continuing Directors
then on the Board.
H. "Fair Market Value" means: (i) in the case of stock, the highest
closing sale price during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or, if such stock is not listed on such Ex-
<PAGE>
change, on the principal United States securities exchange on which such stock
is listed, or, if such stock is not listed on any such exchange, the highest
closing sale price or bid quotation, whichever is reported in the financial
press, with respect to a share of such stock during the 30-day period preced-
ing the date in question on the National Association of Securities Dealers,
Inc., Automated Quotations System or any system then in use, or if no such
quotations are available, the fair market value on the date in question of a
share of such stock as determined by the Board in good faith; and (ii) in the
case of property other than cash or stock, the fair market value of such
property on the date in question as determined by the Board in good faith.
I. In the event of any Business Combination in which the corporation
survives, the phrase "other consideration to be received" as used in paragraph
B (i) of Section 2 of this Article ELEVENTH shall include the shares of any
class of outstanding Voting Stock retained by the holders of such shares.
J. References to a "class of Voting Stock" shall include any separate
series of a class.
Section 4. Powers of the Board. The Board shall have the power and duty
to determine for the purposes of this Article ELEVENTH, on the basis of infor-
mation known to it after reasonable inquiry, (A) whether a person is an Inter-
ested Shareholder, (B) the number of shares of Voting Stock beneficially owned
by any person, (C) whether a person is an Affiliate or Associate of another
and (D) whether the assets which are the subject of any Business Combination
have, or the consideration to be received for the issuance or transfer of
securities by the corporation or any subsidiary in any Business Combination
have or has an aggregate Fair Market Value of 10% or more of the total assets
of the corporation and its subsidiaries on a consolidated basis. Any such
determination made in good faith shall be binding and conclusive on all par-
ties.
Section 5. No Effect on Fiduciary Obligations of Interested Shareholders.
Nothing contained in this Article ELEVENTH shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
Section 6. Amendment or Repeal. Notwithstanding any other provision of
law, this Certificate of Incorporation or the bylaws of the corporation (and
notwithstanding the fact that a lesser vote may be specified by law, this
Certificate of Incorporation or the bylaws of the corporation), and in addi-
tion to any affirmative vote of holders of any class of capital stock of the
corporation or any series of any such class then outstanding which is required
by law or by or pursuant to this Certificate of Incorporation, the affirmative
vote of the holders of 80% or more of the voting power of the shares of the
then outstanding Voting Stock, voting together as a single class, shall be
required to amend or repeal this Article ELEVENTH.
TWELFTH. Any action required or permitted to be taken by the stockholders
of the Corporation may be be effected solely at a duly called annual or spe-
cial meeting of stockholders of the Corporation and may not be effected by any
consent in writing by such stockholders.
This restated Certificate of Incorporation was duly adopted by the Board
of Directors of the Corporation at it's regular meeting held November 6, 1989
in accordance with the provisions of Section 245 of the Delaware Corporation
Law. It relates and integrates and does not further amend the provisions of
<PAGE>
Maytag Corporation's Certificate of Incorporation as heretofore amended and
supplemented, and there is no discrepancy between those provisions and the
provisions of this restated Certificate of Incorporation.
Dated this 6th day of November, A.D. 1989.
_________________________
D. J. Krumm, Chairman
____________________________
Attest
<PAGE>
STATE OF DELAWARE
OFFICE OF SECRETARY OF STATE
I, GLENN C. KENTON, Secretary of the State of Delaware, do hereby certify
that the above and foregoing corresponds with and includes all of the provi-
sions of the Restated Certificate of Incorporation of Maytag Corporation," as
received and filed in this office the 6th day of November, A. D. 1989, at 10
o'clock A.M.
IN TESTIMONY WHEREOF, I have hereunder set my hand and
official seal at Dover this 6th day of November in the year
of our Lord one thousand nine hundred and eighty-nine.
/s/ Glenn C. Kenton________
Secretary of State
SEAL
By: /s/ M. Toon____________
<PAGE>
MAYTAG CORPORATION
Exhibit 3(d)
By-Laws of Registrant, as amended through February 7, 1991.
<PAGE>
MAYTAG CORPORATION
A Delaware Corporation
BYLAWS
Revised as of February 7, 1991
<PAGE>
MAYTAG CORPORATION
BYLAWS
Offices
1. The registered office shall be in the City of Wilmington, County of
New Castle, State of Delaware, and the name of the registered agent in charge
thereof is the Corporation Trust Company. The corporation may also have an
office in the City of Newton, Jasper County, State of Iowa, and also offices
at such other places as the board of directors may from time to time appoint
or the business of the corporation may require.
Seal
2. The corporate seal shall have inscribed thereon the name of the cor-
poration, the year of its organization and the words "Corporate Seal, Dela-
ware."
Stockholders' Meetings
3. Meetings of the stockholders may be held at such place as shall be
determined by resolution of the board of directors.
4. An annual meeting of the stockholders shall be held on such date and
at such time and place as shall be fixed by resolution of the board of direc-
tors. Any previously scheduled annual or special meeting of the stockholders
may be postponed by resolution of the board of directors upon public notice
given prior to the date previously scheduled for such meeting of stockholders.
At the annual meeting the stockholders shall elect directors of the class for
which the term expires on such date and shall transact such other business as
may properly be brought before the meeting.
Except as otherwise provided by statute or the Certificate of Incorpo-
ration, the only business which properly shall be conducted at any annual
meeting of the stockholders shall (i) have been specified in the written no-
<PAGE>
-2-
tice of the meeting (or any supplement thereto) given as provided in Bylaw 7,
(ii) be brought before the meeting by or at the direction of the Board of
Directors or the officer of the corporation presiding at the meeting or (iii)
have been specified in a written notice (a "Stockholder Meeting Notice") given
to the corporation, in accordance with all of the following requirements, by
or on behalf of any stockholder who is entitled to vote at such meeting. Each
Stockholder Meeting Notice must be delivered personally to, or be mailed to
and received by, the secretary of the corporation at the principal executive
offices of the corporation, in Newton, Iowa, not less than 60 days nor more
than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that in the event that the date of the annual
meeting is advanced by more than 30 days or delayed by more than 60 days from
such anniversary date, the Stockholder Meeting Notice to be timely must be so
delivered not earlier than the 90th day prior to such annual meeting and not
later than the close of business on the later of the 60th day prior to such
annual meeting or the 10th day following the day on which public announcement
of the date of such meeting is first made. For purposes of these Bylaws,
"public announcement" shall mean disclosure in a press release reported by the
Dow Jones News Service, Associated Press or comparable national news service
or in a document publicly filed by the corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities
Exchange Act of 1934, as amended. Each Stockholder Meeting Notice shall set
forth: (i) a description of each item of business proposed to be brought
before the meeting and the reasons for conducting such business at the annual
meeting; (ii) the name and record address of the stockholder proposing to
bring such item of business before the meeting; (iii) the class and number of
shares of stock held of record, owned beneficially and represented by proxy by
such stockholder as of the record date for the meeting (if such date shall
then have been made publicly available) and as of the date of such Stockholder
Meeting Notice and; (iv) all other information which would be required to be
included in a proxy statement filed with the Securities and Exchange Commis-
sion if, with respect to any such item of business, such stockholder were a
participant in a solicitation subject to Section 14 of the Securities Exchange
Act of 1934 as amended. No business shall be brought before any annual meet-
ing of stockholders of the corporation otherwise than as provided in this
Bylaw 4; provided, however, that nothing contained in this Bylaw 4 shall be
deemed to preclude discussion by any stockholder of any business properly
brought before the annual meeting. The officer of the corporation presiding
at the annual meeting of stockholders shall, if the facts so warrant, deter-
mine that business was not properly brought before the meeting in accordance
with the provisions of this Bylaw 4 and, if he should so determine, he should
so declare to the meeting and any such business so determined to be not prop-
erly brought before the meeting shall not be transacted.
5. The holders of a majority of the stock issued and outstanding and
entitled to vote thereat, present in person, or represented by proxy, shall be
requisite and shall constitute a quorum at all meetings of the stockholders
for the transaction of business except as otherwise provided by law, by the
Certificate of Incorporation or by these Bylaws. The officer of the corpora-
tion presiding at the meeting or a majority of the shares so represented may
adjourn the meeting from time to time, whether or not there is such a quorum
present. Notice of the time or place of an adjourned meeting shall be given
only as required by law. The stockholders present at a duly called meeting
may continue to transact business until adjournment, notwithstanding the with-
<PAGE>
-3-
drawal of sufficient stockholders to constitute the remaining stockholders
less than a quorum. At such adjourned meeting at which the requisite amount
of voting stock shall be represented any business may be transacted which
might have been transacted at the meeting as originally notified. If the ad-
journment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
meeting.
6. At each meeting of the stockholders every stockholder having the
right to vote shall be entitled to vote in person, or by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date not
more than three years prior to said meeting, unless said instrument provides
for a longer period. Each stockholder shall have one vote for each share of
stock having voting power, registered in his name on the books of the corpora-
tion. The vote for directors, and upon the demand of any stockholder, the vote
upon any question before the meeting, shall be by ballot. Directors shall be
elected by a plurality of the votes of the shares present in person or repre-
sented by proxy at the meeting and entitled to vote on the election of direc-
tors. Except as otherwise provided by law, the Certificate of Incorporation
or these Bylaws, in all matters other than the election of directors, the
affirmative vote of the majority of shares present in person or represented by
proxy at the meeting and entitled to vote on the subject matter shall be the
act of the stockholders.
7. Written notice of the annual meeting shall be prepared and mailed by
the corporation to each stockholder entitled to vote thereat at such address
as appears on the stock book of the corporation at least ten and not more than
sixty days prior to the meeting.
8. A complete list of the stockholders entitled to vote at the ensuing
meeting, arranged in alphabetical order, with the address of each, and the
number of voting shares held by each, shall be prepared by the secretary and
filed in the office where the meeting is to be held, at least ten days before
every meeting of stockholders, and shall, during the usual hours of business
during such ten day period, and during the whole time of said meeting of
stockholders, be open to the examination of any stockholder for any purpose
germane to the meeting.
9. Special meetings of stockholders of the corporation may be called
only by the board of directors pursuant to a resolution approved by a majority
of the whole board of directors. Any previously scheduled annual or special
meeting of the stockholders may be postponed by resolution of the board of
directors upon public notice given prior to the date previously scheduled for
such meeting of stockholders. This Bylaw 9 may not be amended or rescinded
except by the affirmative vote of the holders of at least two-thirds of the
stock of the corporation issued and outstanding and entitled to vote, at any
regular or special meeting of the stockholders if notice of the proposed al-
teration or amendment be contained in the notice of meeting.
10. Business transacted at all special meetings shall be confined to the
objects stated in the notice of the special meeting. Written notice of a
special meeting of stockholders stating the time and place and object thereof
shall be prepared and mailed by the corporation, postage prepaid, at least ten
and not more than sixty days before such meeting, to each stockholder entitled
<PAGE>
-4-
to vote thereat at such address as appears on the books of the corporation.
11. The board of directors by resolution shall appoint one or more in-
spectors, which inspector or inspectors may include individuals who serve the
corporation in other capacities, including, without limitation, as officers,
employees, agents or representatives of the corporation, to act at a meeting
of stockholders and make a written report thereof. One or more persons may be
designated by the board of directors as alternate inspectors to replace any
inspector who fails to act. If no inspector or alternate has been appointed
to act or is able to act at a meeting of stockholders, the officer appointed
to act or is able to act at a meeting of stockholders, the officer of the
corporation presiding at the meeting shall appoint one or more inspectors to
act at the meeting. Each inspector, before discharging his or her duties,
shall take and sign an oath faithfully to execute the duties of inspector with
strict impartiality and according to the best of his or her ability. The
inspectors shall have the duties prescribed by law.
The officer of the corporation presiding at the meeting shall fix and
announce at the meeting the date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at the meeting.
Directors
12. The property and business of this corporation shall be managed by its
board of directors. Except as otherwise provided in these Bylaws or by law,
the directors of the corporation shall be elected at the annual meeting of
stockholders in each year. The number of directors which shall constitute the
whole board of directors shall be at least three and such number may be fixed
from time to time by a majority of the whole board, or if the number is not so
fixed, the number shall be eleven. The directors of the corporation shall be
divided into three classes, each class to consist, as nearly as may be, of
one-third of the number of directors then constituting the whole board of
directors.
At the 1977 Annual Meeting of Stockholders,
(a) one-third of the number of directors shall be elected to serve
until the 1978 Annual Meeting of Stockholders;
(b) one-third of the number of directors shall be elected to serve
until the 1979 Annual Meeting of Stockholders; and
(c) one-third of the number of directors shall be elected to serve
until the 1980 Annual Meeting of Stockholders, and until their successors
shall be duly elected and qualified.
At each annual election of directors after the 1977 Annual Meeting
of stockholders, the successors to the directors of each class whose term
shall expire in that year shall be elected to hold office for a term of three
<PAGE>
-5-
years from the date of their election and until their successors shall be duly
elected and qualified. In the case of any increase or decrease in the number
of directors, the increase or decrease shall be distributed among the several
classes as nearly equally as possible, as shall be determined by a majority of
the whole board at the time of such increase or decrease.
This Section 12 may not be amended or rescinded except by the affirma-
tive vote of the holders of at least two-thirds of the stock of the corpora-
tion issued and outstanding and entitled to vote, at any regular or special
meeting of the stockholders if notice of the proposed alteration or amendment
be contained in the notice of the meeting.
13. The directors may hold their meetings and have one or more offices,
and keep the books of the corporation outside of Delaware, at the office of
the corporation in the city of Newton, Iowa, or at such other places as they
may from time to time determine.
14. In addition to the powers and authorities by these Bylaws expressly
conferred upon them, the board may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the Certif-
icate of Incorporation or by these Bylaws directed or required to be exercised
or done by stockholders.
14A. Except as otherwise fixed pursuant to the Certificate of Incorpora-
tion relating to the rights of the holders of any one or more classes or se-
ries of Preferred Stock issued by the corporation, acting separately by class
or series, to elect, under specified circumstances, directors at a meeting of
stockholders, nominations for the election of directors may be made by the
board of directors or a committee appointed by the board of directors or by
any stockholder entitled to vote in the election of directors generally.
However, any stockholder entitled to vote in the election of directors gener-
ally may nominate one or more persons for election as directors at an annual
meeting only if written notice of such stockholder's intent to make such nomi-
nation or nominations has been delivered personally to, or been mailed to and
received by, the secretary of the corporation at the principal executive of-
fices of the corporation in Newton, Iowa, not less than 60 days nor more than
90 days prior to the first anniversary of the preceding year's annual meeting;
provided, however, that in the event that the date of the annual meeting is
advanced by more than 30 days or delayed by more than 60 days from such anni-
versary date, notice by the stockholder to be timely must be so delivered not
earlier than the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of
such meeting is first made. Each such notice shall set forth: (i) the name
and record address of the stockholder who intends to make the nomination;
(ii) the name, age, principal occupation or employment, business address and
residence address of the person or persons to be nominated; (iii) the class
and number of shares of stock held of record, owned beneficially and repre-
sented by Proxy by such stockholder and by the person or persons to be nomi-
nated as of the date of such notice; (iv) a representation that the stockhold-
er intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice; (v) a description of all arrange-
ments or understandings between such stockholder and each nominee and any
<PAGE>
-6-
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by such stockholder; (vi) such other
information regarding each nominee proposed by such stockholder as would be
required to be included in a proxy statement filed pursuant to the Securities
Exchange Act of 1934, as amended, and the proxy rules of the Securities and
Exchange Commission; and (vii) the consent of each nominee to serve as a di-
rector of the corporation if so elected. The corporation may require any
proposed nominee to furnish such other information as may reasonably be re-
quired by the corporation to determine the eligibility of such proposed nomi-
nee to serve as a director of the corporation. Notwithstanding anything in
the second sentence of this Bylaw 14A to the contrary, in the event that the
number of directors to be elected to the board of directors of the corporation
is increased and there is no public announcement naming all of the nominees
for director or specifying the size of the increased board of directors made
by the corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this Bylaw
14A shall also be considered timely, but only with respect to nominees for any
new positions created by such increase, if it shall be delivered to the secre-
tary at the principal executive offices of the corporation, in Newton, Iowa,
not later than the close of business on the 10th day following the day on
which such public announcement is first made by the corporation. The officer
of the corporation presiding at the annual meeting of stockholders shall, if
the facts so warrant, determine that a nomination was not made in accordance
with the provisions of this Bylaw 14A, and if he should so determine, he
should so declare to the meeting and the defective nomination shall be disre-
garded.
Nominations of persons for election to the board of directors may be
made at a special meeting of stockholders at which directors are to be elected
pursuant to the corporation's notice of meeting (a) by or at the direction of
the board of directors or (b) provided that the board of directors has deter-
mined that directors shall be elected at such meeting, by any stockholder of
the corporation who is a stockholder of record at the time of giving of notice
provided for in this Bylaw 14A, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Bylaw 14A. In
the event the corporation calls a special meeting of stockholders for the
purpose of electing one or more directors to the board, any such stockholder
may nominate a person or persons (as the case may be), for election to such
position(s) as specified in the corporation's notice of meeting, if the stock-
holder's notice required by the first paragraph of this Bylaw 14A shall be
delivered to the secretary at the principal executive offices of the corpora-
tion not earlier than the 90th day prior to such special meeting and not later
than the close of business on the later of the 60th day prior to such special
meeting or the 10th day following the day on which public announcement is
first made of the date of the special meeting and of the nominees proposed by
the board of directors to be elected at such meeting.
No person shall be eligible for election as a director of the corpora-
tion unless nominated in accordance with the procedures set forth in these
Bylaws.
Notwithstanding the provisions of Bylaw 4 and this Bylaw 14A, a stock-
holder shall also comply with all applicable requirements of the Securities
and Exchange Act of 1934, as amended, and the rules and regulations thereunder
with respect to the matters set forth in Bylaw 4 and this Bylaw 14A. Nothing
<PAGE>
-7-
in Bylaw 4 and this Bylaw 14A shall be deemed to affect any rights of stock-
holders to request inclusion of proposals in the corporation's proxy statement
pursuant to Rule 14a-8 under the Securities and Exchange Act of 1934, as
amended.
Executive Committee
15. There may be an executive committee of two or more directors desig-
nated by resolution passed by a majority of the whole board. Said committee
may meet at stated times, or on notice to all by any of their own number.
During the intervals between meetings of the board such committee shall advise
with and aid the officers of the corporation in all matters concerning its
interests and the management of its business, and generally perform such
duties and exercise such powers as may be directed or delegated by the board
of directors from time to time. The board may delegate to such committee
authority to exercise all the powers of the board excepting power to amend the
Bylaws, while the board is not in session. Vacancies in the membership of the
committee shall be filled by the board of directors at a regular meeting or at
a special meeting called for that purpose.
16. The executive committee shall keep regular minutes of its proceedings
and report the same to the board when required.
Compensation of Directors
17. Directors who as officers or employees of the corporation receive
compensation from it shall not receive any stated compensation for their
services as directors; but by resolution of the board reasonable compensation
for attendance at board meetings may be allowed and paid.
Directors who do not receive compensation from the corporation for
employment with it in the capacity of an officer or employee shall be allowed
and paid such stated compensation as may be fixed by the board of directors;
and such directors shall be reimbursed for expenses incurred in connection
with the performance of their duties or services as director, the amount
thereof to be allowed and paid by resolution of the board.
Nothing herein contained shall be construed as precluding a director
from serving the company in any other capacity and receiving compensation
therefor.
18. Members of special or standing committees may be allowed and paid
compensation for their services as such, and expenses incident thereto, in
<PAGE>
-8-
such amounts as from time to time are fixed and allowed by the board of direc-
tors.
Meetings of the Board
19. The newly elected board may meet without notice for the purpose of
organization or otherwise immediately following the annual meeting of the
stockholders or at such place and time as shall be fixed by resolution of the
board.
20. Regular meetings of the board may be held without notice at such time
and place as shall from time to time be determined by resolution of the board.
21. Special meetings of the board may be called by the chairman of the
board or the president on two days' written notice mailed to each director, or
on not less than 24 hours' notice delivered to each director personally, tele-
phonically or by telegram or telecopy at such number as has been provided by
the director; special meetings shall be called by the chairman of the board,
the president or secretary in like manner and on like notice on the written
request of a majority of the directors then in office. A special meeting may
be held without notice if all the directors are present or, if those not
present waive notice of the meeting in writing, either before or after such
meeting.
22. At all meetings of the board, four directors, but not less than one-
third of the total number of directors, shall be necessary and sufficient to
constitute a quorum for the transaction of business, and the act of a majority
of the directors present at any meeting at which there is a quorum, shall be
the act of the board of directors, except as may be otherwise provided by
statute or by the Certificate of Incorporation or by these Bylaws.
Officers
23. The officers of this corporation shall be chosen by the directors and
shall be a president, one or more vice presidents, a secretary, controller,
and such assistant secretaries as the board of directors may designate. The
board may also elect a chairman of the board and in that event, shall desig-
nate whether he or the president shall be the chief executive officer of the
corporation.
24. The board of directors, at its first meeting after each annual meet-
ing of stockholders, shall elect the corporate officers.
25. The board may appoint such other officers and agents as it shall deem
necessary, who shall hold their offices for such terms and shall exercise such
<PAGE>
-9-
powers and perform such duties as shall be determined from time to time by the
board.
26. The salaries of the officers of the corporation shall be fixed from
time to time by the board of directors; provided that in the case of officer
members of the board of directors their salaries may be fixed from time to
time by either of the following additional methods: (i) by a salary committee
of not less than three members appointed, by a resolution passed by a majority
of the whole board of directors, from among the members of the board of direc-
tors who are not officers of the corporation, or (ii) by a salary committee
composed of all members of the board of directors who are not officers of the
corporation, such committee to act by a majority of its members. None of the
officers of the corporation shall be prevented from receiving a salary by
reason of the fact that he is also a member of the board of directors; but an
officer who shall also be a member of the board of directors shall not have
any vote in a determination by the board of directors of the amount of salary
that shall be paid to him.
27. The officers of the corporation shall hold office until their succes-
sors are chosen and qualify in their stead. Any officer elected or appointed
by the board of directors may be removed at any time by the affirmative vote
of a majority of the whole board of directors.
Chairman of the Board of Directors
28. Whenever a chairman of the board of directors has been elected by the
board, he shall preside at all meetings of the board of directors and of the
stockholders. If no chairman of the board is elected, the president shall act
as the chairman of the board and shall assume the powers and duties of the
chairman.
President
29. (a) The president shall be the chief executive officer of the corpo-
ration unless a chairman of the board has been elected and designated as such
officer. Subject to the authority of the chairman of the board in such event,
the president shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board are
carried into effect. In the absence or disability of the chairman of the
board, where that office has been filled by election of the board, the powers
and duties of the chairman shall be assumed by the president.
(b) He shall execute bonds, mortgages and other contracts requiring a
seal, under the seal of the corporation.
<PAGE>
-10-
(c) He shall be ex-officio a member of all standing committees, and
shall have the general powers and duties of supervision and management usually
vested in the office of president of the corporation.
Vice President
30. The board of directors may elect one or more vice presidents and may
designate one or more of the vice presidents to be executive vice presidents.
Subject to the succession provided for in Bylaw 29(a), in the absence or dis-
ability of the CEO, the executive vice presidents, or the vice presidents in
the event none have been designated "Executive", in the order designated, (or
in the absence of any designation, then in the order of their election) shall
perform the duties and exercise the powers of the CEO. The vice president(s)
shall perform such other duties as the board of directors may prescribe.
Secretary
31. The secretary shall attend all sessions of the board and all meetings
of the stockholders and record all votes and the minutes of all proceedings in
a book to be kept for that purpose and shall perform like duties for the
standing committees when required. He shall be custodian of the corporate
records and of the seal of the corporation and see that the seal of the corpo-
ration is affixed to all documents, the execution of which on behalf of the
corporation under its seal is duly authorized. He shall give, or cause to be
given, notice of all meetings of the stockholders and of the board of direc-
tors, and shall perform such other duties as may be prescribed by the board of
directors or president, under whose supervision he shall be.
Treasurer
32.
(a) The treasurer shall, under the general direction of the Chief Finan-
cial Officer, be responsible for the planning and directing of corporate
finance activities. He shall have the custody of corporate funds and securi-
ties and shall deposit all moneys, and other valuable effects in the name and
to the credit of the Corporation, in such depositories as may be designated by
the Board of Directors.
<PAGE>
-11-
(b) He shall disburse the funds of the Corporation as may be ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the Chairman of the Board, the President and the directors, at the regular
meetings of the Board, or whenever they may require it, an account of all his
transactions as Treasurer.
(c) He shall give the Corporation a bond if required by the Board of Di-
rectors in a sum, and with one or more sureties satisfactory to the Board, for
the faithful performance of the duties of his office, and for the restoration
to the Corporation, in case of his death, resignation, retirement or removal
from office, of all books, papers, vouchers, money and other property of what-
ever kind in his possession or under his control belonging to the Corporation.
Chief Financial Officer
33. The Chief Financial Officer of the corporation shall have the general
responsibility for the financial operations of the corporation and for all
receipts and disbursements of the funds of the corporation.
Controller
34. The controller shall be the chief accounting officer of the
corporation.
Assistant Secretary
35. The assistant secretaries in the order of their seniority shall, in
the absence or disability of the secretary, perform the duties and exercise
the powers of the secretary, and shall perform such other duties as the board
of directors shall prescribe.
Assistant Treasurer
36. Repealed.
<PAGE>
-12-
Vacancies and Newly Created Directorships
37. If the office of any officer or agent becomes vacant by reason of
death, resignation, retirement, disqualification, removal from office or
otherwise, such vacancy may be filled by the board of directors.
Vacancies in the board of directors and newly created directorships
resulting from any increase in the authorized number of directors may be
filled by a majority of the directors then in office, though less than a quo-
rum, and the directors so chosen shall hold office until the expiration of the
term of the class to which they have been chosen and until their successors
are duly elected and qualified. This second paragraph of Section 37 may not be
amended or rescinded except by the affirmative vote of the holders of at least
two-thirds of the stock of the corporation issued and outstanding and entitled
to vote, at any regular or special meeting of the stockholders if notice of
the proposed alteration or amendment be contained in the notice of the meeting.
Duties of Officers May be Delegated
38. In case of the absence of any officer of the corporation, or for any
other reason that the board may deem sufficient, the board may delegate, for
the time being, the powers or duties, or any of them, of such officer to any
other officer, or to any director, provided a majority of the entire board
concur therein.
Certificates of Stock
39. The certificates of stock of the corporation shall be numbered and
shall be entered in the books of the corporation as they are issued. They
shall exhibit the holder's name and number of shares and shall be signed by
the president or a vice president and the treasurer or an assistant treasurer,
or the secretary or an assistant secretary.
Transfers of Stock
40. Transfers of stock shall be made on the books of the corporation only
<PAGE>
-13-
by the person named in the certificate or by attorney, lawfully constituted in
writing, and upon surrender of the certificate therefor.
41. The board of directors shall have power to appoint one or more trans-
fer agents and/or one or more registrars of transfers and may provide that the
issuance of certificates of stock of this corporation shall not be valid
unless signed by such transfer agent or transfer agents and/or registrar of
transfers or registrars of transfers, and if such certificate is countersigned
(1) by a transfer agent other than the corporation or its employee, or (2) by
a registrar other than the corporation or its employee, any other signature on
the certificate may be a facsimile.
Record Dates
42. In order that the corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution
or allotment of any rights, or entitled to exercise any rights in respect of
any change, conversion or exchange of stock or for the purpose of any other
lawful action, the board of directors may fix a record date, which record date
shall not precede the date upon which the resolution fixing the record date is
adopted by the board of directors, and shall not be more than sixty nor less
than ten days before the date of such meeting, nor more than sixty days prior
to any such other action. If no record date is fixed, the record date for
determining stockholders entitled to notice of or to vote at a meeting of
stockholders shall be at the close of business of the day next preceding the
day on which notice is given, and the record date for any other purpose shall
be at the close of business on the day on which the board of directors adopts
the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the board of directors
may fix a new record date for the adjourned meeting.
Registered Stockholders
43. The corporation shall be entitled to treat the holder of record of
any share or shares of stock as the holder in fact thereof and accordingly
shall not be bound to recognize any equitable or other claim to or interest in
such share on the part of any other person, whether or not it shall have
express or other notice thereof, save as expressly provided by the laws of
Delaware.
<PAGE>
-14-
Lost Certificate
44. Any person claiming a certificate of stock to be lost, stolen or
destroyed, shall make an affidavit or affirmative of the fact and advertise
the same in such manner as the board of directors may require, and shall if
the directors so require give the corporation a bond of indemnity, sufficient
to indemnify the corporation against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or
the issuance of a new replacement certificate, whereupon a new certificate may
be issued of the same tenor and for the same number of shares as the one
alleged to be lost, stolen or destroyed.
Inspection of Books
45. The directors shall determine from time to time whether and, if
allowed, when and under what conditions and regulations the accounts and books
of the corporation (except such as may by statute be specifically open to
inspection) or any of them shall be open to the inspection of the stockhold-
ers, and the stockholders' rights in this respect are and shall be restricted
and limited accordingly.
Checks
46. All checks or demands for money and notes of the corporation, shall
be signed by such officer or officers, employee or employees as the board of
directors may from time to time designate.
Fiscal Year
47. The fiscal year shall begin the first day of January in each year.
<PAGE>
-15-
Directors' Annual Statement
48. The board of directors shall present at each annual meeting, and when
called for by vote of the stockholders at any special meeting of the stock-
holders, a full and clear statement of the business and condition of the
corporation.
Notices
49. Except as otherwise provided in these Bylaws, whenever under the
provisions of these Bylaws notice is required to be given to any director,
officer or stockholder, it shall not be construed to mean personal notice, but
such notice may be given in writing, by telecopy as provided in Bylaw 21, by
mail, by depositing the same in the post office or letter box, in a postpaid
sealed wrapper, addressed to such stockholder, officer or director at such
address as appears on the books of the corporation, or, in default of other
address, to such director, officer or stockholder at the General Post Office
in the City of Wilmington, Delaware, and such notice shall be deemed to be
given at the time when the same shall be thus mailed.
Any stockholder, director, or officer may waive any notice required to
be given under these Bylaws, either before or after the event for which such
notice was required.
Incentive Payments
50. Repealed.
51. Unless otherwise provided by resolution adopted by the board of
directors, the president or any vice president or the secretary may from time
to time appoint an attorney or attorneys, or an agent or agents, to exercise
in the name and on behalf of the company the powers and rights which it may
have as the holder of stock or other securities in any other corporation or
membership in any organization, to vote or consent in respect of such stock or
other securities or membership, and the president, or any vice president or
the secretary may execute or cause to be executed in the name and on behalf of
the company and under its corporate seal, or otherwise all such written prox-
ies or other instruments as he may deem necessary or proper in order that the
company may exercise its powers and rights.
<PAGE>
- 16 -
Amendments
52. Except as otherwise provided in these Bylaws, these Bylaws may be
altered or amended by the affirmative vote of a majority of the stock issued
and outstanding and entitled to vote thereat, at any regular or special meet-
ing of the stockholders, if notice of the proposed alteration or amendment be
contained in the notice of the meeting, or (except as otherwise provided in
these Bylaws) by the affirmative vote of a majority of the board of directors
at a regular or special meeting of the board.
* * * * *
I, E. James Bennett, Secretary of MAYTAG CORPORATION, a corporation
organized and existing under the laws of the State of Delaware, do hereby
certify that as such Secretary, I have custody and possession of the records
and corporate seal of said corporation, and that the foregoing is a full, true
and correct copy of the Bylaws of said corporation in my custody and posses-
sion; and that the seal hereto affixed is the common or corporate seal of said
corporation so in my custody and possession.
IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary and
affixed the corporate seal of said corporation this 8th day of November, A.D.,
1990.
/s/ E. James Bennett
Secretary
<PAGE>
MAYTAG CORPORATION
Exhibit 4(f)
U.S. $100,000,000 Credit Agreement Dated as of June 25, 1993 Among
Registrant, the Banks Party Hereto and Bank of Montreal, Chicago Branch as
Agent and Royal Bank of Canada.
<PAGE>
CONFORMED COPY
U.S. $100,000,000
CREDIT AGREEMENT
Dated as of
June 25, 1993
Among
MAYTAG CORPORATION,
THE BANKS PARTY HERETO,
AND
BANK OF MONTREAL, CHICAGO BRANCH
as Agent
AND
ROYAL BANK OF CANADA
as Co-Agent
<PAGE>
TABLE OF CONTENTS
Introduction 1
SECTION 1. THE COMMITTED FACILITY 1
Section 1.1. The Commitments. 1
Section 1.2. Applicable Interest Rates. 1
Section 1.3. Minimum Borrowing Amounts. 3
Section 1.4. Manner of Borrowing Committed Loans and Designating
Interest Rates Applicable to Loans. 3
SECTION 2. THE SWING LINE LOANS 5
Section 2.1. The Swing Line Loans. 5
Section 2.2. Notices. 6
Section 2.3. The Participating Interests. 6
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS 6
Section 3.1. Interest Periods. 6
Section 3.2. Maturity of Loans. 7
Section 3.3. Prepayments. 7
Section 3.4. Default Rate. 8
Section 3.5. The Notes. 8
Section 3.6. Commitment Terminations. 9
Section 3.7. Funding Indemnity. 9
SECTION 4. FEES 10
Section 4.1. Facility Fee. 10
Section 4.2. Closing Fee. 10
Section 4.3. Agent Fees. 10
SECTION 5. PLACE AND APPLICATION OF PAYMENTS. 10
Section 5.1. Place and Application of Payments. 10
SECTION 6. DEFINITIONS 11
Section 6.1. Definitions. 11
Section 6.2. Interpretation. 17
SECTION 7. REPRESENTATIONS AND WARRANTIES. 17
Section 7.1. Organization and Qualification. 17
Section 7.2. Subsidiaries. 18
-i-
<PAGE>
Section 7.3. Corporate Authority and Validity of Obligations. 18
Section 7.4. Not an Investment Company. 18
Section 7.5. Margin Stock. 18
Section 7.6. Financial Reports. 19
Section 7.7. No Material Adverse Change. 19
Section 7.8. Litigation. 19
Section 7.9. Tax Returns. 19
Section 7.10. Approvals. 19
Section 7.11. Liens. 19
Section 7.12. ERISA. 20
Section 7.13. Compliance with Environmental Laws. 20
SECTION 8. CONDITIONS PRECEDENT. 21
Section 8.1. Initial Borrowing. 21
Section 8.2. All Loans. 21
SECTION 9. COVENANTS. 22
Section 9.1. Corporate Existence. 22
Section 9.2. Maintenance. 22
Section 9.3. Taxes. 22
Section 9.4. Insurance. 23
Section 9.5. Financial Reports and Other Information. 23
Section 9.6. Consolidated Tangible Net Worth. 24
Section 9.7. Leverage Ratio. 25
Section 9.8. Interest Coverage Ratio. 25
Section 9.9. Mergers, Consolidations, Leases, and Sales. 25
Section 9.10. Change of Control. 26
Section 9.11. ERISA. 26
Section 9.12. Conduct of Business. 26
Section 9.13. Liens. 26
Section 9.14. Use of Proceeds; Margin Stock. 28
Section 9.15. Compliance with Laws. 28
SECTION 10. EVENTS OF DEFAULT AND REMEDIES. 28
Section 10.1. Events of Default. 28
Section 10.2. Non-Bankruptcy Defaults. 30
Section 10.3. Bankruptcy Defaults. 30
Section 10.4. Expenses. 31
SECTION 11. CHANGE IN CIRCUMSTANCES. 31
Section 11.1. Change of Law. 31
Section 11.2. Unavailability of Deposits or Inability to
Ascertain, or Inadequacy of, LIBOR. 31
Section 11.3. Increased Cost and Reduced Return. 32
-ii-
<PAGE>
Section 11.4. Lending Offices. 34
Section 11.5. Discretion of Bank as to Manner of Funding. 34
Section 11.6. Substitution of Bank. 34
SECTION 12. THE AGENT. 34
Section 12.1. Appointment and Authorization. 34
Section 12.2. Agent and Affiliates. 34
Section 12.3. Action by Agent. 35
Section 12.4. Consultation with Experts. 35
Section 12.5. Liability of Agent. 35
Section 12.6. Indemnification. 35
Section 12.7. Credit Decision. 36
Section 12.8. Resignation of Agent and Successor Agent. 36
Section 12.9. Payments. 36
Section 12.10. Co-Agent. 37
SECTION 13. MESCELLANEOUS. 37
Section 13.1. Withholding Taxes. 37
Section 13.2. No Waiver of Rights. 38
Section 13.3. Non-Business Day. 38
Section 13.4. Documentary Taxes. 38
Section 13.5. Survival of Representations. 38
Section 13.6. Survival of Indemnities. 38
Section 13.7. Sharing of Set-Off. 39
Section 13.8. Notices. 39
Section 13.9. Counterparts. 40
Section 13.10. Successors and Assigns. 40
Section 13.11. Participants and Note Assignees. 40
Section 13.12. Assignment of Commitments by Banks. 40
Section 13.13. Amendments. 41
Section 13.14. Legal Fees and Indemnification. 41
Section 13.15. Currency. 41
Section 13.16. Currency Equivalence. 42
Section 13.17. Governing Law. 42
Section 13.18. Termination of Existing Credit Agreement. 42
Section 13.19. Headings. 42
Section 13.20. Entire Agreement. 42
Signatures 43
EXHIBIT A FORM OF NOTE
EXHIBIT B SUBSIDIARIES
EXHIBIT C FORM OF OPINION OF COUNSEL
EXHIBIT D FORM OF OPINION OF COUNSEL
EXHIBIT E FORM OF COMPLIANCE CERTIFICATE
-iii-
<PAGE>
Credit Agreement
To each of the Banks signatory hereto
Ladies and Gentlemen:
Introduction; The undersigned, Maytag Corporation, a Delaware
corporation (the "Borrower"), applies to you for your several commitments,
subject to all the terms and conditions hereof and on the basis of the
representations and warranties hereinafter set forth, to make available a
revolving credit as more fully hereinafter set forth. Each of you is
hereinafter referred to individually as a "Bank" and all of you are
hereinafter referred to collectively as the "Banks". Bank of Montreal,
acting through its Chicago Branch, in its capacity as agent for the Banks
hereunder, and any successor thereto pursuant to Section 12.8 hereof, is
hereinafter referred to as the "Agent" and Royal Bank of Canada in its
capacity as co-agent hereunder is hereinafter referred to as the "Co-Agent".
SECTION 1. THE COMMITTED FACILITY.
Section 1.1.The Commitments. Subject to the terms and conditions
hereof, each Bank, by its acceptance hereof, severally agrees to make a loan
or loans (individually a "Committed Loan" and collectively "Committed Loans")
to the Borrower from time to time in U.S. Dollars or Alternative Currencies
on a revolving basis in an aggregate outstanding Original Dollar Amount up to
the amount of its commitment to make Loans set forth on the applicable
signature page hereof or pursuant to Section 13.12 hereof (its "Commitment"
and cumulatively for all the Banks the "Commitments") (subject to any
reductions thereof pursuant to the terms hereof) prior to the Termination
Date. At no time shall the aggregate Original Dollar Amount of all
outstanding Loans (whether Committed or Swing Line Loans) exceed the
Commitments then in effect, which Commitments on the date hereof total U.S.
$100,000,000. Each Borrowing of Committed Loans shall be advanced,
continued, or converted, as applicable pursuant to Section 1.4 hereof,
ratably from the Banks in proportion to their respective Unused Commitments.
Subject to Section 1.4 hereof, the Borrower may elect that each Borrowing of
Committed Loans be advanced or maintained as Domestic Rate Loans or
Eurocurrency Loans, which Committed Loans may be repaid and the principal
amount thereof reborrowed prior to the Termination Date, subject to all
reductions in the Commitments and all other terms and conditions hereof.
Section 1.2. Applicable Interest Rates.
(a) Domestic Rate Loans. Each Domestic Rate Loan made or maintained by
a Bank shall bear interest during each Interest Period that it constitutes a
Domestic Rate Loan (computed on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed) on the unpaid principal amount
thereof from the date such Loan is advanced, continued or created by
conversion from a Eurocurrency Loan until maturity (whether by acceleration
or otherwise) at a rate per annum equal to the Domestic Rate from time to
<PAGE>
time in effect, payable on the last day of the applicable Interest Period and
at maturity (whether by acceleration or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Agent
from time to time as its prime commercial rate, or equivalent,
for U.S. Dollar loans to borrowers located in the United States,
with any change in the Domestic Rate resulting from a change in
said prime commercial rate to be effective as of the date of the
relevant change in said prime commercial rate; and
(ii) the sum of (x) the rate per annum (rounded
upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds
transactions with member banks of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if such day is not a
Business Day, the rate for such day shall be such rate on such
transactions on the immediately preceding Business Day as so
published on the next succeeding Business Day, and (ii) if no
such rate is so published on any such next succeeding Business
Day, the rate for such day shall be the average of the rates
quoted to the Agent by two or more New York or Chicago Federal
funds brokers on such day for such transactions as determined by
the Agent, plus (y) 3/8 of 1% (0.375%).
(b) Eurocurrency Loans. Each Eurocurrency Loan made or maintained by a
Bank shall bear interest during each Interest Period that it constitutes a
Eurocurrency Loan (computed on the basis of a year of 360 days and actual
days elapsed) on the unpaid principal amount thereof from the date such Loan
is advanced, continued or created by conversion from a Domestic Rate Loan
until maturity (whether by acceleration or otherwise) at a rate per annum
equal to the sum of the applicable Eurocurrency Margin plus the Adjusted
LIBOR applicable to such Loan, payable on the last day of the applicable
Interest Period and at maturity (whether by acceleration or otherwise), and,
if the applicable Interest Period is longer than three months, on each day
occurring every three months after the date such Loan is made.
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a
rate per annum determined in accordance with the following formula:
____________LIBOR______________
Adjusted LIBOR = 100% - Eurocurrency Reserve Percentage
"LIBOR" means, with respect to an Interest Period for a Borrowing of
Eurocurrency Loans, the average of the respective rates of interest per
annum, as determined by the Agent (rounded upwards, if necessary, to the
nearest whole multiple of 1/16 of 1%), at which deposits of U.S. Dollars or
the relevant Alternative Currency, as applicable, in immediately available
and freely transferable funds are offered to each of the Reference Banks at
11:00 a.m. (London time) two Business Days prior to the commencement of such
Interest Period by major banks in the eurocurrency interbank market upon
request by each such Reference Bank for a period equal to such Interest
-2-
<PAGE>
Period and in an amount equal to the principal amount of the Eurocurrency
Loan scheduled to be advanced, continued or created by conversion from a
Domestic Rate Loan by such Reference Bank as part of such Borrowing.
"Eurocurrency Reserve Percentage" means, for any Borrowing of
Eurocurrency Loans, the daily average for the applicable Interest Period of
the maximum rate at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are imposed during such
Interest Period by the Board of Governors of the Federal Reserve System (or
any successor) on "eurocurrency liabilities", as defined in such Board's
Regulation D (or in respect of any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency
Loans is determined or any category of extension of credit or other assets
that include loans by non-United States offices of any Bank to United States
residents) subject to any amendments of such reserve requirement by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Eurocurrency Loans shall be
deemed to be "eurocurrency liabilities" as defined in Regulation D without
benefit or credit for any prorations, exemptions or offsets under
Regulation D.
"Eurocurrency Margin" means for each Eurocurrency Loan: (i) 0.250%
per annum for any day Level I Status exists, (ii) 0.375% per annum for any
day Level II Status exists, (iii) 0.500% per annum for any day Level III
Status exists, and (iv) 1.000% per annum for any day Level IV Status exists;
provided that for any day the aggregate outstanding Original Dollar Amount of
the Loans is greater than 50% of the Commitments then in effect, the
Eurocurrency Margin shall be an additional 0.125% per annum for each day
Level I Status, Level II Status or Level III Status exists and shall be an
additional 0.250% per annum for each day Level IV Status exists.
(c) Rate Quotations. Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated by this Section.
If any Reference Bank does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or, if no such quotation
is provided on a timely basis, the provisions of Section 11.2 shall apply.
(d) Rate Determinations. The Agent shall determine each interest
rate applicable to the Loans hereunder and the Original Dollar Amount of each
Loan hereunder, and its determination thereof shall be conclusive and binding
except in the case of manifest error or willful misconduct. The Original
Dollar Amount of each Eurocurrency Loan shall be determined or redetermined,
as applicable, effective as of the first day of each Interest Period
applicable to such Loan.
Section 1.3. Minimum Borrowing Amounts. Each Borrowing of Committed
Loans at any time outstanding shall be in an amount not less than an Original
Dollar Amount of U.S. $10,000,000.
Section 1.4. Manner of Borrowing Committed Loans and Designating
Interest Rates Applicable to Loans.
-3-
<PAGE>
(a) Notice to the Agent. The Borrower shall give notice to the Agent
by no later than 9:00 a.m. (Chicago time) (i) at least four (4) Business Days
before the date on which the Borrower requests the Banks to advance a
Borrowing of Eurocurrency Loans denominated in an Alternative Currency, (ii)
at least three (3) Business Days before the date on which the Borrower
requests the Banks to advance a Borrowing of Eurocurrency Loans denominated
in U.S. Dollars and (iii) on the date the Borrower requests the Banks to
advance a Borrowing of Domestic Rate Loans. The Loans included in each
Borrowing shall bear interest initially at the type of rate specified in such
notice of a new Borrowing. Thereafter, the Borrower may from time to time
elect to change or continue the type of interest rate borne by each Borrowing
or, subject to Section 1.3's minimum amount requirement for each outstanding
Borrowing, a portion thereof, as follows: (i) if such Borrowing is of
Eurocurrency Loans, on the last day of the Interest Period applicable
thereto, the Borrower may continue part or all of such Borrowing as
Eurocurrency Loans for an Interest Period or Interest Periods specified by
the Borrower or, if such Eurocurrency Loan is denominated in U.S. Dollars,
convert part or all of such Borrowing into Domestic Rate Loans, (ii) if such
Borrowing is of Domestic Rate Loans, on any Business Day, the Borrower may
convert all or part of such Borrowing into Eurocurrency Loans denominated in
U.S. Dollars for an Interest Period or Interest Periods specified by the
Borrower. The Borrower shall give all such notices requesting the advance,
continuation, or conversion of a Borrowing to the Agent by telephone or
telecopy (which notice shall be irrevocable once given and, if by telephone,
shall be promptly confirmed in writing). Notices of the continuation of a
Borrowing of Eurocurrency Loans denominated in U.S. Dollars for an additional
Interest Period or of the conversion of part or all of a Borrowing of
Eurocurrency Loans denominated in U.S. Dollars into Domestic Rate Loans or of
Domestic Rate Loans into Eurocurrency Loans must be given by no later than
9:00 a.m. (Chicago time) at least three (3) Business Days before the date of
the requested continuation or conversion. Notices of the continuation of a
Borrowing of Eurocurrency Loans denominated in an Alternative Currency must
be given no later than 9:00 a.m. (Chicago time) at least four (4) Business
Days before the requested continuation. All such notices concerning the
advance, continuation, or conversion of a Borrowing shall specify the date of
the requested advance, continuation or conversion of a Borrowing (which shall
be a Business Day), the amount of the requested Borrowing to be advanced,
continued, or converted, the type of Loans to comprise such new, continued or
converted Borrowing and, if such Borrowing is to be comprised of Eurocurrency
Loans, the currency and Interest Period applicable thereto. The Borrower
agrees that the Agent may rely on any such telephonic or telecopy notice
given by any person it in good faith believes is an Authorized Representative
without the necessity of independent investigation, and in the event any such
notice by telephone conflicts with any written confirmation, such telephonic
notice shall govern if the Agent has acted in reliance thereon.
(b) Notice to the Banks. The Agent shall give prompt telephonic or
telecopy notice to each of the Banks of any notice from the Borrower received
pursuant to Section 1.4.(a) above. The Agent shall give notice to the
Borrower and each Bank by like means of the interest rate applicable to each
Borrowing of Eurocurrency Loans (unless such Borrowing is a Borrowing of
Swing Line Loans in which case such notice shall only be given to the
Borrower and the Bank or Banks making such Swing Line Loans) and, if such
Borrowing (including a Borrowing of Swing Line Loans) is denominated in an
Alternative Currency, shall give notice by such means to the Borrower and
each Bank of the Original Dollar Amount thereof.
-4-
<PAGE>
(c) Borrower's Failure to Notify. Any outstanding Borrowing of
Domestic Rate Loans shall, subject to Section 8.2 hereof, automatically be
continued for an additional Interest Period on the last day of its then
current Interest Period unless the Borrower has notified the Agent within the
period required by Section 1.4(a) that it intends to convert such Borrowing
into a Borrowing of Eurocurrency Loans or notifies the Agent within the
period required by Section 3.3(a) that it intends to prepay such Borrowing.
In the event the Borrower fails to give notice pursuant to Section 1.4(a)
above of the continuation or conversion of any outstanding principal amount
of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars before the
last day of its then current Interest Period within the period required by
Section 1.4(a) and has not notified the Agent within the period required by
Section 3.3(a) that it intends to prepay such Borrowing, such Borrowing shall
automatically be converted into a Borrowing of Domestic Rate Loans, subject
to Section 8.2 hereof. In the event the Borrower fails to give notice
pursuant to Section 1.4(a) above of the continuation of any outstanding
principal amount of a Borrowing of Eurocurrency Loans denominated in an
Alternative Currency before the last day of its then current Interest Period
within the period required by Section 1.4(a) and has not notified the Agent
within the period required by Section 3.3(a) that it intends to prepay such
Borrowing, such Borrowing shall automatically be continued as a Borrowing of
Eurocurrency Loans in the same Alternative Currency with an Interest Period
of one month, subject to Section 8.2 hereof, including the restrictions
contained in the definition of Interest Period.
(d) Disbursement of Loans. Not later than 11:00 a.m. (Chicago time)
on the date of any requested advance of a new Borrowing of Eurocurrency
Loans, and not later than 12:00 noon (Chicago time) on the date of any
requested advance of a new Borrowing of Domestic Rate Loans, subject to
Section 8 hereof, each Bank (or, in the case of a Swing Line Loan, the Bank
or Banks making such Swing Line Loan) shall make available its Loan
comprising part of such Borrowing in funds immediately available at the
principal office of the Agent in Chicago, Illinois, except that if such
Borrowing is denominated in an Alternative Currency each Bank (or each Bank
participating in any such Borrowing of Swing Line Loans) shall make available
its Loan comprising part of such Borrowing at such office as the Agent has
previously notified to each Bank, in such funds then customary for the
settlement of international transactions in such currency and no later than
such local time as is necessary for such funds to be received and transferred
to the Borrower for same day value on the date of the Borrowing. The Agent
shall make available to the Borrower Loans denominated in U.S. Dollars at the
Agent s principal office in Chicago, Illinois and Loans denominated in
Alternative Currencies at such office as the Agent has previously notified
the Borrower, in each case in the type of funds received by the Agent from
the Banks.
SECTION 2. THE SWING LINE LOANS.
Section 2.1. The Swing Line Loans. The Borrower may request any Bank
to make uncommitted loans denominated in currencies other than U.S. Dollars
(each a "Swing Line Loan" and collectively the "Swing Line Loans") in amounts
such that the Original Dollar Amount of (i) all Swing Line Loans outstanding
hereunder shall not exceed U.S. $20,000,000 and (ii) all Committed Loans and
Swing Line Loans at any time outstanding hereunder shall not exceed the
Commitments of the Banks then in effect. Each Bank may, but shall have no
-5-
<PAGE>
obligation to, make Swing Line Loans; provided that the aggregate Original
Dollar Amount of Swing Line Loans outstanding from any Bank, when added to
the aggregate Original Dollar Amount of Committed Loans outstanding from such
Bank, does not exceed such Bank's Commitment. Each Swing Line Loan shall be
a Eurocurrency Loan subject to Section 1.2(b) hereof and the other terms and
provisions hereof applicable to Eurocurrency Loans other than the provisions
of Section 1.1 applicable only to Committed Loans and the provisions of
Section 1.4(a) and (c).
Section 2.2. Notices. No later than 9:00 a.m. (Chicago time) on the
date three (3) Business Days prior to any Borrowing of Swing Line Loans, the
Borrower shall give telephonic or telecopy notice to the Agent (which notice,
if by telephone, shall be promptly confirmed by telecopy or other written
notice) of the Bank making each Swing Line Loan, the currency and principal
amount of such Swing Line Loan, and the Interest Period of such Swing Line
Loan.
Section 2.3. The Participating Interests. Upon the occurrence of an
Event of Default and the acceleration of the maturity of the Notes pursuant
to Section 10.2 or 10.3 hereof, if any Swing Line Loans are then outstanding,
each Bank shall purchase a pro rata interest, (based on the Commitment of
each Bank hereunder (whether used or unused, and if then terminated pursuant
to Section 10, as in effect immediately before such termination)) in the
Swing Line Loans of each other Bank, in the currency of such Swing Line Loan
so that, after giving effect to such adjustment, the outstanding principal
amount of Loans of all the Banks, calculated using quotations of the U.S.
Dollar Equivalent of such Swing Line Loans received on the date of
acceleration, shall be pro rata based on the Banks' Commitments. Such
purchase price shall be paid in the respective currencies of such Swing Line
Loans.
The several obligations of the Banks under this Section 2.3 shall be
absolute, irrevocable and unconditional under any and all circumstances
whatsoever and shall not be subject to any set-off, counterclaim or defense
to payment which any Bank may have or have had against the Borrower, any
other Bank or any other Person whatever. Without limiting the generality of
the foregoing, such obligations shall not be affected by any Default or Event
of Default or by any reduction or termination of the Commitments of any Bank,
and each payment made by a Bank under this Section 2.3 shall be made without
any offset, abatement, withholding or reduction whatsoever.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS; REDUCTION OF
COMMITMENTS.
Section 3.1. Interest Periods. As provided in Section 1.4 hereof, in
the case of Committed Loans, and Section 2.2 hereof, in the case of Swing
Line Loans, at the time of each request to advance, continue, or create
through conversion a Borrowing of Eurocurrency Loans, the Borrower shall
select an Interest Period applicable to such Loans from among the available
options. The term "Interest Period" means the period commencing on the date
a Borrowing is made, continued, or created through conversion and ending:
(a) in the case of Domestic Rate Loans, on the last day of the calendar
quarter in which such Borrowing is advanced, continued, or created by
conversion (i.e. the first to occur thereafter of March 31, June 30,
-6-
<PAGE>
September 30, and December 31); (b) in the case of Eurocurrency Loans which
are Committed Loans, 1, 2, 3, 6, or, if available from all the Banks, 9
months thereafter, as the Borrower may select; and (c) in the case of
Eurocurrency Loans which are Swing Line Loans, the date, 1, 2, or 3 months
thereafter as the Borrower may select; provided, however, that:
(a) any Interest Period for a Borrowing of Domestic
Rate Loans commencing less than 90 days before the Termination
Date shall end on the Termination Date;
(b) with respect to any Borrowing of Eurocurrency
Loans, the Borrower may not select an Interest Period that
extends beyond the Termination Date;
(c) whenever the last day of any Interest Period
would otherwise be a day that is not a Business Day, the last day
of such Interest Period shall be extended to the next succeeding
Business Day, provided that, if such extension would cause the
last day of an Interest Period for a Borrowing of Eurocurrency
Loans to occur in the following calendar month, the last day of
such Interest Period shall be the immediately preceding Business
Day; and
(d) for purposes of determining an Interest Period
for a Borrowing of Eurocurrency Loans, a month means a period
starting on one day in a calendar month and ending on the
numerically corresponding day in the next calendar month;
provided, however, that if there is no numerically corresponding
day in the month in which such an Interest Period is to end or if
such an Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last
Business Day of the calendar month in which such Interest Period
is to end.
Section 3.2. Maturity of Loans. Each Committed Loan shall mature and
become due and payable by the Borrower on the Termination Date. Each Swing
Line Loan shall mature and become due and payable by the Borrower on the last
day of the Interest Period applicable thereto.
Section 3.3. Prepayments.
(a) Loans. The Borrower shall have the privilege of prepaying
without premium or penalty and in whole or in part (but, if in part, then:
(i) if such Borrowing is denominated in U.S. Dollars, in an amount not less
than U.S. $10,000,000 and in integral multiples of U.S. $1,000,000, (ii) if
such Borrowing is denominated in an Alternative Currency, an amount for which
the U.S. Dollar Equivalent is not less than U.S. $10,000,000 and (iii) in an
amount such that the minimum amount required for a Borrowing pursuant to
Section 1.3 hereof remains outstanding) any Borrowing of Loans at any time
upon three Business Days', in the case of Eurocurrency Loans, or one Business
Day s, in the case of Domestic Rate Loans, prior notice to the Agent (which
shall advise each Bank thereof promptly thereafter), such prepayment to be
made by the payment of the principal amount to be prepaid and accrued
-7-
<PAGE>
interest thereon to the date fixed for prepayment and, in the case of
Eurocurrency Loans, any compensation required by Section 3.7 hereof.
(b) Reborrowings. Any amount paid or prepaid before the Termination
Date may, subject to the terms and conditions of this Agreement, be borrowed,
repaid and borrowed again.
Section 3.4. Default Rate. If any payment of principal on any Loan is
not made when due (whether by acceleration or otherwise), such Loan shall
bear interest (computed on the basis of a year of 360 days and actual days
elapsed) from the date such payment was due until paid in full, payable on
demand, at a rate per annum equal to:
(a) with respect to any Domestic Rate Loan, the sum of
two percent (2%) plus the Domestic Rate from time to time in
effect; and
(b) with respect to any Eurocurrency Loan, the sum of
two percent (2%) plus the rate of interest in effect thereon at
the time of such default until the end of the Interest Period
applicable thereto and, thereafter, if such Loan is denominated
in U.S. Dollars, at a rate per annum equal to the sum of two
percent (2%) plus the Domestic Rate from time to time in effect
or, if such Loan is denominated in an Alternative Currency, at a
rate per annum equal to the sum of the Eurocurrency Margin, plus
two (2%) plus the rate of interest per annum as determined by the
Agent (rounded upwards, if necessary, to the nearest whole
multiple of one-sixteenth of one percent (1/16%) at which
overnight or weekend deposits of the appropriate currency (or, if
such amount due remains unpaid more than three Business Days,
then for such other period of time not longer than six months as
the Agent may elect in its absolute discretion) for delivery in
immediately available and freely transferable funds would be
offered by the Agent to major banks in the interbank market upon
request of such major banks for the applicable period as
determined above and in an amount comparable to the unpaid
principal amount of any such Eurocurrency Loan (or, if the Agent
is not placing deposits in such currency in the interbank market,
then the Agent's cost of funds in such currency for such period).
Section 3.5. The Notes. (a) Each Loan made to the Borrower by a Bank
shall be evidenced by a single promissory note of the Borrower issued to such
Bank in the form of Exhibit A hereto. Each such promissory note is
hereinafter referred to as a "Note" and collectively such promissory notes
are referred to as the "Notes."
(b) Each Bank shall record on its books and records or on a schedule
to its Note the amount of each Loan advanced, continued, or converted by it,
all payments of principal and interest and the principal balance from time to
time outstanding thereon, the type of such Loan, and, in respect of any
Eurocurrency Loan, the Interest Period, the currency in which such Loan is
denominated, and the interest rate applicable thereto; provided that prior to
the transfer of any Note all such amounts shall be recorded on a schedule to
such Note. The record thereof, whether shown on such books and records of a
-8-
<PAGE>
Bank or on a schedule to any Note, shall be prima facie evidence as to all
such matters; provided, however, that the failure of any Bank to record any
of the foregoing or any error in any such record shall not limit or otherwise
affect the obligation of the Borrower to repay all Loans made to it hereunder
together with accrued interest thereon. At the request of any Bank and upon
such Bank tendering to the Borrower the Note to be replaced, the Borrower
shall furnish a new Note to such Bank to replace any outstanding Note, and at
such time the first notation appearing on a schedule on the reverse side of,
or attached to, such Note shall set forth the aggregate unpaid principal
amount of all Loans, if any, then outstanding thereon.
Section 3.6. Commitment Terminations. The Borrower shall have the
right at any time and from time to time, upon five (5) Business Days' prior
written notice to the Agent, to terminate the Commitments, in whole or in
part, without premium or penalty, any partial termination to be in an amount
not less than U.S. $10,000,000 or any larger amount that is an integral
multiple of U.S. $1,000,000, and to reduce ratably the Commitments of the
Banks; provided that the Commitments may not be reduced to an amount less
than the Original Dollar Amount of Loans then outstanding. Any termination
of Commitments pursuant to this Section 3.6 may not be reinstated.
Section 3.7. Funding Indemnity. In the event any Bank shall incur any
loss, cost or expense (including, without limitation, any loss of profit, and
any loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Bank to fund or
maintain any Eurocurrency Loan or the relending or reinvesting of such
deposits or amounts paid or prepaid to such Bank) as a result of:
(a) any payment, prepayment or conversion of a
Eurocurrency Loan on a date other than the last day of its
Interest Period,
(b) any failure (because of a failure to meet the
conditions of Section 8 or otherwise) by the Borrower to borrow
or continue a Eurocurrency Loan, or to convert a Domestic Rate
Loan into a Eurocurrency Loan, on the date specified in a notice
given pursuant to Section 1.4 or 2.2 hereof,
(c) any failure by the Borrower to make any payment of
principal on any Eurocurrency Loan when due (whether by
acceleration or otherwise), or
(d) any acceleration of the maturity of a Eurocurrency
Loan as a result of the occurrence of any Event of Default
hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any
Bank makes such a claim for compensation, it shall provide to the Borrower,
with a copy to the Agent, a certificate executed by an officer of such Bank
setting forth the amount of such loss, cost or expense in reasonable detail
(including an explanation of the basis for and the computation of such loss,
cost or expense) and the amounts shown on such certificate if reasonably
calculated shall be conclusive.
-9-
<PAGE>
SECTION 4. FEES.
Section 4.1. Facility Fee. The Borrower shall pay to the Agent for
the ratable account of the Banks a facility fee (computed on the basis of a
year of 365 or 366 days, as the case may be, and the actual number of days
elapsed) on the average daily amount of the Commitments hereunder (whether
used or unused) at a rate of (i) 0.1500% per annum for each day Level I
Status exists, (ii) 0.1875% per annum for each day Level II Status exists,
(iii) 0.2500% per annum for each day Level III Status exists, and (iv)
0.5000% per annum for each day Level IV Status exists. Such fee shall be
payable in arrears on the last day of each calendar quarter, commencing
September 30, 1993, and on the Termination Date, unless the Commitments are
terminated in whole on an earlier date, in which event the facility fees for
the period to the date of such termination in whole shall be paid on the date
of such termination. If any Bank fails to fund a Loan at a time when,
pursuant to Section 8 hereof, it is obligated to fund such Loan, it shall not
accrue a facility fee hereunder until it cures such default by funding such
Loan. The Borrower shall not be obligated to pay such Bank's portion of the
facility fee otherwise payable under this Section 4.1 if it notifies the
Agent of such Bank's default and of the amount of the facility fee thereby
not earned by such defaulting Bank. If the Agent receives any payment of the
facility fee hereunder from which an amount has been so deducted as provided
above, the Agent shall be entitled to not remit to any Bank identified by the
Borrower as such a defaulting Bank its pro rata share of the portion of the
facility fee not earned by such Bank as notified by the Borrower as provided
above.
Section 4.2. Closing Fee. On the date hereof, the Borrower shall pay
to the Agent for the account of the Banks signatory hereto a closing fee
equal to (i) for each Bank with a Commitment of U.S. $8,333,333 or less,
0.10% of such Bank's Commitment and (ii) for each Bank with a Commitment
greater than U.S. $8,333,333, 0.12% of such Bank's Commitment.
Section 4.3. Agent Fees. The Borrower shall pay to the Agent and
Co-Agent the fees agreed to between the Agent and the Borrower.
SECTION 5. PLACE AND APPLICATION OF PAYMENTS.
Section 5.1. Place and Application of Payments. All payments of
principal of and interest on the Loans and all payments of facility fees and
all other amounts payable under this Agreement shall be made to the Agent by
no later than 12:00 noon (Chicago time) at the principal office of the Agent
in Chicago, Illinois (or such other location in the State of Illinois as the
Agent may designate to the Borrower) or, if such payment is to be made in an
Alternative Currency, no later than 12:00 noon local time at the place of
payment to such office as the Agent has previously notified the Borrower for
the benefit of the Person or Persons entitled thereto. Any payments received
after such time shall be deemed to have been received by the Agent on the
next Business Day. All such payments shall be made (i) in lawful money of
the United States of America, in immediately available funds at the place of
payment, or (ii) in the case of amounts payable hereunder in an Alternative
Currency, in such Alternative Currency in such funds then customary for the
settlement of international transactions in such currency, in each case
without setoff or counterclaim. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest on
-10-
<PAGE>
Committed Loans or fees ratably to the Banks and like funds relating to the
payment of any other amount payable to any Bank to such Bank, in each case to
be applied in accordance with the terms of this Agreement.
SECTION 6. DEFINITIONS; INTERPRETATION.
Section 6.1. Definitions. The following terms when used herein have
the following meanings:
"Adjusted LIBOR" is defined in Section 1.2(b) hereof.
"Agent" means Bank of Montreal, acting through its Chicago Branch, and
any successor pursuant to Section 12.8 hereof.
"Alternative Currency" means Pounds Sterling, Deutsche Marks, French
Francs, Australian Dollars, Canadian Dollars, Italian Lire and any other
currency requested by the Borrower as an "Alternative Currency" hereunder
which is available to each Bank as confirmed by the Agent to the Borrower
after consultation with the Banks.
"Authorized Officer" means each Authorized Representative and in any
case shall include the Chief Financial Officer, Treasurer, and any Assistant
Treasurer, or, in each case, any other officer performing comparable duties
however designated.
"Authorized Representative" means any of Jerry A. Schiller, Executive
Vice President and Chief Financial Officer, Thomas C. Ringgenberg, Vice
President and Treasurer, and Mark S. Ayers, Assistant Treasurer, as shown on
the list of officers provided by the Borrower pursuant to Section 8.1(c)
hereof, or any other person shown on any updated list provided by the
Borrower to the Agent, or any further or different officer(s) or employee(s)
of the Borrower so named by any Authorized Representative of the Borrower in
a written notice to the Agent.
"Bank" means each bank signatory hereto or that becomes a Bank
hereunder pursuant to Section 13.12 hereof.
"Borrower" means Maytag Corporation, a Delaware corporation.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different
type into such type by one or more Banks on a single date and for a single
Interest Period. Borrowings of Committed Loans are made and maintained
ratably from each of the Banks according to their Commitments. Borrowings of
Swing Line Loans are made from a Bank or Banks in accordance with Section 2
hereof. A Borrowing is "advanced" on the day Banks advance funds comprising
such Borrowing to the Borrower, is "continued" on the date a new Interest
Period for the same type of Loans commences for such Borrowing, and is
"converted" when such Borrowing is changed from one type of Loans to the
other, all as requested by the Borrower pursuant to Section 1.4(a) or, in the
-11-
<PAGE>
case of the "advance" of Swing Line Loans, as agreed between the Borrower and
the relevant Bank or Banks pursuant to Section 2.1.
"Business Day" means any day other than a Saturday or Sunday on which
Banks are not authorized or required to close in Chicago, Illinois or New
York, New York and, if the applicable Business Day relates to the borrowing
or payment of a Eurocurrency Loan, on which banks are dealing in U.S. Dollar
deposits or the relevant Alternative Currency in the interbank market in
London, England and, if the applicable Business Day relates to the borrowing
or payment of a Eurocurrency Loan denominated in an Alternative Currency, on
which banks and foreign exchange markets are open for business in the city
where disbursements of or payments on such Loans are to be made.
"Capital Lease" means at any date any lease of Property which in
accordance with GAAP at the time in effect would be required to be
capitalized on the balance sheet of the lessee.
"Capital Lease Obligations" of a Person means the amount of the
obligations of such Person under Capital Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Change of Control" is defined in Section 10.1(h) hereof.
"Co-Agent" means Royal Bank of Canada.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" is defined in Section 1.1 hereof.
"Committed Loan" is defined in Section 1.1 hereof.
"Consolidated Income Before Interest and Taxes" means, for any fiscal
quarter, determined on a consolidated basis for the Borrower and its
Subsidiaries in accordance with GAAP, (i) earnings (not including any gains
or losses from discontinued operations) before income taxes for such fiscal
quarter, plus (ii) Consolidated Interest Expense for such fiscal quarter.
"Consolidated Indebtedness" means all Indebtedness of the Borrower and
its Subsidiaries of the types described in clauses (i), (ii), (iii) and (v)
of the definition of "Indebtedness," determined (without duplication) on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, for any fiscal quarter of the
Borrower and its Subsidiaries, an amount equal to interest expense on
Consolidated Indebtedness, as determined in accordance with GAAP.
-12-
<PAGE>
"Consolidated Net Income" means, for any period, the consolidated net
income of the Borrower and Consolidated Subsidiaries for such period
determined in accordance with GAAP.
"Consolidated Net Worth" means the aggregate amount of the Borrower's
and its Subsidiaries' shareholders' equity as determined from the
consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP; provided, however, that Consolidated Net Worth shall
not be increased or reduced on account of foreign currency translations.
"Consolidated Subsidiary" means any Subsidiary or other entity whose
accounts are required to be consolidated with those of the Borrower in
accordance with GAAP.
"Consolidated Tangible Net Worth" means the aggregate amount of the
Borrower's and its Subsidiaries' shareholders' equity as determined from the
consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP, less the net book value of all assets of the Borrower
and its Subsidiaries which would be treated as intangibles under GAAP,
including, without limitation, deferred charges, leasehold conversion costs,
franchise rights, non-compete agreements, goodwill, unamortized debt
discounts, patents, patent applications, trademarks, trade names, copyrights,
licenses and premiums on purchased assets; provided, however, that
Consolidated Tangible Net Worth shall not be increased or reduced on account
of foreign currency translations.
"Controlled Group" has the same meaning as in Section 414(b) of the
Code.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an
Event of Default.
"Domestic Rate" is defined in Section 1.2(a) hereof.
"Domestic Rate Loan" means a Loan denominated in U.S. Dollars bearing
interest before maturity at the rate specified in Section 1.2(a) hereof.
"ERISA" is defined in Section 7.12 hereof.
"Eurocurrency Loan" means either a Committed Loan or a Swing Line Loan
bearing interest before maturity at the rate specified in Section 1.2(b)
hereof.
"Eurocurrency Margin" is defined in Section 1.2(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.2(b) hereof.
"Event of Default" means any of the events or circumstances specified
in Section 10.1 hereof.
-13-
<PAGE>
"GAAP" means generally accepted accounting principles, from time to
time in effect, consistently applied.
"Guaranty" of a Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes liable upon, the obligation of
any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person or otherwise assures any
creditor of such other Person against loss, including, without limitation,
any comfort letter, operating agreement, take-or-pay contract or letter of
credit.
Indebtedness means for any Person all (i) obligations of such Person
for borrowed money, (ii) obligations of such Person representing the deferred
purchase price of property or services other than accounts payable for
property or other accrued expenses for services, in each case arising in the
ordinary course of business on terms customary in the trade, (iii)
obligations of such Person evidenced by notes, acceptances, or other
instruments of such Person, (iv) obligations, whether or not assumed, secured
by Liens on, or payable out of the proceeds or production from, Property now
or hereafter owned or acquired by such Person, (v) Capital Lease Obligations
of such Person and (vi) obligations for which such Person is obligated
pursuant to a Guaranty.
"Interest Period" is defined in Section 3.1 hereof.
"Lending Office" is defined in Section 11.4 hereof.
"Level I Status" means the S&P Rating is greater than BBB+ and the
Moody's Rating is greater than Baa1.
"Level II Status" means Level I Status does not exist, but the S&P
Rating is BBB or higher and the Moody's Rating is Baa2 or higher.
"Level III Status" means neither Level I Status, nor Level II Status
exists, but the S&P Rating is BBB- or higher and the Moody's Rating is Baa3
or higher.
"Level IV Status" means the S&P Rating is less than BBB- or the
Moody's Rating is less than Baa3 or either such rating is suspended,
withdrawn or otherwise not provided.
"LIBOR" is defined in Section 1.2(b) hereof.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, including, but not
limited to, the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale, security agreement or trust receipt, or a lease,
consignment or bailment for security purposes. The term "Lien" shall also
include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting Property. For the purposes of this definition, a
Person shall be deemed to be the owner of any Property which it has acquired
-14-
<PAGE>
or holds subject to a conditional sale agreement, Capital Lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes, and such retention of
title shall constitute a "Lien."
"Loan" means and includes Committed Loans and Swing Line Loans, and
each of them singly, and the term "type" of Loan refers to its status as a
Committed Loan or Swing Line Loan, or, if a Committed Loan, to its status as
a Domestic Rate Loan or Eurocurrency Loan.
"Margin Stock" means "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Plan" is defined in Section 10.1(f) hereof.
"Material Subsidiary" means any Subsidiary of the Borrower except a
Subsidiary that (i) is incorporated outside the United States, and (ii) has
neither (a) assets with a book value in excess of U.S. $5,000,000 nor (b)
annual revenues for the most recently completed calendar year in excess of
U.S. $5,000,000.
"Moody's Rating" means the rating assigned by Moody's Investors
Service, Inc. to the outstanding senior unsecured non-credit enhanced
long-term indebtedness of the Borrower. Any reference in this Agreement to
any specific rating is a reference to such rating as currently defined by
Moody's Investors Service, Inc. and shall be deemed to refer to the
equivalent rating if such rating system changes.
"Note" is defined in Section 3.5(a) hereof.
"Original Dollar Amount" means the amount of any Loan denominated in
U.S. Dollars and, in relation to any Loan denominated in an Alternative
Currency, the U.S. Dollar Equivalent of such Loan on the day it is advanced
or continued for an Interest Period.
"PBGC" is defined in Section 7.12 hereof.
"Person" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof.
"Plan" means with respect to the Borrower and each Subsidiary at any
time an employee pension benefit plan which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code and
either (i) is maintained by a member of the Controlled Group for employees of
a member of the Controlled Group of which the Borrower or such Subsidiary is
a part, (ii) is maintained pursuant to a collective bargaining agreement or
any other arrangement under which more than one employer makes contributions
and to which a member of the Controlled Group of which the Borrower or such
Subsidiary is a part is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
or (iii) under which a member of the Controlled Group of which the Borrower
or such Subsidiary is a part has any liability, including any liability by
-15-
<PAGE>
reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years or by
reason of being deemed a contributing sponsor under Section 4069 of ERISA.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now owned
or hereafter acquired.
"Reference Banks" means Bank of Montreal and Royal Bank of Canada.
"Required Banks" means as of the date of determination thereof, Banks
holding at least 66-2/3% of the Commitments or, in the event that no
Commitments are outstanding hereunder, Banks holding at least 66-2/3% in
aggregate principal amount of the Loans outstanding hereunder.
"Security" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"SEC" means the Securities and Exchange Commission.
"Set-Off" is defined in Section 13.7 hereof.
"S&P Rating" means the rating assigned by Standard & Poor's
Corporation to the outstanding senior unsecured non-credit enhanced long-term
indebtedness of the Borrower. Any reference in this Agreement to any
specific rating is a reference to such rating as currently defined by
Standard & Poor's Corporation and shall be deemed to refer to the equivalent
rating if such rating system changes.
"Subsidiary" means any corporation or other entity of which more than
fifty percent (50%) of the outstanding Voting Stock, in the case of a
corporation, or comparable equity interests having ordinary voting power for
the election of the governing body of such non-corporate entity is at the
time directly or indirectly owned by the Borrower, by one or more of its
Subsidiaries, or by the Borrower and one or more of its Subsidiaries.
"Swing Line Loan" is defined in Section 2.1 hereof.
"Termination Date" means June 24, 1994.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair market
value of all Plan assets allocable to such benefits, all determined as of the
then most recent ongoing actuarial valuation date for such Plan.
"Unused Commitment" means as to each Bank, the difference between such
Bank's Commitment and the Original Dollar Amount of all outstanding Loans of
such Bank.
-16-
<PAGE>
"U.S. Dollars" and the sign "U.S.$" means the lawful currency of the
United States of America.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which would
be realized by converting an Alternative Currency into U.S. Dollars in the
spot market at the exchange rate quoted by the Agent, at approximately 11:00
a.m. (London time) two Business Days prior to the date on which a computation
thereof is required to be made, to major banks in the interbank foreign
exchange market for the purchase of U.S. Dollars for such Alternative
Currency.
"U.S. Taxes" is defined in Section 13.1(c) hereof.
"Voting Stock" of any Person means capital stock of any class or
classes (however designated) having ordinary voting power for the election of
directors of such Person, other than stock having such power only by reason
of the happening of a contingency.
"Welfare Plan" means a "welfare plan," as said term is defined in
Section 3(1) of ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the
Borrower means a Subsidiary of which all of the issued and outstanding shares
of stock (other than directors' qualifying shares as required by law) are
owned by the Borrower and/or one or more of its Wholly-Owned Subsidiaries.
Section 6.2. Interpretation. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms
defined. All references to times of day herein shall be references to
Chicago, Illinois time unless otherwise specifically provided. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other accounting
computation is required to be made for the purposes of this Agreement, the
same shall be done in accordance with GAAP, to the extent applicable, except
where such principles are inconsistent with the specific provisions of this
Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks as follows:
Section 7.1. Organization and Qualification. The Borrower is duly
organized and validly existing in good standing under the laws of the State
of Delaware, has full and adequate corporate power to carry on its business
as now conducted, is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or
qualified and in good standing would not have a material adverse effect on
the financial condition or Property, business or operations of the Borrower
and the Consolidated Subsidiaries taken as a whole.
-17-
<PAGE>
Section 7.2. Subsidiaries. As of the date hereof, the only
Subsidiaries of the Borrower are designated in Exhibit B hereto; each
Subsidiary is a corporation duly organized and validly existing in good
standing under the laws of the jurisdiction in which it was incorporated, has
full and adequate corporate power to carry on its business as now conducted,
and is duly licensed or qualified and in good standing in each jurisdiction
in which the nature of the business transacted by it or the nature of the
Property owned or leased by it makes such licensing or qualification
necessary, except where the failure to be so licensed or qualified and in
good standing would not have a material adverse effect on the financial
condition or Property, business or operations of the Borrower and the
Consolidated Subsidiaries taken as a whole. Exhibit B hereto, as from time
to time updated pursuant to Section 9.5(e), correctly sets forth, as to each
Subsidiary required to be listed thereon, whether or not it is a Consolidated
Subsidiary, the jurisdiction of its incorporation, the percentage of issued
and outstanding shares of each class of its capital stock owned by the
Borrower and the Subsidiaries and, if such percentage is not 100% (excluding
directors' qualifying shares as required by law or nominal ownership by other
shareholders required by local law for a non-U.S. Subsidiary), a description
of each class of its authorized capital stock and the number of shares of
each class issued and outstanding. All of the issued and outstanding shares
of capital stock of each Subsidiary are validly issued and outstanding and
fully paid and nonassessable and all such shares indicated in Exhibit B as
owned by the Borrower or a Subsidiary are owned, beneficially and of record,
by the Borrower or such Subsidiary, free of any Lien.
Section 7.3. Corporate Authority and Validity of Obligations. The
Borrower has full right and authority to enter into this Agreement, to make
the borrowings herein provided for, to issue its Notes in evidence thereof
and to perform all of its obligations hereunder and under the Notes; this
Agreement and each Note delivered by the Borrower have been duly authorized,
executed and delivered by the Borrower and constitute valid and binding
obligations of the Borrower enforceable in accordance with their terms,
except insofar as enforceability may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
this Agreement and the Notes do not, nor does the performance or observance
by the Borrower or any Subsidiary of any of the matters or things therein
provided for, contravene any provision of law or any charter or by-law
provision of the Borrower or any Subsidiary or any material covenant,
indenture or agreement of or affecting the Borrower or any Subsidiary or a
substantial portion of their respective Properties.
Section 7.4. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
Section 7.5. Margin Stock. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock, and neither the Borrower nor any of its Subsidiaries will use
the proceeds of any Loan in a manner that violates any provision of
Regulation U, G or X of the Board of Governors of the Federal Reserve System.
-18-
<PAGE>
Section 7.6. Financial Reports. The consolidated statement of
financial condition of the Borrower and the Consolidated Subsidiaries as at
December 31, 1992 and the related statements of consolidated income and
consolidated cash flows of the Borrower and the Consolidated Subsidiaries for
the year then ended and accompanying notes thereto, which financial
statements are accompanied by the report of Ernst & Young, independent public
accountants, and the unaudited condensed statement of consolidated financial
condition of the Borrower and the Consolidated Subsidiaries as at March 31,
1993 and the related condensed statements of consolidated income and
consolidated cash flows of the Borrower and the Consolidated Subsidiaries for
the three months then ended and accompanying notes, heretofore furnished to
the Banks, fairly present the consolidated financial conditions of the
Borrower and the Consolidated Subsidiaries as at such dates and the
consolidated results of their operations and their consolidated cash flows
for the periods then ended in conformity with GAAP.
Section 7.7. No Material Adverse Change. Since March 31, 1993 to the
date hereof, there has been no material adverse change in the condition,
financial or otherwise, or business prospects of the Borrower and the
Consolidated Subsidiaries taken as a whole.
Section 7.8. Litigation. There is no litigation or governmental
proceeding pending, nor to the knowledge of the Borrower threatened, against
the Borrower or any Consolidated Subsidiary which if adversely determined
would (a) in any material way impair the validity or enforceability of, or
materially impair the ability of the Borrower to perform its obligations
under, this Agreement or the Notes or (b) other than as previously disclosed
in writing to the Banks, result in any material adverse change in the
financial condition or Property, business or operations of the Borrower and
the Consolidated Subsidiaries taken as a whole.
Section 7.9. Tax Returns. The consolidated United States federal
income tax returns of the Borrower for the taxable year ended December 31,
1986 and for all taxable years ended prior to said date have been examined by
the Internal Revenue Service and have been approved as filed, and any
additional assessments in connection with any of such years have been paid or
the applicable statute of limitations therefor has expired. There are no
assessments in respect of the consolidated United States federal income tax
returns of the Borrower and the Consolidated Subsidiaries of a material
nature for any taxable year ended after December 31, 1986 pending, nor to the
knowledge of the Borrower is any such assessment threatened, other than for
those which are provided for by adequate reserves.
Section 7.10. Approvals. No authorization, consent, license, exemption
or filing or registration with any court or governmental department, agency
or instrumentality, or any approval or consent of the stockholders of the
Borrower or from any other Person, is necessary to the valid execution,
delivery or performance by the Borrower of this Agreement or the Notes.
Section 7.11. Liens. There are no Liens on any of the Property of the
Borrower or any Subsidiary, except those which are permitted by Section 9.13
hereof.
-19-
<PAGE>
Section 7.12. ERISA. The Borrower and each Subsidiary are in
compliance in all material respects with the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), to the extent applicable to them
and have received no notice to the contrary from the Pension Benefit Guaranty
Corporation ("PBGC") or any other governmental entity or agency. As of
December 31, 1992 there were no Unfunded Vested Liabilities of Plans
maintained by the Borrower and its Subsidiaries. No condition exists or
event or transaction has occurred with respect to any Plan which could
reasonably be expected to result in the incurrence by the Borrower or any
Subsidiary of any material liability, fine or penalty. Except as disclosed
to the Agent in writing, neither the Borrower nor any Subsidiary has any
contingent liability with respect to any post-retirement benefits under a
Welfare Plan, other than liability for continuation coverage described in
Part 6 of Title I of ERISA.
Section 7.13. Compliance with Environmental Laws. (a) The business and
operation of the Borrower and its Subsidiaries comply in all respects with
all applicable federal, state, regional, county and local laws, statutes,
rules, regulations and ordinances relating to public health, safety or the
environment, including, without limitation, relating to releases, discharges,
emissions or disposals to air, water, land or groundwater, to the withdrawal
or use of groundwater, to the use, handling or disposal of polychlorinated
biphenyls (PCB's), asbestos or urea formaldehyde, to the treatment, storage,
disposal or management of hazardous substances (including, without
limitation, petroleum, its by-products or derivatives, or other
hydrocarbons), to exposure to toxic, hazardous, or other controlled,
prohibited or regulated substances, to the transportation, storage, disposal,
management or release of gaseous or liquid substances, and any regulation,
order, injunction, judgment, declaration, notice or demand issued thereunder,
except to the extent that such noncompliance in the aggregate would not (i)
impair the validity or enforceability of, or materially impair the ability of
the Borrower to perform its obligations under, this Agreement or the Notes or
(ii) result in any material adverse change in the financial condition or
Property, business or operations of the Borrower and the Consolidated
Subsidiaries taken as a whole.
(b) The Borrower has not given, nor is it obligated to give, nor has
it received, any notice, letter, citation, order, warning, complaint,
inquiry, claim or demand that: (i) the Borrower has violated, or is about to
violate, any federal, state, regional, county or local environmental, health
or safety statute, law, rule, regulation, ordinance, judgment or order; (ii)
there has been a release, or there is a threat of release (other than, in
either case, a federally permitted release), of hazardous substances
(including, without limitation, petroleum, its by-products or derivatives, or
other hydrocarbons) from the Borrower's property, facilities, equipment or
vehicles (whether now or heretofore owned); (iii) the Borrower may be or is
liable, in whole or in part, for the costs of cleaning up, remediating or
responding to a release of hazardous substances (including, without
limitation, petroleum, its by-products or derivatives, or other
hydrocarbons); or (iv) any of the Borrower's property or assets are subject
to a Lien in favor of any governmental entity for any liability, costs or
damages, under any federal, state, regional, county or local environmental
law, rule or regulation arising from, or costs incurred by such governmental
entity in response to, a release of a hazardous substance (including, without
limitation, petroleum, its by-products or derivatives, or other
hydrocarbons), except to the extent that such violation, release, liability
or Lien could not (A) impair the validity or enforceability of, or materially
-20-
<PAGE>
impair the ability of the Borrower to perform its obligations under, this
Agreement or the Notes or (B) result in any material adverse change in the
financial condition or Property, business or operations of the Borrower and
the Consolidated Subsidiaries taken as a whole, and provided that, in the
case of a Lien, such Lien does not violate Section 9.13 hereof.
SECTION 8. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan
hereunder shall be subject to the following conditions precedent:
Section 8.1. Initial Borrowing. Prior to the advance of the initial
Borrowing hereunder:
(a) The Agent shall have received for each Bank the
favorable written opinion of Sidley & Austin, counsel to the
Borrower, in substantially the form of Exhibit C hereto, and of
Edward H. Graham, Vice President and General Counsel of the
Borrower, in substantially the form of Exhibit D hereto, and
otherwise in form and substance satisfactory to the Required
Banks;
(b) The Agent shall have received for each Bank
certified copies of resolutions of the Board of Directors of the
Borrower and of a Special Committee thereof, together authorizing
the execution and delivery of this Agreement and the Notes,
indicating the authorized signers of this Agreement and the Notes
and all other documents relating thereto and the specimen
signatures of such signers; and
(c) The Agent shall have received from the Borrower a
list of its Authorized Representatives and the closing fee
required by Section 4.2 hereof.
Section 8.2. All Loans. As of the time of the advance, continuation,
or conversion of each Borrowing hereunder (including the initial Borrowing):
(a) The Agent shall have received for each Bank the
Notes of the Borrower and the notice required by Section 1.4 or
2.2 hereof;
(b) Each of the representations and warranties of the
Borrower set forth in Section 7 hereof shall be true and correct
as of said time, except that any such representation or warranty
that expressly relates solely to an earlier date need only be
true and correct as of such date;
(c) The Borrower shall be in full compliance with all of
the terms and conditions hereof, and no Default or Event of
Default shall have occurred and be continuing or would occur as a
result of the advance, continuation, or conversion of such
Borrowing;
(d) After giving effect to the advance, continuation, or
conversion of such Borrowing the aggregate amount of all
indebtedness for borrowed money of the Borrower and its
-21-
<PAGE>
Subsidiaries will not exceed any limit on such indebtedness then
established by the Board of Directors of the Borrower; and
(e) After giving effect to the advance, continuation or
conversion of such Borrowing (i) the Original Dollar Amount of
all Loans outstanding hereunder shall not exceed the Commitments
then in effect and (ii) the Original Dollar Amount of all Loans
outstanding from each Bank shall not exceed such Bank's
Commitment; and
(f) Such Borrowing shall not violate any order, judgment
or decree of any court or other authority or any provision of law
or regulation applicable to any Bank (including, without
limitation, Regulation U of the Board of Governors of the Federal
Reserve System) as then in effect, provided that if any such
circumstances affect fewer than all the Banks then the unaffected
Banks shall not be relieved of their obligations to continue or
convert their Loans that form part of such Borrowing.
Each request for a Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing as
to the facts specified in paragraphs (b), (c) and (d) of this Section 8.2.
If any conditions contained in this Section 8.2 are not fulfilled for a
Borrowing on the last day of its Interest Period, notwithstanding Section 3.2
hereof, such Borrowing shall be due and payable on the last day of its
Interest Period.
SECTION 9. COVENANTS.
The Borrower agrees that, so long as any Note is outstanding hereunder
or any credit is available to or in use by the Borrower hereunder except to
the extent compliance in any case or cases is waived in writing by the
Required Banks:
Section 9.1. Corporate Existence. The Borrower shall, and shall cause
each Subsidiary to, preserve and maintain its corporate existence, subject to
the provisions of Section 9.9 hereof.
Section 9.2. Maintenance. The Borrower will maintain, preserve and
keep its plants, properties and equipment necessary to the proper conduct of
its business in reasonably good repair, working order and condition and will
from time to time make all reasonably necessary repairs, renewals,
replacements, additions and betterments thereto so that at all times such
plants, properties and equipment shall be reasonably preserved and
maintained, and will cause each Subsidiary so to do in respect of Property
owned or used by it; provided, however, that nothing in this Section shall
prevent the Borrower or a Subsidiary from discontinuing the operation or
maintenance of any such properties if such discontinuance is, in the judgment
of the Borrower, desirable in the conduct of its business or the business of
the Subsidiary and not disadvantageous in any material respect to the Banks
or the holders of the Notes.
Section 9.3. Taxes. The Borrower will duly pay and discharge, and
will cause each Subsidiary to pay and discharge, all taxes, rates,
assessments, fees and governmental charges upon or against the Borrower or
-22-
<PAGE>
such Subsidiary or against their respective Properties, in each case before
the same becomes delinquent and before penalties accrue thereon, unless and
to the extent that the same is being contested in good faith and by
appropriate proceedings and adequate reserves are provided therefor.
Section 9.4. Insurance. The Borrower will insure, and keep insured,
and will cause each Subsidiary to insure, and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is
of a character usually insured by companies similarly situated and operating
like Property; and to the extent usually insured (subject to self-insured
retentions) by companies similarly situated and conducting similar
businesses, the Borrower will also insure, and cause each Subsidiary to
insure, employers' and public and product liability risks with good and
responsible insurance companies. The Borrower will upon request of the Agent
furnish a summary setting forth the nature and extent of the insurance
maintained pursuant to this Section 9.4.
Section 9.5. Financial Reports and Other Information. The Borrower
will, and will cause each Consolidated Subsidiary to, maintain a standard
system of accounting in accordance with GAAP and will furnish to the Banks
and their respective duly authorized representatives such information
respecting the business and financial condition of the Borrower and the
Subsidiaries as may be reasonably requested; and without any request will
furnish to each Bank:
(a) within 50 days after the end of each of the first
three quarterly fiscal periods of the Borrower, a copy of the
Borrower's Form 10-Q Report filed with the SEC;
(b) within 120 days after the end of each fiscal year of
the Borrower, a copy of the Borrower s Form 10-K Report filed
with the SEC, including a copy of the annual report of the
Borrower and the Consolidated Subsidiaries for such year with
accompanying financial statements, prepared by the Borrower and
certified by Ernst & Young or any other independent public
accountants of recognized national standing selected by the
Borrower, in accordance with GAAP;
(c) promptly after the sending or filing thereof, copies
of all proxy statements, financial statements and reports which
the Borrower sends to its shareholders, and copies of all other
regular, periodic and special reports and all registration
statements which the Borrower files with the SEC or any successor
thereto, or with any national securities exchange; and
(d) as promptly as possible, and in any event within one
Business Day after an Authorized Officer has knowledge thereof,
notice of (i) any change in the S&P Rating or the Moody's Rating
and (ii) any Default or Event of Default; and
(e) an updated Exhibit B along with the financial
statements delivered under subsection (a) or (b) above, as
applicable, for any calendar quarter during which there is a
-23-
<PAGE>
change in any of the facts specified in Exhibit B hereto, as then
most recently updated.
(f) the Borrower will permit each Bank to visit and
inspect, under the Borrower's guidance, any of the Properties of
such Borrower or any Subsidiary, to examine all their books of
account and records, to make copies and abstracts therefrom, and
to discuss the Borrower's and its Subsidiaries' respective
affairs, finances and accounts with such officers or employees as
the Borrower may designate for such purpose, all at such
reasonable times as may be reasonably requested; provided that
unless a Default or an Event of Default exists, all such
inspections shall be at the expense of the Bank or Banks making
such inspections.
Each of the financial statements furnished to the Banks pursuant to
subsections (a) and (b) of this Section 9.5 shall be accompanied by a written
certificate signed by the chief financial officer of the Borrower to the
effect that (i) to the best of the knowledge and belief of the signer thereof
no Default or Event of Default has occurred during the period covered by such
statements or, if any such Default or Event of Default has occurred during
such period, setting forth a description of such Default or Event of Default
and specifying the action, if any, taken by the Borrower to remedy the same,
(ii) the representations and warranties contained in Section 7 hereof are
true and correct as though made on the date of such certificate, except as
otherwise described, (iii) the Borrower is in compliance with all covenants
contained in Section 9 hereof, and (iv) a compliance certificate in the form
of Exhibit E hereto showing the calculations necessary to determine
compliance with Sections 9.6 through 9.8 hereof. In the event the Borrower
is no longer required to file Form 10Q and 10K Reports with the SEC, the
Borrower will nevertheless furnish to the Banks at the time hereinabove set
forth all the financial and other information that would have comprised such
filings.
Section 9.6. Consolidated Tangible Net Worth. The Borrower will at
all times maintain Consolidated Tangible Net Worth in an amount not less
than:
(i) U.S. $260,000,000 from the date hereof to and
including September 29, 1993,
(ii) U.S. $270,000,000 from September 30, 1993 to and
including December 30, 1993,
(iii) U.S. $275,000,000 from December 31, 1993 to and
including March 30, 1994, and
(iv) thereafter, U.S. $275,000,000 plus, on a cumulative
basis for each fiscal quarter, from the last day of each fiscal
quarter during the Borrower s 1994 fiscal year, 33.33% of
Consolidated Net Income, if positive, earned during the fiscal
quarter ending on such date.
-24-
<PAGE>
Section 9.7. Leverage Ratio. The Borrower will, as of the last day of
each fiscal quarter of the Borrower, maintain a ratio of Consolidated
Indebtedness to the sum of Consolidated Indebtedness plus Consolidated Net
Worth of not more than:
(i) 0.635 to 1.00 as of the last day of each fiscal
quarter of the Borrower during the Borrower's 1993 fiscal year,
and
(ii) 0.600 to 1.00 as of the last day of each fiscal
quarter thereafter.
Section 9.8. Interest Coverage Ratio. The Borrower will, as of the
last day of each fiscal quarter of the Borrower, maintain the ratio of
Consolidated Income Before Interest and Taxes to Consolidated Interest
Expense of not less than:
(i) 1.50 to 1.00 for the fiscal quarter of the Borrower
ending June 30, 1993,
(ii) 1.50 to 1.00 for the two most recently completed
fiscal quarters of the Borrower ending September 30, 1993,
(iii) 1.75 to 1.00 for the three most recently completed
fiscal quarters of the Borrower ending December 31, 1993,
(iv) 1.75 to 1.00 for the four most recently completed
fiscal quarters of the Borrower ending March 31, 1994, and
(v) thereafter through June 30, 1994, 2.00 to 1.00 for
the four most recently completed fiscal quarters of the Borrower
ending on the last day of such fiscal quarter.
Section 9.9. Mergers, Consolidations, Leases, and Sales.' The
Borrower:
(a) will not be a party to any merger or consolidation
unless the Borrower is the surviving corporation;
(b) except as permitted in Subsection (c) hereof, will
not permit any Consolidated Subsidiary to be a party to any
merger or consolidation unless the Consolidated Subsidiary is the
surviving corporation and remains a Consolidated Subsidiary after
the merger or consolidation, except any Consolidated Subsidiary
may merge into the Borrower or a Wholly-Owned Consolidated
Subsidiary and except that this subsection (b) shall not prohibit
any merger where the Consolidated Subsidiary is not the surviving
corporation if, after giving effect to such merger, the surviving
corporation is a Wholly-Owned Consolidated Subsidiary; and
(c) will not, and will not permit any Consolidated
Subsidiary to, sell, assign, lease or otherwise transfer to any
Person other than the Borrower or one or more Consolidated
Subsidiaries any Properties (including, without limitation, any
capital stock of any Consolidated Subsidiary) other than in the
ordinary course of its business as conducted on the date hereof,
unless such sale, assignment, lease or transfer is for a
-25-
<PAGE>
consideration not less than the fair market value thereof and
unless, after giving effect to such sale, assignment, lease or
transfer, the aggregate proceeds to the Borrower and the
Consolidated Subsidiaries of all such sales, assignments, leases
and transfers (other than in the ordinary course of its business
as conducted on the date hereof) shall not exceed 10% of the
Borrower's consolidated assets as shown on the Borrower's
December 31, 1992 financial statements described in Section 7.6
hereof.
Section 9.10. Change of Control. If a Change of Control shall occur,
the Borrower will, within 1 Business Day after the Borrower becomes aware of
the occurrence thereof, give the Agent notice thereof and describe in
reasonable detail the facts and circumstances giving rise thereto.
Section 9.11. ERISA. The Borrower will promptly pay and discharge all
obligations and liabilities arising under ERISA of a character which if
unpaid or unperformed might result in the imposition of a Lien against any of
its properties or assets and will promptly notify the Agent of (i) the
occurrence of any reportable event (as defined in ERISA) with respect to a
Plan, other than any such event of which the PBGC has waived notice by
regulation, (ii) receipt of any notice from PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (iii) its or
any Subsidiary's intention to terminate or withdraw from any Plan, and (iv)
the occurrence of any event with respect to any Plan which could result in
the incurrence by the Borrower or any Subsidiary of any material liability,
fine or penalty, or any material increase in the contingent liability of the
Borrower or any Subsidiary with respect to any post-retirement Welfare Plan
benefit.
Section 9.12. Conduct of Business. The Borrower will not engage in any
business if, as a result, the general nature of the business which would then
be engaged in by the Borrower would be substantially changed from the general
nature of the business engaged in by the Borrower on the date of this
Agreement.
Section 9.13. Liens. The Borrower will not nor will it permit any
Subsidiary to create, incur, permit to exist or to be incurred any Lien of
any kind on any Property owned by the Borrower or any Subsidiary; provided,
however, that this Section 9.13 shall not apply to nor operate to prevent:
(a) Liens existing as of the date of this Agreement
(which in the aggregate secure less than U.S. $10,000,000 in
indebtedness and other liabilities and which in the aggregate
apply to Property constituting less than 5% of the Borrower's
consolidated assets);
(b) Liens in connection with worker's compensation,
unemployment insurance, old age benefits, social security
obligations, taxes, assessments, statutory obligations or other
similar charges, good faith deposits in connection with tenders,
contracts or leases to which the Borrower or any Subsidiary is a
party (other than contracts for borrowed money), or other
deposits required to be made in the ordinary course of business;
provided that in each case the obligation secured is not overdue
-26-
<PAGE>
or, if overdue, is being contested in good faith by appropriate
proceedings and adequate reserves have been established therefor;
(c) mechanics', workmen's, materialmen's, landlords',
carriers' or other similar Liens arising in the ordinary course
of business with respect to obligations which are not due or
which are being contested in good faith by appropriate
proceedings and adequate reserves have been established therefor;
(d) Liens arising out of judgments or awards against the
Borrower or any Subsidiary with respect to which the Borrower or
such Subsidiary shall be prosecuting an appeal or proceeding for
review and with respect to which it shall have obtained a stay of
execution pending such appeal or proceeding for review; provided
that the aggregate amount of liabilities (including interest and
penalties, if any) of the Borrower and the Subsidiaries secured
by such Liens shall not exceed U.S. $25,000,000 at any one time
outstanding;
(e) Liens for property taxes not yet subject to
penalties for nonpayment, or survey exceptions, encumbrances,
mineral or royalty reservations, easements or reservations of, or
rights of others for, rights of way, sewers, electric lines, pipe
lines, telegraph and telephone lines and other similar purposes,
or zoning or other restrictions as to the use of its properties,
which exceptions, encumbrances, easements, reservations, rights
and restrictions do not in the aggregate materially detract from
the value of such properties or materially impair their use in
the operation of the business of the Borrower and its
Subsidiaries;
(f) Liens upon any Property acquired by the Borrower or
any Subsidiary after the date hereof (A) to secure the payment of
all or any part of the purchase price of such Property upon the
acquisition thereof by the Borrower or such Subsidiary, or (B) to
secure any indebtedness issued, assumed or guaranteed by the
Borrower or any Subsidiary prior to, at the time of, or within
270 days after the acquisition of such Property, which
indebtedness is issued, assumed or guaranteed for the purpose of
financing all or any part of the purchase price of such Property,
provided that in the case of any such acquisition the Lien shall
not apply to any Property other than the Property so acquired or
purchased;
(g) Liens of or upon any Property existing at the time
of acquisition thereof by the Borrower or any Subsidiary and not
created in contemplation of such acquisition;
(h) Liens of or upon any Property of a corporation
existing at the time such corporation is merged with or into or
consolidated with the Borrower or any Subsidiary or existing at
the time of a sale or transfer of the properties of a corporation
(or division thereof) as an entirety or substantially as an
entirety to the Borrower or any Subsidiary and not created in
contemplation of such transaction;
(i) Liens to secure indebtedness of any Subsidiary to
the Borrower or to another Subsidiary;
-27-
<PAGE>
(j) Liens in favor of the United States of America or
any State thereof, or any department, agency or instrumentality
or political subdivision of the United States of America or any
State thereof, or in favor of any other country or political
subdivision, to secure partial, progress, advance or other
payments pursuant to any contract or statute or to secure any
indebtedness incurred or guaranteed for the purpose of financing
or refinancing all or any part of the purchase price of the
Property subject to such Liens, or the cost of constructing or
improving the Property subject to such mortgages (including,
without limitation, mortgages incurred in connection with
pollution control, industrial revenue or similar financings); or
(k) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
Lien referred to in the foregoing paragraphs (a) through (j),
inclusive, provided, however, that the principal amount of
indebtedness secured thereby shall not exceed the principal
amount of indebtedness so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement shall be limited to the Property which was subject to
the Lien so extended, renewed or replaced.
Section 9.14. Use of Proceeds; Margin Stock. (a) The Borrower shall
only use the proceeds of the Loans for general corporate purposes.
(b) The Borrower shall not directly or indirectly use the proceeds of
any of the Loans to purchase or carry any Margin Stock, and at no time will
Margin Stock constitute 25% or more of the assets of the Borrower or of the
consolidated assets of the Borrower and the Subsidiaries.
Section 9.15. Compliance with Laws. Without limiting any of the other
covenants of the Borrower in this Section 9, the Borrower will, and will
cause each of its Subsidiaries to, conduct its business, and otherwise be, in
compliance with all applicable laws, regulations, ordinances and orders of
any governmental or judicial authorities, non-compliance with which would (a)
in any material way impair the validity or enforceability or the ability of
the Borrower to perform its obligations under this Agreement or the Notes or
(b) result in any material adverse change in the financial condition or
properties, business or operations of the Borrower and the Consolidated
Subsidiaries taken as a whole; provided, however, that the Borrower or any
Subsidiary shall not be required to comply with any such law, regulation,
ordinance or order if it shall be contesting such law, regulation, ordinance
or order in good faith by appropriate proceedings and adequate reserves, if
appropriate, shall have been established therefor.
SECTION 10. EVENTS OF DEFAULT AND REMEDIES.
Section 10.1. Events of Default. Any one or more of the following
shall constitute an Event of Default:
(a) (i) default in the payment when due of any principal
on any Note or any Loan evidenced thereby, whether at the stated
maturity thereof or at any other time provided in this Agreement;
-29-
<PAGE>
or (ii) default for a period of five days in the payment when due
of interest on any Note or any Loan evidenced thereby or of any
other sums required to be paid pursuant to this Agreement;
(b) default by the Borrower in the observance or
performance of any covenant set forth in Sections 9.6, 9.7, 9.8,
9.9, 9.10, 9.12 or 9.14 hereof;
(c) default by the Borrower in the observance or
performance of any other provision hereof not mentioned in (a) or
(b) above, which is not remedied within 30 days after notice
thereof to the Borrower by the Agent or any Bank;
(d) any representation or warranty made herein by the
Borrower, or in any statement or certificate furnished pursuant
hereto by the Borrower, or in connection with any Loan advanced
hereunder, proves untrue in any material respect as of the date
of the issuance or making thereof;
(e) the Borrower or any Subsidiary shall fail within
thirty (30) days to pay, bond or otherwise discharge any judgment
or order for the payment of money in excess of U.S. $25,000,000,
which is not stayed on appeal or otherwise being appropriately
contested in good faith in a manner that stays enforcement
thereof;
(f) the Borrower or any other member of its Controlled
Group shall fail to pay when due an amount or amounts aggregating
in excess of U.S. $10,000,000 which it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or
notice of intent to terminate a Plan or Plans having aggregate
Unfunded Vested Liabilities in excess of U.S. $10,000,000
(collectively, a "Material Plan") shall be filed under Title IV
of ERISA by the Borrower or any other member of its Controlled
Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted
by a fiduciary of any Material Plan against the Borrower or any
member of its Controlled Group to enforce Section 515 or
4219(c)(5) of ERISA and such proceeding shall not have been
dismissed within thirty (30) days thereafter; or a condition
shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be
terminated;
(g) (A) default shall occur in the payment when due of
any indebtedness for borrowed money issued or assumed by the
Borrower or any Subsidiary aggregating in excess of U.S.
$10,000,000 or the Borrower or any Subsidiary shall default in
the payment of any guaranty of indebtedness in such an amount, or
(B) default shall occur under any indenture, agreement or other
instrument under which any indebtedness for borrowed money of the
Borrower or any Subsidiary may be issued, assumed or guaranteed,
and such default shall continue for a period of time sufficient
to permit the acceleration of the maturity of any such
indebtedness for borrowed money of the Borrower or any Subsidiary
aggregating in excess of U.S. $10,000,000 (whether or not such
maturity is in fact accelerated);
-29-
<PAGE>
(h) any person or group of persons (within the meaning
of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the SEC under said Act) of
20% or more in voting power of the outstanding Voting Stock of
the Borrower (a "Change of Control");
(i) the Borrower or any Material Subsidiary shall (i)
have entered against it an order for relief under the United
States Bankruptcy Code, as amended, (ii) not pay, or admit in
writing its inability to pay, its debts generally as they become
due, (iii) make an assignment for the benefit of creditors, (iv)
apply for, seek, consent to, or acquiesce in, the appointment of
a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any substantial part of its property, (v)
institute any proceeding seeking to have entered against it an
order for relief under the United States Bankruptcy Code, as
amended, to adjudicate it insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or
fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, or (vi) fail
to contest in good faith any appointment or proceeding described
in Section 10.1(j) hereof; or
(j) a custodian, receiver, trustee, examiner, liquidator
or similar official shall be appointed for the Borrower or any
Material Subsidiary or any substantial part of any of their
Property, or a proceeding described in Section 10.1(i)(v) shall
be instituted against the Borrower, and such appointment
continues undischarged or such proceeding continues undismissed
or unstayed for a period of sixty (60) days.
Section 10.2. Non-Bankruptcy Defaults. When any Event of Default other
than those described in Sections 10.1(i) or (j) has occurred and is
continuing, the Agent shall, by notice to the Borrower, (a) if so directed by
the Required Banks, terminate the remaining Commitments of the Banks
hereunder on the date stated in such notice (which may be the date thereof);
and (b) if so directed by the Banks holding Notes evidencing more than
66-2/3% of the aggregate principal amount of all Loans then outstanding,
declare the principal of and the accrued interest on all outstanding Notes of
the Borrower to be forthwith due and payable and thereupon all of said Notes,
including both principal and interest, shall be and become immediately due
and payable together with all other amounts payable under this Agreement
without further demand, presentment, protest or notice of any kind. The
Agent, after giving notice to the Borrower pursuant to Section 10.1 or this
Section 10.2, shall also promptly send a copy of such notice to the other
Banks, but the failure to do so shall not impair or annul the effect of such
notice.
Section 10.3. Bankruptcy Defaults. When any Event of Default described
in subsections (i) or (j) of Section 10.1 hereof has occurred and is
continuing, then all outstanding Notes shall immediately become due and
payable together with all other amounts payable under this Agreement without
presentment, demand, protest or notice of any kind, and the obligation of the
-30-
<PAGE>
Banks to extend further credit pursuant to any of the terms hereof shall
immediately terminate.
Section 10.4. Expenses. The Borrower agrees to pay to the Agent and
each Bank, or any other holder of any Note outstanding hereunder, all
reasonable costs and expenses incurred or paid by the Agent and such Bank or
any such holder, including reasonable attorneys' fees and court costs, in
connection with any Default or Event of Default by the Borrower hereunder or
in connection with the enforcement of any of the terms hereof or of the
Notes.
SECTION 11. CHANGE IN CIRCUMSTANCES.
Section 11.1. Change of Law. Notwithstanding any other provisions of
this Agreement or any Note, if at any time after the date hereof any change
in applicable law or regulation or in the interpretation thereof makes it
unlawful for any Bank to make or continue to maintain Eurocurrency Loans in
any currency or to give effect to its obligations as contemplated hereby,
such Bank shall promptly give notice thereof to the Borrower, with a copy to
the Agent, and such Bank's obligations to make or maintain Eurocurrency Loans
in such currency under this Agreement shall terminate until it is no longer
unlawful for such Bank to make or maintain Eurocurrency Loans in such
currency. The Borrower shall prepay on demand the outstanding principal
amount of any such affected Eurocurrency Loans, together with all interest
accrued thereon and all other amounts then due and payable to such Bank under
this Agreement; provided, however, subject to all of the terms and conditions
of this Agreement, the Borrower may instead elect to convert the principal
amount of the affected Eurocurrency Loan if denominated in U.S. Dollars into
a Domestic Rate Loan from such Bank that shall not be maintained through
conversion ratably by the Banks but only by such affected Bank.
Section 11.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period
for any Borrowing of Eurocurrency Loans:
(a) the Agent is advised by the Reference Banks that
deposits in U.S. Dollars or the applicable Alternative Currency
(in the applicable amounts) are not being offered to the
Reference Banks in the eurocurrency interbank market for such
Interest Period, or that by reason of circumstances affecting the
interbank eurocurrency market adequate and reasonable means do
not exist for ascertaining the applicable LIBOR, or
(b) Banks having 25% or more of the aggregate amount of
the Commitments advise (or, in the case of a Swing Line Loan, a
Bank scheduled to make such a Loan advises) the Agent that (i)
LIBOR as determined by the Agent will not adequately and fairly
reflect the cost to such Banks or Bank of or its funding their
Eurocurrency Loans or Loan for such Interest Period or (ii) that
the making or funding of Eurocurrency Loans in the relevant
currency has become impracticable as a result of an event
occurring after the date of the Agreement which in the opinion of
such Banks or Bank materially affects such Loans,
-31-
<PAGE>
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks
or of the relevant Bank to make Eurocurrency Loans in the currency so
affected shall be suspended.
Section 11.3. Increased Cost and Reduced Return. (a) If on or after
the date hereof, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
any Bank (or its Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or
comparable agency:
(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Eurocurrency
Loans, its Notes or its obligation to make Eurocurrency Loans, or
shall change the basis of taxation of payments to any Bank (or
its Lending Office) of the principal of or interest on its
Eurocurrency Loans or any other amounts due under this Agreement
in respect of its Eurocurrency Loans or its obligation to make
Eurocurrency Loans (except for taxes imposed on or measured by
the overall net income of such Bank or its Lending Office imposed
by the jurisdiction in which such Bank's principal executive
office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement (including, without
limitation, any such requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding with
respect to any Eurocurrency Loans any such requirement included
in an applicable Eurocurrency Reserve Percentage) against assets
of, deposits with or for the account of, or credit extended by,
any Bank (or its Lending Office) or shall impose on any Bank (or
its Lending Office) or on the interbank market any other
condition affecting its Eurocurrency Loans, its Notes or its
obligation to make Eurocurrency Loans;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Eurocurrency Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Lending Office) under this Agreement or under its Notes with respect thereto,
by an amount deemed by such Bank to be material, then, within fifteen (15)
days after demand by such Bank (with a copy to the Agent), the Borrower shall
be obligated to pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If after the date hereof, any Bank shall have determined that the
adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein (including, without limitation, the adoption
of any risk-based capital guidelines, or any revisions thereof, currently
proposed by banking regulators), or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof
-32-
<PAGE>
(including, without limitation, any requirement under existing risk-based
capital guidelines to maintain capital against such Bank's Commitment
hereunder), or compliance by any Bank (or its Lending Office) with any
request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has
or would have the effect of reducing the rate of return on such Bank's
capital, or on the capital of any corporation controlling such Bank, as a
consequence of its obligations hereunder to a level below that which such
Bank could have achieved but for such adoption, change or compliance (taking
into consideration such Bank s policies with respect to capital adequacy) by
an amount deemed by such Bank to be material, then from time to time, within
fifteen (15) days after demand by such Bank (with a copy to the Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such reduction; provided, however, that if a Bank
determines that under risk-based capital guidelines in effect on the date
hereof it becomes required to maintain capital to support its Commitment such
Bank's rights under this Section 11.3(b) shall be solely to give notice of
such requirement to the Borrower and Agent, whereupon such Bank s Commitment
shall terminate 30 days after such notice unless by such time the Borrower
has agreed to increase the facility fee payable hereunder to the rate of
"facility fee" payable under the U.S. $200,000,000 Credit Agreement dated of
even date herewith among the Borrower, the Banks party thereto, and Bank of
Montreal, as Agent (the "Long-Term Agreement"); provided that if any Loans
from such Bank are outstanding at the time its Commitment is so terminated,
the Borrower shall have the right to require that the Commitment of such Bank
remain in effect in the amount of such outstanding Loans and thereafter
continue to remain in effect in the aggregate amount of all unpaid Loans of
such Bank that remain outstanding hereunder; provided, however, that any
repayment of such Bank's outstanding Loans shall automatically reduce the
amount of the Commitment of such Bank by the amount of such repayment and any
Commitment of such Bank so remaining in effect shall continue to accrue a
facility fee at the rate set forth in Section 4.1 hereof. Notwithstanding
the foregoing, if Banks holding 50% or more of the Commitments determine that
under existing risk-based capital guidelines they are required to maintain
capital against their Commitments hereunder, then the facility fee payable
under Section 4.1 hereof shall automatically increase to equal the rate for
the "facility fee" payable under the Long-Term Agreement and no Bank shall
have the right to terminate its Commitment as a result of such capital
requirement.
(c) Each Bank that suspends its obligation to advance or maintain
Eurocurrency Loans under Section 11.1 hereof, determines to seek compensation
under this Section 11.3, or becomes entitled to receive additional amounts
under Section 13.1(c) hereof shall notify the Borrower and the Agent of the
circumstances that entitle the Bank to such right pursuant to any of such
Sections and will designate a different Lending Office if such designation
will avoid such situation or, in the case of Sections 11.3 and 13.1, reduce
the amount of compensation payable thereunder, and will not, in the judgment
of such Bank, be otherwise disadvantageous to such Bank. A certificate of
any Bank claiming compensation under this Section 11.3 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive
if reasonably determined. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
-33-
<PAGE>
Section 11.4. Lending Offices. Each Bank may, at its option, elect to
make its Loans hereunder at the branch, office or affiliate specified on the
appropriate signature page hereof (each a "Lending Office") for each type of
Loan available hereunder or at such other of its branches, offices or
affiliates or an international banking facility created by such Bank to make
such Loan as it may from time to time elect and designate in a notice to the
Borrower and the Agent; provided, however, that in such event such Loan shall
be deemed to have been made by such Bank from its relevant Lending Office for
such Loans, and the obligation of the Borrower to repay such Loan shall
nevertheless be to such Bank and shall be deemed to be held by such Bank, to
the extent of such Loan, for the account of such branch, office, affiliate or
international banking facility.
Section 11.5. Discretion of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in
any manner it sees fit, it being understood, however, that for the purposes
of this Agreement all determinations hereunder shall be made as if each Bank
had actually funded and maintained each Eurocurrency Loan through the
purchase of deposits in the eurocurrency interbank market having a maturity
corresponding to such Loan's Interest Period and bearing an interest rate
equal to LIBOR for such Interest Period.
Section 11.6. Substitution of Bank. If (a) any Bank has demanded
compensation or given notice of its intention to demand compensation under
Section 11.3 or (b) the Borrower is required to pay any additional amount to
any Bank pursuant to Section 13.1, and in any such case the Required Banks
are not in the same situation, the Borrower shall have the right, with the
assistance of the Agent if desired, to seek a substitute bank or banks
reasonably satisfactory to the Agent (which may be one or more of the Banks)
to replace such Bank under this Agreement. The Bank to be so replaced shall
cooperate with the Borrower and substitute bank to accomplish such
substitution on the terms of Section 13.12 hereof, provided that such Bank's
entire Commitment is replaced, and the U.S. $2,500 fee payable under
Section 13.12 shall not be payable in connection with any such assignment
required under this Section 11.6.
SECTION 12. THE AGENT.
Section 12.1. Appointment and Authorization. Each Bank hereby
irrevocably appoints Bank of Montreal its Agent under this Agreement and
hereby authorizes the Agent to take such action as Agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto.
Section 12.2. Agent and Affiliates. The Agent shall have the same
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent, and each
Agent and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary
or affiliate of the Borrower as if it were not the Agent hereunder. The term
Bank as used herein, unless the context otherwise clearly requires, includes
the Agent in its individual capacity as a Bank. References in Section 1
hereof to the Agent's Loans, or to the amount owing to the Agent for which an
-34-
<PAGE>
interest rate is being determined, refer to the Agent in its individual
capacity as a Bank.
Section 12.3. Action by Agent. Except for action expressly required of
the Agent hereunder, the Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless the Agent shall be indemnified to
its reasonable satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. In all cases in which this Agreement does not require the
Agent to take certain actions, the Agent shall be fully justified in using
their discretion in failing to take or in taking any action hereunder.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Event of Default, except as
expressly provided in Section 10.2. The Agent shall not be deemed to have
knowledge of any Default or Event of Default until it receives written notice
thereof from the Borrower or a Bank specifically identified as a "notice of
default." The Agent shall be acting as an independent contractor hereunder
and nothing herein shall be deemed to impose on the Agent any fiduciary
obligations to the Banks or the Borrower.
Section 12.4. Consultation with Experts. The Agent may consult with
legal counsel, independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
Section 12.5. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or not taken by it in connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified
in Section 8, except receipt of items required to be delivered to the Agent;
or (iv) the validity, effectiveness or genuineness of this Agreement, the
Notes or any other instrument or writing furnished in connection herewith.
The Agent shall not incur any liability by acting in reliance upon any
notice, consent, certificate, request or statement, (whether written or oral)
or other documents believed by it to be genuine or to be signed by the proper
party or parties and, in the case of legal matters, in relying on the advice
of counsel (including counsel for the Borrower). The Agent may treat the
Banks that are named herein as the holders of the Notes and the indebtedness
contemplated herein unless and until the Agent receive notice of the
assignment of the Note and the indebtedness held by a Bank hereunder pursuant
to an assignment contemplated by Section 13.12 hereof.
Section 12.6. Indemnification. Each Bank shall, ratably in accordance
with its Commitments (or, if the Commitments have been terminated in whole,
ratably in accordance with its outstanding Loans), indemnify the Agent, its
directors, officers, and employees (to the extent not reimbursed by the
Borrower) against any cost, expense (including counsels' fees and
disbursements), claim, demand, action, loss, obligation, damages, penalties,
judgments, suits or liability (except such as result from the Agent's gross
-35-
<PAGE>
negligence or willful misconduct) that any of them may suffer or incur in
connection with this Agreement or any action taken or omitted by any of them
hereunder.
Section 12.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under this Agreement.
Section 12.8. Resignation of Agent and Successor Agent. Subject to the
appointment and acceptance of a successor Agent as provided below, the Agent
may resign at any time by giving written notice thereof to the Banks and the
Borrower, and the Required Banks may remove the Agent, with the consent of
the Borrower, at any time. Upon any such resignation or removal of the
Agent, the Required Banks shall have the right to appoint, with the consent
of the Borrower, a successor Agent. If no successor Agent shall have been so
appointed by the Required Banks, and shall have accepted such appointment,
within thirty (30) days after the retiring Agent's giving of notice of
resignation or receiving notice of its removal, then the retiring Agent may,
on behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
U.S. $200,000,000. Upon the acceptance of its appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Section 12 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent.
Section 12.9. Payments. Unless the Agent shall have been notified by a
Bank prior to the date on which such Bank is scheduled to make payment to the
Agent of the proceeds of a Loan (which notice shall be effective upon
receipt) that such Bank does not intend to make such payment, the Agent may
assume that such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make available
to the Borrower the proceeds of the Loan to be made by such Bank and, if any
Bank has not in fact made such payment to the Agent, such Bank shall, on
demand, pay to the Agent the amount made available to the Borrower
attributable to such Bank together with interest thereon in respect of each
day during the period commencing on the date such amount was made available
to the Borrower and ending on (but excluding) the date such Bank pays such
amount to the Agent at a rate per annum equal to the Federal Funds Rate. If
such amount is not received from such Bank by the Agent immediately upon
demand, the Borrower will, on demand, repay to the Agent the proceeds of the
Loan attributable to such Bank with interest thereon at a rate per annum
equal to the interest rate applicable to the relevant Loan, but without such
payment being considered a payment or prepayment of a Loan, so that the
-36-
<PAGE>
Borrower will have no liability under Section 3.7 hereof with respect to such
payment. "Federal Funds Rate" shall mean the rate described in
Section 1.2(a)(ii) hereof.
Section 12.10. Co-Agent. Nothing in this Agreement shall impose any
obligation on Royal Bank of Canada in its capacity as Co-Agent hereunder.
SECTION 13. MISCELLANEOUS.
Section 13.1. Withholding Taxes.
(a) U.S. Withholding Tax Exemptions. Each Bank that is not a United
States person (as such term is defined in Section 7701(a)(30) of the Code)
shall submit to the Borrower and the Agent on or before the date the initial
Borrowing is made hereunder, two duly completed and signed copies of either
Form 1001 (relating to such Bank and entitling it to a complete exemption
from withholding on all amounts to be received by such Bank, including fees,
pursuant to this Agreement and the Loans) or Form 4224 (relating to all
amounts to be received by such Bank, including fees, pursuant to this
Agreement and the Loans) of the United States Internal Revenue Service.
Thereafter and from time to time, each such Bank shall submit to the Borrower
and the Agent such additional duly completed and signed copies of one or the
other of such Forms (or such successor forms as shall be adopted from time to
time by the relevant United States taxing authorities) as may be (i) notified
by the Borrower or Agent to such Bank and (ii) required under then-current
United States law or regulations to avoid or reduce United States withholding
taxes on payments in respect of all amounts to be received by such Bank,
including fees, pursuant to this Agreement or the Loans. Upon the request of
the Borrower or Agent, each Bank that is a United States person (as such term
is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower a
certificate to the effect that it is such a United States person.
(b) Inability of Bank to Submit Forms. If any Bank determines, as a
result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit
to the Borrower any form or certificate that such Bank is obligated to submit
pursuant to subsection (a) of this Section 13.1, or that such Bank is
required to withdraw or cancel any such form or certificate previously
submitted or any such form or certificate otherwise become ineffective or
inaccurate, such Bank shall promptly notify the Borrower and Agent of such
fact and the Bank shall to that extent not be obligated to provide any such
form or certificate and will be entitled to withdraw or cancel any affected
form or certificate, as applicable.
(c) Payment of Additional Amounts. If, as a result of any change in
applicable law, regulation or treaty, or in any official application or
interpretation thereof, the Borrower is required by law or regulation to make
any deduction, withholding or backup withholding of any taxes, levies,
imposts, duties, fees, liabilities or similar charges of the United States of
America, any possession or territory of the United States of America
(including the Commonwealth of Puerto Rico) or any area subject to the
jurisdiction of the United States of America ("U.S. Taxes") from any payments
to a Bank in respect of Loans then or thereafter outstanding, or other
amounts owing hereunder, the amount payable by the Borrower will be increased
to the amount which, after deduction from such increased amount of all U.S.
Taxes required to be withheld or deducted therefrom, will yield the amount
-37-
<PAGE>
required under this Agreement to be payable with respect thereto; provided
that the Borrower shall not be required to pay any additional amount pursuant
to this subsection (c) to any Bank that (i) is not, on the date this
Agreement is executed by such Bank, either (x) entitled to submit Form 1001
relating to such Bank and entitling it to a complete or partial exemption
from withholding on all amounts to be received by such Bank, including fees,
pursuant to this Agreement and the Loans (and in the case of a Bank that on
such date is only entitled to present a Form 1001 entitling it to a partial
exemption from such withholding the Borrower shall in no event be required to
make any such additional payment beyond the value of the partial exemption to
which such Bank was originally entitled) or Form 4224 relating to all amounts
to be received by such Bank, including fees, pursuant to this Agreement and
the Loans or (y) a U.S. person (as such term is defined in
Section 7701(a)(30) of the Code), or (ii) has failed to submit any form or
certificate that it was required to file pursuant to subsection (a) of this
Section 13.1 and entitled to file under applicable law, or (iii) is no longer
entitled to submit Form 1001 or Form 4224 as a result of any change in
circumstances other than a change in applicable law, regulation or treaty or
in any official application or interpretation thereof. Within 30 days after
the Borrower's payment of any such U.S. Taxes, the Borrower shall deliver to
the Agent, for the account of the relevant Bank(s), originals or certified
copies of official tax receipts evidencing such payment. The obligations of
the Borrower under this subsection (c) shall survive the payment in full of
the Loans and the termination of the Commitments.
Section 13.2. No Waiver of Rights. No delay or failure on the part of
any Bank or on the part of the holder or holders of any Note in the exercise
of any power or right shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise thereof
preclude any other or further exercise of any other power or right, and the
rights and remedies hereunder of the Banks and of the holder or holders of
any Notes are cumulative to, and not exclusive of, any rights or remedies
which any of them would otherwise have.
Section 13.3. Non-Business Day. If any payment of principal or
interest on any Loan or of any fee hereunder shall fall due on a day which is
not a Business Day, interest at the rate such Loan bears for the period prior
to maturity or at the rate such fee accrues shall continue to accrue from the
stated due date thereof to and including the next succeeding Business Day, on
which the same shall be payable.
Section 13.4. Documentary Taxes. The Borrower agrees that it will pay
any documentary, stamp or similar taxes payable in respect to this Agreement
or any Note, including interest and penalties, in the event any such taxes
are assessed irrespective of when such assessment is made and whether or not
any credit is then in use or available hereunder.
Section 13.5. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and of the Notes, and shall
continue in full force and effect with respect to the date as of which they
were made as long as any credit is in use or available hereunder.
Section 13.6. Survival of Indemnities. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
-38-
<PAGE>
limited to, Section 3.7 and Section 11.3 hereof, shall survive the
termination of this Agreement and the payment of the Loans and the Notes.
Section 13.7. Sharing of Set-Off. Each Bank agrees with each other
Bank a party hereto that if on or after the date of the occurrence of an
Event of Default and the acceleration of the maturity of the Notes pursuant
to Section 10.2 or 10.3 hereof such Bank shall receive and retain any
payment, whether by set-off or application of deposit balances or otherwise
("Set-off"), on any of its Loans outstanding under this Agreement in excess
of its ratable share of payments on all Loans then outstanding to the Banks,
then such Bank shall purchase for cash at face value, but without recourse,
ratably from each of the other Banks such amount of the Loans held by each
such other Bank (or interest therein) as shall be necessary to cause such
Bank to share such excess payment ratably with all the other Banks; provided,
however, that if any such purchase is made by any Bank, and if such excess
payment or part thereof is thereafter recovered from such purchasing Bank,
the related purchases from the other Banks shall be rescinded ratably and the
purchase price restored as to the portion of such excess payment so
recovered, but without interest. Each Bank's ratable share of any such
Set-off shall be determined by the proportion that the aggregate amount of
Loans then due and payable to such Bank bears to the total aggregate amount
of the Loans then due and payable to all the Banks.
Section 13.8. Notices. Except as otherwise specified herein, all
notices hereunder shall be in writing (including cable, telecopy or telex)
and shall be given to the relevant party at its address, telecopier number or
telex number set forth below, in the case of the Borrower, or on the
appropriate signature page hereof, in the case of the Banks and the Agent, or
such other address, telecopier number or telex number as such party may
hereafter specify by notice to the Agent and the Borrower, given by United
States certified or registered mail, by telecopy or by other
telecommunication device capable of creating a written record of such notice
and its receipt. Notices hereunder to the Borrower shall be addressed to:
Maytag Corporation
403 West 4th Street, North
Newton, Iowa 50208
Attention: Thomas C. Ringgenberg
Vice President and Treasurer
Telephone: (515) 791-8955
Telecopy: (515) 791-8115
Each such notice, request or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section and a confirmation of such telecopy has been
received by the sender, (ii) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the answerback
is received by sender, (iii) if given by mail, five (5) days after such
communication is deposited in the mail, certified or registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other
means, when delivered at the addresses specified in this Section; provided
that any notice given pursuant to Section 1 or Section 2 hereof shall be
effective only upon receipt.
-39-
<PAGE>
Section 13.9. Counterparts. This Agreement may be executed in any
number of counterparts, and by the different parties on different
counterparts, each of which when executed shall be deemed an original but all
such counterparts taken together shall constitute one and the same
instrument.
Section 13.10. Successors and Assigns. This Agreement shall be binding
upon the Borrower and its successors and assigns, and shall inure to the
benefit of each of the Banks and the benefit of their respective successors
and assigns, including any subsequent holder of any Note. The Borrower may
not assign any of its rights or obligations hereunder without the written
consent of all of the Banks.
Section 13.11 Participants and Note Assignees. Each Bank shall have
the right at its own cost to grant participations (to be evidenced by one or
more agreements or certificates of participation) in the Loans made, and/or
Commitments held, by such Bank at any time and from time to time, and to
assign its rights under such Loans or the Notes evidencing such Loans to one
or more other financial institutions; provided that no such participation or
assignment shall relieve any Bank of any of its obligations under this
Agreement, and provided further that no such assignee or participant shall
have any rights under this Agreement except as provided in this
Section 13.11, and the Agent shall have no obligation or responsibility to
such participant or assignee, except that nothing herein provided is intended
to affect the rights of an assignee of a Note to enforce the Note assigned.
Any party to which such a participation or assignment has been granted shall
have the benefits of Section 3.7 and Section 11.3 hereof but shall not be
entitled to receive any greater payment under either such Section than the
Bank granting such participation or assignment would have been entitled to
receive with respect to the rights transferred. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that
such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the
right to approve any amendment, modification or wavier of any provision of
this Agreement; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this
Agreement that would (A) increase any Commitment of such Bank if such
increase would also increase the participant's obligations, (B) forgive any
amount of or postpone the date for payment of any principal of or interest on
any Loan or of any fee payable hereunder in which such participant has an
interest or (C) reduce the stated rate at which interest or fees accrue or
other amounts payable hereunder in which such participant has an interest.
Section 13.12. Assignment of Commitments by Banks.; Each Bank shall
have the right at any time, with the prior consent of the Borrower and Agent,
to sell, assign, transfer or negotiate all or any part of its Commitment to
one or more commercial banks or other financial institutions. Upon any such
assignment, its notification to the Agent, and the payment of a U.S. $2,500
recordation and administration fee to the Agent (which fee shall in no event
be the obligation of the Borrower), the assignee shall become a Bank
hereunder, all Loans and the Commitment it thereby holds shall be governed by
all the terms and conditions hereof, and the Bank granting such assignment
shall have its Commitment and its obligations and rights in connection
therewith, reduced by the amount of such assignment.
-40-
<PAGE>
Section 13.13. Amendments. Any provision of this Agreement or the Notes
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by (a) the Borrower, (b) the Required Banks, and (c) if
the rights or duties of the Agent are affected thereby, the Agent; provided
that:
(i) no amendment or waiver pursuant to this Section shall
(A) increase any Commitment of any Bank without the consent of
such Bank or (B) forgive any amount of or postpone the date for
payment of any principal of or interest on any Loan or of any fee
payable hereunder or reduce the stated rate at which interest or
fees accrue hereunder without the consent of the Bank to which
such payment is owing or which has committed to make such Loan
hereunder; and
(ii) no amendment or waiver pursuant to this Section
shall, unless signed by each Bank, change the provisions of this
Section, the definition of Required Banks or Termination Date, or
any condition precedent set forth in Section 8 hereof or the
provisions of Sections 10.1.(i), 10.1.(j) or 10.3, or affect the
number of Banks required to take any action hereunder.
Section 13.14. Legal Fees and Indemnification. The Borrower agrees to
pay the reasonable fees and disbursements of Chapman and Cutler, counsel to
the Agent, in connection with the preparation and execution of this
Agreement, and any amendment, waiver or consent related hereto, whether or
not the transactions contemplated herein are consummated. The Borrower
further agrees to indemnify each Bank, its directors, officers and employees
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitations, all expenses of litigation or
preparation therefor whether or not any Bank is a party thereto) which any of
them may pay or incur arising out of or relating to this Agreement, any Note,
the transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder, other than (i)
those which arise from the gross negligence or willful misconduct of the
party claiming indemnification or (ii) those covered by another explicit
provision hereof or required to be paid by a Bank or Banks hereunder. The
obligations of the Borrower under this Section shall survive the termination
of this Agreement.
Section 13.15. Currency. Each reference in this Agreement to U.S.
Dollars or to an Alternative Currency (the "relevant currency") is of the
essence. To the fullest extent permitted by law, the obligation of the
Borrower in respect of any amount due in the relevant currency under this
Agreement shall, notwithstanding any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the relevant currency that the Bank entitled to receive such
payment may, in accordance with normal banking procedures, purchase with the
sum paid in such other currency (after any premium and costs of exchange) on
the Business Day immediately following the day on which such party receives
such payment. If the amount in the relevant currency that may be so
purchased for any reason falls short of the amount originally due, the
Borrower shall pay such additional amounts, in the relevant currency, as may
be necessary to compensate for the shortfall. Any obligations of the
Borrower not discharged by such payment shall, to the fullest extent
permitted by applicable law, be due as a separate and independent obligation
and, until discharged as provided herein, shall continue in full force and
effect.
-41-
<PAGE>
Section 13.16. Currency Equivalence If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from the Borrower
hereunder or under the Notes in the currency expressed to be payable herein
or under the Notes (the "specified currency") into another currency, the
parties agree that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the
specified currency with such other currency on the Business Day preceding
that on which final judgment is given. The obligation of the Borrower in
respect of any such sum due to any Bank or the Agent hereunder or under any
Note shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Bank or the Agent, as applicable, may in accordance
with normal banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Bank or the Agent in the specified
currency, the Borrower agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify such Bank and the Agent against such loss,
and if the amount of the specified currency so purchased exceeds the sum of
(a) the amount originally due to the applicable Bank or the Agent in the
specified currency plus (b) any amounts shared with other Banks as a result
of allocations of such excess as a disproportionate payment to such Bank
under Section 13.7 hereof, such Bank or the Agent, as the case may be, agrees
to remit such excess to the Borrower.
Section 13.17. Governing Law. This Agreement and the Notes, and the
rights and duties of the parties hereto, shall be construed and determined in
accordance with the laws of the State of Illinois, without regard to
conflicts of law doctrine.
Section 13.18. Termination of Existing Credit Agreement. The Borrower
and each of the Banks hereunder that is a party to the Credit Agreement dated
as of November 30, 1988 (the "Existing Domestic Credit Agreement") among
Maytag Corporation, the Banks signatory thereto, and Harris Trust and Savings
Bank and Bank of Montreal, as Co-Agents, consents to the termination of the
"Commitments" thereunder effective on the date the conditions set forth in
Section 8.1 hereof are fulfilled, notwithstanding the notice requirements for
such termination set forth in Section 3.7(a) of the Existing Domestic Credit
Agreement. Because such Banks hereunder constitute the "Required Banks"
under the Existing Domestic Credit Agreement, the Existing Domestic Credit
Agreement shall terminate and all amounts payable thereunder, including
accrued and unpaid facility fees payable under Section 4.1 thereof, shall be
payable, and the facility fee payable under Section 4.1 hereof shall begin to
accrue, on the date that this Agreement has been executed by all the parties
hereto and the conditions set forth in Section 8.1 hereof have been
fulfilled.
Section 13.19. Headings. Section headings used in this Agreement are
for reference only and shall not affect the construction of this Agreement.
Section 13.20. Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof
and any prior or contemporaneous agreements, whether written or oral, with
respect thereto are superseded hereby.
-42-
<PAGE>
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall be a contract between us for the purposes hereinabove set
forth.
Dated as of June 25, 1993.
MAYTAG CORPORATION
By /s/ J. A. Schiller
Its Executive Vice President and
Chief Financial Officer
-43-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
115 S. LaSalle Street BANK OF MONTREAL, CHICAGO BRANCH,
Chicago, Illinois 60603 in its individual capacity as a Bank
Telecopy: (312) 750-4314 and as Agent
Telephone: (312) 750-3742
Commitment: $30,000,001
By /s/ Robert K. Strong, Jr.
Its Managing Director
Lending Offices:
Domestic Rate Loans: 115 South LaSalle Street
Chicago, Illinois 60603
Eurocurrency Loans: 115 South LaSalle Street
Chicago, Illinois 60603
-44-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
Pierrepont Plaza ROYAL BANK OF CANADA, in its
300 Cadman Plaza West individual capacity as a Bank and as
Brooklyn, New York 11201-2701 Co-Agent
Telecopy: (718) 522-6292
Telephone: (718) 858-7176
with copy to: By /s/ Patricia J. Herbig
Its Manager Corporate Banking
33 N. Dearborn
Suite 2300
Chicago, Illinois 60602
Telecopy: (312) 782-3429
Telephone: (312) 372-4404
Commitment: $16,666,667
Lending Offices:
Domestic Rate Loans: Royal Bank of Canada, New York Branch
Financial Square
New York, New York 10005-3531
Eurocurrency Loans: Royal Bank of Canada, New York Branch
Financial Square
New York, New York 10005-3531
-45-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
611 Woodward Avenue NBD BANK, N.A.
Detroit, Michigan 48226
Telecopy: (313) 225-2649
Telephone: (313) 225-2557
Commitment: $11,666,667
By /s/ Jack J. Csernits
Its Vice President
Lending Offices:
Domestic Rate Loans: 611 Woodward Avenue
Detroit, Michigan 48226
Eurocurrency Loans: 611 Woodward Avenue
Detroit, Michigan 48226
-46-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
One First National Plaza THE FIRST NATIONAL BANK
Suite 0088, 14th Floor OF CHICAGO
Chicago, Illinois 60670
Telecopy: (312) 732-2715
Telephone: (312) 732-4244
Commitment: $8,333,333
By /s/ Susan L. Comstock
Its Vice President
Lending Offices:
Domestic Rate Loans: One First National Plaza
Suite 0088, 14th Floor
Chicago, Illinois 60670
Eurocurrency Loans: One First National Plaza
Suite 0088, 14th Floor
Chicago, Illinois 60670
-47-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
225 West Wacker Drive THE FUJI BANK, LIMITED
Chicago, Illinois 60606
Telecopy: (312) 621-0539
Telephone: (312) 621-0500
Commitment: $8,333,333
By /s/ Peter L. Chinnici
Its Joint General Manager
Lending Offices:
Domestic Rate Loans: 225 West Wacker Drive
Chicago, Illinois 60606
Eurocurrency Loans: 225 West Wacker Drive
Chicago, Illinois 60606
-48-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
33 North Dearborn NATIONAL WESTMINSTER BANK PLC
Chicago, Illinois 60602
Telecopy: (312) 621-1564
Telephone: (312) 621-1500
Commitment: $8,333,333
By /s/ David H. Hannah
Its Vice President
Lending Offices:
Domestic Rate Loans: National Westminster Bank PLC,
Chicago Branch
c/o National Westminster Bank PLC
175 Water Street
New York, New York 10038
Eurocurrency Loans: National Westminster Bank PLC,
Nassau Branch
c/o National Westminster Bank PLC
175 Water Street
New York, New York 10038
-49-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
127 Public Square SOCIETY NATIONAL BANK
Cleveland, Ohio 44114-1306
Telecopy: (216) 689-4981
Telephone: (216) 689-3176
Commitment: $8,333,333
By /s/ Janice M. Cook
Its Vice President
Lending Offices:
Domestic Rate Loans: 127 Public Square
Cleveland, Ohio 44114-1306
Eurocurrency Loans: 127 Public Square
Cleveland, Ohio 44114-1306
-50-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
233 South Wacker Drive THE SUMITOMO BANK, LIMITED,
Suite 4800 CHICAGO BRANCH
Chicago, Illinois 60606
Telecopy: (312) 876-6436
Telephone: (312) 876-6406
Commitment: $8,333,333
By /s/ Katsuyasu Iwasawa
Its Joint General Manager
Lending Offices:
Domestic Rate Loans: 233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606
Eurocurrency Loans: 233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606
-51-
<PAGE>
Exhibit A
NOTE
________________, 19___
FOR VALUE RECEIVED, the undersigned, Maytag Corporation, a Delaware
corporation (the "Borrower"), promises to pay to the order of
_____________________ (the "Bank") on the Termination Date of the hereinafter
defined Credit Agreement, at the principal office of Bank of Montreal,
Chicago Branch, in Chicago, Illinois, (or in the case of Eurocurrency Loans
denominated in an Alternative Currency, at such office as the Agent has
previously notified the Borrower) in the currency of such Loan in accordance
with Section 5.1 of the Credit Agreement, the aggregate unpaid principal
amount of all Loans made by the Bank to the Borrower pursuant to the Credit
Agreement, together with interest on the principal amount of each Loan from
time to time outstanding hereunder at the rates, and payable in the manner
and on the dates, specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule attached
to this Note, which is a part hereof, each Loan made by it pursuant to the
Credit Agreement, together with all payments of principal and interest and
the principal balances from time to time outstanding hereon, whether the Loan
is a Domestic Rate Loan or a Eurocurrency Loan, the currency thereof and the
interest rate and Interest Period applicable thereto, provided that prior to
the transfer of this Note all such amounts shall be recorded on a schedule
attached to this Note. The record thereof, whether shown on such books or
records or on a schedule to this Note, shall be prima facie evidence of the
same, provided, however, that the failure of the Bank to record any of the
foregoing or any error in any such record shall not limit or otherwise affect
the obligation of the Borrower to repay all Loans made to it pursuant to the
Credit Agreement together with accrued interest thereon.
This Note is one of the Notes referred to in the Credit Agreement dated
as of ________________________, 1993, among the Borrower, Bank of Montreal,
as Agent, and others (the "Credit Agreement"), and this Note and the holder
hereof are entitled to all the benefits provided for thereby or referred to
therein, to which Credit Agreement reference is hereby made for a statement
thereof. All defined terms used in this Note, except terms otherwise defined
herein, shall have the same meaning as in the Credit Agreement. This Note
shall be governed by and construed in accordance with the internal laws of
the State of Illinois.
Prepayments may be made hereon and this Note may be declared due prior
to the expressed maturity hereof, all in the events, on the terms and in the
manner as provided for in the Credit Agreement.
<PAGE>
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
MAYTAG CORPORATION
By ______________________
Its ___________________
-2-
<PAGE>
EXHIBIT B
SUBSIDIARIES OF MAYTAG CORPORATION AS OF JUNE 25, 1993
JURISDICTION OF PERCENTAGE OF
NAME INCORPORATION OWNERSHIP
M.H. Canadian Holdings Ltd. Ontario 100%
Maytag Financial Services Corp. Delaware 100%
Dixie Narco Inc. West Virginia 100%
Master Care Inc. Illinois 100%
Holland Distributors Inc. Delaware 100%
Maytag International Inc. Delaware 100%
Admiral International Corp. Delaware 100%
Crosley International Corp. Delaware 100%
Maytag Foreign Sales Corp. Virgin Islands 100%
Lineset PLC England 100%
S.A. Hoover France 100%
Hoover GmbH Federal Republic of Germany 100%
Hoover Pty. Limited Australia 100%
Hoover Appliances Ltd. Australia 100%
Maytag Group Sourcing Company Delaware 100%
The Hoover Company Delaware 100%
Hoover Holdings Inc. Delaware 100%
Phase IV Products, Inc. Delaware 100%
Clayton Victoria Holdings Pty, Ltd. Australia 100%
De Hoover Handelmaatschappig
B.V.* The Netherlands 100%
Hoover Italiana S.P.A. Italy 100%
Hoover Mexicana S.A. de C.V. Mexico 100%
Juver Industrial S.A. de C.V. Mexico 100%
Hoover N.Z. Limited New Zealand 100%
Hoover Electrica Portuguesa, LDA Portugal 100%
Hoover Espanola S.A.* Spain 100%
Hoover Apparate A.G. Switzerland 100%
Readylink Limited United Kingdom 100%
Meadowbank Properties Pty. Ltd. Australia 100%
Hoover Austria G.E.S. M.B.H. Austria 100%
Hoover Benelux SA/NV Belgium 100%
<PAGE>
JURISDICTION OF PERCENTAGE OF
NAME INCORPORATION OWNERSHIP
Hoover Commercial Limitada* Brazil 100%
Hoover OY Finland 100%
Hoover Pacific Holdings Pty. Ltd. Australia 100%
Hoover European Holdings Delaware 100%
Domicor Holdings B.V. The Netherlands 100%
Hoover Limited England 100%
Maharashtra Investment Ltd. Delaware 100%
Maytag International Ltd.* England 100%
All Subsidiaries are Consolidated Subsidiaries. All Subsidiaries other than
those with an asterisk next to their name are Material Subsidiaries as of
June 25, 1993.
-B2-
<PAGE>
Exhibit C
June ___, 1993
To each of the Banks parties to
the "Credit Agreement" (as defined below),
and to Bank of Montreal, as Agent
Re: Loans to Maytag Corporation
Ladies and Gentlemen:
We have acted as counsel to Maytag Corporation, a Delaware corporation
(the "Borrower"), in connection with the $100,000,000 Credit Agreement of even
date herewith (the "Credit Agreement") among the Borrower, the financial
institutions parties thereto (the "Banks") and Bank of Montreal, as Agent, and
the transactions contemplated thereby.
This opinion is furnished to you at the request of the Borrower pursuant
to Section 8.1(a) of the Credit Agreement. Capitalized terms used herein and
not otherwise defined are used as defined in the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Credit Agreement
and the promissory notes delivered on the date hereof to the Banks signatory to
the Credit Agreement (the "Notes").
In rendering the opinions set forth herein, we have also examined
originals or copies, certified to our satisfaction, of such (i) certificates of
public officials, (ii) certificates of officers and representatives of the
Borrower, and (iii) other documents and records, and we have made such inquiries
of officers and representatives of the Borrower, as we have deemed relevant or
necessary as the basis for such opinions. We have relied as to factual matters
upon, and assumed the accuracy of, such certificates, the representations and
warranties of the Borrower made in the Credit Agreement, and other statements,
documents and records supplied to us by the Borrower, and we have assumed the
genuineness of all signatures (other than signatures of officers of the
Borrower) and the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the Credit Agreement, other than
the Borrower, are duly organized, validly existing, and in good
standing under the laws of their respective jurisdictions of
organization and have the requisite corporate power to enter into
the Credit Agreement; and
<PAGE>
(ii) the execution and delivery of the Credit Agreement
have been duly authorized by all necessary corporate action and
proceedings on the part of all parties thereto other than the
Borrower; the Credit Agreement has been duly executed and
delivered by all parties thereto other than the Borrower and
constitutes the valid and binding obligation of such parties,
enforceable against such parties in accordance with its terms;
the terms and provisions of the Credit Agreement do not, and the
execution, delivery and performance thereof by each of the
parties thereto other than the Borrower will not, violate or
conflict with the certificate of incorporation or bylaws of any
such party, any contract or indenture to which it is a party or
by which it is created or bound, or any law, order or decree of
any court, administrative agency or other governmental authority
applicable to any such party.
Based upon the foregoing and subject to the qualifications stated
herein, we are of the opinion that, as of the date hereof:
1. The Borrower has been duly organized and is validly existing and
in good standing under the laws of the State of Delaware. The Borrower has
the requisite corporate power and authority to conduct its business as
currently conducted.
2. The Borrower has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement and
the Notes. Such execution, delivery and performance:
(a) have been duly authorized by all necessary and proper
corporate action of the Borrower,
(b) do not violate any provision of the certificate of
incorporation or by-laws of the Borrower or require any approval
of the Borrower's stockholders, and
(c) will not violate any law or regulation of the State of
Illinois (including, without limitation, any usury laws) or of
the United States of America applicable to the Borrower.
3. The Credit Agreement and the Notes have been duly executed and
delivered by a duly authorized officer of the Borrower, and constitute the
valid and binding obligations of the Borrower, enforceable in accordance with
their respective terms.
4. The Borrower is not an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as
amended, or, to our knowledge, controlled by such a company.
5. No approval, consent or authorization of, or filing or
registration with, any governmental department, agency or instrumentality is
necessary for the Borrower's execution or delivery of the Credit Agreement or
the Notes or for the Borrower's performance of any of the terms thereof.
-2-
<PAGE>
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect
and enforceability in Paragraph 3 above are subject to
limitations imposed by any applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar
laws affecting creditors' rights generally. In addition, our
opinions relating to enforceability in Paragraph 3 above are
subject to (i) the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at
law) and (ii) limitations imposed by public policy under certain
circumstances on the enforceability of provisions indemnifying a
party against liability for its own wrongful or negligent acts.
In applying principles of equity referred to in clause (i) above,
a court, among other things, might not allow a creditor to
accelerate maturity of a debt upon the occurrence of a default
deemed immaterial. Such principles applied by a court might
include a requirement that a creditor act reasonably and in good
faith.
(b) Certain remedial provisions of the Credit Agreement
may be unenforceable in whole or in part, but the inclusion of
such provisions does not affect the validity of the Credit
Agreement; however, the unenforceability of such provisions may
result in delays in the enforcement of the Agent's and the Banks'
rights and remedies under the Credit Agreement (and we express no
opinion as to the economic consequences, if any, of such delays).
(c) We express no opinion as to the effect of the
compliance or noncompliance of the Agent or any of the Banks with
any state or federal laws or regulations applicable to the Agent
or any of the Banks because of the Agent's or any of the Banks
legal or regulatory status or the nature of the business of the
Agent or any of the Banks.
The foregoing opinions are limited to the laws of the United States
and the State of Illinois and the General Corporation Law of the State of
Delaware, and we express no opinion with respect to the laws of any other
state or jurisdiction.
Whenever in this opinion reference is made to our knowledge, such
reference is to the conscious awareness of Dennis V. Osimitz and Jeffrey S.
Rothstein of information regarding factual matters. With respect to such
matters, such persons have not, with your express permission and consent,
undertaken any investigation or inquiry either of other lawyers, files
maintained by the firm, or officers or employees of the Borrower or any of
its Subsidiaries. The reference to "conscious awareness" as used in this
paragraph has the meaning given that phrase in the Third-Party Legal Opinion
Report, Including the Legal Opinion Accord, of the Section of Business Law,
American Bar Association, 47 Bus. Law. 167, 192 (1991).
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the
transactions contemplated in the Credit Agreement and may not be relied on in
any manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other
person or entity without our express prior written consent, except that you
may furnish copies thereof to any party that becomes a Bank after the date
-3-
<PAGE>
hereof pursuant to the Credit Agreement. We do not express any opinion,
either implicitly or otherwise, on any issue not expressly addressed in
numbered Paragraphs 1 through 5. The opinions expressed above are based
solely on laws and regulations in effect on the date hereof, and we assume no
obligation to revise or supplement this opinion should such laws or
regulations be changed by legislative or regulatory action, judicial decision
or otherwise.
Very truly yours,
-4-
<PAGE>
EXHIBIT D
June ___, 1993
To each of the Banks parties to
the "Credit Agreement" (as defined below),
and to Bank of Montreal, as Agent
Re: Loans to Maytag Corporation
Ladies and Gentlemen:
I am Vice President and General Counsel of Maytag Corporation, a
Delaware corporation (the "Borrower"). I am familiar with the $100,000,000
Credit Agreement of even date herewith (the "Credit Agreement") among the
Borrower, the financial institutions parties thereto (the "Banks") and Bank
of Montreal, as Agent, and the transactions contemplated thereby.
This opinion is furnished to you at the request of the Borrower
pursuant to Section 8.1(a) of the Credit Agreement. Capitalized terms used
herein and not otherwise defined are used as defined in the Credit Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the Credit Agreement
and the promissory notes delivered on the date hereof to the Banks signatory
to the Credit Agreement (the "Notes").
In rendering the opinions set forth herein, I have also examined
originals or copies, certified to my satisfaction, of such (i) certificates
of public officials, (ii) certificates of officers and representatives of the
Borrower, and (iii) other documents and records, and I have made such
inquiries of officers and representatives of the Borrower, as I have deemed
relevant or necessary as the basis for such opinions. I have relied as to
factual matters upon, and assumed the accuracy of, such certificates and
other statements, documents and records supplied to me by the Borrower and I
have assumed the genuineness of all signatures (other than signatures of
officers of the Borrower) and the authenticity of all documents submitted to
me as originals and the conformity to original documents of all documents
submitted to me as certified or photostatic copies.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that, as of the date hereof:
1. The Borrower has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement and
the Notes. Such execution, delivery and performance:
<PAGE>
(a) have been duly authorized by all necessary and
proper corporate action of the Borrower,
(b) do not violate any provision of the certificate of
incorporation or by-laws of the Borrower or require any approval
of the Borrower's stockholders, and
(c) to my knowledge, do not violate any material
indenture or agreement to which the Borrower is a party or by
which it is bound or any provision of any judgment or decree
applicable to the Borrower.
2. There is no litigation or governmental proceeding pending or, to
my knowledge, threatened, against the Borrower or any Subsidiary which could
reasonably be expected to (i) materially adversely affect the business and
properties of the Borrower and its Subsidiaries on a consolidated basis or
(ii) impair the validity or enforceability of the Credit Agreement or the
Notes or materially impair the ability of the Borrower to perform its
obligations under the Credit Agreement or the Notes.
The foregoing opinions are limited to the laws of the United States
and the State of Iowa, and the General Corporation Law of the State of
Delaware, and I express no opinion with respect to the laws of any other
state or jurisdiction.
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the
transactions contemplated in the Credit Agreement and may not be relied on in
any manner or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other
person or entity without my express prior written consent, except that you
may furnish copies thereof to any party that becomes a Bank after the date
hereof pursuant to the Credit Agreement. I do not express any opinion,
either implicitly or otherwise, on any issue not expressly addressed in
numbered Paragraphs 1 and 2. The opinions expressed above are based solely
on laws and regulations in effect on the date hereof, and I assume no
obligation to revise or supplement this opinion should such laws or
regulations be changed by legislative or regulatory action, judicial decision
or otherwise.
Very truly yours,
-2-
<PAGE>
EXHIBIT E
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Bank of Montreal as Agent
pursuant to that certain Credit Agreement dated as of ______________, 1993 by
and among Maytag Corporation (the "Borrower"), the Banks party thereto, and
Bank of Montreal, as Agent (the "Credit Agreement"). Unless otherwise
defined herein, the terms used in this Compliance Certificate have the
meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED ON BEHALF OF THE BORROWER HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer of the
Borrower;
2. I have reviewed or caused to be reviewed the terms
of the Credit Agreement and I have made or have caused to be made
under my supervision, a detailed review of the transactions and
conditions of the Borrower during the accounting period covered
by the attached financial statements;
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any
condition or the occurrence of any event which constitutes a
Default or Event of Default during or at the end of the
accounting period covered by the attached financial statements or
as of the date of this Certificate, except as set forth below;
4. The representations and warranties contained in
Section 7 of the Credit Agreement are true and correct as though
made on the date hereof, except as set forth below;
5. The Borrower is in compliance with all covenants
contained in Section 9 of the Credit Agreement, except as set
forth below.
6. The Attachment hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain
covenants of the Credit Agreement, all of which data and
computations are, to the best of my knowledge, true, complete and
correct and have been made in accordance with the relevant
Sections of the Credit Agreement.
<PAGE>
Described below are the exceptions, if any, to paragraphs 3, 4 and 5
by listing, in detail, the nature of the condition or event, the period
during which it has existed and the action the Borrower has taken, is taking,
or proposes to take with respect to each such condition or event:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The foregoing certifications, together with the computations set forth
in the Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _________ day of
__________________ 19___.
MAYTAG CORPORATION
By_____________________
Its Chief Financial Officer
-2-
<PAGE>
ATTACHMENT TO COMPLIANCE CERTIFICATECOMPLIANCE CALCULATIONS FOR CREDIT
AGREEMENT
Dated as of _____________, 19___
Calculations as of _____________, 19___
___________________________________________________________________________
A. Consolidated Tangible Net Worth (Section 9.6)
1. Consolidated Net Worth of the Borrower $____________
2. Consolidated net book value of assets of the
Borrower which would be treated as intangibles
under GAAP $____________
3. Subtract Line 2 from Line 1 $____________
(Line 3 must be equal to or greater than $__________)
B. Leverage Ratio (Section 9.7)
1. Consolidated Indebtedness $____________
2. Consolidated Net Worth of the Borrower $____________
3. Sum of Lines 1 and 2 $____________
4. Ratio of Line 1 to 3 (Line 4
Ratio must be equal to or less
than ____:1.00) ________:1.00
C. Interest Coverage Ratio (Section 9.8)
1. Consolidated Income Before Interest and Taxes
$____________
2. Consolidated Interest Expense $____________
3. Ratio of Line 1 to 2 (Line 3
Ratio must be equal to or greater
than ____ to 1.00) ________:1.00
-1-
<PAGE>
MAYTAG CORPORATION
Exhibit 4(g)
U.S. $200,000,000 Credit Agreement Dated as of June 25, 1993, Among Registrant,
the Banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal
Bank of Canada.
<PAGE>
U.S. $200,000,000
CREDIT AGREEMENT
Dated as of
June 25, 1993
Among
MAYTAG CORPORATION,
THE BANKS PARTY HERETO,
AND
BANK OF MONTREAL, CHICAGO BRANCH
as Agent
AND
ROYAL BANK OF CANADA
as Co-Agent
<PAGE>
TABLE OF CONTENTS
Introduction 1
SECTION 1. THE COMMITTED FACILITY 1
Section 1.1. The Commitments. 1
Section 1.2. Applicable Interest Rates. 1
Section 1.3. Minimum Borrowing Amounts. 3
Section 1.4. Manner of Borrowing Committed Loans and Designating
Interest Rates Applicable to Loans. 3
SECTION 2. THE SWING LINE LOANS 5
Section 2.1. The Swing Line Loans. 5
Section 2.2. Notices. 6
Section 2.3. The Participating Interests. 6
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS 6
Section 3.1. Interest Periods. 6
Section 3.2. Maturity of Loans. 7
Section 3.3. Prepayments. 7
Section 3.4. Default Rate. 8
Section 3.5. The Notes. 8
Section 3.6. Commitment Terminations. 9
Section 3.7. Funding Indemnity. 9
SECTION 4. FEES 10
Section 4.1. Facility Fee. 10
Section 4.2. Closing Fee. 10
Section 4.3. Agent Fees. 10
SECTION 5. PLACE AND APPLICATION OF PAYMENTS 10
Section 5.1. Place and Application of Payments. 10
SECTION 6. DEFINITIONS 11
Section 6.1. Definitions. 11
Section 6.2. Interpretation. 17
SECTION 7. REPRESENTATIONS AND WARRANTIES 17
Section 7.1. Organization and Qualification. 17
Section 7.2. Subsidiaries. 18
-i-
<PAGE>
Section 7.3. Corporate Authority and Validity of Obligations. 18
Section 7.4. Not an Investment Company. 18
Section 7.5. Margin Stock. 19
Section 7.6. Financial Reports. 19
Section 7.7. No Material Adverse Change. 19
Section 7.8. Litigation. 19
Section 7.9. Tax Returns. 19
Section 7.10. Approvals. 19
Section 7.11. Liens. 20
Section 7.12. ERISA. 20
Section 7.13. Compliance with Environmental Laws 20
SECTION 8. CONDITIONS PRECEDENT 21
Section 8.1. Initial Borrowing. 21
Section 8.2. All Loans. 21
SECTION 9. COVENANTS 22
Section 9.1. Corporate Existence. 22
Section 9.2. Maintenance. 23
Section 9.3. Taxes. 23
Section 9.4. Insurance. 23
Section 9.5. Financial Reports and Other Information. 23
Section 9.6. Consolidated Tangible Net Worth. 24
Section 9.7. Leverage Ratio 25
Section 9.8. Interest Coverage Ratio 25
Section 9.9. Mergers, Consolidations, Leases, and Sales. 26
Section 9.10. Change of Control. 26
Section 9.11. ERISA. 26
Section 9.12. Conduct of Business. 27
Section 9.13. Liens. 27
Section 9.14. Use of Proceeds; Margin Stock. 29
Section 9.15. Compliance with Laws. 29
SECTION 10. EVENTS OF DEFAULT AND REMEDIES 29
Section 10.1. Events of Default. 29
Section 10.2. Non-Bankruptcy Defaults. 31
Section 10.3. Bankruptcy Defaults. 31
Section 10.4. Expenses. 31
SECTION 11. CHANGE IN CIRCUMSTANCES 32
Section 11.1. Change of Law. 32
Section 11.2. Unavailability of Deposits or Inability to Ascertain,
or Inadequacy of, LIBOR. 32
Section 11.3. Increased Cost and Reduced Return. 32
-ii-
<PAGE>
Section 11.4. Lending Offices. 34
Section 11.5. Discretion of Bank as to Manner of Funding. 34
Section 11.6. Substitution of Bank 34
SECTION 12. THE AGENT 35
Section 12.1. Appointment and Authorization. 35
Section 12.2. Agent and Affiliates. 35
Section 12.3. Action by Agent. 35
Section 12.4. Consultation with Experts. 35
Section 12.5. Liability of Agent. 35
Section 12.6. Indemnification. 36
Section 12.7. Credit Decision. 36
Section 12.8. Resignation of Agent and Successor Agent. 36
Section 12.9. Payments. 37
Section 12.10. Co-Agent 37
SECTION 13. MISCELLANEOUS 37
Section 13.1. Withholding Taxes. 37
Section 13.2. No Waiver of Rights. 38
Section 13.3. Non-Business Day. 39
Section 13.4. Documentary Taxes. 39
Section 13.5. Survival of Representations. 39
Section 13.6. Survival of Indemnities. 39
Section 13.7. Sharing of Set-Off. 39
Section 13.8. Notices. 39
Section 13.9. Counterparts. 40
Section 13.10. Successors and Assigns. 40
Section 13.11. Participants and Note Assignees. 40
Section 13.12. Assignment of Commitments by Banks. 41
Section 13.13. Amendments. 41
Section 13.14. Legal Fees and Indemnification. 41
Section 13.15. Currency 42
Section 13.16. Currency Equivalence 42
Section 13.17. Governing Law. 43
Section 13.18. Termination of Existing Credit Agreement 43
Section 13.19. Headings. 43
Section 13.20. Entire Agreement. 43
Signatures 44
EXHIBIT A FORM OF NOTE
EXHIBIT B SUBSIDIARIES
EXHIBIT C FORM OF OPINION OF COUNSEL
EXHIBIT D FORM OF OPINION OF COUNSEL
EXHIBIT E FORM OF COMPLIANCE CERTIFICATE
-iii-
<PAGE>
CREDIT AGREEMENT
To each of the Banks signatory hereto
Ladies and Gentlemen:
The undersigned, Maytag Corporation, a Delaware corporation (the
"Borrower"), applies to you for your several commitments, subject to all the
terms and conditions hereof and on the basis of the representations and
warranties hereinafter set forth, to make available a revolving credit as
more fully hereinafter set forth. Each of you is hereinafter referred to
individually as a "Bank" and all of you are hereinafter referred to
collectively as the "Banks". Bank of Montreal, acting through its Chicago
Branch, in its capacity as agent for the Banks hereunder, and any successor
thereto pursuant to Section 12.8 hereof, is hereinafter referred to as the
"Agent" and Royal Bank of Canada in its capacity as co-agent hereunder is
hereinafter referred to as the "Co-Agent".
SECTION 1. THE COMMITTED FACILITY.
Section 1.1. The Commitments. Subject to the terms and conditions
hereof, each Bank, by its acceptance hereof, severally agrees to make a loan
or loans (individually a "Committed Loan" and collectively "Committed Loans")
to the Borrower from time to time in U.S. Dollars or Alternative Currencies
on a revolving basis in an aggregate outstanding Original Dollar Amount up to
the amount of its commitment to make Loans set forth on the applicable
signature page hereof or pursuant to Section 13.12 hereof (its "Commitment"
and cumulatively for all the Banks the "Commitments") (subject to any
reductions thereof pursuant to the terms hereof) prior to the Termination
Date. At no time shall the aggregate Original Dollar Amount of all
outstanding Loans (whether Committed or Swing Line Loans) exceed the
Commitments then in effect, which Commitments on the date hereof total U.S.
$200,000,000. Each Borrowing of Committed Loans shall be advanced,
continued, or converted, as applicable pursuant to Section 1.4 hereof,
ratably from the Banks in proportion to their respective Unused Commitments.
Subject to Section 1.4 hereof, the Borrower may elect that each Borrowing of
Committed Loans be advanced or maintained as Domestic Rate Loans or
Eurocurrency Loans, which Committed Loans may be repaid and the principal
amount thereof reborrowed prior to the Termination Date, subject to all
reductions in the Commitments and all other terms and conditions hereof.
Section 1.2. Applicable Interest Rates.
(a) Domestic Rate Loans. Each Domestic Rate Loan made or maintained
by a Bank shall bear interest during each Interest Period that it constitutes
a Domestic Rate Loan (computed on the basis of a year of 365 or 366 days, as
the case may be, and actual days elapsed) on the unpaid principal amount
thereof from the date such Loan is advanced, continued or created by
conversion from a Eurocurrency Loan until maturity (whether by acceleration
or otherwise) at a rate per annum equal to the Domestic Rate from time to time
<PAGE>
in effect, payable on the last day of the applicable Interest Period and at
maturity (whether by acceleration or otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced by the Agent from time to time as
its prime commercial rate, or equivalent, for U.S. Dollar loans to
borrowers located in the United States, with any change in the Domestic
Rate resulting from a change in said prime commercial rate to be
effective as of the date of the relevant change in said prime commercial
rate; and
(ii) the sum of (x) the rate per annum (rounded upward, if necessary,
to the nearest 1/100th of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with member banks of the Federal
Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that (i) if such day is not a
Business Day, the rate for such day shall be such rate on such
transactions on the immediately preceding Business Day as so published
on the next succeeding Business Day, and (ii) if no such rate is so
published on any such next succeeding Business Day, the rate for such
day shall be the average of the rates quoted to the Agent by two or more
New York or Chicago Federal funds brokers on such day for such
transactions as determined by the Agent, plus (y) 3/8 of 1% (0.375%).
(b) Eurocurrency Loans. Each Eurocurrency Loan made or maintained by
a Bank shall bear interest during each Interest Period that it constitutes a
Eurocurrency Loan (computed on the basis of a year of 360 days and actual
days elapsed) on the unpaid principal amount thereof from the date such Loan
is advanced, continued or created by conversion from a Domestic Rate Loan
until maturity (whether by acceleration or otherwise) at a rate per annum
equal to the sum of the applicable Eurocurrency Margin plus the Adjusted
LIBOR applicable to such Loan, payable on the last day of the applicable
Interest Period and at maturity (whether by acceleration or otherwise), and,
if the applicable Interest Period is longer than three months, on each day
occurring every three months after the date such Loan is made.
"Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a
rate per annum determined in accordance with the following formula:
____________LIBOR______________
Adjusted LIBOR = 100% - Eurocurrency Reserve Percentage
"LIBOR " means, with respect to an Interest Period for a Borrowing of
Eurocurrency Loans, the average of the respective rates of interest per
annum, as determined by the Agent (rounded upwards, if necessary, to the
nearest whole multiple of 1/16 of 1%), at which deposits of U.S. Dollars or
the relevant Alternative Currency, as applicable, in immediately available
and freely transferable funds are offered to each of the Reference Banks at
11:00 a.m. (London time) two Business Days prior to the commencement of such
-2-
<PAGE>
Interest Period by major banks in the eurocurrency interbank market upon
request by each such Reference Bank for a period equal to such Interest
Period and in an amount equal to the principal amount of the Eurocurrency
Loan scheduled to be advanced, continued or created by conversion from a
Domestic Rate Loan by such Reference Bank as part of such Borrowing.
"Eurocurrency Reserve Percentage" means, for any Borrowing of
Eurocurrency Loans, the daily average for the applicable Interest Period of
the maximum rate at which reserves (including, without limitation, any
supplemental, marginal and emergency reserves) are imposed during such
Interest Period by the Board of Governors of the Federal Reserve System (or
any successor) on "eurocurrency liabilities", as defined in such Board's
Regulation D (or in respect of any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency
Loans is determined or any category of extension of credit or other assets
that include loans by non-United States offices of any Bank to United States
residents) subject to any amendments of such reserve requirement by such
Board or its successor, taking into account any transitional adjustments
thereto. For purposes of this definition, the Eurocurrency Loans shall be
deemed to be "eurocurrency liabilities" as defined in Regulation D without
benefit or credit for any prorations, exemptions or offsets under
Regulation D.
"Eurocurrency Margin" means for each Eurocurrency Loan: (i) 0.375%
per annum for any day Level I Status exists, (ii) 0.500% per annum for any
day Level II Status exists, (iii) 0.625% per annum for any day Level III
Status exists, (iv) 0.750% per annum for any day Level IV Status exists and
(v) 1.250% per annum for any day Level V Status exists.
(c) Rate Quotations. Each Reference Bank agrees to use its best
efforts to furnish quotations to the Agent as contemplated by this Section.
If any Reference Bank does not furnish a timely quotation, the Agent shall
determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or, if no such quotation
is provided on a timely basis, the provisions of Section 11.2 shall apply.
(d) Rate Determinations. The Agent shall determine each interest
rate applicable to the Loans hereunder and the Original Dollar Amount of each
Loan hereunder, and its determination thereof shall be conclusive and binding
except in the case of manifest error or willful misconduct. The Original
Dollar Amount of each Eurocurrency Loan shall be determined or redetermined,
as applicable, effective as of the first day of each Interest Period
applicable to such Loan.
Section 1.3.Minimum Borrowing Amounts.; Each Borrowing of Committed
Loans at any time outstanding shall be in an amount not less than an Original
Dollar Amount of U.S. $10,000,000.
Section 1.4.Manner of Borrowing Committed Loans and Designating
Interest Rates Applicable to Loans.
(a) Notice to the Agent. The Borrower shall give notice to the Agent
by no later than 9:00 a.m. (Chicago time) (i) at least four (4) Business Days
-3-
<PAGE>
before the date on which the Borrower requests the Banks to advance a
Borrowing of Eurocurrency Loans denominated in an Alternative Currency, (ii)
at least three (3) Business Days before the date on which the Borrower
requests the Banks to advance a Borrowing of Eurocurrency Loans denominated
in U.S. Dollars and (iii) on the date the Borrower requests the Banks to
advance a Borrowing of Domestic Rate Loans. The Loans included in each
Borrowing shall bear interest initially at the type of rate specified in such
notice of a new Borrowing. Thereafter, the Borrower may from time to time
elect to change or continue the type of interest rate borne by each Borrowing
or, subject to Section 1.3 s minimum amount requirement for each outstanding
Borrowing, a portion thereof, as follows: (i) if such Borrowing is of
Eurocurrency Loans, on the last day of the Interest Period applicable
thereto, the Borrower may continue part or all of such Borrowing as
Eurocurrency Loans for an Interest Period or Interest Periods specified by
the Borrower or, if such Eurocurrency Loan is denominated in U.S. Dollars,
convert part or all of such Borrowing into Domestic Rate Loans, (ii) if such
Borrowing is of Domestic Rate Loans, on any Business Day, the Borrower may
convert all or part of such Borrowing into Eurocurrency Loans denominated in
U.S. Dollars for an Interest Period or Interest Periods specified by the
Borrower. The Borrower shall give all such notices requesting the advance,
continuation, or conversion of a Borrowing to the Agent by telephone or
telecopy (which notice shall be irrevocable once given and, if by telephone,
shall be promptly confirmed in writing). Notices of the continuation of a
Borrowing of Eurocurrency Loans denominated in U.S. Dollars for an additional
Interest Period or of the conversion of part or all of a Borrowing of
Eurocurrency Loans denominated in U.S. Dollars into Domestic Rate Loans or of
Domestic Rate Loans into Eurocurrency Loans must be given by no later than
9:00 a.m. (Chicago time) at least three (3) Business Days before the date of
the requested continuation or conversion. Notices of the continuation of a
Borrowing of Eurocurrency Loans denominated in an Alternative Currency must
be given no later than 9:00 a.m. (Chicago time) at least four (4) Business
Days before the requested continuation. All such notices concerning the
advance, continuation, or conversion of a Borrowing shall specify the date of
the requested advance, continuation or conversion of a Borrowing (which shall
be a Business Day), the amount of the requested Borrowing to be advanced,
continued, or converted, the type of Loans to comprise such new, continued or
converted Borrowing and, if such Borrowing is to be comprised of Eurocurrency
Loans, the currency and Interest Period applicable thereto. The Borrower
agrees that the Agent may rely on any such telephonic or telecopy notice
given by any person it in good faith believes is an Authorized Representative
without the necessity of independent investigation, and in the event any such
notice by telephone conflicts with any written confirmation, such telephonic
notice shall govern if the Agent has acted in reliance thereon.
(b) Notice to the Banks. The Agent shall give prompt telephonic or
telecopy notice to each of the Banks of any notice from the Borrower received
pursuant to Section 1.4(a) above. The Agent shall give notice to the
Borrower and each Bank by like means of the interest rate applicable to each
Borrowing of Eurocurrency Loans (unless such Borrowing is a Borrowing of
Swing Line Loans in which case such notice shall only be given to the
Borrower and the Bank or Banks making such Swing Line Loans) and, if such
Borrowing (including a Borrowing of Swing Line Loans) is denominated in an
-4-
<PAGE>
Alternative Currency, shall give notice by such means to the Borrower and
each Bank of the Original Dollar Amount thereof.
(c) Borrower's Failure to Notify. Any outstanding Borrowing of
Domestic Rate Loans shall, subject to Section 8.2 hereof, automatically be
continued for an additional Interest Period on the last day of its then
current Interest Period unless the Borrower has notified the Agent within the
period required by Section 1.4(a) that it intends to convert such Borrowing
into a Borrowing of Eurocurrency Loans or notifies the Agent within the
period required by Section 3.3(a) that it intends to prepay such Borrowing.
In the event the Borrower fails to give notice pursuant to Section 1.4(a)
above of the continuation or conversion of any outstanding principal amount
of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars before the
last day of its then current Interest Period within the period required by
Section 1.4(a) and has not notified the Agent within the period required by
Section 3.3(a) that it intends to prepay such Borrowing, such Borrowing shall
automatically be converted into a Borrowing of Domestic Rate Loans, subject
to Section 8.2 hereof. In the event the Borrower fails to give notice
pursuant to Section 1.4(a) above of the continuation of any outstanding
principal amount of a Borrowing of Eurocurrency Loans denominated in an
Alternative Currency before the last day of its then current Interest Period
within the period required by Section 1.4(a) and has not notified the Agent
within the period required by Section 3.3(a) that it intends to prepay such
Borrowing, such Borrowing shall automatically be continued as a Borrowing of
Eurocurrency Loans in the same Alternative Currency with an Interest Period
of one month, subject to Section 8.2 hereof, including the restrictions
contained in the definition of Interest Period.
(d) Disbursement of Loans. Not later than 11:00 a.m. (Chicago time)
on the date of any requested advance of a new Borrowing of Eurocurrency
Loans, and not later than 12:00 noon (Chicago time) on the date of any
requested advance of a new Borrowing of Domestic Rate Loans, subject to
Section 8 hereof, each Bank (or, in the case of a Swing Line Loan, the Bank
or Banks making such Swing Line Loan) shall make available its Loan
comprising part of such Borrowing in funds immediately available at the
principal office of the Agent in Chicago, Illinois, except that if such
Borrowing is denominated in an Alternative Currency each Bank (or each Bank
participating in any such Borrowing of Swing Line Loans) shall make available
its Loan comprising part of such Borrowing at such office as the Agent has
previously notified to each Bank, in such funds then customary for the
settlement of international transactions in such currency and no later than
such local time as is necessary for such funds to be received and transferred
to the Borrower for same day value on the date of the Borrowing. The Agent
shall make available to the Borrower Loans denominated in U.S. Dollars at the
Agent s principal office in Chicago, Illinois and Loans denominated in
Alternative Currencies at such office as the Agent has previously notified
the Borrower, in each case in the type of funds received by the Agent from
the Banks.
SECTION 2. THE SWING LINE LOANS.
Section 2.1. The Swing Line Loans. The Borrower may request any Bank
to make uncommitted loans denominated in currencies other than U.S. Dollars
(each a "Swing Line Loan" and collectively the "Swing Line Loans") in amounts
-5-
<PAGE>
such that the Original Dollar Amount of (i) all Swing Line Loans outstanding
hereunder shall not exceed U.S. $20,000,000 and (ii) all Committed Loans and
Swing Line Loans at any time outstanding hereunder shall not exceed the
Commitments of the Banks then in effect. Each Bank may, but shall have no
obligation to, make Swing Line Loans; provided that the aggregate Original
Dollar Amount of Swing Line Loans outstanding from any Bank, when added to
the aggregate Original Dollar Amount of Committed Loans outstanding from such
Bank, does not exceed such Bank s Commitment. Each Swing Line Loan shall be
a Eurocurrency Loan subject to Section 1.2(b) hereof and the other terms and
provisions hereof applicable to Eurocurrency Loans other than the provisions
of Section 1.1 applicable only to Committed Loans and the provisions of
Section 1.4(a) and (c).
Section 2.2. Notices. No later than 9:00 a.m. (Chicago time) on the
date three (3) Business Days prior to any Borrowing of Swing Line Loans, the
Borrower shall give telephonic or telecopy notice to the Agent (which notice,
if by telephone, shall be promptly confirmed by telecopy or other written
notice) of the Bank making each Swing Line Loan, the currency and principal
amount of such Swing Line Loan, and the Interest Period of such Swing Line
Loan.
Section 2.3. The Participating Interests. Upon the occurrence of an
Event of Default and the acceleration of the maturity of the Notes pursuant
to Section 10.2 or 10.3 hereof, if any Swing Line Loans are then outstanding,
each Bank shall purchase a pro rata interest, (based on the Commitment of
each Bank hereunder (whether used or unused, and if then terminated pursuant
to Section 10, as in effect immediately before such termination)) in the
Swing Line Loans of each other Bank, in the currency of such Swing Line Loan
so that, after giving effect to such adjustment, the outstanding principal
amount of Loans of all the Banks, calculated using quotations of the U.S.
Dollar Equivalent of such Swing Line Loans received on the date of
acceleration, shall be pro rata based on the Banks' Commitments. Such
purchase price shall be paid in the respective currencies of such Swing Line
Loans.
The several obligations of the Banks under this Section 2.3 shall be
absolute, irrevocable and unconditional under any and all circumstances
whatsoever and shall not be subject to any set-off, counterclaim or defense
to payment which any Bank may have or have had against the Borrower, any
other Bank or any other Person whatever. Without limiting the generality of
the foregoing, such obligations shall not be affected by any Default or Event
of Default or by any reduction or termination of the Commitments of any Bank,
and each payment made by a Bank under this Section 2.3 shall be made without
any offset, abatement, withholding or reduction whatsoever.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS; REDUCTION OF
COMMITMENTS.
Section 3.1. Interest Periods. As provided in Section 1.4 hereof, in the
case of Committed Loans, and Section 2.2 hereof, in the case of Swing Line
Loans, at the time of each request to advance, continue, or create through
conversion a Borrowing of Eurocurrency Loans, the Borrower shall select an
Interest Period applicable to such Loans from among the available options.
The term "Interest Period" means the period commencing on the date a
-6-
<PAGE>
Borrowing is made, continued, or created through conversion and ending: (a)
in the case of Domestic Rate Loans, on the last day of the calendar quarter
in which such Borrowing is advanced, continued, or created by conversion
(i.e. the first to occur thereafter of March 31, June 30, September 30, and
December 31); (b) in the case of Eurocurrency Loans which are Committed
Loans, 1, 2, 3, 6, or, if available from all the Banks, 9 months thereafter,
as the Borrower may select; and (c) in the case of Eurocurrency Loans which
are Swing Line Loans, the date, 1, 2, or 3 months thereafter as the Borrower
may select; provided, however, that:
(a) any Interest Period for a Borrowing of Domestic Rate Loans
commencing less than 90 days before the Termination Date shall end on
the Termination Date;
(b) with respect to any Borrowing of Eurocurrency Loans, the
Borrower may not select an Interest Period that extends beyond the
Termination Date;
(c) whenever the last day of any Interest Period would otherwise
be a day that is not a Business Day, the last day of such Interest
Period shall be extended to the next succeeding Business Day, provided
that, if such extension would cause the last day of an Interest Period
for a Borrowing of Eurocurrency Loans to occur in the following calendar
month, the last day of such Interest Period shall be the immediately
preceding Business Day; and
(d) for purposes of determining an Interest Period for a Borrowing
of Eurocurrency Loans, a month means a period starting on one day in a
calendar month and ending on the numerically corresponding day in the
next calendar month; provided, however, that if there is no numerically
corresponding day in the month in which such an Interest Period is to
end or if such an Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last Business
Day of the calendar month in which such Interest Period is to end.
Section 3.2. Maturity of Loans. Each Committed Loan shall mature and
become due and payable by the Borrower on the Termination Date. Each Swing
Line Loan shall mature and become due and payable by the Borrower on the last
day of the Interest Period applicable thereto.
Section 3.3. Prepayments.
(a) Loans. The Borrower shall have the privilege of prepaying without
premium or penalty and in whole or in part (but, if in part, then: (i) if
such Borrowing is denominated in U.S. Dollars, in an amount not less than
U.S. $10,000,000 and in integral multiples of U.S. $1,000,000, (ii) if such
Borrowing is denominated in an Alternative Currency, an amount for which the
U.S. Dollar Equivalent is not less than U.S. $10,000,000 and (iii) in an
amount such that the minimum amount required for a Borrowing pursuant to
-7-
<PAGE>
Section 1.3 hereof remains outstanding) any Borrowing of Loans at any time
upon three Business Days', in the case of Eurocurrency Loans, or one Business
Day's, in the case of Domestic Rate Loans, prior notice to the Agent (which
shall advise each Bank thereof promptly thereafter), such prepayment to be
made by the payment of the principal amount to be prepaid and accrued
interest thereon to the date fixed for prepayment and, in the case of
Eurocurrency Loans, any compensation required by Section 3.7 hereof.
(b) Reborrowings. Any amount paid or prepaid before the Termination Date
may, subject to the terms and conditions of this Agreement, be borrowed,
repaid and borrowed again.
Section 3.4. Default Rate. If any payment of principal on any Loan is not
made when due (whether by acceleration or otherwise), such Loan shall bear
interest (computed on the basis of a year of 360 days and actual days
elapsed) from the date such payment was due until paid in full, payable on
demand, at a rate per annum equal to:
(a) with respect to any Domestic Rate Loan, the sum of two
percent(2%) plus the Domestic Rate from time to time in effect; and
(b) with respect to any Eurocurrency Loan, the sum of two percent (2%)
plus the rate of interest in effect thereon at the time of such default
until the end of the Interest Period applicable thereto and, thereafter,
if such Loan is denominated in U.S. Dollars, at a rate per annum equal
to the sum of two percent (2%) plus the Domestic Rate from time to time
in effect or, if such Loan is denominated in an Alternative Currency, at
a rate per annum equal to the sum of the Eurocurrency Margin, plus two
(2%) plus the rate of interest per annum as determined by the Agent
(rounded upwards, if necessary, to the nearest whole multiple of
one-sixteenth of one percent (1/16%) at which overnight or weekend
deposits of the appropriate currency (or, if such amount due remains
unpaid more than three Business Days, then for such other period of time
not longer than six months as the Agent may elect in its absolute
discretion) for delivery in immediately available and freely
transferable funds would be offered by the Agent to major banks in the
interbank market upon request of such major banks for the applicable
period as determined above and in an amount comparable to the unpaid
principal amount of any such Eurocurrency Loan (or, if the Agent is not
placing deposits in such currency in the interbank market, then the
Agent's cost of funds in such currency for such period).
Section 3.5. The Notes. (a) Each Loan made to the Borrower by a Bank
shall be evidenced by a single promissory note of the Borrower issued to such
Bank in the form of Exhibit A hereto. Each such promissory note is
hereinafter referred to as a "Note" and collectively such promissory notes
are referred to as the "Notes."
(b) Each Bank shall record on its books and records or on a schedule to
its Note the amount of each Loan advanced, continued, or converted by it, all
payments of principal and interest and the principal balance from time to
time outstanding thereon, the type of such Loan, and, in respect of any
-8-
<PAGE>
Eurocurrency Loan, the Interest Period, the currency in which such Loan is
denominated, and the interest rate applicable thereto; provided that prior to
the transfer of any Note all such amounts shall be recorded on a schedule to
such Note. The record thereof, whether shown on such books and records of a
Bank or on a schedule to any Note, shall be prima facie evidence as to all
such matters; provided, however, that the failure of any Bank to record any
of the foregoing or any error in any such record shall not limit or otherwise
affect the obligation of the Borrower to repay all Loans made to it hereunder
together with accrued interest thereon. At the request of any Bank and upon
such Bank tendering to the Borrower the Note to be replaced, the Borrower
shall furnish a new Note to such Bank to replace any outstanding Note, and at
such time the first notation appearing on a schedule on the reverse side of,
or attached to, such Note shall set forth the aggregate unpaid principal
amount of all Loans, if any, then outstanding thereon.
Section 3.6.Commitment Terminations. The Borrower shall have the right
at any time and from time to time, upon five (5) Business Days' prior written
notice to the Agent, to terminate the Commitments, in whole or in part,
without premium or penalty, any partial termination to be in an amount not
less than U.S. $10,000,000 or any larger amount that is an integral multiple
of U.S. $1,000,000, and to reduce ratably the Commitments of the Banks;
provided that the Commitments may not be reduced to an amount less than the
Original Dollar Amount of Loans then outstanding. Any termination of
Commitments pursuant to this Section 3.6 may not be reinstated.
Section 3.7.Funding Indemnity. In the event any Bank shall incur any
loss, cost or expense (including, without limitation, any loss of profit, and
any loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Bank to fund or
maintain any Eurocurrency Loan or the relending or reinvesting of such
deposits or amounts paid or prepaid to such Bank) as a result of:
(a) any payment, prepayment or conversion of a Eurocurrency Loan on a
date other than the last day of its Interest Period,
(b) any failure (because of a failure to meet the conditions of
Section 8 or otherwise) by the Borrower to borrow or continue a
Eurocurrency Loan, or to convert a Domestic Rate Loan into a
Eurocurrency Loan, on the date specified in a notice given pursuant to
Section 1.4 or 2.2 hereof,
(c) any failure by the Borrower to make any payment of principal on
any Eurocurrency Loan when due (whether by acceleration or otherwise),
or
(d) any acceleration of the maturity of a Eurocurrency Loan as a
result of the occurrence of any Event of Default hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank such
amount as will reimburse such Bank for such loss, cost or expense. If any
Bank makes such a claim for compensation, it shall provide to the Borrower,
with a copy to the Agent, a certificate executed by an officer of such Bank
setting forth the amount of such loss, cost or expense in reasonable detail
-9-
<PAGE>
(including an explanation of the basis for and the computation of such loss,
cost or expense) and the amounts shown on such certificate if reasonably
calculated shall be conclusive.
SECTION 4. FEES.
Section 4.1. Facility Fee. The Borrower shall pay to the Agent for the
ratable account of the Banks a facility fee (computed on the basis of a year
of 365 or 366 days, as the case may be, and the actual number of days
elapsed) on the average daily amount of the Commitments hereunder (whether
used or unused) at a rate of (i) 0.20% per annum for each day Level I Status
exists, (ii) 0.25% per annum for each day Level II Status or Level III Status
exists, (iii) 0.35% per annum for each day Level IV Status exists, and (iv)
0.50% per annum for each day Level V Status exists. Such fee shall be
payable in arrears on the last day of each calendar quarter, commencing
September 30, 1993, and on the Termination Date, unless the Commitments are
terminated in whole on an earlier date, in which event the facility fees for
the period to the date of such termination in whole shall be paid on the date
of such termination. If any Bank fails to fund a Loan at a time when,
pursuant to Section 8 hereof, it is obligated to fund such Loan, it shall not
accrue a facility fee hereunder until it cures such default by funding such
Loan. The Borrower shall not be obligated to pay such Bank's portion of the
facility fee otherwise payable under this Section 4.1 if it notifies the
Agent of such Bank's default and of the amount of the facility fee thereby
not earned by such defaulting Bank. If the Agent receives any payment of the
facility fee hereunder from which an amount has been so deducted as provided
above, the Agent shall be entitled to not remit to any Bank identified by the
Borrower as such a defaulting Bank its pro rata share of the portion of the
facility fee not earned by such Bank as notified by the Borrower as provided
above.
Section 4.2. Closing Fee. On the date hereof, the Borrower shall pay to
the Agent for the account of the Banks signatory hereto a closing fee equal
to (i) for each Bank with a Commitment of U.S. $16,666,667 or less, 0.10% of
such Bank's Commitment and (ii) for each Bank with a Commitment greater than
U.S. $16,666,667, 0.12% of such Bank's Commitment.
Section 4.3. Agent Fees. The Borrower shall pay to the Agent and Co-Agent
the fees agreed to between the Agent and the Borrower.
SECTION 5. PLACE AND APPLICATION OF PAYMENTS.
Section 5.1. Place and Application of Payments. All payments of principal
of and interest on the Loans and all payments of facility fees and all other
amounts payable under this Agreement shall be made to the Agent by no later
than 12:00 noon (Chicago time) at the principal office of the Agent in
Chicago, Illinois (or such other location in the State of Illinois as the
Agent may designate to the Borrower) or, if such payment is to be made in an
Alternative Currency, no later than 12:00 noon local time at the place of
payment to such office as the Agent has previously notified the Borrower for
the benefit of the Person or Persons entitled thereto. Any payments received
-10-
<PAGE>
after such time shall be deemed to have been received by the Agent on the
next Business Day. All such payments shall be made (i) in lawful money of
the United States of America, in immediately available funds at the place of
payment, or (ii) in the case of amounts payable hereunder in an Alternative
Currency, in such Alternative Currency in such funds then customary for the
settlement of international transactions in such currency, in each case
without setoff or counterclaim. The Agent will promptly thereafter cause to
be distributed like funds relating to the payment of principal or interest on
Committed Loans or fees ratably to the Banks and like funds relating to the
payment of any other amount payable to any Bank to such Bank, in each case to
be applied in accordance with the terms of this Agreement.
SECTION 6. DEFINITIONS; INTERPRETATION.
Section 6.1.Definitions. The following terms when used herein have the
following meanings:
"Adjusted LIBOR" is defined in Section 1.2(b) hereof.
"Agent" means Bank of Montreal, acting through its Chicago Branch, and
any successor pursuant to Section 12.8 hereof.
"Alternative Currency" means Pounds Sterling, Deutsche Marks, French
Francs, Australian Dollars, Canadian Dollars, Italian Lire and any other
currency requested by the Borrower as an "Alternative Currency" hereunder
which is available to each Bank as confirmed by the Agent to the Borrower
after consultation with the Banks.
"Authorized Officer" means each Authorized Representative and in any
case shall include the Chief Financial Officer, Treasurer, and any Assistant
Treasurer, or, in each case, any other officer performing comparable duties
however designated.
"Authorized Representative" means any of Jerry A. Schiller, Executive
Vice President and Chief Financial Officer, Thomas C. Ringgenberg, Vice
President and Treasurer, and Mark S. Ayers, Assistant Treasurer, as shown on
the list of officers provided by the Borrower pursuant to Section 8.1(c)
hereof, or any other person shown on any updated list provided by the
Borrower to the Agent, or any further or different officer(s) or employee(s)
of the Borrower so named by any Authorized Representative of the Borrower in
a written notice to the Agent.
"Bank" means each bank signatory hereto or that becomes a Bank
hereunder pursuant to Section 13.12 hereof.
"Borrower" means Maytag Corporation, a Delaware corporation.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different
type into such type by one or more Banks on a single date and for a single
Interest Period. Borrowings of Committed Loans are made and maintained
-11-
<PAGE>
ratably from each of the Banks according to their Commitments. Borrowings of
Swing Line Loans are made from a Bank or Banks in accordance with Section 2
hereof. A Borrowing is "advanced" on the day Banks advance funds comprising
such Borrowing to the Borrower, is "continued" on the date a new Interest
Period for the same type of Loans commences for such Borrowing, and is
"converted" when such Borrowing is changed from one type of Loans to the
other, all as requested by the Borrower pursuant to Section 1.4(a) or, in the
case of the "advance" of Swing Line Loans, as agreed between the Borrower and
the relevant Bank or Banks pursuant to Section 2.1.
"Business Day" means any day other than a Saturday or Sunday on which
Banks are not authorized or required to close in Chicago, Illinois or New
York, New York and, if the applicable Business Day relates to the borrowing
or payment of a Eurocurrency Loan, on which banks are dealing in U.S. Dollar
deposits or the relevant Alternative Currency in the interbank market in
London, England and, if the applicable Business Day relates to the borrowing
or payment of a Eurocurrency Loan denominated in an Alternative Currency, on
which banks and foreign exchange markets are open for business in the city
where disbursements of or payments on such Loans are to be made.
"Capital Lease" means at any date any lease of Property which in
accordance with GAAP at the time in effect would be required to be
capitalized on the balance sheet of the lessee.
"Capital Lease Obligations" of a Person means the amount of the
obligations of such Person under Capital Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with GAAP.
"Change of Control" is defined in Section 10.1(h) hereof.
"Co-Agent" means Royal Bank of Canada.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" is defined in Section 1.1 hereof.
"Committed Loan" is defined in Section 1.1 hereof.
"Consolidated Income Before Interest and Taxes" means, for any fiscal
quarter, determined on a consolidated basis for the Borrower and its
Subsidiaries in accordance with GAAP, (i) earnings (not including any gains
or losses from discontinued operations) before income taxes for such fiscal
quarter, plus (ii) Consolidated Interest Expense for such fiscal quarter.
"Consolidated Indebtedness" means all Indebtedness of the Borrower and
its Subsidiaries of the types described in clauses (i), (ii), (iii) and (v)
of the definition of "Indebtedness," determined (without duplication) on a
consolidated basis in accordance with GAAP.
-12-
<PAGE>
"Consolidated Interest Expense" means, for any fiscal quarter of the
Borrower and its Subsidiaries, an amount equal to interest expense on
Consolidated Indebtedness, as determined in accordance with GAAP.
"Consolidated Net Income" means, for any period, the consolidated net
income of the Borrower and Consolidated Subsidiaries for such period
determined in accordance with GAAP.
"Consolidated Net Worth" means the aggregate amount of the Borrower's
and its Subsidiaries' shareholders' equity as determined from the
consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP; provided, however, that Consolidated Net Worth shall
not be increased or reduced on account of foreign currency translations.
"Consolidated Subsidiary" means any Subsidiary or other entity whose
accounts are required to be consolidated with those of the Borrower in
accordance with GAAP.
"Consolidated Tangible Net Worth" means the aggregate amount of the
Borrower's and its Subsidiaries' shareholders' equity as determined from the
consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP, less the net book value of all assets of the Borrower
and its Subsidiaries which would be treated as intangibles under GAAP,
including, without limitation, deferred charges, leasehold conversion costs,
franchise rights, non-compete agreements, goodwill, unamortized debt
discounts, patents, patent applications, trademarks, trade names, copyrights,
licenses and premiums on purchased assets; provided, however, that
Consolidated Tangible Net Worth shall not be increased or reduced on account
of foreign currency translations.
"Controlled Group" has the same meaning as in Section 414(b) of the
Code.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an
Event of Default.
"Domestic Rate" is defined in Section 1.2(a) hereof.
"Domestic Rate Loan" means a Loan denominated in U.S. Dollars bearing
interest before maturity at the rate specified in Section 1.2(a) hereof.
"ERISA" is defined in Section 7.12 hereof.
"Eurocurrency Loan" means either a Committed Loan or a Swing Line Loan
bearing interest before maturity at the rate specified in Section 1.2(b)
hereof.
"Eurocurrency Margin" is defined in Section 1.2(b) hereof.
"Eurocurrency Reserve Percentage" is defined in Section 1.2(b) hereof.
-13-
<PAGE>
"Event of Default" means any of the events or circumstances specified
in Section 10.1 hereof.
"GAAP" means generally accepted accounting principles, from time to
time in effect, consistently applied.
"Guaranty" of a Person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes liable upon, the obligation of
any other Person, or agrees to maintain the net worth or working capital or
other financial condition of any other Person or otherwise assures any
creditor of such other Person against loss, including, without limitation,
any comfort letter, operating agreement, take-or-pay contract or letter of
credit.
"Indebtedness" means for any Person all (i) obligations of such Person
for borrowed money, (ii) obligations of such Person representing the deferred
purchase price of property or services other than accounts payable for
property or other accrued expenses for services, in each case arising in the
ordinary course of business on terms customary in the trade, (iii)
obligations of such Person evidenced by notes, acceptances, or other
instruments of such Person, (iv) obligations, whether or not assumed, secured
by Liens on, or payable out of the proceeds or production from, Property now
or hereafter owned or acquired by such Person, (v) Capital Lease Obligations
of such Person and (vi) obligations for which such Person is obligated
pursuant to a Guaranty.
"Interest Period" is defined in Section 3.1 hereof.
"Lending Office" is defined in Section 11.4 hereof.
"Level I Status" means the S&P Rating is greater than BBB+ and the
Moody's Rating is greater than Baa1.
"Level II Status" means Level I Status does not exist, but the S&P
Rating is BBB+ or higher and the Moody's Rating is Baa1 or higher.
"Level III Status" means neither Level I Status nor Level II Status
exists, but the S&P Rating is BBB or higher and the Moody's Rating is Baa2 or
higher.
"Level IV Status" means none of Level I Status, Level II Status, or
Level III Status exists, but the S&P Rating is BBB- or higher and the Moody's
Rating is Baa3 or higher.
"Level V Status" means the S&P Rating is less than BBB- or the Moody's
Rating is less than Baa3 or either such rating is suspended, withdrawn or
otherwise not provided.
"LIBOR" is defined in Section 1.2(b) hereof.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract, including, but not
-14-
<PAGE>
limited to, the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale, security agreement or trust receipt, or a lease,
consignment or bailment for security purposes. The term "Lien" shall also
include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting Property. For the purposes of this definition, a
Person shall be deemed to be the owner of any Property which it has acquired
or holds subject to a conditional sale agreement, Capital Lease or other
arrangement pursuant to which title to the Property has been retained by or
vested in some other Person for security purposes, and such retention of
title shall constitute a "Lien."
"Loan" means and includes Committed Loans and Swing Line Loans, and
each of them singly, and the term "type" of Loan refers to its status as a
Committed Loan or Swing Line Loan, or, if a Committed Loan, to its status as
a Domestic Rate Loan or Eurocurrency Loan.
"Margin Stock" means "margin stock" as defined in Regulation U of the
Board of Governors of the Federal Reserve System.
"Material Plan" is defined in Section 10.1(f) hereof.
"Material Subsidiary" means any Subsidiary of the Borrower except a
Subsidiary that (i) is incorporated outside the United States, and (ii) has
neither (a) assets with a book value in excess of U.S. $5,000,000 nor (b)
annual revenues for the most recently completed calendar year in excess of
U.S. $5,000,000.
"Moody's Rating" means the rating assigned by Moody's Investors
Service, Inc. to the outstanding senior unsecured non-credit enhanced
long-term indebtedness of the Borrower. Any reference in this Agreement to
any specific rating is a reference to such rating as currently defined by
Moody's Investors Service, Inc. and shall be deemed to refer to the
equivalent rating if such rating system changes.
"Note" is defined in Section 3.5(a) hereof.
"Original Dollar Amount" means the amount of any Loan denominated in
U.S. Dollars and, in relation to any Loan denominated in an Alternative
Currency, the U.S. Dollar Equivalent of such Loan on the day it is advanced
or continued for an Interest Period.
"PBGC" is defined in Section 7.12 hereof.
"Person" means an individual, partnership, corporation, association,
trust, unincorporated organization or any other entity or organization,
including a government or agency or political subdivision thereof.
"Plan" means with respect to the Borrower and each Subsidiary at any
time an employee pension benefit plan which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the Code and
either (i) is maintained by a member of the Controlled Group for employees of
-15-
<PAGE>
a member of the Controlled Group of which the Borrower or such Subsidiary is
a part, (ii) is maintained pursuant to a collective bargaining agreement or
any other arrangement under which more than one employer makes contributions
and to which a member of the Controlled Group of which the Borrower or such
Subsidiary is a part is then making or accruing an obligation to make
contributions or has within the preceding five plan years made contributions,
or (iii) under which a member of the Controlled Group of which the Borrower
or such Subsidiary is a part has any liability, including any liability by
reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years or by
reason of being deemed a contributing sponsor under Section 4069 of ERISA.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now owned
or hereafter acquired.
"Reference Banks" means Bank of Montreal and Royal Bank of Canada.
"Required Banks" means as of the date of determination thereof, Banks
holding at least 66-2/3% of the Commitments or, in the event that no
Commitments are outstanding hereunder, Banks holding at least 66-2/3% in
aggregate principal amount of the Loans outstanding hereunder.
"Security" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"SEC" means the Securities and Exchange Commission.
"Set-Off" is defined in Section 13.7 hereof.
"S&P Rating" means the rating assigned by Standard & Poor's
Corporation to the outstanding senior unsecured non-credit enhanced long-term
indebtedness of the Borrower. Any reference in this Agreement to any
specific rating is a reference to such rating as currently defined by
Standard & Poor's Corporation and shall be deemed to refer to the equivalent
rating if such rating system changes.
"Subsidiary" means any corporation or other entity of which more than
fifty percent (50%) of the outstanding Voting Stock, in the case of a
corporation, or comparable equity interests having ordinary voting power for
the election of the governing body of such non-corporate entity is at the
time directly or indirectly owned by the Borrower, by one or more of its
Subsidiaries, or by the Borrower and one or more of its Subsidiaries.
"Swing Line Loan" is defined in Section 2.1 hereof.
"Termination Date" means June 25, 1996.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair market
-16-
<PAGE>
value of all Plan assets allocable to such benefits, all determined as of the
then most recent ongoing actuarial valuation date for such Plan.
"Unused Commitment" means as to each Bank, the difference between such
Bank's Commitment and the Original Dollar Amount of all outstanding Loans of
such Bank.
"U.S. Dollars" and the sign "U.S.$" means the lawful currency of the
United States of America.
"U.S. Dollar Equivalent" means the amount of U.S. Dollars which would
be realized by converting an Alternative Currency into U.S. Dollars in the
spot market at the exchange rate quoted by the Agent, at approximately 11:00
a.m. (London time) two Business Days prior to the date on which a computation
thereof is required to be made, to major banks in the interbank foreign
exchange market for the purchase of U.S. Dollars for such Alternative
Currency.
"U.S. Taxes is defined in Section 13.1(c) hereof.
"Voting Stock" of any Person means capital stock of any class or
classes (however designated) having ordinary voting power for the election of
directors of such Person, other than stock having such power only by reason
of the happening of a contingency.
"Welfare Plan" means a "welfare plan," as said term is defined in
Section 3(1) of ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the
Borrower means a Subsidiary of which all of the issued and outstanding shares
of stock (other than directors' qualifying shares as required by law) are
owned by the Borrower and/or one or more of its Wholly-Owned Subsidiaries.
Section 6.2. Interpretation. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms
defined. All references to times of day herein shall be references to
Chicago, Illinois time unless otherwise specifically provided. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined or any consolidation or other accounting
computation is required to be made for the purposes of this Agreement, the
same shall be done in accordance with GAAP, to the extent applicable, except
where such principles are inconsistent with the specific provisions of this
Agreement.
SECTION 7. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks as follows:
Section 7.1. Organization and Qualification. The Borrower is duly
organized and validly existing in good standing under the laws of the State
of Delaware, has full and adequate corporate power to carry on its business
as now conducted, is duly licensed or qualified and in good standing in each
-17-
<PAGE>
jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing or
qualification necessary, except where the failure to be so licensed or
qualified and in good standing would not have a material adverse effect on
the financial condition or Property, business or operations of the Borrower
and the Consolidated Subsidiaries taken as a whole.
Section 7.2. Subsidiaries. As of the date hereof, the only
Subsidiaries of the Borrower are designated in Exhibit B hereto; each
Subsidiary is a corporation duly organized and validly existing in good
standing under the laws of the jurisdiction in which it was incorporated, has
full and adequate corporate power to carry on its business as now conducted,
and is duly licensed or qualified and in good standing in each jurisdiction
in which the nature of the business transacted by it or the nature of the
Property owned or leased by it makes such licensing or qualification
necessary, except where the failure to be so licensed or qualified and in
good standing would not have a material adverse effect on the financial
condition or Property, business or operations of the Borrower and the
Consolidated Subsidiaries taken as a whole. Exhibit B hereto, as from time
to time updated pursuant to Section 9.5(e), correctly sets forth, as to each
Subsidiary required to be listed thereon, whether or not it is a Consolidated
Subsidiary, the jurisdiction of its incorporation, the percentage of issued
and outstanding shares of each class of its capital stock owned by the
Borrower and the Subsidiaries and, if such percentage is not 100% (excluding
directors' qualifying shares as required by law or nominal ownership by other
shareholders required by local law for a non-U.S. Subsidiary), a description
of each class of its authorized capital stock and the number of shares of
each class issued and outstanding. All of the issued and outstanding shares
of capital stock of each Subsidiary are validly issued and outstanding and
fully paid and nonassessable and all such shares indicated in Exhibit B as
owned by the Borrower or a Subsidiary are owned, beneficially and of record,
by the Borrower or such Subsidiary, free of any Lien.
Section 7.3. Corporate Authority and Validity of Obligations. The
Borrower has full right and authority to enter into this Agreement, to make
the borrowings herein provided for, to issue its Notes in evidence thereof
and to perform all of its obligations hereunder and under the Notes; this
Agreement and each Note delivered by the Borrower have been duly authorized,
executed and delivered by the Borrower and constitute valid and binding
obligations of the Borrower enforceable in accordance with their terms,
except insofar as enforceability may be limited by bankruptcy, insolvency or
other similar laws relating to or affecting the enforcement of creditors'
rights generally and by general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law), and
this Agreement and the Notes do not, nor does the performance or observance
by the Borrower or any Subsidiary of any of the matters or things therein
provided for, contravene any provision of law or any charter or by-law
provision of the Borrower or any Subsidiary or any material covenant,
indenture or agreement of or affecting the Borrower or any Subsidiary or a
substantial portion of their respective Properties.
Section 7.4. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
-18-
<PAGE>
Section 7.5. Margin Stock. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its primary activities, in
the business of extending credit for the purpose of purchasing or carrying
Margin Stock, and neither the Borrower nor any of its Subsidiaries will use
the proceeds of any Loan in a manner that violates any provision of
Regulation U, G or X of the Board of Governors of the Federal Reserve System.
Section 7.6. Financial Reports. The consolidated statement of
financial condition of the Borrower and the Consolidated Subsidiaries as at
December 31, 1992 and the related statements of consolidated income and
consolidated cash flows of the Borrower and the Consolidated Subsidiaries for
the year then ended and accompanying notes thereto, which financial
statements are accompanied by the report of Ernst & Young, independent public
accountants, and the unaudited condensed statement of consolidated financial
condition of the Borrower and the Consolidated Subsidiaries as at March 31,
1993 and the related condensed statements of consolidated income and
consolidated cash flows of the Borrower and the Consolidated Subsidiaries for
the three months then ended and accompanying notes, heretofore furnished to
the Banks, fairly present the consolidated financial conditions of the
Borrower and the Consolidated Subsidiaries as at such dates and the
consolidated results of their operations and their consolidated cash flows
for the periods then ended in conformity with GAAP.
Section 7.7. No Material Adverse Change. Since March 31, 1993 to
the date hereof, there has been no material adverse change in the condition,
financial or otherwise, or business prospects of the Borrower and the
Consolidated Subsidiaries taken as a whole.
Section 7.8. Litigation. There is no litigation or governmental
proceeding pending, nor to the knowledge of the Borrower threatened, against
the Borrower or any Consolidated Subsidiary which if adversely determined
would (a) in any material way impair the validity or enforceability of, or
materially impair the ability of the Borrower to perform its obligations
under, this Agreement or the Notes or (b) other than as previously disclosed
in writing to the Banks, result in any material adverse change in the
financial condition or Property, business or operations of the Borrower and
the Consolidated Subsidiaries taken as a whole.
Section 7.9. Tax Returns.; The consolidated United States federal
income tax returns of the Borrower for the taxable year ended December 31,
1986 and for all taxable years ended prior to said date have been examined by
the Internal Revenue Service and have been approved as filed, and any
additional assessments in connection with any of such years have been paid or
the applicable statute of limitations therefor has expired. There are no
assessments in respect of the consolidated United States federal income tax
returns of the Borrower and the Consolidated Subsidiaries of a material
nature for any taxable year ended after December 31, 1986 pending, nor to the
knowledge of the Borrower is any such assessment threatened, other than for
those which are provided for by adequate reserves.
Section 7.10. Approvals. No authorization, consent, license,
exemption or filing or registration with any court or governmental
department, agency or instrumentality, or any approval or consent of the
stockholders of the Borrower or from any other Person, is necessary to the
-19-
<PAGE>
valid execution, delivery or performance by the Borrower of this Agreement or
the Notes.
Section 7.11. Liens. There are no Liens on any of the Property of
the Borrower or any Subsidiary, except those which are permitted by
Section 9.13 hereof.
Section 7.12. ERISA. The Borrower and each Subsidiary are in
compliance in all material respects with the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), to the extent applicable to them
and have received no notice to the contrary from the Pension Benefit Guaranty
Corporation ("PBGC") or any other governmental entity or agency. As of
December 31, 1992 there were no Unfunded Vested Liabilities of Plans
maintained by the Borrower and its Subsidiaries. No condition exists or
event or transaction has occurred with respect to any Plan which could
reasonably be expected to result in the incurrence by the Borrower or any
Subsidiary of any material liability, fine or penalty. Except as disclosed
to the Agent in writing, neither the Borrower nor any Subsidiary has any
contingent liability with respect to any post-retirement benefits under a
Welfare Plan, other than liability for continuation coverage described in
Part 6 of Title I of ERISA.
Section 7.13. Compliance with Environmental Laws. (a) The business
and operation of the Borrower and its Subsidiaries comply in all respects
with all applicable federal, state, regional, county and local laws,
statutes, rules, regulations and ordinances relating to public health, safety
or the environment, including, without limitation, relating to releases,
discharges, emissions or disposals to air, water, land or groundwater, to the
withdrawal or use of groundwater, to the use, handling or disposal of
polychlorinated biphenyls (PCB s), asbestos or urea formaldehyde, to the
treatment, storage, disposal or management of hazardous substances
(including, without limitation, petroleum, its by-products or derivatives, or
other hydrocarbons), to exposure to toxic, hazardous, or other controlled,
prohibited or regulated substances, to the transportation, storage, disposal,
management or release of gaseous or liquid substances, and any regulation,
order, injunction, judgment, declaration, notice or demand issued thereunder,
except to the extent that such noncompliance in the aggregate would not (i)
impair the validity or enforceability of, or materially impair the ability of
the Borrower to perform its obligations under, this Agreement or the Notes or
(ii) result in any material adverse change in the financial condition or
Property, business or operations of the Borrower and the Consolidated
Subsidiaries taken as a whole.
(b) The Borrower has not given, nor is it obligated to give, nor has
it received, any notice, letter, citation, order, warning, complaint,
inquiry, claim or demand that: (i) the Borrower has violated, or is about to
violate, any federal, state, regional, county or local environmental, health
or safety statute, law, rule, regulation, ordinance, judgment or order; (ii)
there has been a release, or there is a threat of release (other than, in
either case, a federally permitted release), of hazardous substances
(including, without limitation, petroleum, its by-products or derivatives, or
other hydrocarbons) from the Borrower's property, facilities, equipment or
vehicles (whether now or heretofore owned); (iii) the Borrower may be or is
liable, in whole or in part, for the costs of cleaning up, remediating or
-20-
<PAGE>
responding to a release of hazardous substances (including, without
limitation, petroleum, its by-products or derivatives, or other
hydrocarbons); or (iv) any of the Borrower's property or assets are subject
to a Lien in favor of any governmental entity for any liability, costs or
damages, under any federal, state, regional, county or local environmental
law, rule or regulation arising from, or costs incurred by such governmental
entity in response to, a release of a hazardous substance (including, without
limitation, petroleum, its by-products or derivatives, or other
hydrocarbons), except to the extent that such violation, release, liability
or Lien could not (A) impair the validity or enforceability of, or materially
impair the ability of the Borrower to perform its obligations under, this
Agreement or the Notes or (B) result in any material adverse change in the
financial condition or Property, business or operations of the Borrower and
the Consolidated Subsidiaries taken as a whole, and provided that, in the
case of a Lien, such Lien does not violate Section 9.13 hereof.
SECTION 8. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan
hereunder shall be subject to the following conditions precedent:
Section 8.1. Initial Borrowing. Prior to the advance of the initial
Borrowing hereunder:
(a) The Agent shall have received for each Bank the favorable
written opinion of Sidley & Austin, counsel to the Borrower, in
substantially the form of Exhibit C hereto, and of Edward H. Graham,
Vice President and General Counsel of the Borrower, in substantially
the form of Exhibit D hereto, and otherwise in form and substance
satisfactory to the Required Banks;
(b) The Agent shall have received for each Bank certified copies
of resolutions of the Board of Directors of the Borrower and of a
Special Committee thereof, together authorizing the execution and
delivery of this Agreement and the Notes, indicating the authorized
signers of this Agreement and the Notes and all other documents relating
thereto and the specimen signatures of such signers; and
(c) The Agent shall have received from the Borrower a list of its
Authorized Representatives and the closing fee required by Section 4.2
hereof.
Section 8.2. All Loans. As of the time of the advance,
continuation, or conversion of each Borrowing hereunder (including the
initial Borrowing):
(a) The Agent shall have received for each Bank the Notes of the
Borrower and the notice required by Section 1.4 or 2.2 hereof;
-21-
<PAGE>
(b) Each of the representations and warranties of the Borrower set
forth in Section 7 hereof shall be true and correct as of said time,
except that any such representation or warranty that expressly relates
solely to an earlier date need only be true and correct as of such date;
(c) The Borrower shall be in full compliance with all of the terms
and conditions hereof, and no Default or Event of Default shall have
occurred and be continuing or would occur as a result of the advance,
continuation, or conversion of such Borrowing;
(d) After giving effect to the advance, continuation, or conversion
of such Borrowing the aggregate amount of all indebtedness for borrowed
money of the Borrower and its Subsidiaries will not exceed any limit on
such indebtedness then established by the Board of Directors of the
Borrower; and
(e) After giving effect to the advance, continuation or conversion
of such Borrowing (i) the Original Dollar Amount of all Loans
outstanding hereunder shall not exceed the Commitments then in effect
and (ii) the Original Dollar Amount of all Loans outstanding from each
Bank shall not exceed such Bank s Commitment; and
(f) Such Borrowing shall not violate any order, judgment or decree
of any court or other authority or any provision of law or regulation
applicable to any Bank (including, without limitation, Regulation U of
the Board of Governors of the Federal Reserve System) as then in effect,
provided that if any such circumstances affect fewer than all the Banks
then the unaffected Banks shall not be relieved of their obligations to
continue or convert their Loans that form part of such Borrowing.
Each request for a Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such Borrowing as
to the facts specified in paragraphs (b), (c) and (d) of this Section 8.2.
If any conditions contained in this Section 8.2 are not fulfilled for a
Borrowing on the last day of its Interest Period, notwithstanding Section 3.2
hereof, such Borrowing shall be due and payable on the last day of its
Interest Period.
SECTION 9. COVENANTS.
The Borrower agrees that, so long as any Note is outstanding hereunder
or any credit is available to or in use by the Borrower hereunder except to
the extent compliance in any case or cases is waived in writing by the
Required Banks:
Section 9.1. Corporate Existence. The Borrower shall, and shall
cause each Subsidiary to, preserve and maintain its corporate existence,
subject to the provisions of Section 9.9 hereof.
-22-
<PAGE>
Section 9.2. Maintenance. The Borrower will maintain, preserve and
keep its plants, properties and equipment necessary to the proper conduct of
its business in reasonably good repair, working order and condition and will
from time to time make all reasonably necessary repairs, renewals,
replacements, additions and betterments thereto so that at all times such
plants, properties and equipment shall be reasonably preserved and
maintained, and will cause each Subsidiary so to do in respect of Property
owned or used by it; provided, however, that nothing in this Section shall
prevent the Borrower or a Subsidiary from discontinuing the operation or
maintenance of any such properties if such discontinuance is, in the judgment
of the Borrower, desirable in the conduct of its business or the business of
the Subsidiary and not disadvantageous in any material respect to the Banks
or the holders of the Notes.
Section 9.3. Taxes. The Borrower will duly pay and discharge, and
will cause each Subsidiary to pay and discharge, all taxes, rates,
assessments, fees and governmental charges upon or against the Borrower or
such Subsidiary or against their respective Properties, in each case before
the same becomes delinquent and before penalties accrue thereon, unless and
to the extent that the same is being contested in good faith and by
appropriate proceedings and adequate reserves are provided therefor.
Section 9.4. Insurance. The Borrower will insure, and keep insured,
and will cause each Subsidiary to insure, and keep insured, with good and
responsible insurance companies, all insurable Property owned by it which is
of a character usually insured by companies similarly situated and operating
like Property; and to the extent usually insured (subject to self-insured
retentions) by companies similarly situated and conducting similar
businesses, the Borrower will also insure, and cause each Subsidiary to
insure, employers and public and product liability risks with good and
responsible insurance companies. The Borrower will upon request of the Agent
furnish a summary setting forth the nature and extent of the insurance
maintained pursuant to this Section 9.4.
Section 9.5. Financial Reports and Other Information. The Borrower
will, and will cause each Consolidated Subsidiary to, maintain a standard
system of accounting in accordance with GAAP and will furnish to the Banks
and their respective duly authorized representatives such information
respecting the business and financial condition of the Borrower and the
Subsidiaries as may be reasonably requested; and without any request will
furnish to each Bank:
(a) within 50 days after the end of each of the first three quarterly
fiscal periods of the Borrower, a copy of the Borrower's Form 10-Q
Report filed with the SEC;
(b) within 120 days after the end of each fiscal year of the
Borrower, a copy of the Borrower's Form 10-K Report filed with the SEC,
including a copy of the annual report of the Borrower and the
Consolidated Subsidiaries for such year with accompanying financial
statements, prepared by the Borrower and certified by Ernst & Young or
any other independent public accountants of recognized national standing
selected by the
-23-
<PAGE>
selected by the Borrower, in accordance with GAAP;
(c) promptly after the sending or filing thereof, copies of all proxy
statements, financial statements and reports which the Borrower sends to
its shareholders, and copies of all other regular, periodic and special
reports and all registration statements which the Borrower files with
the SEC or any successor thereto, or with any national securities
exchange; and
(d) as promptly as possible, and in any event within one Business Day
after an Authorized Officer has knowledge thereof, notice of (i) any
change in the S&P Rating or the Moody's Rating and (ii) any Default or
Event of Default; and
(e) an updated Exhibit B along with the financial statements
delivered under subsection (a) or (b) above, as applicable, for any
calendar quarter during which there is a change in any of the facts
specified in Exhibit B hereto, as then most recently updated.
(f) the Borrower will permit each Bank to visit and inspect, under
the Borrower's guidance, any of the Properties of such Borrower or any
Subsidiary, to examine all their books of account and records, to make
copies and abstracts therefrom, and to discuss the Borrower's and its
Subsidiaries' respective affairs, finances and accounts with such
officers or employees as the Borrower may designate for such purpose,
all at such reasonable times as may be reasonably requested; provided
that unless a Default or an Event of Default exists, all such
inspections shall be at the expense of the Bank or Banks making such
inspections.
Each of the financial statements furnished to the Banks pursuant to
subsections (a) and (b) of this Section 9.5 shall be accompanied by a written
certificate signed by the chief financial officer of the Borrower to the
effect that (i) to the best of the knowledge and belief of the signer thereof
no Default or Event of Default has occurred during the period covered by such
statements or, if any such Default or Event of Default has occurred during
such period, setting forth a description of such Default or Event of Default
and specifying the action, if any, taken by the Borrower to remedy the same,
(ii) the representations and warranties contained in Section 7 hereof are
true and correct as though made on the date of such certificate, except as
otherwise described, (iii) the Borrower is in compliance with all covenants
contained in Section 9 hereof, and (iv) a compliance certificate in the form
of Exhibit E hereto showing the calculations necessary to determine
compliance with Sections 9.6 through 9.8 hereof. In the event the Borrower
is no longer required to file Form 10Q and 10K Reports with the SEC, the
Borrower will nevertheless furnish to the Banks at the time hereinabove set
forth all the financial and other information that would have comprised such
filings.
Section 9.6. Consolidated Tangible Net Worth. The Borrower will at
all times maintain Consolidated Tangible Net Worth in an amount not less than:
-24-
<PAGE>
(i) U.S. $260,000,000 from the date hereof to and including
September 29, 1993,
(ii) U.S. $270,000,000 from September 30, 1993 to and including
December 30, 1993,
(iii) U.S. $275,000,000 from December 31, 1993 to and including
March 30, 1994, and
(iv) thereafter U.S. $275,000,000 plus, on a cumulative basis for
each fiscal quarter:
(A) from the last day of each fiscal quarter during the
Borrower's 1994 fiscal year, 33.33% of Consolidated Net Income, if
positive, earned during the fiscal quarter ending on such date, and
(B) from the last day of each fiscal quarter thereafter,
50% of Consolidated Net Income, if positive, earned during the
fiscal quarter ending on such date.
Section 9.7. Leverage Ratio. The Borrower will, as of the last day
of each fiscal quarter of the Borrower, maintain a ratio of Consolidated
Indebtedness to the sum of Consolidated Indebtedness plus Consolidated Net
Worth of not more than:
(i) 0.635 to 1.00 as of the last day of each fiscal quarter of
the Borrower during the Borrower's 1993 fiscal year,
(ii) 0.600 to 1.00 as of the last day of each fiscal quarter of
the Borrower during the Borrower's 1994 fiscal year, and
(iii) 0.550 to 1.00 as of the last day of each fiscal quarter
thereafter.
Section 9.8. Interest Coverage Ratio. The Borrower will, as of the
last day of each fiscal quarter of the Borrower, maintain the ratio of
Consolidated Income Before Interest and Taxes to Consolidated Interest
Expense of not less than:
(i) 1.50 to 1.00 for the fiscal quarter of the Borrower ending
June 30, 1993,
(ii) 1.50 to 1.00 for the two most recently completed fiscal
quarters of the Borrower ending September 30, 1993,
(iii) 1.75 to 1.00 for the three most recently completed fiscal
quarters of the Borrower ending December 31, 1993,
(iv) 1.75 to 1.00 for the four most recently completed fiscal
quarters of the Borrower ending March 31, 1994,
-25-
<PAGE>
(v) thereafter through December 31, 1994, 2.00 to 1.00 for the
four most recently completed fiscal quarters of the Borrower ending on
the last day of each such fiscal quarter,
(vi) thereafter through June 30, 1995, 2.25 to 1.00 for the four
most recently completed fiscal quarters of the Borrower ending on the
last day of each such fiscal quarter, and
(vii) thereafter, 2.50 to 1.00 for the four most recently
completed fiscal quarters of the Borrower ending on the last day of each
such fiscal quarter.
Section 9.9. Mergers, Consolidations, Leases, and Sales. The
Borrower:
(a) will not be a party to any merger or consolidation unless
the Borrower is the surviving corporation;
(b) except as permitted in Subsection (c) hereof, will not
permit any Consolidated Subsidiary to be a party to any merger or
consolidation unless the Consolidated Subsidiary is the surviving
corporation and remains a Consolidated Subsidiary after the merger or
consolidation, except any Consolidated Subsidiary may merge into the
Borrower or a Wholly-Owned Consolidated Subsidiary and except that this
subsection (b) shall not prohibit any merger where the Consolidated
Subsidiary is not the surviving corporation if, after giving effect to
such merger, the surviving corporation is a Wholly-Owned Consolidated
Subsidiary; and
(c) will not, and will not permit any Consolidated Subsidiary
to, sell, assign, lease or otherwise transfer to any Person other than
the Borrower or one or more Consolidated Subsidiaries any Properties
(including, without limitation, any capital stock of any Consolidated
Subsidiary) other than in the ordinary course of its business as
conducted on the date hereof, unless such sale, assignment, lease or
transfer is for a consideration not less than the fair market value
thereof and unless, after giving effect to such sale, assignment, lease
or transfer, the aggregate proceeds to the Borrower and the Consolidated
Subsidiaries of all such sales, assignments, leases and transfers (other
than in the ordinary course of its business as conducted on the date
hereof) shall not exceed 10% of the Borrower's consolidated assets as
shown on the Borrower's December 31, 1992 financial statements described
in Section 7.6 hereof.
Section 9.10. Change of Control. If a Change of Control shall occur,
the Borrower will, within 1 Business Day after the Borrower becomes aware of
the occurrence thereof, give the Agent notice thereof and describe in
reasonable detail the facts and circumstances giving rise thereto.
Section 9.11. ERISA. The Borrower will promptly pay and discharge
all obligations and liabilities arising under ERISA of a character which if
unpaid or unperformed might result in the imposition of a Lien against any of
its properties or assets and will promptly notify the Agent of (i) the
occurrence of any reportable event (as defined in ERISA) with respect to
-26-
<PAGE>
Plan, other than any such event of which the PBGC has waived notice by
regulation, (ii) receipt of any notice from PBGC of its intention to seek
termination of any Plan or appointment of a trustee therefor, (iii) its or
any Subsidiary's intention to terminate or withdraw from any Plan, and (iv)
the occurrence of any event with respect to any Plan which could result in
the incurrence by the Borrower or any Subsidiary of any material liability,
fine or penalty, or any material increase in the contingent liability of the
Borrower or any Subsidiary with respect to any post-retirement Welfare Plan
benefit.
Section 9.12. Conduct of Business. The Borrower will not engage in
any business if, as a result, the general nature of the business which would
then be engaged in by the Borrower would be substantially changed from the
general nature of the business engaged in by the Borrower on the date of this
Agreement.
Section 9.13. Liens. The Borrower will not nor will it permit any
Subsidiary to create, incur, permit to exist or to be incurred any Lien of
any kind on any Property owned by the Borrower or any Subsidiary; provided,
however, that this Section 9.13 shall not apply to nor operate to prevent:
(a) Liens existing as of the date of this Agreement (which in
the aggregate secure less than U.S. $10,000,000 in indebtedness and
other liabilities and which in the aggregate apply to Property
constituting less than 5% of the Borrower's consolidated assets);
(b) Liens in connection with worker's compensation, unemployment
insurance, old age benefits, social security obligations, taxes,
assessments, statutory obligations or other similar charges, good faith
deposits in connection with tenders, contracts or leases to which the
Borrower or any Subsidiary is a party (other than contracts for borrowed
money), or other deposits required to be made in the ordinary course of
business; provided that in each case the obligation secured is not
overdue or, if overdue, is being contested in good faith by appropriate
proceedings and adequate reserves have been established therefor;
(c) mechanics', workmen's, materialmen's, landlords', carriers'
or other similar Liens arising in the ordinary course of business with
respect to obligations which are not due or which are being contested in
good faith by appropriate proceedings and adequate reserves have been
established therefor;
(d) Liens arising out of judgments or awards against the
Borrower or any Subsidiary with respect to which the Borrower or such
Subsidiary shall be prosecuting an appeal or proceeding for review and
with respect to which it shall have obtained a stay of execution pending
such appeal or proceeding for review; provided that the aggregate amount
of liabilities (including interest and penalties, if any) of the
Borrower and the Subsidiaries secured by such Liens shall not exceed
U.S.$25,000,000 at any one time outstanding;
-27-
<PAGE>
(e) Liens for property taxes not yet subject to penalties for
nonpayment, or survey exceptions, encumbrances, mineral or royalty
reservations, easements or reservations of, or rights of others for,
rights of way, sewers, electric lines, pipe lines, telegraph and
telephone lines and other similar purposes, or zoning or other
restrictions as to the use of its properties, which exceptions,
encumbrances, easements, reservations, rights and restrictions do not in
the aggregate materially detract from the value of such properties or
materially impair their use in the operation of the business of the
Borrower and its Subsidiaries;
(f) Liens upon any Property acquired by the Borrower or any
Subsidiary after the date hereof (A) to secure the payment of all or any
part of the purchase price of such Property upon the acquisition thereof
by the Borrower or such Subsidiary, or (B) to secure any indebtedness
issued, assumed or guaranteed by the Borrower or any Subsidiary prior
to, at the time of, or within 270 days after the acquisition of such
Property, which indebtedness is issued, assumed or guaranteed for the
purpose of financing all or any part of the purchase price of such
Property, provided that in the case of any such acquisition the Lien
shall not apply to any Property other than the Property so acquired or
purchased;
(g) Liens of or upon any Property existing at the time of
acquisition thereof by the Borrower or any Subsidiary and not created in
contemplation of such acquisition;
(h) Liens of or upon any Property of a corporation existing at
the time such corporation is merged with or into or consolidated with
the Borrower or any Subsidiary or existing at the time of a sale or
transfer of the properties of a corporation (or division thereof) as an
entirety or substantially as an entirety to the Borrower or any
Subsidiary and not created in contemplation of such transaction;
(i) Liens to secure indebtedness of any Subsidiary to the
Borrower or to another Subsidiary;
(j) Liens in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country or political subdivision, to secure partial,
progress, advance or other payments pursuant to any contract or statute
or to secure any indebtedness incurred or guaranteed for the purpose of
financing or refinancing all or any part of the purchase price of the
Property subject to such Liens, or the cost of constructing or improving
the Property subject to such mortgages (including, without limitation,
mortgages incurred in connection with pollution control, industrial
revenue or similar financings); or
(k) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing paragraphs (a) through (j), inclusive,
provided, however, that the principal amount of indebtedness secured
thereby shall not exceed the principal amount of indebtedness so secured
-28-
<PAGE>
at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to the Property which
was subject to the Lien so extended, renewed or replaced.
Section 9.14. Use of Proceeds; Margin Stock. (a) The Borrower shall
only use the proceeds of the Loans for general corporate purposes.
(b) The Borrower shall not directly or indirectly use the proceeds of
any of the Loans to purchase or carry any Margin Stock, and at no time will
Margin Stock constitute 25% or more of the assets of the Borrower or of the
consolidated assets of the Borrower and the Subsidiaries.
Section 9.15. Compliance with Laws. Without limiting any of the
other covenants of the Borrower in this Section 9, the Borrower will, and
will cause each of its Subsidiaries to, conduct its business, and otherwise
be, in compliance with all applicable laws, regulations, ordinances and
orders of any governmental or judicial authorities, non-compliance with which
would (a) in any material way impair the validity or enforceability or the
ability of the Borrower to perform its obligations under this Agreement or
the Notes or (b) result in any material adverse change in the financial
condition or properties, business or operations of the Borrower and the
Consolidated Subsidiaries taken as a whole; provided, however, that the
Borrower or any Subsidiary shall not be required to comply with any such law,
regulation, ordinance or order if it shall be contesting such law,
regulation, ordinance or order in good faith by appropriate proceedings and
adequate reserves, if appropriate, shall have been established therefor.
SECTION 10. EVENTS OF DEFAULT AND REMEDIES.
Section 10.1. Events of Default. Any one or more of the following
shall constitute an Event of Default:
(a) (i) default in the payment when due of any principal on any
Note or any Loan evidenced thereby, whether at the stated maturity
thereof or at any other time provided in this Agreement; or (ii) default
for a period of five days in the payment when due of interest on any
Note or any Loan evidenced thereby or of any other sums required to be
paid pursuant to this Agreement;
(b) default by the Borrower in the observance or performance of
any covenant set forth in Sections 9.6, 9.7, 9.8, 9.9, 9.10, 9.12 or
9.14 hereof;
(c) default by the Borrower in the observance or performance of
any other provision hereof not mentioned in (a) or (b) above, which is
not remedied within 30 days after notice thereof to the Borrower by the
Agent or any Bank;
(d) any representation or warranty made herein by the Borrower,
or in any statement or certificate furnished pursuant hereto by the
-29-
<PAGE>
Borrower, or in connection with any Loan advanced hereunder, proves
untrue in any material respect as of the date of the issuance or making
thereof;
(e) the Borrower or any Subsidiary shall fail within thirty (30)
days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of U.S. $25,000,000, which is not stayed on
appeal or otherwise being appropriately contested in good faith in a
manner that stays enforcement thereof;
(f) the Borrower or any other member of its Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess of
U.S. $10,000,000 which it shall have become liable to pay to the PBGC or
to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Vested Liabilities in excess of
U.S. $10,000,000 (collectively, a "Material Plan") shall be filed under
Title IV of ERISA by the Borrower or any other member of its Controlled
Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any
Material Plan or a proceeding shall be instituted by a fiduciary of any
Material Plan against the Borrower or any member of its Controlled Group
to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within thirty (30) days thereafter; or a
condition shall exist by reason of which the PBGC would be entitled to
obtain a decree adjudicating that any Material Plan must be terminated;
(g) (A) default shall occur in the payment when due of any
indebtedness for borrowed money issued or assumed by the Borrower or any
Subsidiary aggregating in excess of U.S. $10,000,000 or the Borrower or
any Subsidiary shall default in the payment of any guaranty of
indebtedness in such an amount, or (B) default shall occur under any
indenture, agreement or other instrument under which any indebtedness
for borrowed money of the Borrower or any Subsidiary may be issued,
assumed or guaranteed, and such default shall continue for a period of
time sufficient to permit the acceleration of the maturity of any such
indebtedness for borrowed money of the Borrower or any Subsidiary
aggregating in excess of U.S. $10,000,000 (whether or not such maturity
is in fact accelerated);
(h) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the SEC under said Act) of 20% or more in voting
power of the outstanding Voting Stock of the Borrower (a "Change of
Control");
(i) the Borrower or any Material Subsidiary shall (i) have
entered against it an order for relief under the United States
Bankruptcy Code, as amended, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
-30-
<PAGE>
assignment for the benefit of creditors, (iv) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any substantial part
of its property, (v) institute any proceeding seeking to have entered
against it an order for relief under the United States Bankruptcy Code,
as amended, to adjudicate it insolvent, or seeking dissolution, winding
up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other
pleading denying the material allegations of any such proceeding filed
against it, or (vi) fail to contest in good faith any appointment or
proceeding described in Section 10.1(j) hereof; or
(j) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower or any Material
Subsidiary or any substantial part of any of their Property, or a
proceeding described in Section 10.1(i)(v) shall be instituted against
the Borrower, and such appointment continues undischarged or such
proceeding continues undismissed or unstayed for a period of sixty (60)
days.
Section 10.2. Non-Bankruptcy Defaults. When any Event of Default
other than those described in Sections 10.1(i) or (j) has occurred and is
continuing, the Agent shall, by notice to the Borrower, (a) if so directed by
the Required Banks, terminate the remaining Commitments of the Banks
hereunder on the date stated in such notice (which may be the date thereof);
and (b) if so directed by the Banks holding Notes evidencing more than
66-2/3% of the aggregate principal amount of all Loans then outstanding,
declare the principal of and the accrued interest on all outstanding Notes of
the Borrower to be forthwith due and payable and thereupon all of said Notes,
including both principal and interest, shall be and become immediately due
and payable together with all other amounts payable under this Agreement
without further demand, presentment, protest or notice of any kind. The
Agent, after giving notice to the Borrower pursuant to Section 10.1 or this
Section 10.2, shall also promptly send a copy of such notice to the other
Banks, but the failure to do so shall not impair or annul the effect of such
notice.
Section 10.3. Bankruptcy Defaults. When any Event of Default
described in subsections (i) or (j) of Section 10.1 hereof has occurred and
is continuing, then all outstanding Notes shall immediately become due and
payable together with all other amounts payable under this Agreement without
presentment, demand, protest or notice of any kind, and the obligation of the
Banks to extend further credit pursuant to any of the terms hereof shall
immediately terminate.
Section 10.4. Expenses. The Borrower agrees to pay to the Agent and
each Bank, or any other holder of any Note outstanding hereunder, all
reasonable costs and expenses incurred or paid by the Agent and such Bank or
any such holder, including reasonable attorneys' fees and court costs, in
connection with any Default or Event of Default by the Borrower hereunder or
in connection with the enforcement of any of the terms hereof or of the
Notes.
-31-
<PAGE>
SECTION 11. CHANGE IN CIRCUMSTANCES.
Section 11.1. Change of Law. Notwithstanding any other provisions of
this Agreement or any Note, if at any time after the date hereof any change
in applicable law or regulation or in the interpretation thereof makes it
unlawful for any Bank to make or continue to maintain Eurocurrency Loans in
any currency or to give effect to its obligations as contemplated hereby,
such Bank shall promptly give notice thereof to the Borrower, with a copy to
the Agent, and such Bank's obligations to make or maintain Eurocurrency Loans
in such currency under this Agreement shall terminate until it is no longer
unlawful for such Bank to make or maintain Eurocurrency Loans in such
currency. The Borrower shall prepay on demand the outstanding principal
amount of any such affected Eurocurrency Loans, together with all interest
accrued thereon and all other amounts then due and payable to such Bank under
this Agreement; provided, however, subject to all of the terms and conditions
of this Agreement, the Borrower may instead elect to convert the principal
amount of the affected Eurocurrency Loan if denominated in U.S. Dollars into
a Domestic Rate Loan from such Bank that shall not be maintained through
conversion ratably by the Banks but only by such affected Bank.
Section 11.2. Unavailability of Deposits or Inability to Ascertain,
or Inadequacy of, LIBOR. If on or prior to the first day of any Interest
Period for any Borrowing of Eurocurrency Loans:
(a) the Agent is advised by the Reference Banks that deposits in
U.S. Dollars or the applicable Alternative Currency (in the applicable
amounts) are not being offered to the Reference Banks in the
eurocurrency interbank market for such Interest Period, or that by
reason of circumstances affecting the interbank eurocurrency market
adequate and reasonable means do not exist for ascertaining the
applicable LIBOR, or
(b) Banks having 25% or more of the aggregate amount of the
Commitments advise (or, in the case of a Swing Line Loan, a Bank
scheduled to make such a Loan advises) the Agent that (i) LIBOR as
determined by the Agent will not adequately and fairly reflect the cost
to such Banks or Bank of or its funding their Eurocurrency Loans or Loan
for such Interest Period or (ii) that the making or funding of
Eurocurrency Loans in the relevant currency has become impracticable as
a result of an event occurring after the date of the Agreement which in
the opinion of such Banks or Bank materially affects such Loans,
then the Agent shall forthwith give notice thereof to the Borrower and the
Banks, whereupon until the Agent notifies the Borrower that the circumstances
giving rise to such suspension no longer exist, the obligations of the Banks
or of the relevant Bank to make Eurocurrency Loans in the currency so
affected shall be suspended.
Section 11.3. Increased Cost and Reduced Return. (a) If on or after
the date hereof, the adoption of any applicable law, rule or regulation, or
any change therein, or any change in the interpretation or administration
-32-
<PAGE>
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by
any Bank (or its Lending Office) with any request or directive (whether or
not having the force of law) of any such authority, central bank or
comparable agency:
(i) shall subject any Bank (or its Lending Office) to any tax,
duty or other charge with respect to its Eurocurrency Loans, its Notes
or its obligation to make Eurocurrency Loans, or shall change the basis
of taxation of payments to any Bank (or its Lending Office) of the
principal of or interest on its Eurocurrency Loans or any other amounts
due under this Agreement in respect of its Eurocurrency Loans or its
obligation to make Eurocurrency Loans (except for taxes imposed on or
measured by the overall net income of such Bank or its Lending Office
imposed by the jurisdiction in which such Bank's principal executive
office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any Eurocurrency Loans any such
requirement included in an applicable Eurocurrency Reserve Percentage)
against assets of, deposits with or for the account of, or credit
extended by, any Bank (or its Lending Office) or shall impose on any
Bank (or its Lending Office) or on the interbank market any other
condition affecting its Eurocurrency Loans, its Notes or its obligation
to make Eurocurrency Loans;
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Eurocurrency Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Lending Office) under this Agreement or under its Notes with respect thereto,
by an amount deemed by such Bank to be material, then, within fifteen (15)
days after demand by such Bank (with a copy to the Agent), the Borrower shall
be obligated to pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction.
(b) If after the date hereof, any Bank shall have determined that
the adoption of any applicable law, rule or regulation regarding capital
adequacy, or any change therein (including, without limitation, the adoption
of any risk-based capital guidelines, or any revisions thereof, currently
proposed by banking regulators), or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof,
or compliance by any Bank (or its Lending Office) with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on such Bank's capital, or on the
capital of any corporation controlling such Bank, as a consequence of its
obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies with respect to capital adequacy) by an
amount deemed by such Bank to be material, then from time to time, within
-33-
<PAGE>
fifteen (15) days after demand by such Bank (with a copy to the Agent), the
Borrower shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such reduction.
(c) Each Bank that suspends its obligation to advance or maintain
Eurocurrency Loans under Section 11.1 hereof, determines to seek compensation
under this Section 11.3, or becomes entitled to receive additional amounts
under Section 13.1(c) hereof shall notify the Borrower and the Agent of the
circumstances that entitle the Bank to such right pursuant to any of such
Sections and will designate a different Lending Office if such designation
will avoid such situation or, in the case of Sections 11.3 and 13.1, reduce
the amount of compensation payable thereunder, and will not, in the judgment
of such Bank, be otherwise disadvantageous to such Bank. A certificate of
any Bank claiming compensation under this Section 11.3 and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive
if reasonably determined. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
Section 11.4. Lending Offices. Each Bank may, at its option, elect
to make its Loans hereunder at the branch, office or affiliate specified on
the appropriate signature page hereof (each a "Lending Office") for each type
of Loan available hereunder or at such other of its branches, offices or
affiliates or an international banking facility created by such Bank to make
such Loan as it may from time to time elect and designate in a notice to the
Borrower and the Agent; provided, however, that in such event such Loan shall
be deemed to have been made by such Bank from its relevant Lending Office for
such Loans, and the obligation of the Borrower to repay such Loan shall
nevertheless be to such Bank and shall be deemed to be held by such Bank, to
the extent of such Loan, for the account of such branch, office, affiliate or
international banking facility.
Section 11.5. Discretion of Bank as to Manner of Funding.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans in
any manner it sees fit, it being understood, however, that for the purposes
of this Agreement all determinations hereunder shall be made as if each Bank
had actually funded and maintained each Eurocurrency Loan through the
purchase of deposits in the eurocurrency interbank market having a maturity
corresponding to such Loan's Interest Period and bearing an interest rate
equal to LIBOR for such Interest Period.
Section 11.6. Substitution of Bank. If (a) any Bank has demanded
compensation or given notice of its intention to demand compensation under
Section 11.3 or (b) the Borrower is required to pay any additional amount to
any Bank pursuant to Section 13.1, and in any such case the Required Banks
are not in the same situation, the Borrower shall have the right, with the
assistance of the Agent if desired, to seek a substitute bank or banks
reasonably satisfactory to the Agent (which may be one or more of the Banks)
to replace such Bank under this Agreement. The Bank to be so replaced shall
cooperate with the Borrower and substitute bank to accomplish such
substitution on the terms of Section 13.12 hereof, provided that such Bank s
entire Commitment is replaced, and the U.S. $2,500 fee payable under
-34-
<PAGE>
Section 13.12 shall not be payable in connection with any such assignment
required under this Section 11.6.
SECTION 12. THE AGENT.
Section 12.1. Appointment and Authorization. Each Bank hereby
irrevocably appoints Bank of Montreal its Agent under this Agreement and
hereby authorizes the Agent to take such action as Agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto.
Section 12.2. Agent and Affiliates. The Agent shall have the same
rights and powers under this Agreement as any other Bank and may exercise or
refrain from exercising the same as though it were not the Agent, and each
Agent and its affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary
or affiliate of the Borrower as if it were not the Agent hereunder. The term
Bank as used herein, unless the context otherwise clearly requires, includes
the Agent in its individual capacity as a Bank. References in Section 1
hereof to the Agent's Loans, or to the amount owing to the Agent for which an
interest rate is being determined, refer to the Agent in its individual
capacity as a Bank.
Section 12.3. Action by Agent. Except for action expressly required
of the Agent hereunder, the Agent shall in all cases be fully justified in
failing or refusing to act hereunder unless the Agent shall be indemnified to
its reasonable satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action. In all cases in which this Agreement does not require the
Agent to take certain actions, the Agent shall be fully justified in using
their discretion in failing to take or in taking any action hereunder.
Without limiting the generality of the foregoing, the Agent shall not be
required to take any action with respect to any Event of Default, except as
expressly provided in Section 10.2. The Agent shall not be deemed to have
knowledge of any Default or Event of Default until it receives written notice
thereof from the Borrower or a Bank specifically identified as a "notice of
default." The Agent shall be acting as an independent contractor hereunder
and nothing herein shall be deemed to impose on the Agent any fiduciary
obligations to the Banks or the Borrower.
Section 12.4. Consultation with Experts. The Agent may consult with
legal counsel, independent public accountants and other experts selected by
it and shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the advice of such counsel, accountants or
experts.
Section 12.5. Liability of Agent. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken
or not taken by it in connection herewith (i) with the consent or at the
request of the Required Banks or (ii) in the absence of its own gross
negligence or willful misconduct. Neither the Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with this Agreement or any borrowing
-35-
<PAGE>
hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower; (iii) the satisfaction of any condition specified
in Section 8, except receipt of items required to be delivered to the Agent;
or (iv) the validity, effectiveness or genuineness of this Agreement, the
Notes or any other instrument or writing furnished in connection herewith.
The Agent shall not incur any liability by acting in reliance upon any
notice, consent, certificate, request or statement, (whether written or oral)
or other documents believed by it to be genuine or to be signed by the proper
party or parties and, in the case of legal matters, in relying on the advice
of counsel (including counsel for the Borrower). The Agent may treat the
Banks that are named herein as the holders of the Notes and the indebtedness
contemplated herein unless and until the Agent receive notice of the
assignment of the Note and the indebtedness held by a Bank hereunder pursuant
to an assignment contemplated by Section 13.12 hereof.
Section 12.6. Indemnification. Each Bank shall, ratably in
accordance with its Commitments (or, if the Commitments have been terminated
in whole, ratably in accordance with its outstanding Loans), indemnify the
Agent, its directors, officers, and employees (to the extent not reimbursed
by the Borrower) against any cost, expense (including counsels' fees and
disbursements), claim, demand, action, loss, obligation, damages, penalties,
judgments, suits or liability (except such as result from the Agent's gross
negligence or willful misconduct) that any of them may suffer or incur in
connection with this Agreement or any action taken or omitted by any of them
hereunder.
Section 12.7. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Agent or any other Bank, and
based on such documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement. Each Bank
also acknowledges that it will, independently and without reliance upon the
Agent or any other Bank, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking any action under this Agreement.
Section 12.8. Resignation of Agent and Successor Agent. Subject to
the appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving written notice thereof to the Banks
and the Borrower, and the Required Banks may remove the Agent, with the
consent of the Borrower, at any time. Upon any such resignation or removal
of the Agent, the Required Banks shall have the right to appoint, with the
consent of the Borrower, a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent s giving of
notice of resignation or receiving notice of its removal, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent, which shall be
a commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
U.S. $200,000,000. Upon the acceptance of its appointment as Agent hereunder
by a successor Agent, such successor Agent shall thereupon succeed to and
become vested with all the rights and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder.
After any retiring Agent's resignation or removal hereunder as Agent, the
-36-
<PAGE>
provisions of this Section 12 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent.
Section 12.9. Payments. Unless the Agent shall have been notified by
a Bank prior to the date on which such Bank is scheduled to make payment to
the Agent of the proceeds of a Loan (which notice shall be effective upon
receipt) that such Bank does not intend to make such payment, the Agent may
assume that such Bank has made such payment when due and the Agent may in
reliance upon such assumption (but shall not be required to) make available
to the Borrower the proceeds of the Loan to be made by such Bank and, if any
Bank has not in fact made such payment to the Agent, such Bank shall, on
demand, pay to the Agent the amount made available to the Borrower
attributable to such Bank together with interest thereon in respect of each
day during the period commencing on the date such amount was made available
to the Borrower and ending on (but excluding) the date such Bank pays such
amount to the Agent at a rate per annum equal to the Federal Funds Rate. If
such amount is not received from such Bank by the Agent immediately upon
demand, the Borrower will, on demand, repay to the Agent the proceeds of the
Loan attributable to such Bank with interest thereon at a rate per annum
equal to the interest rate applicable to the relevant Loan, but without such
payment being considered a payment or prepayment of a Loan, so that the
Borrower will have no liability under Section 3.7 hereof with respect to such
payment. "Federal Funds Rate" shall mean the rate described in
Section 1.2(a)(ii) hereof.
Section 12.10. Co-Agent. Nothing in this Agreement shall impose any
obligation on Royal Bank of Canada in its capacity as Co-Agent hereunder.
SECTION 13. MISCELLANEOUS.
Section 13.1. Withholding Taxes.
(a) U.S. Withholding Tax Exemptions. Each Bank that is not a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower and the Agent on or before the date the
initial Borrowing is made hereunder, two duly completed and signed copies of
either Form 1001 (relating to such Bank and entitling it to a complete
exemption from withholding on all amounts to be received by such Bank,
including fees, pursuant to this Agreement and the Loans) or Form 4224
(relating to all amounts to be received by such Bank, including fees,
pursuant to this Agreement and the Loans) of the United States Internal
Revenue Service. Thereafter and from time to time, each such Bank shall
submit to the Borrower and the Agent such additional duly completed and
signed copies of one or the other of such Forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may be (i) notified by the Borrower or Agent to such Bank and
(ii) required under then-current United States law or regulations to avoid or
reduce United States withholding taxes on payments in respect of all amounts
to be received by such Bank, including fees, pursuant to this Agreement or
the Loans. Upon the request of the Borrower or Agent, each Bank that is a
United States person (as such term is defined in Section 7701(a)(30) of the
Code) shall submit to the Borrower a certificate to the effect that it is
such a United States person.
-37-
<PAGE>
(b) Inability of Bank to Submit Forms. If any Bank determines, as
a result of any change in applicable law, regulation or treaty, or in any
official application or interpretation thereof, that it is unable to submit
to the Borrower any form or certificate that such Bank is obligated to submit
pursuant to subsection (a) of this Section 13.1, or that such Bank is
required to withdraw or cancel any such form or certificate previously
submitted or any such form or certificate otherwise become ineffective or
inaccurate, such Bank shall promptly notify the Borrower and Agent of such
fact and the Bank shall to that extent not be obligated to provide any such
form or certificate and will be entitled to withdraw or cancel any affected
form or certificate, as applicable.
(c) Payment of Additional Amounts. If, as a result of any change
in applicable law, regulation or treaty, or in any official application or
interpretation thereof, the Borrower is required by law or regulation to make
any deduction, withholding or backup withholding of any taxes, levies,
imposts, duties, fees, liabilities or similar charges of the United States of
America, any possession or territory of the United States of America
(including the Commonwealth of Puerto Rico) or any area subject to the
jurisdiction of the United States of America ("U.S. Taxes") from any payments
to a Bank in respect of Loans then or thereafter outstanding, or other
amounts owing hereunder, the amount payable by the Borrower will be increased
to the amount which, after deduction from such increased amount of all U.S.
Taxes required to be withheld or deducted therefrom, will yield the amount
required under this Agreement to be payable with respect thereto; provided
that the Borrower shall not be required to pay any additional amount pursuant
to this subsection (c) to any Bank that (i) is not, on the date this
Agreement is executed by such Bank, either (x) entitled to submit Form 1001
relating to such Bank and entitling it to a complete or partial exemption
from withholding on all amounts to be received by such Bank, including fees,
pursuant to this Agreement and the Loans (and in the case of a Bank that on
such date is only entitled to present a Form 1001 entitling it to a partial
exemption from such withholding the Borrower shall in no event be required to
make any such additional payment beyond the value of the partial exemption to
which such Bank was originally entitled) or Form 4224 relating to all amounts
to be received by such Bank, including fees, pursuant to this Agreement and
the Loans or (y) a U.S. person (as such term is defined in
Section 7701(a)(30) of the Code), or (ii) has failed to submit any form or
certificate that it was required to file pursuant to subsection (a) of this
Section 13.1 and entitled to file under applicable law, or (iii) is no longer
entitled to submit Form 1001 or Form 4224 as a result of any change in
circumstances other than a change in applicable law, regulation or treaty or
in any official application or interpretation thereof. Within 30 days after
the Borrower s payment of any such U.S. Taxes, the Borrower shall deliver to
the Agent, for the account of the relevant Bank(s), originals or certified
copies of official tax receipts evidencing such payment. The obligations of
the Borrower under this subsection (c) shall survive the payment in full of
the Loans and the termination of the Commitments.
Section 13.2. No Waiver of Rights. No delay or failure on the part
of any Bank or on the part of the holder or holders of any Note in the
exercise of any power or right shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise thereof
preclude any other or further exercise of any other power or right, and the
rights and remedies hereunder of the Banks and of the holder or holders of
-38-
<PAGE>
any Notes are cumulative to, and not exclusive of, any rights or remedies
which any of them would otherwise have.
Section 13.3. Non-Business Day. If any payment of principal or
interest on any Loan or of any fee hereunder shall fall due on a day which is
not a Business Day, interest at the rate such Loan bears for the period prior
to maturity or at the rate such fee accrues shall continue to accrue from the
stated due date thereof to and including the next succeeding Business Day, on
which the same shall be payable.
Section 13.4. Documentary Taxes. The Borrower agrees that it will
pay any documentary, stamp or similar taxes payable in respect to this
Agreement or any Note, including interest and penalties, in the event any
such taxes are assessed irrespective of when such assessment is made and
whether or not any credit is then in use or available hereunder.
Section 13.5. Survival of Representations. All representations and
warranties made herein or in certificates given pursuant hereto shall survive
the execution and delivery of this Agreement and of the Notes, and shall
continue in full force and effect with respect to the date as of which they
were made as long as any credit is in use or available hereunder.
Section 13.6. Survival of Indemnities. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 3.7 and Section 11.3 hereof, shall survive the
termination of this Agreement and the payment of the Loans and the Notes.
Section 13.7. Sharing of Set-Off. Each Bank agrees with each other
Bank a party hereto that if on or after the date of the occurrence of an
Event of Default and the acceleration of the maturity of the Notes pursuant
to Section 10.2 or 10.3 hereof such Bank shall receive and retain any
payment, whether by set-off or application of deposit balances or otherwise
("Set-off"), on any of its Loans outstanding under this Agreement in excess
of its ratable share of payments on all Loans then outstanding to the Banks,
then such Bank shall purchase for cash at face value, but without recourse,
ratably from each of the other Banks such amount of the Loans held by each
such other Bank (or interest therein) as shall be necessary to cause such
Bank to share such excess payment ratably with all the other Banks; provided,
however, that if any such purchase is made by any Bank, and if such excess
payment or part thereof is thereafter recovered from such purchasing Bank,
the related purchases from the other Banks shall be rescinded ratably and the
purchase price restored as to the portion of such excess payment so
recovered, but without interest. Each Bank's ratable share of any such
Set-off shall be determined by the proportion that the aggregate amount of
Loans then due and payable to such Bank bears to the total aggregate amount
of the Loans then due and payable to all the Banks.
Section 13.8. Notices. Except as otherwise specified herein, all
notices hereunder shall be in writing (including cable, telecopy or telex)
and shall be given to the relevant party at its address, telecopier number or
telex number set forth below, in the case of the Borrower, or on the
appropriate signature page hereof, in the case of the Banks and the Agent, or
-39-
<PAGE>
such other address, telecopier number or telex number as such party may
hereafter specify by notice to the Agent and the Borrower, given by United
States certified or registered mail, by telecopy or by other
telecommunication device capable of creating a written record of such notice
and its receipt. Notices hereunder to the Borrower shall be addressed to:
Maytag Corporation
403 West 4th Street, North
Newton, Iowa 50208
Attention: Thomas C. Ringgenberg
Vice President and Treasurer
Telephone: (515) 791-8955
Telecopy: (515) 791-8115
Each such notice, request or other communication shall be effective (i) if
given by telecopier, when such telecopy is transmitted to the telecopier
number specified in this Section and a confirmation of such telecopy has been
received by the sender, (ii) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the answerback
is received by sender, (iii) if given by mail, five (5) days after such
communication is deposited in the mail, certified or registered with return
receipt requested, addressed as aforesaid or (iv) if given by any other
means, when delivered at the addresses specified in this Section; provided
that any notice given pursuant to Section 1 or Section 2 hereof shall be
effective only upon receipt.
Section 13.9. Counterparts. This Agreement may be executed in any
number of counterparts, and by the different parties on different
counterparts, each of which when executed shall be deemed an original but all
such counterparts taken together shall constitute one and the same
instrument.
Section 13.10. Successors and Assigns. This Agreement shall be
binding upon the Borrower and its successors and assigns, and shall inure to
the benefit of each of the Banks and the benefit of their respective
successors and assigns, including any subsequent holder of any Note. The
Borrower may not assign any of its rights or obligations hereunder without
the written consent of all of the Banks.
Section 13.11. Participants and Note Assignees. Each Bank shall
have the right at its own cost to grant participations (to be evidenced by
one or more agreements or certificates of participation) in the Loans made,
and/or Commitments held, by such Bank at any time and from time to time, and
to assign its rights under such Loans or the Notes evidencing such Loans to
one or more other financial institutions; provided that no such participation
or assignment shall relieve any Bank of any of its obligations under this
Agreement, and provided further that no such assignee or participant shall
have any rights under this Agreement except as provided in this
Section 13.11, and the Agent shall have no obligation or responsibility to
such participant or assignee, except that nothing herein provided is intended
to affect the rights of an assignee of a Note to enforce the Note assigned.
Any party to which such a participation or assignment has been granted shall
have the benefits of Section 3.7 and Section 11.3 hereof but shall not be
-40-
<PAGE>
entitled to receive any greater payment under either such Section than the
Bank granting such participation or assignment would have been entitled to
receive with respect to the rights transferred. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that
such Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the
right to approve any amendment, modification or wavier of any provision of
this Agreement; provided that such participation agreement may provide that
such Bank will not agree to any modification, amendment or waiver of this
Agreement that would (A) increase any Commitment of such Bank if such
increase would also increase the participant s obligations, (B) forgive any
amount of or postpone the date for payment of any principal of or interest on
any Loan or of any fee payable hereunder in which such participant has an
interest or (C) reduce the stated rate at which interest or fees accrue or
other amounts payable hereunder in which such participant has an interest.
Section 13.12. Assignment of Commitments by Banks. Each Bank shall
have the right at any time, with the prior consent of the Borrower and Agent,
to sell, assign, transfer or negotiate all or any part of its Commitment to
one or more commercial banks or other financial institutions. Upon any such
assignment, its notification to the Agent, and the payment of a U.S. $2,500
recordation and administration fee to the Agent (which fee shall in no event
be the obligation of the Borrower), the assignee shall become a Bank
hereunder, all Loans and the Commitment it thereby holds shall be governed by
all the terms and conditions hereof, and the Bank granting such assignment
shall have its Commitment and its obligations and rights in connection
therewith, reduced by the amount of such assignment.
Section 13.13. Amendments. Any provision of this Agreement or the
Notes may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by (a) the Borrower, (b) the Required Banks, and (c)
if the rights or duties of the Agent are affected thereby, the Agent;
provided that:
(i) no amendment or waiver pursuant to this Section shall (A)
increase any Commitment of any Bank without the consent of such
Bank or (B) forgive any amount of or postpone the date for payment
of any principal of or interest on any Loan or of any fee payable
hereunder or reduce the stated rate at which interest or fees
accrue hereunder without the consent of the Bank to which such
payment is owing or which has committed to make such Loan
hereunder; and
(ii) no amendment or waiver pursuant to this Section shall,
unless signed by each Bank, change the provisions of this Section,
the definition of Required Banks or Termination Date, or any
condition precedent set forth in Section 8 hereof or the provisions
of Sections 10.1.(i), 10.1.(j) or 10.3, or affect the number of
Banks required to take any action hereunder.
Section 13.14. Legal Fees and Indemnification. The Borrower agrees
to pay the reasonable fees and disbursements of Chapman and Cutler, counsel
to the Agent, in connection with the preparation and execution of this
Agreement, and any amendment, waiver or consent related hereto, whether or
not the transactions contemplated herein are consummated. The Borrower
further agrees to indemnify each Bank, its directors, officers and employees
-41-
<PAGE>
against all losses, claims, damages, penalties, judgments, liabilities and
expenses (including, without limitations, all expenses of litigation or
preparation therefor whether or not any Bank is a party thereto) which any of
them may pay or incur arising out of or relating to this Agreement, any Note,
the transactions contemplated hereby or the direct or indirect application or
proposed application of the proceeds of any Loan hereunder, other than (i)
those which arise from the gross negligence or willful misconduct of the
party claiming indemnification or (ii) those covered by another explicit
provision hereof or required to be paid by a Bank or Banks hereunder. The
obligations of the Borrower under this Section shall survive the termination
of this Agreement.
Section 13.15. Currency. Each reference in this Agreement to U.S.
Dollars or to an Alternative Currency (the "relevant currency") is of the
essence. To the fullest extent permitted by law, the obligation of the
Borrower in respect of any amount due in the relevant currency under this
Agreement shall, notwithstanding any payment in any other currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the relevant currency that the Bank entitled to receive such
payment may, in accordance with normal banking procedures, purchase with the
sum paid in such other currency (after any premium and costs of exchange) on
the Business Day immediately following the day on which such party receives
such payment. If the amount in the relevant currency that may be so
purchased for any reason falls short of the amount originally due, the
Borrower shall pay such additional amounts, in the relevant currency, as may
be necessary to compensate for the shortfall. Any obligations of the
Borrower not discharged by such payment shall, to the fullest extent
permitted by applicable law, be due as a separate and independent obligation
and, until discharged as provided herein, shall continue in full force and
effect.
Section 13.16. Currency Equivalence. If for the purposes of
obtaining judgment in any court it is necessary to convert a sum due from the
Borrower hereunder or under the Notes in the currency expressed to be payable
herein or under the Notes (the "specified currency") into another currency,
the parties agree that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the
specified currency with such other currency on the Business Day preceding
that on which final judgment is given. The obligation of the Borrower in
respect of any such sum due to any Bank or the Agent hereunder or under any
Note shall, notwithstanding any judgment in a currency other than the
specified currency, be discharged only to the extent that on the Business Day
following receipt by such Bank or the Agent, as applicable, may in accordance
with normal banking procedures purchase the specified currency with such
other currency. If the amount of the specified currency so purchased is less
than the sum originally due to such Bank or the Agent in the specified
currency, the Borrower agrees, as a separate obligation and notwithstanding
any such judgment, to indemnify such Bank and the Agent against such loss,
and if the amount of the specified currency so purchased exceeds the sum of
(a) the amount originally due to the applicable Bank or the Agent in the
specified currency plus (b) any amounts shared with other Banks as a result
of allocations of such excess as a disproportionate payment to such Bank
under Section 13.7 hereof, such Bank or the Agent, as the case may be, agrees
to remit such excess to the Borrower.
-42-
<PAGE>
Section 13.17. Governing Law. This Agreement and the Notes, and
the rights and duties of the parties hereto, shall be construed and
determined in accordance with the laws of the State of Illinois, without
regard to conflicts of law doctrine.
Section 13.18. Termination of Existing Credit Agreement. The
Borrower and each of the Banks hereunder that is a party to the Credit
Agreement dated as of November 22, 1989 (the "Existing Foreign Credit
Agreement") among Maytag Corporation, the Banks party thereto, and Deutsche
Bank AG, Chicago Branch, as Agent, consents to the termination of the
"Commitments" thereunder effective on the date the conditions set forth in
Section 8.1 hereof are fulfilled, notwithstanding the notice requirements for
such termination set forth in Section 2.3 of the Existing Foreign Credit
Agreement. Subject to further consents to such termination from sufficient
additional "Banks" under the Existing Foreign Credit Agreement to constitute
the "Required Banks" thereunder, the Existing Foreign Credit Agreement shall
terminate and all amounts payable thereunder, including accrued and unpaid
commitment fees payable under Section 2.4 thereof, shall be payable, and the
facility fee payable under Section 4.1 hereof shall begin to accrue, on the
date this Agreement has been executed by all the parties hereto and the
conditions set forth in Section 8.1 hereof have been fulfilled.
Section 13.19. Headings. Section headings used in this Agreement
are for reference only and shall not affect the construction of this
Agreement.
Section 13.20. Entire Agreement. This Agreement constitutes the
entire understanding of the parties hereto with respect to the subject matter
hereof and any prior or contemporaneous agreements, whether written or oral,
with respect thereto are superseded hereby.
-43-
<PAGE>
Upon your acceptance hereof in the manner hereinafter set forth, this
Agreement shall be a contract between us for the purposes hereinabove set
forth.
Dated as of June 25, 1993.
MAYTAG CORPORATION
By /s/ J. A. Schiller
Its Executive Vice President and Chief
Financial Officer
-44-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
115 S. LaSalle Street BANK OF MONTREAL, CHICAGO BRANCH,
Chicago, Illinois 60603 in its individual capacity as a Bank and as
Telecopy: (312) 750-4314 Agent
Telephone: (312) 750-3742
Commitment: $59,999,999
By /s/ Robert K. Strong, Jr.
Its Managing Director
Lending Offices:
Domestic Rate Loans: 115 South LaSalle Street
Chicago, Illinois 60603
Eurocurrency Loans: 115 South LaSalle Street
Chicago, Illinois 60603
-45-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
Pierrepont Plaza ROYAL BANK OF CANADA, in its
300 Cadman Plaza West individual capacity as a Bank and as
Brooklyn, New York 11201-2701 Co-Agent
Telecopy: (718) 522-6292
Telephone: (718) 858-7176
with copy to: By /s/ Patricia J. Herbig
Its Manager Corporate Banking
33 N. Dearborn
Suite 2300
Chicago, Illinois 60602
Telecopy: (312) 782-3429
Telephone: (312) 372-4404
Commitment: $33,333,333
Lending Offices:
Domestic Rate Loans: Royal Bank of Canada, New York Branch
Financial Square
New York, New York 10005-3531
Eurocurrency Loans: Royal Bank of Canada, New York Branch
Financial Square
New York, New York 10005-3531
-46-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
611 Woodward Avenue NBD BANK, N.A.
Detroit, Michigan 48226
Telecopy: (313) 225-2649
Telephone: (313) 225-2557
Commitment: $23,333,333
By /s/ Jack J. Csernits
Its Vice President
Lending Offices:
Domestic Rate Loans: 611 Woodward Avenue
Detroit, Michigan 48226
Eurocurrency Loans: 611 Woodward Avenue
Detroit, Michigan 48226
-47-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
One First National Plaza THE FIRST NATIONAL BANK
Suite 0088, 14th Floor OF CHICAGO
Chicago, Illinois 60670
Telecopy: (312) 732-2715
Telephone: (312) 732-4244
Commitment: $16,666,667
By /s/ Susan L. Comstock
Its Vice President
Lending Offices:
Domestic Rate Loans: One First National Plaza
Suite 0088, 14th Floor
Chicago, Illinois 60670
Eurocurrency Loans: One First National Plaza
Suite 0088, 14th Floor
Chicago, Illinois 60670
-48-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
225 West Wacker Drive THE FUJI BANK, LIMITED
Chicago, Illinois 60606
Telecopy: (312) 621-0539
Telephone: (312) 621-0500
Commitment: $16,666,667
By /s/ Peter L. Chinnici
Its Joint General Manager
Lending Offices:
Domestic Rate Loans: 225 West Wacker Drive
Chicago, Illinois 60606
Eurocurrency Loans: 225 West Wacker Drive
Chicago, Illinois 60606
-49-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
33 North Dearborn NATIONAL WESTMINSTER BANK PLC
Chicago, Illinois 60602
Telecopy: (312) 621-1564
Telephone: (312) 621-1500
Commitment: $16,666,667
By /s/ David H. Hannah
Its Vice President
Lending Offices:
Domestic Rate Loans: National Westminster Bank PLC,
Chicago Branch
c/o National Westminster Bank PLC
175 Water Street
New York, New York 10038
Eurocurrency Loans: National Westminster Bank PLC,
Nassau Branch
c/o National Westminster Bank PLC
175 Water Street
New York, New York 10038
-50-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
127 Public Square SOCIETY NATIONAL BANK
Cleveland, Ohio 44114-1306
Telecopy: (216) 689-4981
Telephone: (216) 689-3176
Commitment: $16,666,667
By /s/ Janice M. Cook
Its Vice President
Lending Offices:
Domestic Rate Loans: 127 Public Square
Cleveland, Ohio 44114-1306
Eurocurrency Loans: 127 Public Square
Cleveland, Ohio 44114-1306
-51-
<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
233 South Wacker Drive THE SUMITONO BANK, LIMITED,
Suite 4800 CHICAGO BRANCH
Chicago, Illinois 60606
Telecopy: (312) 876-6436
Telephone: (312) 876-6406
Commitment: $16,666,667
By /s/ Katsuyasu Iwasawa
Its Joint General Manager
Lending Offices:
Domestic Rate Loans: 233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606
Eurocurrency Loans: 233 South Wacker Drive
Suite 4800
Chicago, Illinois 60606
-52-
<PAGE>
EXHIBIT A
NOTE
________________, 19___
FOR VALUE RECEIVED, the undersigned, Maytag Corporation, a Delaware
corporation (the "Borrower"), promises to pay to the order of
________________________________ (the "Bank") on the Termination Date of the
hereinafter defined Credit Agreement, at the principal office of Bank of
Montreal, Chicago Branch, in Chicago, Illinois, (or in the case of
Eurocurrency Loans denominated in an Alternative Currency, at such office as
the Agent has previously notified the Borrower) in the currency of such Loan
in accordance with Section 5.1 of the Credit Agreement, the aggregate unpaid
principal amount of all Loans made by the Bank to the Borrower pursuant to
the Credit Agreement, together with interest on the principal amount of each
Loan from time to time outstanding hereunder at the rates, and payable in the
manner and on the dates, specified in the Credit Agreement.
The Bank shall record on its books or records or on a schedule attached
to this Note, which is a part hereof, each Loan made by it pursuant to the
Credit Agreement, together with all payments of principal and interest and
the principal balances from time to time outstanding hereon, whether the Loan
is a Domestic Rate Loan or a Eurocurrency Loan, the currency thereof and the
interest rate and Interest Period applicable thereto, provided that prior to
the transfer of this Note all such amounts shall be recorded on a schedule
attached to this Note. The record thereof, whether shown on such books or
records or on a schedule to this Note, shall be prima facie evidence of the
same, provided, however, that the failure of the Bank to record any of the
foregoing or any error in any such record shall not limit or otherwise affect
the obligation of the Borrower to repay all Loans made to it pursuant to the
Credit Agreement together with accrued interest thereon.
This Note is one of the Notes referred to in the Credit Agreement dated
as of ________________________, 1993, among the Borrower, Bank of Montreal,
as Agent, and others (the "Credit Agreement"), and this Note and the holder
hereof are entitled to all the benefits provided for thereby or referred to
therein, to which Credit Agreement reference is hereby made for a statement
thereof. All defined terms used in this Note, except terms otherwise defined
herein, shall have the same meaning as in the Credit Agreement. This Note
shall be governed by and construed in accordance with the internal laws of
the State of Illinois.
Prepayments may be made hereon and this Note may be declared due prior
to the expressed maturity hereof, all in the events, on the terms and in the
manner as provided for in the Credit Agreement.
The Borrower hereby waives demand, presentment, protest or notice of any
kind hereunder.
MAYTAG CORPORATION
By ______________________
Its____________________
-2-
<PAGE>
EXHIBIT B
SUBSIDIARIES OF MAYTAG CORPORATION AS OF JUNE 25, 1993
JURISDICTION OF PERCENTAGE OF
NAME INCORPORATION OWNERSHIP
M.H. Canadian Holdings Ltd. Ontario 100%
Maytag Financial Services Corp. Delaware 100%
Dixie Narco Inc. West Virginia 100%
Master Care Inc. Illinois 100%
Holland Distributors Inc. Delaware 100%
Maytag International Inc. Delaware 100%
Admiral International Corp. Delaware 100%
Crosley International Corp. Delaware 100%
Maytag Foreign Sales Corp. Virgin Islands 100%
Lineset PLC England 100%
S.A. Hoover France 100%
Hoover GmbH Federal Republic of Germany 100%
Hoover Pty. Limited Australia 100%
Hoover Appliances Ltd. Australia 100%
Maytag Group Sourcing Company Delaware 100%
The Hoover Company Delaware 100%
Hoover Holdings Inc. Delaware 100%
Phase IV Products, Inc. Delaware 100%
Clayton Victoria Holdings Pty, Ltd. Australia 100%
De Hoover Handelmaatschappig B.V.* The Netherlands 100%
Hoover Italiana S.P.A. Italy 100%
Hoover Mexicana S.A. de C.V. Mexico 100%
Juver Industrial S.A. de C.V. Mexico 100%
Hoover N.Z. Limited New Zealand 100%
Hoover Electrica Portuguesa, LDA Portugal 100%
Hoover Espanola S.A.* Spain 100%
Hoover Apparate A.G. Switzerland 100%
Readylink Limited United Kingdom 100%
Meadowbank Properties Pty. Ltd. Australia 100%
Hoover Austria G.E.S. M.B.H. Austria 100%
Hoover Benelux SA/NV Belgium 100%
Hoover Commercial Limitada* Brazil 100%
Hoover OY Finland 100%
Hoover Pacific Holdings Pty. Ltd. Australia 100%
Hoover European Holdings Delaware 100%
Domicor Holdings N.V. The Netherlands 100%
<PAGE>
JURISDICTION OF PERCENTAGE OF
Name INCORPORATION OWNERSHIP
Hoover Limited England 100%
Maharashtra Investment Ltd. Delaware 100%
Maytag International Ltd.* England 100%
All Subsidiaries are Consolidated Subsidiaries. All Subsidiaries other than
those with an asterisk next to their name are Material Subsidiaries as of
June 25, 1993.
-B2-
<PAGE>
EXHIBIT C
June ___, 1993
To each of the Banks parties to
the "Credit Agreement" (as defined below),
and to Bank of Montreal, as Agent
Re: Loans to Maytag Corporation
Ladies and Gentlemen:
We have acted as counsel to Maytag Corporation, a Delaware corporation
(the "Borrower"), in connection with the $200,000,000 Credit Agreement of
even date herewith (the "Credit Agreement") among the Borrower, the financial
institutions parties thereto (the "Banks") and Bank of Montreal, as Agent,
and the transactions contemplated thereby.
This opinion is furnished to you at the request of the Borrower pursuant
to Section 8.1(a) of the Credit Agreement. Capitalized terms used herein and
not otherwise defined are used as defined in the Credit Agreement.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Credit
Agreement and the promissory notes delivered on the date hereof to the Banks
signatory to the Credit Agreement (the "Notes").
In rendering the opinions set forth herein, we have also examined
originals or copies, certified to our satisfaction, of such (i) certificates
of public officials, (ii) certificates of officers and representatives of the
Borrower, and (iii) other documents and records, and we have made such
inquiries of officers and representatives of the Borrower, as we have deemed
relevant or necessary as the basis for such opinions. We have relied as to
factual matters upon, and assumed the accuracy of, such certificates, the
representations and warranties of the Borrower, made in the Credit Agreement,
and other statements, documents and records supplied to us by the Borrower
and we have assumed the genuineness of all signatures (other than signatures
of officers of the Borrower) and the authenticity of all documents submitted
to us as originals and the conformity to original documents of all documents
submitted to us as certified or photostatic copies.
In rendering the opinions set forth herein, we have assumed that:
(i) all the parties to the Credit Agreement, other than the
Borrower, are duly organized, validly existing, and in good
standing under the laws of their respective jurisdictions of
organization and have the requisite corporate power to enter into
the Credit Agreement; and
<PAGE>
(ii) the execution and delivery of the Credit Agreement have been
duly authorized by all necessary corporate action and proceedings
on the part of all parties thereto other than the Borrower; the
Credit Agreement has been duly executed and delivered by all
parties thereto other than the Borrower and constitutes the valid
and binding obligation of such parties, enforceable against such
parties in accordance with its terms; the terms and provisions of
the Credit Agreement do not, and the execution, delivery and
performance thereof by each of the parties thereto other than the
Borrower will not, violate or conflict with the certificate of
incorporation or bylaws of any such party, any contract or
indenture to which it is a party or by which it is created or
bound, or any law, order or decree of any court, administrative
agency or other governmental authority applicable to any such
party.
Based upon the foregoing and subject to the qualifications stated
herein, we are of the opinion that, as of the date hereof:
1. The Borrower has been duly organized and is validly existing and
in good standing under the laws of the State of Delaware. The Borrower has
the requisite corporate power and authority to conduct its business as
currently conducted.
2. The Borrower has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement and
the Notes. Such execution, delivery and performance:
(a) have been duly authorized by all necessary and proper
corporate action of the Borrower,
(b) do not violate any provision of the certificate of
incorporation or by-laws of the Borrower or require any approval of
the Borrower s stockholders, and
(c) will not violate any law or regulation of the State of
Illinois (including, without limitation, any usury laws) or of the
United States of America applicable to the Borrower.
3. The Credit Agreement and the Notes have been duly executed and
delivered by a duly authorized officer of the Borrower, and constitute the
valid and binding obligations of the Borrower, enforceable in accordance with
their respective terms.
4. The Borrower is not an "investment company" registered or
required to be registered under the Investment Company Act of 1940, as
amended, or, to our knowledge, controlled by such a company.
5. No approval, consent or authorization of, or filing or
registration with, any governmental department, agency or instrumentality is
necessary for the Borrower s execution or delivery of the Credit Agreement or
the Notes or for the Borrower s performance of any of the terms thereof.
-2-
<PAGE>
Our opinions above are subject to the following qualifications:
(a) Our opinions relating to validity, binding effect and
enforceability in Paragraph 3 above are subject to limitations
imposed by any applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and similar laws affecting
creditors' rights generally. In addition, our opinions relating to
enforceability in Paragraph 3 above are subject to (i) the effect of
general principles of equity (regardless of whether considered in a
proceeding in equity or at law) and (ii) limitations imposed by
public policy under certain circumstances on the enforceability of
provisions indemnifying a party against liability for its own
wrongful or negligent acts. In applying principles of equity
referred to in clause (i) above, a court, among other things, might
not allow a creditor to accelerate maturity of a debt upon the
occurrence of a default deemed immaterial. Such principles applied
by a court might include a requirement that a creditor act reasonably
and in good faith.
(b) Certain remedial provisions of the Credit Agreement may
be unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Credit Agreement;
however, the unenforceability of such provisions may result in delays
in the enforcement of the Agent's and the Banks' rights and remedies
under the Credit Agreement (and we express no opinion as to the
economic consequences, if any, of such delays).
(c) We express no opinion as to the effect of the compliance
or noncompliance of the Agent or any of the Banks with any state or
federal laws or regulations applicable to the Agent or any of the
Banks because of the Agent s or any of the Banks' legal or regulatory
status or the nature of the business of the Agent or any of the
Banks.
The foregoing opinions are limited to the laws of the United States
and the State of Illinois and the General Corporation Law of the State of
Delaware, and we express no opinion with respect to the laws of any other
state or jurisdiction.
Whenever in this opinion reference is made to our knowledge, such
reference is to the conscious awareness of Dennis V. Osimitz and Jeffrey S.
Rothstein of information regarding factual matters. With respect to such
matters, such persons have not, with your express permission and consent,
undertaken any investigation or inquiry either of other lawyers, files
maintained by the firm, or officers or employees of the Borrower or any of
its Subsidiaries. The reference to "conscious awareness" as used in this
paragraph has the meaning given that phrase in the Third-Party Legal Opinion
Report, Including the Legal Opinion Accord, of the Section of Business Law,
American Bar Association, 47 Bus. Law. 167, 192 (1991).
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the
transactions contemplated in the Credit Agreement and may not be relied on in
any manner or for any purpose by any other person, nor any copies published,
-3-
<PAGE>
communicated or otherwise made available in whole or in part to any other
person or entity without our express prior written consent, except that you
may furnish copies thereof to any party that becomes a Bank after the date
hereof pursuant to the Credit Agreement. We do not express any opinion,
either implicitly or otherwise, on any issue not expressly addressed in
numbered Paragraphs 1 through 5. The opinions expressed above are based
solely on laws and regulations in effect on the date hereof, and we assume no
obligation to revise or supplement this opinion should such laws or
regulations be changed by legislative or regulatory action, judicial decision
or otherwise.
Very truly yours,
-4-
<PAGE>
EXHIBIT D
June ___, 1993
To each of the Banks parties to
the "Credit Agreement" (as defined below),
and to Bank of Montreal, as Agent
Re: Loans to Maytag Corporation
Ladies and Gentlemen:
I am Vice President and General Counsel of Maytag Corporation, a
Delaware corporation (the "Borrower"). I am familiar with the $200,000,000
Credit Agreement of even date herewith (the "Credit Agreement") among the
Borrower, the financial institutions parties thereto (the "Banks") and Bank
of Montreal, as Agent, and the transactions contemplated thereby.
This opinion is furnished to you at the request of the Borrower pursuant
to Section 8.1(a) of the Credit Agreement. Capitalized terms used herein and
not otherwise defined are used as defined in the Credit Agreement.
In connection with this opinion, I have examined originals or copies,
certified or otherwise identified to my satisfaction, of the Credit Agreement
and the promissory notes delivered on the date hereof to the Banks signatory
to the Credit Agreement (the "Notes").
In rendering the opinions set forth herein, I have also examined
originals or copies, certified to my satisfaction, of such (i) certificates
of public officials, (ii) certificates of officers and representatives of the
Borrower, and (iii) other documents and records, and I have made such
inquiries of officers and representatives of the Borrower, as I have deemed
relevant or necessary as the basis for such opinions. I have relied as to
factual matters upon, and assumed the accuracy of, such certificates and
other statements, documents and records supplied to me by the Borrower and I
have assumed the genuineness of all signatures (other than signatures of
officers of the Borrower) and the authenticity of all documents submitted to
me as originals and the conformity to original documents of all documents
submitted to me as certified or photostatic copies.
Based upon the foregoing and subject to the qualifications stated
herein, I am of the opinion that, as of the date hereof:
1. The Borrower has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Credit Agreement and
the Notes. Such execution, delivery and performance:
<PAGE>
(a) have been duly authorized by all necessary and proper corporate
action of the Borrower,
(b) do not violate any provision of the certificate of incorporation
or by-laws of the Borrower or require any approval of the Borrower s
stockholders, and
(c) to my knowledge, do not violate any material indenture or
agreement to which the Borrower is a party or by which it is bound or any
provision of any judgment or decree applicable to the Borrower.
2. There is no litigation or governmental proceeding pending or, to
my knowledge, threatened, against the Borrower or any Subsidiary which could
reasonably be expected to (i) materially adversely affect the business and
properties of the Borrower and its Subsidiaries on a consolidated basis or
(ii) impair the validity or enforceability of the Credit Agreement or the
Notes or materially impair the ability of the Borrower to perform its
obligations under the Credit Agreement or the Notes.
The foregoing opinions are limited to the laws of the United States and
the State of Iowa, and the General Corporation Law of the State of Delaware,
and I express no opinion with respect to the laws of any other state or
jurisdiction.
The opinions expressed herein are being delivered to you as of the date
hereof and are solely for your benefit in connection with the transactions
contemplated in the Credit Agreement and may not be relied on in any manner
or for any purpose by any other person, nor any copies published,
communicated or otherwise made available in whole or in part to any other
person or entity without my express prior written consent, except that you
may furnish copies thereof to any party that becomes a Bank after the date
hereof pursuant to the Credit Agreement. I do not express any opinion,
either implicitly or otherwise, on any issue not expressly addressed in
numbered Paragraphs 1 and 2. The opinions expressed above are based solely
on laws and regulations in effect on the date hereof, and I assume no
obligation to revise or supplement this opinion should such laws or
regulations be changed by legislative or regulatory action, judicial decision
or otherwise.
Very truly yours,
-2-
<PAGE>
EXHIBIT E
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Bank of Montreal as Agent
pursuant to that certain Credit Agreement dated as of ______________, 1993 by
and among Maytag Corporation (the "Borrower"), the Banks party thereto, and
Bank of Montreal, as Agent (the "Credit Agreement"). Unless otherwise
defined herein, the terms used in this Compliance Certificate have the
meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED ON BEHALF OF THE BORROWER HEREBY CERTIFIES THAT:
1. I am the duly elected chief financial officer of the Borrower;
2. I have reviewed or caused to be reviewed the terms of the Credit
Agreement and I have made or have caused to be made under my
supervision, a detailed review of the transactions and conditions of the
Borrower during the accounting period covered by the attached financial
statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or the occurrence
of any event which constitutes a Default or Event of Default during or
at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth
below;
4. The representations and warranties contained in Section 7 of the
Credit Agreement are true and correct as though made on the date hereof,
except as set forth below;
5. The Borrower is in compliance with all covenants contained in
Section 9 of the Credit Agreement, except as set forth below.
6. The Attachment hereto sets forth financial data and computations
evidencing the Borrower's compliance with certain covenants of the
Credit Agreement, all of which data and computations are, to the best of
my knowledge, true, complete and correct and have been made in
accordance with the relevant Sections of the Credit Agreement.
<PAGE>
Described below are the exceptions, if any, to paragraphs 3, 4 and 5 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The foregoing certifications, together with the computations set forth in the
Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _________ day of
__________________ 19___.
MAYTAG CORPORATION
By________________________
Its Chief Financial Officer
-2-
<PAGE>
Maytag Corporation
Attachment To Compliance Certificate
Compliance Calculations for Credit Agreement
Dated as of June 30, 1993
Calculations as of July 22, 1993
___________________________________________________________________________
A. Consolidated Tangible Net Worth (Section 9.6)
1. Consolidated Net Worth of the Borrower $ 639,383,000
2. Consolidated net book value of assets of the
Borrower which would be treated as intangibles
under GAAP $ (324,318,000)
3. Subtract Line 2 from Line 1 $ 315,065,000
(Line 3 must be equal to or greater than $260,000,000) ============
B. Leverage Ratio (Section 9.7)
1. Consolidated Indebtedness $ 987,338,000
2. Consolidated Net Worth of the Borrower $ 639,383,000
3. Sum of Lines 1 and 2 $1,626,721,000
=============
4. Ratio of Line 1 to 3 (Line 4
Ratio must be equal to or less
than .635:1.00) .607
=============
C. Interest Coverage Ratio (Section 9.8)
1. Consolidated Income Before Interest and Taxes $ 55,551,000
2. Consolidated Interest Expense $ 19,097,000
3. Ratio of Line 1 to 2 (Line 3
Ratio must be equal to or greater
than 1.5 to 1.00) 2.909
<PAGE>
<PAGE>
MAYTAG CORPORATION
Exhibit 4(h)
First Amendment, Dated as of March 4, 1994 to the U.S. $100,000,000 Credit
Agreement, Dated as of June 25, 1993 among Registrant, the Banks party Hereto
and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada as
Co-Agent.
<PAGE>
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment") dated as of
March 4, 1994 by and among Maytag Corporation (the "Borrower"), the Banks
listed below, Bank of Montreal, as Agent, and Royal Bank of Canada, as
Co-Agent;
W I T H E S S E T H:
WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent have
heretofore executed and delivered a Credit Agreement dated as of June 25,
1993 (the "Credit Agreement") with a June 24, 1994 Termination Date; and
WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent desire to
amend the Credit Agreement to change the maximum permitted leverage ratio;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, the Borrower, the Banks, the Agent and the Co-Agent
hereby agree as follows:
1. Section 9.7 of the Credit Agreement is hereby amended in its
entirety to read as follows:
Section 9.7. Leverage Ratio. The Borrower will, as of
the last day of each fiscal quarter of the Borrower,
maintain a ratio of Consolidated Indebtedness to the sum
of Consolidated Indebtedness plus Consolidated Net Worth
of not more than 0.635 to 1.00.
2. The Borrower represents and warrants to each Bank that (a) each of
the representations and warranties set forth in Section 7 of the Credit
Agreement, as amended hereby, is true and correct on and as of the date of
this Amendment (except that any such representation or warranty that
expressly relates solely to an earlier date need only be true and correct as
of such date) as if made on and as of the date of this Amendment and as if
each reference therein to the Credit Agreement referred to the Credit
Agreement as amended hereby, (b) no Default or Event of Default has occurred
and is continuing and (c) without limiting the effect of the foregoing, the
Borrower's execution, delivery and performance of this Amendment has been
duly authorized, and this Amendment has been executed and delivered by a duly
authorized officer of the Borrower.
3. This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed shall be an original but all of which shall constitute one and the
same instrument. Except as specifically amended and modified hereby, all of
the terms and conditions of the Credit Agreement shall stand and remain
unchanged and in full force and effect. No reference to this Amendment need
be made in any note, instrument or other document making reference to the
Credit Agreement, any such reference to the Credit Agreement (including any
<PAGE>
such reference herein, unless the context otherwise requires) to be deemed to
be a reference to the Credit Agreement as amended hereby. All capitalized
terms used herein without definition shall have the same meanings herein as
they have in the Credit Agreement. This instrument shall be construed and
governed by and in accordance with the laws of the State of Illinois, without
regard to conflicts of law doctrine.
Dated as of the date first above written.
MAYTAG CORPORATION
By /s/ T. C. Ringgenberg
Its Vice President & Treasurer
BANK OF MONTREAL, Chicago Branch,
in its individual capacity as a
Bank and as Agent
By /s/ Robert K. Strong, Jr.
Its Managing Director
ROYAL BANK OF CANADA, in its
individual capacity as a Bank
and as Co-Agent
By /s/ G. David Cole
Its Senior Manager, Corporate
Banking
NBD BANK, N.A.
By /s/ Curtis A. Price
Its Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Susan L. Comstock
Its Vice President
-2-
<PAGE>
THE FUJI BANK, LIMITED
By /s/ Peter L. Chinnici
Its Joint General Manager
NATIONAL WESTMINSTER BANK PLC
By /s/ Karen N. Grafe
Its Vice President
SOCIETY NATIONAL BANK
By /s/ Janice M. Cook
Its Vice President
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH
By /s/ Katsuyasu Iwasawa
Its Joint General Manager
TORONTO DOMINION (TEXAS), INC.
By /s/ Warren Finlay
Its Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Jon C. Otterberg
Its Commercial Banking Officer
-3-
<PAGE>
MAYTAG CORPORATION
Exhibit 4(i)
First Amendment, Dated as of March 4, 1994 to the U.S. $200,000,000 Credit
Agreement, dated June 25, 1993 among Registrant, the banks Party Hereto and
Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada as
Co-Agent.
<PAGE>
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment") dated as of March
4, 1994 by and among Maytag Corporation (the "Borrower"), the Banks listed
below, Bank of Montreal, as Agent, and Royal Bank of Canada, as Co-Agent;
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent have
heretofore executed and delivered a Credit Agreement dated as of June 25,
1993 (the "Credit Agreement") with a June 25, 1996 Termination Date; and
WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent desire to
amend the Credit Agreement to change the maximum permitted leverage ratio;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, the Borrower, the Banks, the Agent and the Co-Agent
hereby agree as follows:
1. Section 9.7 of the Credit Agreement is hereby revised by deleting
in subsection (i) the words "during the Borrower's 1993 fiscal year" and
inserting in their place the words "through the Borrower's fiscal quarter
ending March 31, 1994" and by deleting subsections (ii) and (iii) and
inserting in their place the following subsections:
(ii) 0.625 to 1.00 as of the last day of the Borrower's
fiscal quarter ending June 30, 1994,
(iii) 0.615 to 1.00 as of the last day of the Borrower's
fiscal quarter ending September 30, 1994,
(iv) 0.600 to 1.00 as of the last day of the Borrower's
fiscal quarter ending December 31, 1994,
(v) 0.590 to 1.00 as of the last day of the Borrower's
fiscal quarter ending March 31, 1995,
(vi) 0.580 to 1.00 as of the last day of the Borrower's
fiscal quarter ending June 30, 1995,
(vii) 0.560 to 1.00 as of the last day of the Borrower's
fiscal quarter ending September 30, 1995, and
(viii) 0.550 to 1.00 as of the last day of each fiscal
quarter of the Borrower thereafter.
<PAGE>
2. The Borrower represents and warrants to each Bank that (a) each of
the representations and warranties set forth in Section 7 of the Credit
Agreement, as amended hereby, is true and correct on and as of the date of
this Amendment (except that any such representation or warranty that
expressly relates solely to an earlier date need only be true and correct as
of such date) as if made on and as of the date of this Amendment and as if
each reference therein to the Credit Agreement referred to the Credit
Agreement as amended hereby, (b) no Default or Event of Default has occurred
and is continuing and (c) without limiting the effect of the foregoing, the
Borrower's execution, delivery and performance of this Amendment has been
duly authorized, and this Amendment has been executed and delivered by a duly
authorized officer of the Borrower.
3. This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which when so
executed shall be an original but all of which shall constitute one and the
same instrument. Except as specifically amended and modified hereby, all of
the terms and conditions of the Credit Agreement shall stand and remain
unchanged and in full force and effect. No reference to this Amendment need
be made in any note, instrument or other document making reference to the
Credit Agreement, any such reference to the Credit Agreement (including any
such reference herein, unless the context otherwise requires) to be deemed to
be a reference to the Credit Agreement as amended hereby. All capitalized
terms used herein without definition shall have the same meanings herein as
they have in the Credit Agreement. This instrument shall be construed and
governed by and in accordance with the laws of the State of Illinois, without
regard to conflicts of law doctrine.
Dated as of the date first above written.
MAYTAG CORPORATION
By /s/ T. C. Ringgenberg
Its Vice President
BANK OF MONTREAL, Chicago Branch,
in its individual capacity as a
Bank and as Agent
By /s/ Robert K. Strong, Jr.
Its Managing Director
-2-
<PAGE>
ROYAL BANK OF CANADA, in its
individual capacity as a Bank
and as Co-Agent
By /s/ G. David Cole
Its Senior Manager, Corporate
Banking
NBD BANK, N.A.
By /s/ Curtis A. Price
Its Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ Susan L. Comstock
Its Vice President
THE FUJI BANK, LIMITED
By /s/ Peter L. Chinnici
Its Joint General Manager
NATIONAL WESTMINSTER BANK PLC
By /s/ Karen N. Grafe
Its Vice President
SOCIETY NATIONAL BANK
By /s/ Janice M. Cook
Its Vice President
-3-
<PAGE>
THE SUMITOMO BANK, LIMITED, CHICAGO
BRANCH
By /s/ Katsuyasu Iwasawa
Its Joint General Manager
TORONTO DOMINION (TEXAS), INC.
By /s/ Warren Finlay
Its Vice President
PNC BANK, NATIONAL ASSOCIATION
By /s/ Jon C. Otterberg
Its Commercial Banking Officer
-4-
<PAGE>
MAYTAG CORPORATION
Exhibit 10(b)
Executive Severance Agreements.
<PAGE>
The following executives are covered under this severance agreement:
1. Robert L. Chaplin
2. John P. Cunningham
3. Robert W. Downing
4. Joseph F. Fogliano
5. Mark A. Garth
6. Brian A. Girdlestone
7. Edward H. Graham
8. Leonard A. Hadley
9. Richard J. Haines
10. Gerald J. Kamman
11. Donald M. Lorton
12. Carl R. Moe
13. Jon O. Nicholas
14. Jerry K. Rinehart
15. Jerry A. Schiller
16. Carlton F. Zacheis
<PAGE>
EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT is made the __th day of ________________, 19__, by and
between Maytag Corporation, a Delaware corporation (the "Company"), and
______________________ (the "Executive").
RECITALS
A. The Board of Directors of the Company has approved the Company en-
tering into severance agreements with such executives of the Company and its
subsidiaries as is determined by the Chairman and Chief Executive Officer.
B. Pursuant to such agreement, the Company has heretofore entered into
an Executive Severance Agreement with the Executive dated _________________.
C. Should the Company receive or learn of any proposal by a third per-
son about a possible business combination with the Company or the
acquisition of its equity securities, the Board considers it imperative that
the Company be able to rely upon the Executive to continue in his or her
position. This to the end that the Company be able to receive and rely upon
the Executive's advice concerning the best interests of the Company and its
stockholders, without concern that person might be distracted by the
personal uncertainties and risks created by such a proposal.
D. Should the Company receive any such proposals, in addition to the
Executive's regular duties, he or she may be called upon to assist in the
assessment of such proposals, advise management and the Board as to whether
such proposals would be in the best interests of the Company and its stock-
holders, and to take such other actions as the Board might determine to be
appropriate.
AGREEMENT
NOW, THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of that person's advice and
counsel notwithstanding the possibility, threat or occurrence of a bid to
take over control of the Company, and to induce the Executive to remain in
the employ of the Company, and for other good and valuable consideration,
the Company and the Executive agree that the Executive Severance Agreement
described above be amended and restated in its entirety as follows:
A. Should a third person, in order to effect a change of control (as
defined), begin a tender or exchange offer, circulate a proxy to
stockholders or take other steps, the Executive agrees that he or she will
not voluntarily leave the employ of the Company, and will render the
services contemplated in the recitals to this agreement, until the third
person has abandoned or terminated his efforts to effect a change of control
or until a change of control has occurred.
<PAGE>
- 2 -
B. Should the Executive's employment with the Company or its
subsidiaries terminate for any reason (either voluntary or involuntary,
other than because of death, disability or normal retirement) within three
(3) years after a change of control of the Company the following will be
provided:
1. Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Company or its subsidiaries, or as soon thereafter as
possible, the Company will pay to the Executive as compensation for services
rendered, a lump sum cash amount (subject to the usual withholding taxes)
equal to (A) three times the sum of (1) the Executive's annual salary at the
rate in effect immediately prior to the change of control and (2) the
maximum annual incentive bonus opportunity provided by the Plan and any
discretionary bonus declared for the year in which the change of control
occurred, or the preceding year if not established plus (B) an amount equal
to the compensation (at the Executive's rate of pay in effect immediately
prior to the change of control) payable for any period for which the
Executive could have, immediately prior to the date of his termination of
employment, been on vacation and received such compensation, for unused and
accrued vacation benefits determined under the Company's vacation pay plan
or program covering the Executive immediately prior to the change of
control. If the time from the Executive's last day of employment with the
Company or its subsidiaries to the Executive's 65th birthday is less than 36
months, there shall be a proportionate reduction of the payment computed
under clause (A) of the preceding sentence.
2. Salaried and Supplemental Executive Retirement Plans. The Execu-
tive shall be paid a monthly retirement benefit, in addition to any benefits
received under the Salaried Retirement Plans maintained by the Company or
its subsidiaries, including The Maytag Corporation Salaried Retirement Plan
and any Supplemental Executive Retirement Plan, such benefit to commence on
the first to occur of (a) the commencement of payment of benefits under the
Maytag Corporation Salaried Retirement Plan or (b) attainment of age 65, but
not prior to three (3) years following the date of termination of employment
or age 65, whichever first occurs, such benefit to be an amount equal to the
excess of (i) the aggregate benefits under such Salaried Retirement Plans to
which the Executive would be entitled if he or she remained employed by the
Company or its subsidiaries, for an additional period of three (3) years or
until his or her 65th birthday, whichever is earlier, at the rate of annual
compensation specified herein; over (ii) the benefits to which the Executive
is actually entitled under such Salaried Retirement Plans.
3. Life, Dental, Vision, Health and Long Term Disability Coverage.
The Executive's participation in, and entitlement to, benefits under: (i)
the life insurance plan of the Company; (ii) all the health insurance plan
or plans of the Company or its subsidiaries, including but not limited to
those providing major medical and hospitalization benefits, dental benefits
and vision benefits; and (iii) the Company's long-term disability plan or
plans; as all such plans existed immediately prior to the change of control
shall continue as though he or she remained employed by the Corporation or
its subsidiaries for an additional period of three (3) years or until the
obtainment of such coverages with another employer, whichever is earlier.
To the extent such participation or entitlement is not possible for any
reason whatsoever, equivalent benefits shall be provided.
<PAGE>
- 3 -
4. Participation in Employee Benefit Plans. After termination of em-
ployment, the Executive shall continue to participate in the Salaried
Retirement Plans as contemplated above. The Executive's participation in
any other savings, capital accumulation, retirement, incentive compensation,
profit sharing, stock option, and/or stock appreciation rights plans of the
Company or any of its subsidiaries shall continue only through the last day
of his or her employment. Any terminating distributions and/or vested
rights under such plans shall be governed by the terms of those respective
plans. Furthermore, the Executive's participation in any insurance plans of
the Company and rights to any other fringe benefits shall, except as
otherwise specifically provided in such plans or Company policy, terminate
as of the close of the Executive's last day of employment, except to the
extent specifically provided to the contrary in this agreement.
5. Incentive Plans. In addition to the payments required by paragraph
1 of this Section, the Company shall pay to the Executive as compensation
for services rendered cash in an amount equal to the maximum amount which
could be payable to the Executive under any and all incentive compensation
plans in which the Executive is a participant or under which the Executive
holds any outstanding award as of the day prior to the change of control.
To the extent that any such award is represented by restricted shares of
stock of the Company, the Executive's such cash payment shall include an
amount equal to the aggregate value of such shares determined as of the day
of the change of control. Any payment due pursuant to this paragraph 5
shall be paid at the same time as the amount payable pursuant to paragraph 1
of this Section.
6. Reimbursement for Loss on Sale of Principal Residence. If on the
date of the change of control the Executive shall own a private residence
within Jasper County, Iowa (the "Executive's residence"), the Executive
shall be paid an amount equal to the excess, if any, of the amount by which
the greater of (i) the "aggregate purchase price" (as defined below) of the
Executive's residence and (ii) the "change of control market value" (as
defined below) of the Executive's residence, over the amount realized by the
Executive upon the sale of such residence. Any amount payable to the
Executive under this agreement shall be paid to the Executive on the date on
which the Executive's residence is sold in a bona fide transaction with an
unrelated party. Notwithstanding the foregoing, if the Executive's
residence shall not be sold within 6 months after the date on which the
Executive's residence is first offered for sale, the Company shall purchase
the Executive's residence from the Executive for a cash amount equal to the
"change of control market value" of the Executive's residence. For purposes
of this paragraph, the "aggregate purchase price" of the Executive's
residence shall be the sum of the amount paid therefor plus the cost of any
significant repairs such as the cost of siding, or roof repair or
maintenance, incurred within the 5 year period ending on the date on which a
change of control occurs, plus the cost of any improvements to such
residence made by the Executive, the "amount realized" upon the sale of such
residence shall be the net amount, after deduction for brokers' fees, title
charges, transfer taxes and similar items, realized by the Executive upon
the sale of the Executive residence and "change of control market value"
shall mean the value of the Executive's residence on the date on which the
<PAGE>
- 4 -
change of control occurred, as determined by an independent appraiser
selected by the Executive. The fees and expenses of such appraiser shall be
paid by the Company.
7. Excise Tax-Additional Payment. (a) Notwithstanding anything in
this agreement or any written or unwritten policy of the Company or its
subsidiaries to the contrary, (i) if it shall be determined that any payment
or distribution by the Company or its subsidiaries to or for the benefit of
the Executive, whether paid or payable or distributed or distributable
pursuant to the terms of this agreement, any other agreement between the
Company or its subsidiaries and the Executive or otherwise (a "Payment"),
would be subject to the excise tax imposed by section 4999 of the Internal
Revenue Code of 1986, as amended, (the "Code") or any interest or penalties
with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the
"Excise Tax"), or (ii) if the Executive shall otherwise become obligated to
pay the Excise Tax in respect of a Payment, then the Company shall pay to
the Executive an additional payment (a "Gross-Up Payment") in an amount such
that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax,
imposed upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon such Payment.
(b) All determinations and computations required to be made under this
paragraph B5, including whether a Gross-Up Payment is required under clause
(ii) of paragraph B7(a) above, and the amount of any Gross-Up Payment, shall
be made by the Company's regularly engaged independent certified public ac-
countants (the "Accounting Firm"). The Company shall cause the Accounting
Firm to provide detailed supporting calculations both to the Company and the
Executive within 15 business days after such determination or computation is
requested by the Executive. Any initial Gross-Up Payment determined
pursuant to this paragraph B7 shall be paid by the Company or the subsidiary
to the Executive within 5 days of the receipt of the Accounting Firm's
determination. A determination that no Excise Tax is payable by the
Executive shall not be valid or binding unless accompanied by a written
opinion of the Accounting Firm to the Executive that the Executive has
substantial authority not to report any Excise Tax on his federal income tax
return. Any determination by the Accounting Firm shall be binding upon the
Company, its subsidiaries and the Executive, except to the extent the
Executive becomes obligated to pay an Excise Tax in respect of a Payment.
In the event that the Company or the subsidiary exhausts or waives its
remedies pursuant to subparagraph 7B(c) and the Executive thereafter shall
become obligated to make a payment of any Excise Tax, and if the amount
thereof shall exceed the amount, if any, of any Excise Tax computed by the
Accounting Firm pursuant to this subparagraph (b) in respect to which an
initial Gross-Up Payment was made to the Executive, the Accounting Firm
shall within 15 days after Notice thereof determine the amount of such
excess Excise Tax and the amount of the additional Gross-Up Payment to the
Executive. All expenses and fees of the Accounting Firm incurred by reason
of this paragraph B7 shall be paid by the Company.
<PAGE>
- 5 -
(c) The Executive shall notify the Company in writing of any claim by
the Internal Revenue Service that, if successful, would require the payment
by the Company of a Gross-Up Payment. Such notification shall be given as
soon as practicable but no later than ten business days after the Executive
knows of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the thirty-day
period following the date on which it gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest
such claim, the Executive shall:
(i) give the Company any information reasonably
requested relating to such claim,
(ii) take such action in connection with con-
testing such claim as the Company shall reasonably
request in writing from time to time, including,
without limitation, accepting legal representation with
respect to such claim by an attorney reasonably
selected by the Company,
(iii) cooperate with the Company in good faith in
order effectively to contest such claim,
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this subparagraph B7(c), the Company shall control
all proceedings taken in connection with such contest and, at its sole
option, may pursue or forgo any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct the Executive to pay the tax
claimed and sue for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination before
any administrative tribunal, in a court of initial jurisdiction and in one
or more appellate courts, as the Company or the subsidiary shall determine;
provided, however, that if the Company or the subsidiary directs the
Executive to pay such claim and sue for a refund, the Company or the
subsidiary shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further
provided, that any extension of the statue of limitations relating to
<PAGE>
- 6 -
payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, control of the contest by the Company or the
subsidiary shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company or the subsidiary pursuant to subparagraph B7(c), the Executive be-
comes entitled to receive any refund with respect to such claim, the
Executive shall (subject to compliance with the requirements of paragraph B7
by the Company or the subsidiary) promptly pay to the Company or the
subsidiary the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
the Executive of an amount advanced by the Company or the subsidiary
pursuant to subparagraph B7(c), a determination is made that the Executive
shall not be entitled to any refund with respect to such claim and the
Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of thirty days after such
determination, then such advance shall be forgiven and shall not be required
to be repaid and the amount of such advance shall off-set, to the extent
thereof, the amount of Gross-Up Payment required to be paid.
C. Definitions.
1. Change of Control. For purposes of this Agreement, a "change of
control" shall occur when (i) any person, either individually or together
with such persons' affiliates or associates (other than any employee benefit
plan of the Company or any subsidiary of the Company, or any entity holding
shares of the Company stock, for or pursuant to the terms of any such plan),
shall have become the beneficial owner, directly or indirectly, of shares of
the Company having 20% or more of the total number of votes that may be cast
for the election of directors of the Company and there shall have been a
public announcement of such occurrence by the Company or such persons or
(ii) individuals who shall qualify as continuing directors (as defined
below) shall have ceased for any reason to constitute at least a majority of
the Board of Directors of the Company. "Continuing director" shall mean any
member of the Board of Directors of the Company, while such person is a
member of such Board of Directors, who is not an affiliate or associate of
an acquiring person (as defined below) or of any such acquiring person's
affiliate or associate and was a member of such Board of Directors prior to
the time when such acquiring person shall have become an acquiring person,
and any successor of a continuing director, while such successor is a member
of such Board of Directors, who is not an acquiring person or a
representative or nominee of an acquiring person or of any affiliate or
associate of such acquiring person and is recommended or elected to succeed
the continuing director by a majority of the continuing directors.
"Acquiring person" shall mean any person or group of affiliates or
associates (as such terms are defined on February 1, 1987 in Rule 12b-2 of
the General Rules and Regulations under the Securities Exchange Act of 1934,
as amended, other than any employee benefit plan of the Company or any
subsidiary of the Company, or any entity holding shares of Company stock for
<PAGE>
- 7 -
or pursuant to the terms of any such plan), who is or becomes the beneficial
owner, directly or indirectly, of 20% or more of the shares of the Company,
having 20% or more of the total number of votes that may be cast for the
election of directors of the Company.
2. Subsidiary. For purposes of this agreement, a "Subsidiary" shall
mean any domestic or foreign corporation at least 20% of whose shares
normally entitled to vote in electing directors is owned directly or
indirectly by the Company or by other subsidiaries.
D. General Provisions.
1. No Guaranty of Employment. Nothing in this agreement shall be
deemed to entitle the Executive to continued employment with the Company or
its subsidiaries, and the rights of the Company to terminate the employment
of the Executive shall continue as fully as if this agreement were not in
effect, provided that any such termination of employment within three (3)
years following a change of control shall entitle the Executive to the
benefits herein provided.
2. Confidentiality. The Executive shall retain in confidence any
confidential information known to him concerning the Company and its
business so long as such information is not publicly disclosed.
3. Payment Obligation Absolute. The Company's obligation to pay the
Executive the compensation and to make the arrangements provided herein
shall be absolute and unconditional and shall not be affected by any
circumstances, including without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Company may have against him,
her or anyone else. All amounts payable by the Company hereunder shall be
paid without notice or demand. The Company waives all rights which it may
now have or may hereafter have conferred upon it, by statute or otherwise,
to terminate, cancel or rescind this agreement in whole or in part. Each
and every payment made hereunder by the Company shall be final and the
Company shall not seek to recover all or any part of such payment from the
Executive or from whoever may be entitled thereto, for any reason
whatsoever.
4. Indemnification. If litigation shall be brought to enforce or
interpret any provision contained herein, the Company hereby indemnifies the
Executive for his or her reasonable attorney's fees and disbursements
incurred in such litigation, and hereby agrees to pay prejudgment interest
on any money judgment obtained by the Executive calculated by using the
prevailing prime interest rate on the date that payment(s) to him or her
should have been made under this agreement.
<PAGE>
- 8 -
5. Successors. This agreement shall be binding upon and inure to the
benefit of the Executive and his or her estate, and the Company and any suc-
cessor of the Company, but neither this agreement nor any rights arising
hereunder may be assigned or pledged by the Executive.
6. Severability. Any provision in this agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such prohibition or unenforceability
without invalidating or affecting the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
7. Controlling Law. This agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this agreement on the date
set out above.
MAYTAG CORPORATION
By ___________________________
_______________________________
Executive
<PAGE>
The following executives are covered under this severance agreement:
1. Robert F. Dunkerley
2. Nelson E. Wooldridge
<PAGE>
EXECUTIVE SEVERANCE AGREEMENT
THIS AGREEMENT is made the ___ day of ________, 1994, by and between
Maytag Corporation, a Delaware corporation (the "Company"), and
____________________ (the "Executive").
RECITALS
A. The Board of Directors of the Company has approved the Company en-
tering into severance agreements with such executives of the Company and its
subsidiaries as is determined by the Chairman and Chief Executive Officer.
B. Should the Company receive or learn of any proposal by a third person
about a possible business combination with the Company or the acquisition of
its equity securities, the Board considers it imperative that the Company be
able to rely upon the Executive to continue in his or her position. This to
the end that the Company be able to receive and rely upon the Executive's
advice concerning the best interests of the Company and its stockholders,
without concern that person might be distracted by the personal uncertainties
and risks created by such a proposal.
C. Should the Company receive any such proposals, in addition to the
Executive's regular duties, he or she may be called upon to assist in the
assessment of such proposals, advise management and the Board as to whether
such proposals would be in the best interests of the Company and its stock-
holders, and to take such other actions as the Board might determine to be
appropriate.
AGREEMENT
NOW, THEREFORE, to assure the Company that it will have the continued
dedication of the Executive and the availability of that person's advice and
counsel notwithstanding the possibility, threat or occurrence of a bid to
take over control of the Company, and to induce the Executive to remain in
the employ of the Company, and for other good and valuable consideration, the
Company and the Executive agree that the Executive Severance Agreement de-
scribed above be amended and restated in its entirety as follows:
A. Should a third person, in order to effect a change of control (as
defined), begin a tender or exchange offer, circulate a proxy to stockholders
or take other steps, the Executive agrees that he or she will not voluntarily
leave the employ of the Company, and will render the services contemplated in
the recitals to this agreement, until the third person has abandoned or
terminated his efforts to effect a change of control or until a change of
control has occurred.
B. Should the Executive's employment with the Company or its subsidiaries
terminate for any reason (either voluntary or involuntary, other than
<PAGE>
- 2-
because of death, disability or normal retirement) within three (3) years
after a change of control of the Company the following will be provided:
1. Lump Sum Cash Payment. On or before the Executive's last day of
employment with the Company or its subsidiaries, or as soon thereafter as
possible, the Company will pay to the Executive as compensation for services
rendered, a lump sum cash amount (subject to the usual withholding taxes)
equal to (A) two times the sum of (1) the Executive's annual salary at the
rate in effect immediately prior to the change of control and (2) the maximum
annual incentive bonus opportunity provided by the Plan and any discretionary
bonus declared for the year in which the change of control occurred, or the
preceding year if not established plus (B) an amount equal to the
compensation (at the Executive's rate of pay in effect immediately prior to
the change of control) payable for any period for which the Executive could
have, immediately prior to the date of his termination of employment, been on
vacation and received such compensation, for unused and accrued vacation
benefits determined under the Company's vacation pay plan or program covering
the Executive immediately prior to the change of control. If the time from
the Executive's last day of employment with the Company or its subsidiaries
to the Executive's 65th birthday is less than 36 months, there shall be a
proportionate reduction of the payment computed under clause (A) of the
preceding sentence.
2. Salaried and Supplemental Executive Retirement Plans. The Executive
shall be paid a monthly retirement benefit, in addition to any benefits
received under the Salaried Retirement Plans maintained by the Company or its
subsidiaries, including The Maytag Corporation Salaried Retirement Plan and
any Supplemental Executive Retirement Plan, such benefit to commence on the
first to occur of (a) the commencement of payment of benefits under the
Maytag Corporation Salaried Retirement Plan or (b) attainment of age 65, but
not prior to three (3) years following the date of termination of employment
or age 65, whichever first occurs, such benefit to be an amount equal to the
excess of (i) the aggregate benefits under such Salaried Retirement Plans to
which the Executive would be entitled if he or she remained employed by the
Company or its subsidiaries, for an additional period of three (3) years or
until his or her 65th birthday, whichever is earlier, at the rate of annual
compensation specified herein; over (ii) the benefits to which the Executive
is actually entitled under such Salaried Retirement Plans.
3. Life, Dental, Vision, Health and Long Term Disability Coverage. The
Executive's participation in, and entitlement to, benefits under: (i) the
life insurance plan of the Company; (ii) all the health insurance plan or
plans of the Company or its subsidiaries, including but not limited to those
providing major medical and hospitalization benefits, dental benefits and
vision benefits; and (iii) the Company's long-term disability plan or plans;
as all such plans existed immediately prior to the change of control shall
continue as though he or she remained employed by the Corporation or its
subsidiaries for an additional period of three (3) years or until the
obtainment of such coverages with another employer, whichever is earlier. To
the extent such participation or entitlement is not possible for any reason
whatsoever, equivalent benefits shall be provided.
<PAGE>
- 3 -
4. Participation in Employee Benefit Plans. After termination of em-
ployment, the Executive shall continue to participate in the Salaried Retire-
ment Plans as contemplated above. The Executive's participation in any other
savings, capital accumulation, retirement, incentive compensation, profit
sharing, stock option, and/or stock appreciation rights plans of the Company
or any of its subsidiaries shall continue only through the last day of his or
her employment. Any terminating distributions and/or vested rights under
such plans shall be governed by the terms of those respective plans.
Furthermore, the Executive's participation in any insurance plans of the
Company and rights to any other fringe benefits shall, except as otherwise
specifically provided in such plans or Company policy, terminate as of the
close of the Executive's last day of employment, except to the extent
specifically provided to the contrary in this agreement.
5. Incentive Plans. In addition to the payments required by paragraph 1
of this Section, the Company shall pay to the Executive as compensation for
services rendered cash in an amount equal to the maximum amount which could
be payable to the Executive under any and all incentive compensation plans in
which the Executive is a participant or under which the Executive holds any
outstanding award as of the day prior to the change of control. To the
extent that any such award is represented by restricted shares of stock of
the Company, the Executive's such cash payment shall include an amount equal
to the aggregate value of such shares determined as of the day of the change
of control. Any payment due pursuant to this paragraph 5 shall be paid at
the same time as the amount payable pursuant to paragraph 1 of this Section.
6. Reimbursement for Loss on Sale of Principal Residence. If on the
date of the change of control the Executive shall own a private residence
within Jasper County, Iowa (the "Executive's residence"), the Executive shall
be paid an amount equal to the excess, if any, of the amount by which the
greater of (i) the "aggregate purchase price" (as defined below) of the
Executive's residence and (ii) the "change of control market value" (as
defined below) of the Executive's residence, over the amount realized by the
Executive upon the sale of such residence. Any amount payable to the
Executive under this agreement shall be paid to the Executive on the date on
which the Executive's residence is sold in a bona fide transaction with an
unrelated party. Notwithstanding the foregoing, if the Executive's residence
shall not be sold within 6 months after the date on which the Executive's
residence is first offered for sale, the Company shall purchase the
Executive's residence from the Executive for a cash amount equal to the
"change of control market value" of the Executive's residence. For purposes
of this paragraph, the "aggregate purchase price" of the Executive's
residence shall be the sum of the amount paid therefor plus the cost of any
significant repairs such as the cost of siding, or roof repair or
maintenance, incurred within the 5 year period ending on the date on which a
change of control occurs, plus the cost of any improvements to such residence
made by the Executive, the "amount realized" upon the sale of such residence
shall be the net amount, after deduction for brokers' fees, title charges,
transfer taxes and similar items, realized by the Executive upon the sale of
the Executive residence and "change of control market value" shall mean the
value of the Executive's residence on the date on which the change of control
<PAGE>
- 4 -
occurred, as determined by an independent appraiser selected by the
Executive. The fees and expenses of such appraiser shall be paid by the
Company.
7. Excise Tax-Additional Payment. (a) Notwithstanding anything in this
agreement or any written or unwritten policy of the Company or its subsidiar-
ies to the contrary, (i) if it shall be determined that any payment or
distribution by the Company or its subsidiaries to or for the benefit of the
Executive, whether paid or payable or distributed or distributable pursuant
to the terms of this agreement, any other agreement between the Company or
its subsidiaries and the Executive or otherwise (a "Payment"), would be
subject to the excise tax imposed by section 4999 of the Internal Revenue
Code of 1986, as amended, (the "Code") or any interest or penalties with
respect to such excise tax (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the "Excise Tax"),
or (ii) if the Executive shall otherwise become obligated to pay the Excise
Tax in respect of a Payment, then the Company shall pay to the Executive an
additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax, imposed upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon such Payment.
(b) All determinations and computations required to be made under this
paragraph B5, including whether a Gross-Up Payment is required under clause
(ii) of paragraph B7(a) above, and the amount of any Gross-Up Payment, shall
be made by the Company's regularly engaged independent certified public ac-
countants (the "Accounting Firm"). The Company shall cause the Accounting
Firm to provide detailed supporting calculations both to the Company and the
Executive within 15 business days after such determination or computation is
requested by the Executive. Any initial Gross-Up Payment determined pursuant
to this paragraph B7 shall be paid by the Company or the subsidiary to the
Executive within 5 days of the receipt of the Accounting Firm's deter-
mination. A determination that no Excise Tax is payable by the Executive
shall not be valid or binding unless accompanied by a written opinion of the
Accounting Firm to the Executive that the Executive has substantial authority
not to report any Excise Tax on his federal income tax return. Any deter-
mination by the Accounting Firm shall be binding upon the Company, its
subsidiaries and the Executive, except to the extent the Executive becomes
obligated to pay an Excise Tax in respect of a Payment. In the event that
the Company or the subsidiary exhausts or waives its remedies pursuant to
subparagraph 7B(c) and the Executive thereafter shall become obligated to
make a payment of any Excise Tax, and if the amount thereof shall exceed the
amount, if any, of any Excise Tax computed by the Accounting Firm pursuant to
this subparagraph (b) in respect to which an initial Gross-Up Payment was
made to the Executive, the Accounting Firm shall within 15 days after Notice
thereof determine the amount of such excess Excise Tax and the amount of the
additional Gross-Up Payment to the Executive. All expenses and fees of the
Accounting Firm incurred by reason of this paragraph B7 shall be paid by the
Company.
<PAGE>
- 5 -
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by
the Company of a Gross-Up Payment. Such notification shall be given as soon
as practicable but no later than ten business days after the Executive knows
of such claim and shall apprise the Company of the nature of such claim and
the date on which such claim is requested to be paid. The Executive shall
not pay such claim prior to the expiration of the thirty-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due). If the Company notifies the Executive in writing prior to the expira-
tion of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably
requested relating to such claim,
(ii) take such action in connection with contesting
such claim as the Company shall reasonably request in
writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim,
(iv) permit the Company to participate in any
proceedings relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation
and payment of costs and expenses. Without limitation on the foregoing
provisions of this subparagraph B7(c), the Company shall control all
proceedings taken in connection with such contest and, at its sole option,
may pursue or forgo any and all administrative appeals, proceedings, hearings
and conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to pay the tax claimed and
sue for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as the Company or the subsidiary shall determine;
provided, however, that if the Company or the subsidiary directs the
Executive to pay such claim and sue for a refund, the Company or the
subsidiary shall advance the amount of such payment to the Executive, on an
interest-free basis and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income tax, including interest or
penalties with respect thereto, imposed with respect to such advance or with
respect to any imputed income with respect to such advance; and further
provided, that any extension of the statue of limitations relating to payment
<PAGE>
-6-
of taxes for the taxable year of the Executive with respect to which such
contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, control of the contest by the Company or the subsidiary
shall be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or contest,
as the case may be, any other issue raised by the Internal Revenue Service or
any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company or the subsidiary pursuant to subparagraph B7(c), the Executive be-
comes entitled to receive any refund with respect to such claim, the
Executive shall (subject to compliance with the requirements of paragraph B7
by the Company or the subsidiary) promptly pay to the Company or the
subsidiary the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
the Executive of an amount advanced by the Company or the subsidiary pursuant
to subparagraph B7(c), a determination is made that the Executive shall not
be entitled to any refund with respect to such claim and the Company does not
notify the Executive in writing of its intent to contest such denial of
refund prior to the expiration of thirty days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and the
amount of such advance shall off-set, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
C. Definitions.
1. Change of Control. For purposes of this Agreement, a "change of
control" shall occur when (i) any person, either individually or together
with such persons' affiliates or associates (other than any employee benefit
plan of the Company or any subsidiary of the Company, or any entity holding
shares of the Company stock, for or pursuant to the terms of any such plan),
shall have become the beneficial owner, directly or indirectly, of shares of
the Company having 20% or more of the total number of votes that may be cast
for the election of directors of the Company and there shall have been a
public announcement of such occurrence by the Company or such persons or (ii)
individuals who shall qualify as continuing directors (as defined below)
shall have ceased for any reason to constitute at least a majority of the
Board of Directors of the Company. "Continuing director" shall mean any
member of the Board of Directors of the Company, while such person is a
member of such Board of Directors, who is not an affiliate or associate of an
acquiring person (as defined below) or of any such acquiring person's
affiliate or associate and was a member of such Board of Directors prior to
the time when such acquiring person shall have become an acquiring person,
and any successor of a continuing director, while such successor is a member
of such Board of Directors, who is not an acquiring person or a
representative or nominee of an acquiring person or of any affiliate or
associate of such acquiring person and is recommended or elected to succeed
the continuing director by a majority of the continuing directors.
"Acquiring person" shall mean any person or group of affiliates or associates
(as such terms are defined on February 1, 1987 in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended,
other than any employee benefit plan of the Company or any subsidiary of the
<PAGE>
Company, or any entity holding shares of Company stock for or pursuant to the
terms of any such plan), who is or becomes the beneficial owner, directly or
indirectly, of 20% or more of the shares of the Company, having 20% or more
of the total number of votes that may be cast for the election of directors
of the Company.
2. Subsidiary. For purposes of this agreement, a "Subsidiary" shall
mean any domestic or foreign corporation at least 20% of whose shares
normally entitled to vote in electing directors is owned directly or
indirectly by the Company or by other subsidiaries.
D. General Provisions.
1. No Guaranty of Employment. Nothing in this agreement shall be deemed
to entitle the Executive to continued employment with the Company or its sub-
sidiaries, and the rights of the Company to terminate the employment of the
Executive shall continue as fully as if this agreement were not in effect,
provided that any such termination of employment within three (3) years fol-
lowing a change of control shall entitle the Executive to the benefits herein
provided.
2. Confidentiality. The Executive shall retain in confidence any confi-
dential information known to him concerning the Company and its business so
long as such information is not publicly disclosed.
3. Payment Obligation Absolute. The Company's obligation to pay the
Executive the compensation and to make the arrangements provided herein shall
be absolute and unconditional and shall not be affected by any circumstances,
including without limitation, any set-off, counterclaim, recoupment, defense
or other right which the Company may have against him, her or anyone else.
All amounts payable by the Company hereunder shall be paid without notice or
demand. The Company waives all rights which it may now have or may hereafter
have conferred upon it, by statute or otherwise, to terminate, cancel or re-
scind this agreement in whole or in part. Each and every payment made
hereunder by the Company shall be final and the Company shall not seek to
recover all or any part of such payment from the Executive or from whoever
may be entitled thereto, for any reason whatsoever.
4. Indemnification. If litigation shall be brought to enforce or inter-
pret any provision contained herein, the Company hereby indemnifies the
Executive for his or her reasonable attorney's fees and disbursements
incurred in such litigation, and hereby agrees to pay prejudgment interest on
any money judgment obtained by the Executive calculated by using the
prevailing prime interest rate on the date that payment(s) to him or her
should have been made under this agreement.
<PAGE>
- 8 -
5. Successors. This agreement shall be binding upon and inure to the
benefit of the Executive and his or her estate, and the Company and any suc-
cessor of the Company, but neither this agreement nor any rights arising
hereunder may be assigned or pledged by the Executive.
6. Severability. Any provision in this agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffec-
tive only to the extent of such prohibition or unenforceability without
invalidating or affecting the remaining provisions hereof, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
7. Controlling Law. This agreement shall in all respects be governed
by, and construed in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this agreement on the date
set out above.
MAYTAG CORPORATION
By ___________________________
XXXXXXXXXXXXXXXX , CEO
___________________________
XXXXXXXXXXXXXX, Executive
<PAGE>
October 27, 1993
CONFIDENTIAL
HAND DELIVERED
Mr. J. A. Schiller
Dear Jerry:
Maytag's letter to you dated July 20, 1993, as supplemented by my letter
of August 3, 1993, documented the future employment arrangement between you
and Maytag Corporation, the terms of which you have accepted. Since that
time, it has been determined that there will be greater demand on your
services than was contemplated on July 20, 1993. In recognition of this
changed condition and because that greater performance by you will delay your
hip replacement until Spring 1994, it has been agreed that the letter of July
20, 1993 will be revised and restated as follows:
1. You will continue in your present position until October 31, 1993 at
your current base salary and benefits.
2. You will resign your position as Director and Executive Vice
President/Chief Financial Officer (CFO) of Maytag Corporation and all
other director, trustee, and officer positions you presently hold in
subsidiary and associated companies, effective November 1, 1993,
except you will continue to serve as Maytag's representative on the
Maytag Corporation Foundation Board through March 31, 1994, and on
the AMAC and Amerivend boards through December 31, 1994, unless you
are relieved of these assignments earlier at the election of Maytag's
CEO. You may be asked to continue Board Committee involvement until
a new Chief Financial Officer is employed.
3. Effective November 1, 1993, you will be employed by Maytag
Corporation as a salaried consultant, working under the supervision
and direction of the Chief Executive Officer, Maytag Corporation,
until May 31, 1995, at which time you will retire from the
Corporation. We anticipate that your services as a consultant and
acting CFO will be required on an approximately full-time basis until
no later than March 31, 1994, and thereafter on a part-time basis
until no later than May 31, 1995. After March 31, 1994, reasonable
notice will be given before consulting assignments so as not to
conflict with plans you may have already made. Thirty days' notice
will be given for extensive assignments, such as trips overseas.
Maytag will provide you with appropriate office and secretarial
support reasonably required to perform your duties.
<PAGE>
Page 2
October 27, 1993
4. In your position as consultant, you will receive your present base
salary through December 31, 1993. Effective January 1, 1994, your
base salary will increase to $334,500 per annum, payable monthly,
through May 31, 1995. Should you die prior to June 1, 1995, your
base salary will cease as of the date of death. During the period in
which you are employed as a consultant, your salary and benefits will
not be reduced should you be unable to perform your duties due to
disability. Your accrued but unused vacation entitlement as of
October 31, 1993 will be paid to you within ten days following that
date. No vacation will accrue during the consulting period.
Bonus for 1993, computed and payable under the terms of the
Corporation's 1993 Annual Management Incentive Plan, using your
current base salary and an individual performance rating of 100%,
will be paid at the time of the normal bonus payout (subject to
applicable withholdings).
You will not participate in the Corporation's 1994 or 1995 Annual
Management Incentive Plans; however, you will be entitled to receive
a bonus for 1994 computed and paid as if it were under the terms of
the 1994 Plan, using $334,500 as your base salary and an individual
performance rating of 100% pro-rated through June 30, 1994 and
payable at the time of the normal bonus payout (subject to applicable
withholdings).
You will not participate in the Corporation's 1993 and 1994 Stock
Incentive Award Plans; however, you will be paid a cash amount equal
to the amount you would have received had you participated in such
Plans, pro-rated through June 30, 1994. These payments, including
dividend equivalents, will be made at the normal payout dates
according to the plans subject to normal withholding.
5. You will receive the Corporation's normal benefits package through
May 31, 1995, subject to normal employee contributions. Effective
June 1, 1995, you will be provided with post-retirement medical
coverage as outlined in the "Medical Coverage for 'Grandfathered'
Retirees" furnished to you on July 20, 1993.
<PAGE>
Page 3
October 27, 1993
6. Your retirement benefits, effective June 1, 1995, will not be reduced
due to your age but will be calculated as though you were then 65 and
will be based on the average of the highest three years of qualified
earnings from the four years, 1991, 1992, 1993, and 1994, including
consulting compensation from October 31 through December 31, 1994.
Benefits normally accrued under the Pension Plan will be paid monthly
from the Plan. The difference between the amount paid from the
Pension Plan Trust Fund and benefits provided by this paragraph will
be paid by Maytag Corporation.
7. If there is a stock option granted by Maytag Corporation in 1993 to
executive officers of Maytag Corporation, you will be included under
the terms of such grant. You will have until the time specified in
the option agreements for retirees to exercise those stock options
currently granted to you, but in no event can such options be
exercised after the expiration date of the option and rights
specified in the applicable option agreement.
8. The Corporation will also:
a. pay for the services of a retirement consultant of your choosing
up to $5,000,
b. pay for the service of an outplacement firm of your choice to
assist you in search for director and/or consultant positions, at
a cost of up to $25,000,
c. provide, at its expense, its standard individual, foundations and
trusts tax returns preparation by Ernst & Young for you for the
tax years 1993, 1994, and 1995.
d. allow you to replace your appliances under the Executive Appliance
Test Program, subject to applicable tax withholdings, at anytime
prior to May 31, 1995, and make no payment to the Corporation for
such appliances when you retire.
e. maintain the current Executive Severance Agreement using 1993 as a
base year, between you and the Corporation until December 31,
1994, at which time it will terminate if it has not been activated
as a result of a "change in control." For the purposes of this
paragraph "using 1993 as a base year" means that all of your
salary and benefits in place on January 1, 1994 will be included
on an annual basis as though you had not changed employment status
on October 31, 1993; i.e., full annual consideration.
<PAGE>
Page 4
October 27, 1993
f. at your request, recommend to the Compensation Committee that you
be authorized to receive a lump-sum payment of your balance in the
Capital Accumulation Plan anytime after May 31, 1995.
If the foregoing accurately reflects your understanding and agreement,
and after consulting with your attorney, please ratify and confirm the
Agreement which accompanied my letter of July 20, 1993, which you previously
executed and delivered, by signing and returning a copy of this letter to me.
Sincerely,
JON/jb
Agreed ______________________, 1993
___________________________________
Jerry A. Schiller
<PAGE>
MAYTAG CORPORATION
Exhibit 11
Computation of Per Share Earnings
(Amounts in thousands except per share data)
Year Ended December 31
1993 1992 1991
PRIMARY
Average shares outstanding 106,123 105,924 105,448
Net effect of dilutive stock options--
based on the treasury stock method
using average market price 107 154 77
Employee stock ownership plans 22 236
TOTAL 106,252 106,078 105,761
Income (loss) before cumulative effect
of accounting changes $ 51,270 $ (8,354) $ 79,017
Per average share $ .48 $ (.08) $ .75
Cumulative effect of accounting changes $(307,000)
Per average share $ (2.89)
Net income (loss) $ 51,270 $(315,354) $ 79,017
Per average share $ .48 $ (2.97) $ .75
FULLY DILUTED
Average shares outstanding 106,123 105,924 105,448
Net effect of dilutive stock options--
based on the treasury stock method
using greater of average or ending
market price 159 172 95
Employee stock ownership plans 22 236
Assumed conversion of 6 1/2%
convertible debentures 411
TOTAL 106,715 106,096 105,779
Income (loss) before cumulative effect
of accounting changes $ 51,270 $ (8,354) $ 79,017
Per average share $ .48 $ (.08) $ .75
Cumulative effect of accounting changes $(307,000)
Per average share $ (2.89)
Net income (loss) $ 51,270 $(315,354) $ 79,017
Per average share $ .48 $ (2.97) $ .75
<PAGE>
MAYTAG CORPORATION
Exhibit 12
Computation of Ratio of Earnings to Fixed Charges
(Amounts in thousands of dollars except ratios)
Year Ended December 31
1993 1992 1991 1990 1989
Consolidated pretax income
from continuing operations
before cumulative effect of
accounting changes $ 89,870 $ 7,546 $123,417 $159,405 $206,972
Interest expense 75,364 75,004 75,159 81,966 83,398
Depreciation of capitalized
interest 1,546 933 348 57
Interest portion of rental
expense 10,480 11,264 11,177 9,183 7,107
Earnings $177,260 $ 94,747 $210,101 $250,611 $297,477
Interest expense $ 75,364 $ 75,004 $ 75,159 $ 81,966 $ 83,398
Interest capitalized 1,484 3,886 6,329 5,348
Interest portion of rental
expense 10,480 11,264 11,177 9,183 7,107
Fixed charges $ 87,328 $ 90,154 $ 92,665 $ 96,497 $ 90,505
Ratio of earnings to fixed
charges $ 2.03 $ 1.05 $ 2.27 $ 2.60 $ 3.29
<PAGE>
MAYTAG CORPORATION
Exhibit 21
List of Subsidiaries of the Registrant.
The following schedule lists the subsidiaries of Maytag Corporation, a
Delaware corporation, as of December 31, 1993.
State or Country
Corporate Name of Organization
Dixie-Narco Inc. West Virginia
Maytag Financial Services Corporation Delaware
Maytag Foreign Sales Corporation Virgin Islands
The Hoover Company Delaware
D.N. Holdings, Inc. Delaware
Maytag Group Sourcing Co. (95%) Delaware
Maytag International Inc. Delaware
Maharashtra Investment, Inc. Delaware
Hoover Holdings Inc. (95%) Delaware
Hoover Mexicana S.A. de C.V. Mexico
Juver Industrial S.A. de C.V. Mexico
Hoover (N.Z.) Limited New Zealand
Hoover Limited United Kingdom
Maytag International Limited United Kingdom
Meadowbank Properties Pty. Limited Australia
Hoover Oy Finland
Hoover European Holdings Inc. Delaware
Hoover Holdings Inc. (5%) Delaware
MH Canadian Holdings Ltd. (94.16%) Canada
Domicor Holdings B.V. (8.67%) The Netherlands
Hoover Pacific Holdings (Australia) Pty. Ltd. Australia
Hoover (Australia) Pty. Limited Australia
Hoover Appliances Limited Australia
Clayton Victoria Holdings Pty. Limited Australia
Domicor Holdings B.V. (91.33%) The Netherlands
Hoover Gmbh Germany
Hoover srl (99%) Italy
Hoover Electrica Portuguesa, Limitada Portugal
Hoover Benelux S.A.\N.V. Belgium
S.A. Hoover France
Hoover Apparate A.G. Switzerland
Hoover Austria Ges Mbh Austria
Hoover Italiana S.P.A. Italy
Hoover srl (1%) Italy
Maytag Group Sourcing Co. (5%) Delaware
MH Canadian Holdings Ltd. (5.84%) Canada
NOTE: Ownership in subsidiaries is 100% unless otherwise indicated.
Other subsidiaries in the aggregate would not constitute a significant
subsidiary.
<PAGE>
MAYTAG CORPORATION
Exhibit 23
Consent of Ernst & Young
<PAGE>
Consent of Independent Auditors
Shareowners and Board of Directors
Maytag Corporation
We consent to the incorporation by reference in Registration Statement
Number 33-8249, Registration Statement Number 33-8248, Registration
Statement Number 33-6378, Registration Statement Number 33-22228, and
Registration Statement Number 33-26620 on Forms S-8; and Registration
Statement Number 33-35219 on Form S-3 of Maytag Corporation and in the
related Prospectuses of our report dated February 1, 1994, with respect to
the financial statements and schedules of Maytag Corporation included in
this Annual Report (Form 10-K) for the year ended December 31, 1993.
Ernst & Young
Chicago, Illinois
March 28, 1994
<PAGE>
Consent of Independent Auditors
Shareowners and Board of Directors
Maytag Corporation
We consent to the incorporation by reference in Registration Statement
Number 33-8249, Registration Statement Number 33-8248, Registration
Statement Number 33-6378, Registration Statement Number 33-22228, and
Registration Statement Number 33-26620 on Forms S-8; and Registration
Statement Number 33-35219 on Form S-3 of Maytag Corporation Salary Savings
Plan of our report dated March 14, 1994, with respect to the financial
statements and schedules of Maytag Corporation Salary Savings Plan included
in this Annual Report (Form 11-K) for the year ended December 27, 1993.
Ernst & Young
Chicago, Illinois
March 28, 1994
<PAGE>
Consent of Independent Auditors
Shareowners and Board of Directors
Maytag Corporation
We consent to the incorporation by reference in Registration Statement
Number 33-8249, Registration Statement Number 33-8248, Registration
Statement Number 33-6378, Registration Statement Number 33-22228, and
Registration Statement Number 33-26620 on Forms S-8; and Registration
Statement Number 33-35219 on Form S-3 pertaining to The Hoover Company
Retirement Savings Plan for Hourly-Rated Employees of Maytag Corporation of
our report dated March 14, 1994, with respect to the financial statements
and schedules of The Hoover Company Retirement Savings Plan for Hourly-Rated
Employees included in this Annual Report (Form 11-K) for the year ended
December 27, 1993.
Ernst & Young
Chicago, Illinois
March 28, 1994
<PAGE>
