UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(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, 1995
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
A Delaware Corporation I.R.S. Employer Identification No. 42-0401785
403 West Fourth Street North, Newton, Iowa 50208
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 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. ( )
The aggregate market value of the voting stock (Common stock) held by non-
affiliates of the registrant as of the close of business on March 1, 1996
was $2,075,568,600. The number of shares outstanding of the registrant's
Common Stock (par value $1.25) as of the close of business on March 1, 1996
was 105,092,081.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Company's definitive proxy statement dated March 20, 1996
for the annual shareholders meeting to be held April 30, 1996 are
incorporated by reference into Part III.
1<PAGE>
1995 FORM 10-K CONTENTS
Item Page
PART I:
1. Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Business - Home Appliances . . . . . . . . . . . . . . . . . . . 3
Business - Vending Equipment . . . . . . . . . . . . . . . . . . 4
2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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 . . . . . . . . . . 16
9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure . . . . . . . . . . . . . . . . . . . . . . 38
PART III:
10. Directors and Executive Officers of the Registrant . . . . . . . 38
11. Executive Compensation . . . . . . . . . . . . . . . . . . . . . 38
12. Security Ownership of Certain Beneficial Owners and Management . 38
13. Certain Relationships and Related Transactions . . . . . . . . . 39
PART IV:
14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K 39
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2<PAGE>
PART I
Item 1. Business.
Maytag Corporation (the "Company") was organized as a Delaware corporation
in 1925. The Company operates in two business segments: home appliances
and vending equipment. Financial and other information relating to industry
segment and geographic data is included in Part II, Item 7, Pages 9-13, and
Item 8, Pages 35 and 36.
HOME APPLIANCES
The home appliances segment represented 93.6 percent of consolidated net
sales in 1995.
The Company, through its various business units, manufactures, distributes
and services a broad line of home appliances including laundry equipment,
dishwashers, refrigerators, cooking appliances, vacuum cleaners and steam
carpet cleaners. The Company's appliance brands include Maytag, Jenn-Air,
Magic Chef, Admiral and Hoover. Maytag Customer Service handles parts
distribution and customer service in the United States and Canada for 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. In the second quarter of 1995, the Company
sold its home appliance operations in Europe and in the fourth quarter of
1994, the Company sold its home appliance operations in Australia and New
Zealand. Additional information regarding these divestitures is included in
Part II, Item 7, Pages 10 and 13; and Item 8, Page 25. The operations of
the Maytag Financial Services Corporation, which provided financing programs
primarily to certain customers of the Company in North America, ceased in
1995. However, certain financing programs continue through the Company's
other business units and subsidiaries. Most home appliance sales are made
within North America.
The Company markets its home appliances to all major United States and
certain international markets, including the replacement market, the
commercial laundry market, the new home and apartment builder market, the
recreational vehicle market, the private label market and the
household/commercial floor care market. Products are primarily sold to
dealers, but also sold through independent distributors, mass merchandisers
and large regional and national department stores.
A portion of the Company's operations and sales is 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 36.
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 meet 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
3<PAGE>
registrations of which the most important are ADMIRAL, HOOVER, JENN-AIR,
MAGIC CHEF, MAYTAG 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. Competitive pressures make price
increases difficult to implement. The Company experienced increases in
material costs in 1995 that could not be passed on to customers because of
competitive conditions. The Company uses brand image, product quality,
customer service, advertising and sales promotion, warranty and pricing as
its principal methods of competition.
Expenditures for company-sponsored research and development activities
relating to the development of new products and the improvement of existing
products are included in Part II, Item 8, page 36.
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 Company continues to progress on major capital projects implemented to
address the stricter governmental energy and environmental standards
regarding appliances which may become effective over the next several years.
These standards, which effect the entire appliance industry, include the
mandated phase-out of chloroflourocarbons ("CFCs") production by December
31, 1995 which are used in refrigeration and regulations dealing with energy
usage. The Company intends to be in compliance with these various standards
as they become effective.
The Company has been identified as one of a group of potentially responsible
parties by state and federal environmental protection agencies in remedial
activities related to various "Superfund" sites in the United States. The
Company does not presently anticipate any material adverse effect upon the
Company's earnings or financial condition arising from resolution of these
matters.
The number of employees of the Company within the home appliances segment as
of February 24, 1996 was 15,168.
VENDING EQUIPMENT
The vending equipment segment represented 6.4 percent of consolidated net
sales in 1995.
The Company manufactures, through its Dixie-Narco subsidiary, a variety of
4<PAGE>
bottle and can vending equipment and glass front coolers. The products are
sold worldwide primarily to soft drink bottlers and vending equipment
distributors.
Dixie-Narco introduced a new flexible can/bottle vending machine in 1995
which maximizes the different sizes and types of beverage selections. This
new vending machine also has the electronic capability to collect and store
sales information. In the fourth quarter of 1995, the Company sold the
business and assets of a Dixie-Narco manufacturing operation in Eastlake,
Ohio ("Eastlake Operation"). The Eastlake Operation designs and
manufactures currency validators and electronic components used in the
gaming and vending industries. Dixie-Narco's headquarters and vending
machine manufacturing facility in Williston, South Carolina, are not
affected by this business disposition. Additional information regarding
this divestiture is included in Part II, Item 7, Page 10.
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, glass 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 and glass front coolers 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 government mandated phase-out of the production
of chloroflourocarbons ("CFCs") by December 31, 1995 affects the vending
equipment industry. However, these requirements are not anticipated to have
a material impact on the business.
The number of employees of the Company within the vending equipment segment
as of February 24, 1996 was 945.
5<PAGE>
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 in: Newton, Iowa; Galesburg, Illinois;
Cleveland, Tennessee; Indianapolis, Indiana; Jackson, Tennessee; Herrin,
Illinois; 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. In the fourth
quarter of 1994, the Company sold its home appliance facilities in Australia
and New Zealand. In the second quarter of 1995, the Company sold its home
appliance facilities in Europe.
In February 1996, the Company announced that it will consolidate the
manufacturing of Jenn-Air brand cooking products at the larger Cleveland,
Tennessee, cooking products plant, and phase out production at its
Indianapolis, Indiana, facility by the end of 1996.
The office and manufacturing facility related to the vending equipment
segment is located in Williston, South Carolina. In the fourth quarter of
1995, the Company sold its currency validator and electronic component
facility in 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 1995, and the Company expects that such capacity will be adequate
for planned production in 1996. The Company's major capital projects and
planned capital expenditures for 1996 are described in Part II, Item 7, Page
14.
The Company also owns or leases sales offices in many large metropolitan
areas throughout the United States and Canada. Lease commitments are
included in Part II, Item 8, Page 33.
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 1995 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:
6<PAGE>
First
Became
Name Office Held an Officer Age
Leonard A. Hadley Chairman and
Chief Executive Officer 1979 61
Donald M. Lorton Executive Vice President, President
of Maytag Appliances (Acting) 1995 65
Gerald J. Pribanic Executive Vice President and Chief
Financial Officer 1996 52
Brian A. Girdlestone President, The Hoover Company 1996 62
Robert W. Downing President, Dixie-Narco, Inc. 1996 59
Edward H. Graham Senior Vice President, General
Counsel and Assistant Secretary 1990 60
Jon O. Nicholas Vice President, Human Resources,
Maytag Appliances 1993 56
Carleton F. Zacheis Senior Vice President,
Administrative 1988 62
John M. Dupuy Vice President, Strategic Planning 1996 39
David D. Urbani Vice President and Treasurer 1994 50
Steven H. Wood Vice President, Financial Reporting
and Audit 1996 38
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 30, 1996 or until their successors are
elected.
Each of the executive officers has served the Company in various executive
or administrative positions for at least five years except for:
Name Company/Position Period
John M. Dupuy A. T. Kearney - Principal Consultant 1993-1995
Booz, Allen & Hamilton - Principal 1985-1993
Consultant
David D. Urbani Air Products and Chemicals, Inc.
- Assistant Treasurer 1984-1994
7<PAGE>
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder
Matters.
Sale Price of Common Shares Dividends
1995 1994 Per Share
Quarter High Low High Low 1995 1994
First $17 1/8 $14 1/2 $20 $16 $.125 $.125
Second 17 5/8 15 3/8 19 3/4 16 1/2 .125 .125
Third 18 1/8 15 1/4 20 1/8 14 7/8 .125 .125
Fourth 21 1/2 17 3/8 16 5/8 14 .14 .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 1996, the Company had 30,571
shareowners of record.
Item 6. Selected Financial Data.
Dollars in thousands
except per share
data 1995 (1) 1994 (2) 1993 (3) 1992 (4) 1991
Net sales - as
reported $3,039,524 $3,372,515 $2,987,054 $3,041,223 $2,970,626
Net sales - ongoing
operations 2,858,347 2,831,583 2,468,374 2,407,591 2,332,365
Gross profit 788,908 876,450 724,112 701,817 716,405
Percent to sales 26.0% 26.0% 24.2% 23.1% 24.1%
Operating profit $ 288,234 $ 322,768 $ 158,878 $ 78,567 $ 191,507
Percent to sales 9.5% 9.6% 5.3% 2.6% 6.4%
Income(loss) from
continuing
operations before
special items $ 144,653 $ 147,557 $ 81,270 $ 65,446 $ 79,017
Percent to sales 4.8% 4.4% 2.7% 2.2% 2.7%
Per share $ 1.35 $ 1.38 $ 0.76 $ 0.62 $ 0.75
Income(loss) from
continuing
operations (14,996) 151,137 51,270 (8,354) 79,017
Percent to sales (.5%) 4.5% 1.7% (.3%) 2.7%
Per share $ (0.14)$ 1.42 $ 0.48 $ (0.08)$ 0.75
Dividends paid per
share .515 .50 .50 .50 .50
Average shares
outstanding 107,062 106,795 106,252 106,077 105,761
Working capital $ 543,431 $ 595,703 $ 406,181 $ 452,626 $ 509,025
Depreciation of
property, plant and
equipment 102,572 110,044 102,459 94,032 83,352
Additions to
property, plant and
equipment 152,914 84,136 99,300 129,891 143,372
Total assets 2,125,066 2,504,327 2,469,498 2,501,490 2,535,068
Long-term debt 536,579 663,205 724,695 789,232 809,480
Total debt to
capitalization 45.9% 50.7% 60.6% 58.7% 45.9%
8<PAGE>
Shareowners' equity
per share of Common
stock $ 6.05 $ 6.82 $ 5.50 $ 5.62 $ 9.50
(1) Income (loss) from continuing operations includes a $135.4 million
after-tax loss on the sale of the Company's home appliance operations in
Europe, a $9.9 million after-tax charge to settle a lawsuit relating to the
closing of the former Dixie-Narco plant in Ranson, West Virginia, a $3.6
million after-tax loss on the disposal of its Dixie-Narco operations in
Eastlake, Ohio and a $10.8 million after-tax loss on guarantee of
indebtedness relating to the sale of one its manufacturing plants in 1992.
Excludes the extraordinary loss on the early retirement of debt.
(2) Income (loss) from continuing operations includes a $20 million one-
time tax benefit associated with the funding of reorganization costs in
Europe over the past several years and a $16.4 million after-tax loss from
the sale of the Company's home appliance operations in Australia. Excludes
the cumulative effect of an accounting change.
Prior to the quarter ended December 31, 1994, the Company's European
subsidiaries were consolidated as of a date one month earlier than
subsidiaries in the United States. In the fourth quarter of 1994, this one
month reporting lag was eliminated and European results for the quarter
ended December 31, 1994 include activity for four months. The effect of
this change increased net sales by $25.2 million in the fourth quarter and
the impact on income from continuing operations was not significant.
(3) Operating profit and income (loss) from continuing operations include
$60.4 million in pretax charges ($50 million in a special charge, or $30
million after-tax and $10.4 million in selling, general and administrative
expenses) for additional costs associated with two Hoover Europe "free
flights" promotion programs.
(4) Operating profit and income (loss) from continuing operations include a
$95 million pretax charge, or $73.8 million after-tax, relating to the
reorganization of the North American and European business units. Excludes
the cumulative effect of accounting changes.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Comparison of 1995 with 1994
The Company operates in two business segments, home appliances and vending
equipment. The operations of the home appliance segment represented 93.6
percent of net sales in 1995 and 94.3 percent of net sales in 1994.
NET SALES
The Company's consolidated net sales decreased 9.9 percent in 1995 compared
to 1994 as reported. However, net sales were up 0.9 percent after excluding
net sales of $142 million in 1994 made by its home appliance operations in
Australia and New Zealand ("Australian Operations"), which were sold in
December 1994, and net sales of $399 million in 1994 and $181.2 million in
1995 made by its home appliance operations in Europe ("European
Operations"), which were sold in June 1995.
Sales by the North American Appliance Group increased 0.9 percent from 1994.
9<PAGE>
The Group's performance in 1995 is consistent with overall U.S. industry
performance for comparable major product categories with the Company's
market share remaining relatively unchanged. Shipments in the U.S.
appliance industry in 1995 were slightly below the record shipment levels in
1994 due to downward inventory adjustments by dealers and a slowdown in
general economic conditions. The industry projects 1996 appliance sales in
the U.S. to be consistent with or slightly higher than 1995 levels. Vending
equipment sales increased 1.5 percent due to growth in demand for the
Company's core soft drink vending machines and glass front merchandiser
products.
GROSS PROFIT
Gross profit as a percent of sales in 1995 remained flat with 1994 at 26.0
percent of sales. Margins in the North American Appliance Group decreased
due to increases in material costs that could not be passed on to customers
because of competitive conditions. Vending equipment margins increased due
to the implementation of cost improvement projects. Consolidated gross
profit margins remained flat as the impact of the increase in material costs
was offset by divestitures of the lower margin Australian Operations and
European Operations. Material costs are expected to decrease moderately in
1996 with a corresponding improvement in gross margins.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative (S,G&A) expenses remained relatively
flat at 16.5 percent of sales in 1995 compared to 16.4 percent of sales in
1994.
OPERATING INCOME
Operating income for 1995 totaled $288.2 million or 9.5 percent of sales
compared to $322.8 million or 9.6 percent of sales in 1994. Excluding the
Australian and European Operations, operating income totaled $295.4 million
in 1995 or 10.3 percent of sales compared to $309.8 million or 10.9 percent
of sales in 1994.
INTEREST EXPENSE
Interest expense decreased 29.7 percent from 1994 due to debt reduction from
application of proceeds from the sale of the Australian and European
Operations and from cash provided by ongoing operations.
LOSS ON BUSINESS DISPOSITIONS
In 1995 and 1994 the Company divested several under-performing businesses to
improve shareowner value. The absence of these operations is expected to
have a favorable impact on results of the Company going forward. In the
second quarter of 1995, the Company sold its European Operations for $164.3
million in cash, subject to a post closing adjustment to the price. The
pretax loss from the sale was $140.8 million and resulted in an after-tax
loss of $135.4 million, or $1.27 per share. In the fourth quarter of 1995,
the Company sold the business and assets of a Dixie-Narco manufacturing
operation in Eastlake, Ohio ("Eastlake Operation"). The Eastlake Operation
designs and manufactures currency validators and electronic components used
in the gaming and vending industries. Dixie-Narco's headquarters and
vending machine manufacturing facility in Williston, SC, are not affected by
this business disposition. The pretax loss from the sale was $6 million and
10<PAGE>
resulted in an after-tax loss of $3.6 million, or $.03 per share. In the
fourth quarter of 1994, the Company sold its Australian Operations for $82.1
million in cash. The pretax loss from the sale was $13.1 million and
resulted in an after-tax loss of $16.4 million. See further discussion
under "Comparison of 1994 with 1993."
SETTLEMENT OF LAWSUIT
In the third quarter of 1995, the Company recorded a $16.5 million charge to
settle a lawsuit relating to the 1991 closing of a former Dixie-Narco plant
in Ranson, West Virginia. The after-tax charge was $9.9 million or $.09 per
share.
LOSS ON GUARANTEE OF INDEBTEDNESS
The Company is contingently liable under guarantees for indebtedness owed by
a third party ("borrower") of $23 million relating to the sale in 1992 of
one of the Company's manufacturing facilities. The borrower is presently in
default under the terms of the loan agreement. Although the indebtedness is
collateralized by the assets of the borrower, the net realizable value of
these assets is substantially less than the amount of indebtedness. The
borrower also has another outstanding debt of $2.5 million to the Company.
In the fourth quarter of 1995, the Company recorded an $18 million charge to
establish a reserve for the loan guarantees and other debt. The after-tax
charge was $10.8 million or $.10 per share.
INCOME TAXES
The significant increase in the effective tax rate is due largely to
valuation allowances established against deferred tax assets relating to
capital loss carryforwards from the loss on the sale of the European
Operations. As tax strategies are identified and implemented, tax benefits
will be recognized and the valuation allowance will be reduced. Excluding
amounts relating to the loss on the sale of the European Operations, the
effective tax rate was 40 percent in 1995. In 1994, a $20 million tax
benefit was recorded associated with the funding of operating losses and
reorganization costs in Europe over the past several years. This benefit
was partially offset by the tax expense arising from the sale of the
Australian Operations. Excluding these special items, the effective tax rate
was 42 percent in 1994. The decrease in the effective tax rate from 42
percent in 1994 to 40 percent in 1995 is primarily due to tax benefits from
an increase in export sales from the United States.
EXTRAORDINARY ITEM
In 1995, the Company retired $116.5 million of long-term debt at a cost of
$5.5 million after-tax or $.05 per share.
ACCOUNTING CHANGE
In 1994, the Company adopted Financial Accounting Standards Board Statement
No. 112 (FAS 112), "Employers' Accounting for Postemployment Benefits." The
new rules required recognition of a liability for certain disability and
severance benefits to former or inactive employees. The cumulative effect
of this accounting change in 1994 was $3.2 million after-tax or $.03 per
share.
11<PAGE>
NET INCOME (LOSS)
Special items in 1995 include the $135.4 million after-tax loss on the sale
of the European Operations, the $3.6 million after-tax loss on the sale of
the Eastlake Operation, the $9.9 million after-tax lawsuit settlement
charge, the $10.8 million after-tax charge for the guarantee of indebtedness
and the $5.5 million extraordinary item from the early retirement of debt.
Excluding these special items, as well as the 1994 special items, income for
1995 would have been $144.7 million, or $1.35 per share, compared to income
of $147.6 million, or $1.38 per share in 1994. Special items in 1994
include a $16.4 million after-tax loss on sale of the Australian Operations,
a $20 million tax benefit associated with the funding of operating losses
and reorganization costs in Europe over the past several years and a $3.2
million cumulative effect of accounting change.
Comparison of 1994 with 1993
The Company operates in two business segments, home appliances and vending
equipment. The operations of the home appliance segment represented 94.3
percent of net sales in 1994 and 94.8 percent of net sales in 1993.
NET SALES
The Company's consolidated net sales increased 12.9 percent in 1994 compared
to 1993. Sales in the North American Appliance Group increased 14.2 percent
from 1993 due to strong industry growth and market share gains in virtually
all product categories. These market share gains were achieved through new
product introductions and promotion of the premium Maytag and Jenn-Air
brands. Consolidated results for 1994 include thirteen months of operations
for certain subsidiaries in Europe as a one-month reporting lag was
eliminated. Including this additional month in the fourth quarter of 1994,
European sales for the year increased 2.1 percent from 1993. On a
comparable basis, European sales decreased 4.3 percent from 1993 resulting
from industry declines and market share losses. The loss of market share in
Europe was partially due to a strategic reduction in certain unprofitable
product lines and sales channels. Vending equipment sales increased 22.4
percent in 1994 resulting from increased demand for the Company's core soft
drink vending machines from new and existing domestic customers and sales of
a new glass front merchandiser.
GROSS PROFIT
Gross profit as a percent of sales increased 1.8 points resulting from
improvements in both industry segments. Margins in the North American
Appliance Group increased due to the favorable mix of the premium priced
brands, higher margins of new products, coordinated materials purchasing
efforts and volume related factory efficiencies. The improvement in
European margins resulted from the elimination of excess production
capacity, reduction of headcount levels and favorable product mix. Vending
equipment margins declined primarily due to unfavorable mix of electronic
venders. The decline in vending equipment margins was greater in the fourth
quarter than in previous quarters of 1994 due to unfavorable mix of glass
front merchandisers sold outside the United States.
SELLING, GENERAL AND ADMINISTRATIVE EXPENSES
Selling, general and administrative (S,G&A) expenses decreased to 16.4
percent of sales in 1994 from 17.2 percent in 1993. The decrease resulted
12<PAGE>
from higher sales volumes and cost control in both the appliances and
vending equipment segments. Staffing reductions in Europe also contributed
to the improvement from 1993. A reversal of excess reserves relating to the
1992 reorganization of the North American Appliance Group decreased S,G&A by
$5 million in the fourth quarter of 1994. Results for Europe in the fourth
quarter of 1994 include $4.7 million of restructuring costs, the majority of
which is included in S,G&A.
The special charge in 1993 consisted of a $50 million pretax charge to cover
additional costs associated with two "free flights" promotional programs in
Europe. Total pretax charges relating to the "free flights" promotion
program in 1993 were $60.4 million ($50 million in a special charge and
$10.4 million in S,G&A). Offsetting a portion of the 1993 European "free
flights" expenses in S,G&A was a $5 million reversal of excess
reorganization expenses in Europe.
OPERATING INCOME
Operating income for 1994 totaled $322.8 million or 9.6 percent of sales
compared to $158.9 million or 5.3 percent of sales in 1993. Before the
special charge, operating income in 1993 was $208.9 million or 7.0 percent
of sales.
OTHER INCOME AND EXPENSE
In the fourth quarter of 1994, the Company sold its home appliance
operations in Australia and New Zealand ("Australian Operations") for $82.1
million in cash. The pretax loss from the sale was $13.1 million and
resulted in an after-tax loss of $16.4 million. The pretax loss resulted
primarily from recognition of the foreign currency translation loss that the
Company had accumulated in Shareowners' Equity since the operations were
acquired in 1989. The higher loss after-tax resulted from a lower tax basis
in the operations, as compared to the book investment, in computing the tax
liability.
INCOME TAXES
The decrease in the effective tax rate from 1993 was primarily due to a $20
million tax benefit recorded in the third quarter of 1994 associated with
the funding of operating losses and reorganization costs in Europe over the
past several years. This benefit was partially offset by the tax expense
arising from the divestiture of Australia. The notes to the consolidated
financial statements include a reconciliation between the statutory tax and
the actual tax provided.
ACCOUNTING CHANGE
In the first quarter of 1994, the Company adopted Financial Accounting
Standards Board Statement No. 112 (FAS 112), "Employers' Accounting for
Postemployment Benefits." The new rules required recognition of a liability
for certain disability and severance benefits to former or inactive
employees. The cumulative effect of this accounting change in 1994 was $3.2
million or $.03 per share. The ongoing expenses associated with adoption of
the new statement are not significant.
NET INCOME
Excluding the $16.4 million after-tax loss on the sale of the Australian
13<PAGE>
Operations in 1994, the $3.2 million cumulative effect of accounting change
in 1994, the $20 million special tax benefit in 1994 and the $30 million
after-tax special "free flights" promotion charge in 1993, income would have
been $147.6 million or $1.38 per share in 1994 compared to $81.3 million or
$.76 per share in 1993.
Liquidity and Capital Resources
During the year, the Company's primary sources of liquidity were cash
provided by operating activities, proceeds from business divestitures and
external debt. Detailed information on the Company's cash flows is
presented in the Statements of Consolidated Cash Flows.
CASH FLOW FROM OPERATING ACTIVITIES
Cash flow generated from operating activities consists of net income
adjusted for certain non-cash income and expenses and changes in working
capital. Non-cash income and expenses include items such as depreciation,
amortization and deferred income taxes. Working capital consists primarily
of accounts receivable, inventory and current liabilities.
Cash flow from operating activities improved in 1995 compared to 1994
primarily as a result of a decrease in accounts receivable. Included in the
working capital improvement was the sale of $43 million of accounts
receivable relating to Maytag Financial Services which ceased operations in
1994. In addition, cash outflows for 1994 included $53 million of payments
for the 1992 reorganization of the European operations and the 1992/1993
European "free flights" promotional programs. The funding of these events
was substantially completed in 1994.
CASH FLOW FROM INVESTING ACTIVITIES
The $148.5 million proceeds from business disposition in 1995 includes the
$164.3 million in cash received from the sale of the European Operations,
net of $15.8 million cash in the business sold. Proceeds from the sale of
the Australian Operations provided cash of $82.1 million in 1994, net of
$2.7 million cash in the business sold.
The Company continually invests in its businesses to improve product design
and manufacturing processes and to increase capacity when needed. Capital
spending in 1995 was significantly higher than 1994 due to the continuation
of several major capital projects that the Company will be implementing over
the next several years. These projects include a new high efficiency
clothes washer and a complete redesign of the Company's refrigerator product
lines. Planned capital expenditures for 1996 approximate $200 million and
relate to these new projects as well as other ongoing production
improvements and product enhancements. Capital spending in 1996 includes
approximately $9 million of interest expense which will be capitalized as a
result of the major capital projects described above.
CASH FLOW FROM FINANCING ACTIVITIES
In the fourth quarter, the Company increased the quarterly dividend from
$.125 to $.14 per share. As a result, dividend payments in 1995 increased
to $55.4 million from $53.6 million in 1994.
The Company used a portion of the cash flow generated from operations and
proceeds from the business dispositions described above to reduce notes
14<PAGE>
payable and long-term debt by $193.4 million in 1995. Included in the debt
reduction is $116.5 million for the early retirement of a portion of the
Company's outstanding long-term debt at December 31, 1994. The Company's
ratio of debt to total capitalization decreased from 50.7 percent at
December 31, 1994 to 45.9 percent at December 31, 1995.
In the fourth quarter of 1995, the Company commenced a stock repurchase
program to buy up to 10.8 million shares of the Company's outstanding Common
stock. Through December 31, 1995, 2.7 million shares had been repurchased
at a total cost of $54.8 million. The shares repurchased in the quarter did
not have a material impact on earnings per share in the fourth quarter or
full year of 1995. The repurchase program is expected to continue
periodically for an unspecified length of time.
Any funding requirements for future capital expenditures and other cash
requirements in excess of cash on hand and generated from future operations
will be supplemented by the issuance of commercial paper, debt securities
and bank borrowings. The Company's commercial paper program is supported by
a credit agreement with a consortium of banks which provides revolving
credit facilities totaling $400 million. This agreement expires July 27,
2000 and includes covenants for interest coverage and leverage.
Contingencies/Other
In connection with the sale of the European Operations, the terms of the
contract provide for a post closing adjustment to the price under which the
Company has asserted an additional amount of approximately $15 million is
owed by the buyer. The post closing adjustment is in dispute and may
ultimately depend on the decision of an independent third party. Also in
connection with the sale, the Company has made various warranties to the
buyer, including the accuracy of tax net operating losses in the United
Kingdom, and has agreed to indemnify the buyer for liability resulting from
customer claims under the "free flights" promotions in excess of the reserve
balance at the time of sale. There are limitations on the Company's
liability in the event the buyer incurs a loss as a result of breach of the
warranties. The Company does not expect the resolution of these items to
have a material adverse effect on its financial condition.
The Company announced in the fourth quarter of 1995 that it will conduct an
in-home inspection program to eliminate a potential problem with a small
electrical component in Maytag brand dishwashers. Although the ultimate
cost of the repair will not be known until the inspection program is
complete, it is not expected to have a material impact on the Company's
results. The Company will seek reimbursement from the supplier of the
component.
In March 1995, the FASB issued Statement of Financial Accounting Standards
No. 121 (FAS 121) "Accounting for the Impairment of Long-Lived Assets and
for Long-Lived Assets to be Disposed of." This pronouncement, which is
required to be adopted no later than the first quarter of 1996, establishes
accounting standards for the impairment of long-lived assets, certain
identifiable intangibles, and goodwill relating to those assets to be held
and used and for long-lived assets and certain identifiable intangibles to
be disposed of. The Company does not believe adoption of the statement will
have a material impact on its financial results.
In October 1995, the FASB issued Statement of Financial Accounting Standards
No. 123 (FAS 123) "Accounting for Stock-Based Compensation." The
15<PAGE>
pronouncement is required to be adopted in fiscal year 1996. The accounting
requirements of the statement allow companies to choose between existing
rules and the fair value rules in the new statement. The Company has chosen
to continue to follow the existing accounting rules under APB opinion No.
25.
In February 1996, the Company announced a streamlining of its major home
appliance business designed to strengthen its position in the industry and
to deliver improved results to customers and shareowners. This includes the
consolidation of two business units into a single business unit which will
manage the operations of all its major home appliance brands and the closing
of a cooking products plant in Indianapolis, Indiana. The Company will take
1996 charges of $50 million for restructuring costs related to the
streamlining. The majority of these costs are anticipated to be recorded as
a one-time charge in the first quarter of 1996.
Item 8. Financial Statements and Supplementary Data.
Page
Report of Independent Auditors . . . . . . . . . . . . . . 17
Statements of Consolidated Income (Loss)--Years Ended
December 31, 1995, 1994, and 1993 . . . . . . . . . . . . 18
Statements of Consolidated Financial Condition--
December 31, 1995 and 1994 . . . . . . . . . . . . . . . 19
Statements of Consolidated Shareowners' Equity--Years Ended
December 31, 1995, 1994 and 1993 . . . . . . . . . . . . 21
Statements of Consolidated Cash Flows--Years Ended
December 31, 1995, 1994 and 1993 . . . . . . . . . . . . 23
Notes to Consolidated Financial Statements . . . . . . . . 24
Quarterly Results of Operations--Years 1995 and 1994 . . . 37
16<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, 1995 and
1994, and the related consolidated statements of income (loss), shareowners'
equity and cash flows for each of three years in the period ended December
31, 1995. Our audits also included the financial statement schedule listed
in the Index at Item 14(a). These financial statements and related schedule
are the responsibility of the Company's management. Our responsibility is
to express an opinion on these financial statements and related schedule
based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those 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, 1995 and 1994, and the
consolidated results of their operations and their cash flows for each of
the three years in the period ended December 31, 1995, in conformity with
generally accepted accounting principles. Also, in our opinion, the related
financial statement schedule, when considered in relation to the basic
financial statement taken as a whole, presents fairly in all material
respects the information set forth therein.
Ernst & Young LLP
Chicago, Illinois
January 30, 1996
17<PAGE>
Statements of Consolidated Income (Loss)
Year Ended December 31
In thousands except per share data 1995 1994 1993
Net sales $ 3,039,524 $ 3,372,515 $ 2,987,054
Cost of sales 2,250,616 2,496,065 2,262,942
Gross profit 788,908 876,450 724,112
Selling, general and administrative
expenses 500,674 553,682 515,234
Special charge 50,000
Operating income 288,234 322,768 158,878
Interest expense (52,087) (74,077) (75,364)
Loss on business dispositions (146,785) (13,088)
Settlement of lawsuit (16,500)
Loss on guarantee of indebtedness (18,000)
Other--net 4,942 5,734 6,356
Income before income taxes,
extraordinary item and
cumulative effect of
accounting change 59,804 241,337 89,870
Income taxes 74,800 90,200 38,600
Income (loss) before
extraordinary item and
cumulative effect of accounting
change (14,996) 151,137 51,270
Extraordinary item - loss on early
retirement of debt (5,480)
Cumulative effect of accounting
change (3,190)
Net income (loss) $ (20,476) $ 147,947 $ 51,270
Income (loss) per average share of Common stock:
Income (loss) before
extraordinary item and
cumulative effect of accounting
change $ (0.14) $ 1.42 $ 0.48
Extraordinary item - loss on
early retirement of debt $ (0.05)
Cumulative effect of accounting
change $ (0.03)
Net income (loss) per Common
share $ (0.19) $ 1.39 $ 0.48
See notes to consolidated financial statements.
18<PAGE>
Statements of Consolidated Financial Condition
December 31
In thousands except share data 1995 1994
Assets
Current assets
Cash and cash equivalents $ 141,214 $ 110,403
Accounts receivable, less allowance--
(1995--$12,540; 1994--$20,037) 417,457 567,531
Inventories 265,119 387,269
Deferred income taxes 42,785 45,589
Other current assets 43,559 19,345
Total current assets 910,134 1,130,137
Noncurrent assets
Deferred income taxes 91,610 72,394
Pension investments 1,489 112,522
Intangible pension asset 91,291 84,653
Other intangibles, less allowance for
amortization--(1995--$65,039; 1994--$56,250) 300,086 310,343
Other noncurrent assets 29,321 44,979
Total noncurrent assets 513,797 624,891
Property, plant and equipment
Land 24,246 32,600
Buildings and improvements 260,394 284,439
Machinery and equipment 1,030,233 1,109,411
Construction in progress 97,053 30,305
1,411,926 1,456,755
Less allowance for depreciation 710,791 707,456
Total property, plant and equipment 701,135 749,299
Total assets $ 2,125,066 $ 2,504,327
19<PAGE>
December 31
In thousands except share data 1995 1994
Liabilities and Shareowners' Equity
Current liabilities
Notes payable $ $ 45,148
Accounts payable 142,676 212,441
Compensation to employees 61,644 61,311
Accrued liabilities 156,041 146,086
Income taxes payable 3,141 26,037
Current maturities of long-term debt 3,201 43,411
Total current liabilities 366,703 534,434
Noncurrent liabilities
Deferred income taxes 14,367 38,375
Long-term debt 536,579 663,205
Postretirement benefits other than pensions 428,478 412,832
Pension liability 88,883 59,363
Other noncurrent liabilities 52,705 64,406
Total noncurrent liabilities 1,121,012 1,238,181
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 472,602 477,153
Retained earnings 344,346 420,174
Cost of Common stock in treasury (1995--
11,745,395 shares; 1994--9,813,893 shares) (255,663) (218,745)
Employee stock plans (57,319) (60,816)
Minimum pension liability adjustment (5,656)
Foreign currency translation (7,397) (32,492)
Total shareowners' equity 637,351 731,712
Total liabilities and shareowners' equity $ 2,125,066 $ 2,504,327
See notes to consolidated financial statements.
20<PAGE>
<TABLE>
Statements of Consolidated Shareowners' Equity
<CAPTION>
Additional Employee Pension Foreign
Common Stock Paid-In Retained Treasury Stock Stock Liability Currency
In thousands Shares Amount Capital Earnings Shares Amount Plans Adjustment Translation
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at December
31, 1992 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 (17,528)
adjustments
Balance at December
31, 1993 117,151 146,438 480,067 325,823 (10,431) (232,510) (62,342) (70,695)
Net income 147,947
Cash dividends (53,596)
Stock issued under
employee stock plans (1,760) 207 4,635
Stock awards:
Granted (1,045) 243 5,397 (4,352)
Earned or canceled 413 (65) (1,457) 4,284
Conversion of
subordinated
debentures (985) 137 3,063
ESOP:
Issued (493) 95 2,127
Allocated 1,594
Tax benefit of ESOP
dividends and stock
options 956
21<PAGE>
Translation
adjustments related
to business
disposition 13,089
Translation
adjustments 25,114
Balance at December
31, 1994 117,151 146,438 477,153 420,174 (9,814) (218,745) (60,816) (32,492)
Net loss (20,476)
Cash dividends (55,352)
Stock issued under
employee stock plans (2,301) 339 7,295
Stock awards:
Granted (1,539) 212 4,713 (3,173)
Earned or canceled 672 (108) (2,408) 4,949
Purchase of Common
stock for treasury (2,744) (54,775)
Conversion of
subordinated
debentures (1,941) 272 6,071
ESOP:
Issued (629) 98 2,186
Allocated 1,721
Tax benefit of ESOP
dividends and stock
options 1,187
Minimum pension
liability adjustment (5,656)
Translation
adjustments related
to business
disposition 19,887
Translation
adjustments 5,208
Balance at December
31, 1995 117,151 $146,438 $472,602 $344,346 (11,745) ($255,663) ($57,319) ($5,656) ($7,397)
</TABLE>
See notes to consolidated financial statements.
22<PAGE>
Statements of Consolidated Cash Flows
Year Ended December 31
In thousands 1995 1994 1993
Operating activities
Net income (loss) $ (20,476) $ 147,947 $ 51,270
Adjustments to reconcile net income
(loss) to net cash provided by
operating activities:
Loss on business dispositions 146,785 13,088
Cumulative effect of accounting
change 3,190
Depreciation and amortization 111,861 119,358 111,781
Deferred income taxes (42,036) (10,058) (35,833)
Reorganization expenses (5,000) (5,000)
"Free flights" promotion expenses 700 60,379
Changes in selected working
capital items exclusive of
business dispositions:
Inventories 13,248 24,503 (29,323)
Receivables 60,156 (53,074) (59,745)
Other current assets 5,548 (2,537) 11,136
Other current liabilities 4,624 43,387 (17,383)
Reorganization reserve (903) (26,686) (39,671)
"Free flights" promotion reserve (388) (26,709) (42,981)
Pension assets and liabilities 17,735 14,089 43,513
Postretirement benefits 15,702 21,197 11,259
Other--net 2,643 5,967 11,913
Net cash provided by operating
activities 314,499 269,362 71,315
Investing activities
Capital expenditures--net (148,349) (79,024) (95,990)
Proceeds from business dispositions
(net of cash in businesses sold of
$15,783 in 1995 and $2,650 in 1994) 148,497 79,428
Total investing activities 148 404 (95,990)
Financing activities
Proceeds from credit agreements and
long-term borrowings 5,500
(Decrease) increase in notes payable (29,808) (118,134) 138,951
Reduction in long-term debt (163,609) (36,001) (94,449)
Stock repurchases (54,775)
Stock options exercised and other
Common stock transactions 16,801 12,377 5,903
Dividends (55,352) (53,596) (53,569)
Total financing activities (286,743) (195,354) 2,336
Effect of exchange rates on cash 2,907 4,261 (2,963)
Increase (decrease) in cash
and cash equivalents 30,811 78,673 (25,302)
Cash and cash equivalents at
beginning of year 110,403 31,730 57,032
Cash and cash equivalents at
end of year $ 141,214 $ 110,403 $ 31,730
See notes to consolidated financial statements.
23<PAGE>
Notes to Consolidated Financial Statements
Summary of Significant Accounting Policies:
Organization: Home Appliances-The Company, through its various business
units, manufactures, distributes and services a broad line of home
appliances including laundry equipment, dishwashers, refrigerators, cooking
appliances, vacuum cleaners and steam carpet cleaners. In the second
quarter of 1995, the Company sold its home appliance operations in Europe
and in the fourth quarter of 1994, the Company sold its home appliance
operations in Australia and New Zealand. The Company markets its home
appliances to all major United States and certain international markets,
including the replacement market, the commercial laundry market, the new
home and apartment builder market, the recreational vehicle market, the
private label market and the household/commercial floor care market.
Products are primarily sold to dealers, but also sold through independent
distributors, mass merchandisers and large regional and national department
stores.
Vending Equipment-The Company manufactures, through its Dixie-Narco
subsidiary, a variety of bottle and can vending equipment and glass front
coolers. The products are sold worldwide primarily to soft drink bottlers
and vending equipment distributors.
Principles of Consolidation: The consolidated financial statements include
the accounts and transactions of the Company and its wholly-owned
subsidiaries. Intercompany accounts and transactions are eliminated in
consolidation.
Prior to the quarter ended December 31, 1994, the Company's European
subsidiaries were consolidated as of a date one month earlier than
subsidiaries in the United States. In the fourth quarter of 1994, this one
month reporting lag was eliminated and European results for the quarter
ended December 31, 1994 included activity for four months. The effect of
this change increased net sales by $25.2 million in the fourth quarter of
1994, and the impact on net income was not significant.
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 intercompany foreign currency
transactions are recorded in a separate component of shareowners' equity.
All other foreign exchange gains and losses are included in income.
Certain previously reported amounts have been reclassified to conform
with the current period presentation.
Use of Estimates: The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from these
estimates.
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.
Inventory costs are determined by the last-in, first-out (LIFO) method for
approximately 96 percent and 80 percent of the Company's inventories at
December 31, 1995 and 1994. Costs for other inventories have been
determined principally by the first-in, first-out (FIFO) method.
24<PAGE>
Intangibles: Intangibles principally represent goodwill, which is the cost
of business acquisitions in excess of the fair value of identifiable net
tangible assets of businesses acquired. 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 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 approximate their fair
value. The fair values of the Company's long-term debt are estimated based
on quoted market prices of comparable instruments.
Forward Foreign Exchange Contracts: The Company enters into forward
foreign exchange contracts to hedge exposures related to foreign currency
transactions. Losses on hedges of firm identifiable commitments are
recognized in the same period in which the underlying transaction is
recorded. Gains and losses on other contracts are marked to market each
period and the gains and losses are included in income.
Business Dispositions
In the second quarter of 1995, the Company sold its home appliance
operations in Europe for $164.3 million in cash, subject to a post closing
adjustment to the price. The pretax loss from the sale was $140.8 million
and resulted in an after-tax loss of $135.4 million. In the fourth quarter
of 1995, the Company sold the business and assets of a Dixie-Narco
manufacturing operation in Eastlake, Ohio. The pretax loss from the sale
was $6 million and resulted in an after-tax loss of $3.6 million. In the
fourth quarter of 1994, the Company sold its home appliance operations in
Australia and New Zealand for $82.1 million in cash. The pretax loss on
the sale was $13.1 million and resulted in an after-tax loss of $16.4
million. See industry segment and geographic information for financial
information related to these businesses.
Other Expenses
In the third quarter of 1995, the Company recorded a $16.5 million charge
to settle a lawsuit relating to the 1991 closing of a former Dixie-Narco
plant in Ranson, West Virginia. The after-tax charge was $9.9 million.
The Company is contingently liable under guarantees for indebtedness
owed by a third party ("borrower") of $23 million relating to the sale in
1992 of one of the Company's manufacturing facilities. The borrower is
presently in default under the terms of the loan agreement. Although the
indebtedness is collateralized by the assets of the borrower, the net
realizable value of these assets is substantially less than the amount of
indebtedness. The borrower also has another outstanding debt of $2.5
million to the Company. In the fourth quarter of 1995, the Company
recorded an $18 million charge to establish a reserve for the loan
guarantees and other debt. The after-tax charge was $10.8 million.
25<PAGE>
Inventories
December 31
In thousands 1995 1994
Finished products $ 163,968 $ 254,345
Work in process, raw materials and supplies 101,151 132,924
$ 265,119 $ 387,269
If the FIFO method of inventory accounting, which approximates current
cost, had been used for all inventories, they would have been $82.1 million
and $77.1 million higher than reported at December 31, 1995 and 1994.
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 1995 1994 1993
Service cost--benefits earned during
the period $ 20,358 $ 28,550 $ 24,067
Interest cost on projected benefit
obligation 80,163 94,148 90,322
Return on plan assets:
Actual return (170,847) 559 (167,540)
Expected return (higher) lower
than actual 82,427 (117,553) 54,399
Expected return on plan assets (88,420) (116,994) (113,141)
Other net amortization and deferral 6,355 9,474 4,917
Net pension expense $ 18,456 $ 15,178 $ 6,165
Assumptions used in determining net periodic pension expense (income)
for the defined benefit plans in the United States were:
1995 1994 1993
Discount rates 8.5% 7.5% 8.5%
Rates of compensation increase 6.0% 5.0% 6.0%
Expected long-term rates of return on assets 9.5% 9.5% 9.5%
For the valuation of pension obligations at the end of 1995 set forth
in the table below, and for determining pension expense in 1996, the
discount rate and rate of compensation increase have been decreased to 7.5
percent and 5.0 percent, respectively. The majority of the increase in the
projected benefit obligation between 1994 and 1995 is due to the decrease
in the discount rate. Assumptions for defined benefit plans outside the
United States are comparable to the above in all periods.
As of December 31, 1995, approximately 96 percent 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
26<PAGE>
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:
December 31, 1995 December 31, 1994
Plans in Plans in Plans in Plans in
Which Which Which Which
Assets Exceed Accumulated Assets Exceed Accumulated
Accumulated Benefits Accumulated Benefits
In thousands Benefits Exceed Assets Benefits Exceed Assets
Actuarial present
value of benefit
obligation:
Vested benefit
obligation $ (8,096) $ (721,880) $ (399,971) $ (617,011)
Accumulated benefit
obligation $ (8,099) $ (803,468) $ (399,975) $ (683,551)
Projected benefit
obligation $ (8,781) $ (855,017) $ (426,485) $ (745,273)
Plan assets at fair
value 9,934 714,818 523,104 625,648
Projected benefit
obligation less than
(in excess of) plan
assets 1,153 (140,199) 96,619 (119,625)
Unrecognized net
(gain) loss 5 83,828 (22,002) 91,078
Prior service cost
not yet recognized
in net periodic
pension cost 604 90,670 38,159 85,191
Unrecognized net
asset at adoption of
FAS 87, net of
amortization (273) (26,235) (254) (31,354)
Net pension asset $ 1,489 $ 8,064 $ 112,522 $ 25,290
Recognized in the
statements of
consolidated
financial condition
Pension investment
(liability) $ 1,489 $ (88,883) $ 112,522 $ (59,363)
Intangible pension
asset 91,291 84,653
Reduction of
shareowners' equity 5,656
Net pension asset $ 1,489 $ 8,064 $ 112,522 $ 25,290
Pension investments above of approximately $112 million at December 31,
1994, and pension income of $2.2 million, $1.6 million and $5.5 million in
1995, 1994 and 1993 relate to pension plans covering employees in Europe.
These plans were transferred to the buyer in 1995 in connection with the
sale of the Company's home appliance operations in Europe.
In 1995 and 1994, the Company recorded $96.9 million and $84.7 million,
respectively, to recognize the minimum pension liability required by the
27<PAGE>
provisions of Financial Accounting Standards Board Statement No. 87 (FAS
87), "Employers' Accounting for Pensions." The transaction, which had no
effect on income, was offset by recording an intangible asset of $91.2
million in 1995 and $84.7 million in 1994. The intangible asset represents
a future economic benefit arising from the granting of retroactive pension
benefits over many years and will be amortized to expense over the
remaining average working lifetime of the affected employees. The
intangible asset is required to be recognized in accordance with FAS 87 due
to an increase in the accumulated benefit obligation resulting from the
decrease in the discount rate. In addition, because the intangible asset
recognized may not exceed the amount of unrecognized prior service cost and
transition obligation on an individual plan basis, the balance in 1995 of
$5.7 million, net of income tax benefits is recorded as a separate
reduction of shareowners' equity at December 31, 1995.
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 do not vest, and these
benefits are subject to change. Death benefits for certain retired
employees are funded as part of, and paid out of, pension plans.
A summary of the components of net periodic postretirement benefit cost
is as follows:
Year Ended December 31
In thousands 1995 1994 1993
Service cost $ 12,876 $ 15,440 $ 10,225
Interest cost 27,911 29,448 26,939
Net amortization and deferral (8,147) (5,957) (8,228)
Net periodic postretirement benefit
cost $ 32,640 $ 38,931 $ 28,936
Assumptions used in determining net periodic postretirement benefit
cost were:
1995 1994 1993
Health care cost trend rates(1):
Current year 9.0% 13.0% 14.0%
Decreasing gradually to 6.0% 6.0% 6.0%
Until the year 2001 2001 2009
Each year thereafter 6.0% 6.0% 6.0%
Discount rates 8.5% 7.5% 8.5%
(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,
1995 and for determining postretirement benefit costs in 1996, the discount
rate has been decreased 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, 1995 by
$41.8 million and the aggregate of the service and interest cost components
of net periodic postretirement benefit cost for 1995 by $5.3 million.
The following table presents the status of the plans reconciled with
amounts recognized in the statements of consolidated financial condition
28<PAGE>
for the Company's postretirement benefits.
December 31
In thousands 1995 1994
Accumulated postretirement benefit obligation:
Retirees $ 259,421 $ 239,593
Fully eligible active plan participants 42,698 37,569
Other active plan participants 92,557 79,524
394,676 356,686
Unamortized plan amendment 37,235 45,598
Unrecognized net gain(loss) (3,433) 10,548
Postretirement benefit liability recognized in
the statements of consolidated financial
condition $ 428,478 $ 412,832
Employee Stock Ownership Plan and Other Employee Benefits
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 debt, 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
$1.5 million, $1.4 million and $1.4 million in 1995, 1994 and 1993. The
ESOP notes are collateralized by the Common stock owned by the ESOP trust.
The Company makes annual contributions to the ESOP to the extent the
dividends earned on the shares held are less than the debt service
requirements. The Company made contributions to the plan of $6.3 million,
$5.9 million and $5.5 million for loan payments in 1995, 1994 and 1993. As
the debt is repaid, shares are released from collateral and allocated to
active employees based on the proportion of debt service paid in the year.
Accordingly, the loan outstanding is recorded as debt and the cost of
shares pledged as collateral are reported as a reduction of Shareowners'
Equity (employee stock plans). As the shares are released from collateral,
the Company reports compensation expense based on the historical cost of
the shares. The Company also expenses any additional contributions required
if the shares released from collateral are less than the shares earned by
the employees. All shares held by the ESOP are considered outstanding for
earnings per share computations and dividends earned on the shares are
recorded as a reduction of retained earnings. Expenses of the ESOP, the
majority of which represents interest on the ESOP debt, totaled $8.3
million, $7.4 million and $7.5 million in 1995, 1994 and 1993. The ESOP
shares as of December 31 were as follows:
1995 1994
Released and allocated shares 1,053,087 884,373
Unreleased shares 1,804,056 1,972,770
2,857,143 2,857,143
In the first quarter of 1994, the Company adopted Financial Accounting
Standards Board Statement No. 112 (FAS 112), "Employers' Accounting for
Postemployment Benefits." The new rules require recognition of a liability
for certain disability and severance benefits to former or inactive
employees. The cumulative effect of the accounting change was $3.2
million. The ongoing expenses associated with the adoption of this
standard are not significant.
29<PAGE>
Accrued Liabilities
December 31
In thousands 1995 1994
Warranties $ 31,035 $ 42,977
Advertising/sales promotion 28,297 27,315
Other 96,709 75,794
$ 156,041 $ 146,086
Income Taxes
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying 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 are as follows:
December 31
In thousands 1995 1994
Deferred tax assets (liabilities):
Tax over book depreciation $ (93,173) $(107,662)
Postretirement benefit obligation 167,783 160,291
Product warranty/liability accruals 22,473 18,887
Pensions and other employee benefits 11,112 (37,284)
Capital loss carryforward 37,876
Net operating loss carryforwards 4,456 67,562
Foreign tax credit carryforward 6,277
Other 9,037 (6,664)
159,564 101,407
Less valuation allowance for deferred tax assets (40,492) (21,799)
Net deferred tax assets $ 119,072 $ 79,608
Recognized in statements of consolidated
financial condition:
Deferred tax assets--current $ 42,785 $ 45,589
Deferred tax liabilities--current (956)
Deferred tax assets--noncurrent 91,610 72,394
Deferred tax liabilities--noncurrent (14,367) (38,375)
Net deferred tax assets $ 119,072 $ 79,608
At December 31, 1995, the Company has available for tax purposes
approximately $13 million of net operating loss carryforwards outside the
United States which expire in various years through 2005. The Company also
has a capital loss carryforward available in the United States of $108
million which expires in the year 2000.
Income (loss) before income taxes, extraordinary item and cumulative
effect of accounting change consists of the following:
Year Ended December 31
In thousands 1995 1994 1993
United States $ 65,041 $ 230,320 $ 162,554
Non-United States (5,237) 11,017 (72,684)
$ 59,804 $ 241,337 $ 89,870
Significant components of the provision for income taxes are as follows:
30<PAGE>
Year Ended December 31
In thousands 1995 1994 1993
Current provision:
Federal $ 81,200 $ 78,200 $ 51,700
State 16,400 16,400 9,100
Non-United States 1,100 12,900 20,000
98,700 107,500 80,800
Deferred provision:
Federal (19,900) (9,400) 400
State (5,200) (2,500) 700
Non-United States 1,200 (5,400) (43,300)
(23,900) (17,300) (42,200)
Provision for income taxes $ 74,800 $ 90,200 $ 38,600
Significant items impacting the effective income tax rate are as follows:
Year Ended December 31
In thousands 1995 1994 1993
Income before extraordinary item and
cumulative effect of accounting
change computed at the statutory
United States income tax rate $ 20,900 $ 84,500 $ 31,500
Increase (reduction) resulting from:
Tax benefit associated with
European operating losses and
reorganization costs (20,000)
Non-United States losses with no
tax benefit 400 5,800
Goodwill amortization 3,200 3,200 3,200
Effect of business disposition 46,000 7,800
Effect of statutory rate
differences outside the United
States 900 100 2,500
State income taxes, net of
federal tax benefit 7,300 9,000 6,400
Tax credits arising outside the
United States (1,200) (600) (800)
Effect of tax rate changes on
deferred taxes (2,500)
Other-net (2,700) 400 (1,700)
Provision for income taxes $ 74,800 $ 90,200 $ 38,600
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 $21
million at December 31, 1995), 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 1995, 1994 and 1993
were $123 million, $103 million, and $68.3 million, respectively.
Notes Payable
Notes payable at December 31, 1994 consisted of notes payable to banks of
$29 million, in addition to $16 million in commercial paper borrowings.
The Company's commercial paper program is supported by a credit agreement
totaling $400 million which expires on July 27, 2000. Subject to certain
exceptions, the credit agreement requires the Company to be within certain
31<PAGE>
quarterly levels of maximum leverage and minimum interest coverage. At
December 31, 1995, the Company was in compliance with all covenants. The
weighted average interest rate on all notes payable and commercial paper
borrowings was 6.5 percent at December 31, 1994. There were no notes
payable and commercial paper borrowings at December 31, 1995.
Long-Term Debt
Long-term debt consisted of the following:
December 31
In thousands 1995 1994
Notes payable with interest payable semiannually:
Due May 15, 2002 at 9.75% $ 177,425 $ 200,000
Due July 15, 1999 at 8.875% 148,550 175,000
Due July 1, 1997 at 8.875% 53,741 100,000
Medium-term notes, maturing from 2001 to 2010,
from 7.69% to 9.03% with interest payable
semiannually 101,500 162,750
Employee stock ownership plan notes payable
semiannually through July 2, 2004 at 9.35% 55,373 57,504
Other 3,191 11,362
539,780 706,616
Less current maturities of long-term debt 3,201 43,411
Long-term debt $ 536,579 $ 663,205
The 9.75 percent notes, the 8.875 percent 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 percent 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 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, 1995 and 1994 by $68.1
million and $17.3 million, respectively.
Interest paid during 1995, 1994 and 1993 was $60.2 million, $75.2
million, and $76.2 million. The aggregate maturities of long-term debt in
each of the next five years is as follows (in thousands): 1996-$3,201;
1997-$57,489; 1998-$4,378; 1999-$153,696; 2000-$6,119.
In 1995, the Company retired $116.5 million of long-term debt.
Included in this amount was $22.6 million of the 9.75 percent notes due May
15, 2002, $26.4 million of the 8.875 percent notes due July 15, 1999, $46.3
million of the 8.875 percent notes due July 1, 1997 and $21.2 million of
medium term notes ranging in maturities from November 15, 2001 to February
23, 2010. As a result of these early retirements, the Company recorded an
after-tax charge of $5.5 million (net of income tax benefit of $3.6
million), which has been reflected in the consolidated statement of income
(loss) as an extraordinary item.
Forward Foreign Exchange Contracts
The Company has entered into contracts to hedge its exposure to
fluctuations in foreign currency exchange rates. These contracts usually
consist of forward rate agreements and options, which give the Company the
right but not the obligation to convert foreign currency to U.S. dollars at
a pre-determined rate. Counterparties to these agreements are major
international financial institutions.
The Company uses these instruments to hedge exposures resulting from
certain monetary assets and liabilities as well as firm commitments and
certain anticipated foreign exchange transactions resulting from the export
32<PAGE>
and import of products and supplies. The purpose of the Company's foreign
currency hedging activities is to protect the Company from the risk that
the eventual cash flows resulting from these transactions could be
adversely affected by changes in exchange rates.
At December 31, 1995 the Company had forward exchange contracts for the
exchange of Canadian dollars, all having maturities of less than twelve
months, in the amount of U.S. $57.9 million. The Company also had option
contracts, with maturities of less than twelve months, to exchange Canadian
dollars to U.S. dollars in the amount U.S. $9.5 million. Gains and losses
recognized from these contracts in 1995 were not significant.
Leases
The Company leases buildings, machinery, equipment and automobiles under
operating leases. Rental expense for operating leases amounted to $20.6
million, $24.4 million, and $22.8 million for 1995, 1994 and 1993.
Minimum lease payments under leases expiring subsequent to December 31,
1995 are:
Year Ending In thousands
1996 $ 14,441
1997 8,625
1998 6,249
1999 5,293
2000 4,100
Thereafter 8,745
Total minimum lease payments $ 47,453
Stock Options
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. In the event of a change of Company control, all options
become immediately exercisable.
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.
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.
Option shares outstanding under all of the plans described above total
4.0 million at December 31, 1995. The following is a summary of certain
information relating to these plans:
33<PAGE>
Average Option
Price Shares SAR
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
Granted 15.78 650,216
Exercised 13.66 (211,689) (6,610)
Exchanged for SAR 12.40 (6,610)
Canceled or expired 15.40 (78,765) (77,828)
Outstanding December 31, 1994 15.53 2,711,753 412,423
Granted 17.62 1,745,420
Exercised 14.88 (352,320) (8,905)
Exchanged for SAR 14.21 (8,905)
Canceled or expired 16.20 (130,650) (68,845)
Outstanding December 31, 1995 16.47 3,965,298 334,673
Options for 2,236,868 shares, 2,082,747 shares and 1,777,361 shares
were exercisable at December 31, 1995, 1994 and 1993. There were 507,334
shares available for future grants at December 31, 1995. In the event of a
change in Company control, all stock options granted become immediately
exercisable.
Stock Awards
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
1,700,250 shares are available for future grants as of December 31, 1995.
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 of 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 awards outstanding at December 31, 1995 and amounts
charged to expense for the anticipated payout are:
In thousands except per share data
Charged to Expense
Grant Shares
Year of Grant Outstanding 1995 1994 1993
1995 182,470 $ 1,819 $ $
1994 174,327 2,273 2,005
1993 383,248 5,285 4,122 3,651
740,045 $ 9,377 $ 6,127 $ 3,651
Shareowners' Equity
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
percent (which may be reduced to not less than 10 percent at the discretion
of the Board of Directors) or more of the Company's Common stock. In the
34<PAGE>
event the Company is acquired in a merger or 50 percent or more of its
consolidated assets or earnings power are sold, 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 1995 1994 1993
Net sales
Home appliances $2,844,811 $3,180,766 $2,830,457
Vending equipment 194,713 191,749 156,597
Total $3,039,524 $3,372,515 $2,987,054
Income before income taxes,
extraordinary item and cumulative
effect of accounting change
Home appliances $ 295,806 $ 334,027 $ 163,177
Vending equipment 23,466 21,866 17,944
General corporate (31,038) (33,125) (22,243)
Operating income 288,234 322,768 158,878
Interest expense (52,087) (74,077) (75,364)
Other (see statements of
consolidated income/loss) (176,343) (7,354) 6,356
Total $ 59,804 $ 241,337 $ 89,870
Capital expenditures-net
Home appliances $ 140,549 $ 75,017 $ 92,194
Vending equipment 3,998 1,902 1,028
General corporate 3,802 2,105 2,768
Total $ 148,349 $ 79,024 $ 95,990
Depreciation and amortization
Home appliances $ 105,271 $ 113,160 $ 105,916
Vending equipment 4,307 4,434 4,377
General corporate 2,283 1,764 1,488
Total $ 111,861 $ 119,358 $ 111,781
Identifiable assets
Home appliances $1,593,538 $2,053,175 $2,147,174
Vending equipment 94,299 98,109 103,765
General corporate 437,229 353,043 218,559
Total $2,125,066 $2,504,327 $2,469,498
35<PAGE>
Information about the Company's operations in different geographic
locations is as follows:
In thousands 1995 1994 1993
Net sales
North America $ 2,858,347 $ 2,831,583 $ 2,468,374
Europe 181,177 398,966 390,761
Australia and New Zealand 141,966 127,919
Total $ 3,039,524 $ 3,372,515 $ 2,987,054
Income before income taxes,
extraordinary item and
cumulative effect of accounting
change
North America $ 326,451 $ 342,887 $ 251,328
Europe (7,179) 420 (73,581)
Australia and New Zealand 12,586 3,374
General corporate (31,038) (33,125) (22,243)
Operating income 288,234 322,768 158,878
Interest expense (52,087) (74,077) (75,364)
Other (see statements of
consolidated income/loss) (176,343) (7,354) 6,356
Total $ 59,804 $ 241,337 $ 89,870
Identifiable assets
North America $ 1,687,837 $ 1,768,629 $ 1,794,271
Europe 382,655 359,323
Australia and New Zealand 97,345
General corporate 437,229 353,043 218,559
Total $ 2,125,066 $ 2,504,327 $ 2,469,498
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 significant.
In June 1995, the Company sold its home appliance operations in Europe
and in December 1994, the Company sold its home appliance operations in
Australia and New Zealand.
The general Corporate asset category includes items such as cash,
deferred tax assets, pension investments and other assets.
Prior to the quarter ended December 31, 1994, the Company's European
subsidiaries were consolidated as of a date one month earlier than
subsidiaries in the United States. In the fourth quarter of 1994, this one
month reporting lag was eliminated and European results for the quarter
ended December 31, 1994 include activity for four months. The effect of
this change increased net sales by $25.2 million in the fourth quarter and
the impact on income before income taxes and cumulative effect of
accounting change was not significant.
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).
Supplementary Expense Information
Year Ended December 31
In thousands 1995 1994 1993
Advertising costs $ 134,411 $ 153,233 $ 136,452
Research and development expenses 47,013 45,926 42,717
The Company expenses the production costs of advertising as incurred.
36<PAGE>
Contingencies and Disclosure of Certain Risks and Uncertainties
In connection with the sale of the Company's home appliance operations in
Europe, the terms of the contract provide for a post closing adjustment to
the price under which the company has asserted an additional amount of
approximately $15 million is owed by the buyer. The post closing
adjustment is in dispute and may ultimately depend on the decision of an
independent third party. Also in connection with the sale, the Company has
made various warranties to the buyer, including the accuracy of tax net
operating losses in the United Kingdom, and has agreed to indemnify the
buyer for liability resulting from customer claims under the "free flights"
promotions in excess of the reserve balance at the time of sale. There are
limitations on the Company's liability in the event the buyer incurs a loss
as a result of breach of the warranties. The Company does not expect the
resolution of these items to have a material adverse effect on its
financial condition.
The Company recently announced that it will conduct an in-home
inspection program to eliminate a potential problem with a small electrical
component in Maytag brand dishwashers. Although the ultimate cost of the
repair will not be known until the inspection program is complete, it is
not expected to have a material impact on the Company's results. The
Company will seek reimbursement from the supplier of the component.
Approximately $43 million of receivables were sold to a third party
during 1995 with full or partial recourse. The outstanding balance on such
receivables at December 31, 1995 was $28 million of which the Company has a
contingent liability of $20 million should all of the receivables become
uncollectible.
In connection with several major manufacturing projects, the Company
has outstanding commitments for capital expenditures of $60 million at
December 31, 1995.
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
significant in relation to the Company's consolidated financial position.
Quarterly Results of Operations (Unaudited)
The following is a summary of unaudited quarterly results of operations for
the years ended December 31, 1995 and 1994.
In thousands except per share December September June March
data 31 30 30 31
1995
Net sales $ 689,541 $ 726,371 $ 803,479 $ 820,133
Gross profit 179,721 187,630 200,333 221,224
Income (loss) before
extraordinary item 16,616 30,003 (101,146) 39,531
Per average share 0.16 0.28 (0.95) 0.37
Net income (loss) 16,616 27,946 (104,569) 39,531
Per average share $ 0.16 $ 0.26 $ (0.98) $ 0.37
1994
Net sales $ 862,635 $ 848,930 $ 870,385 $ 790,565
Gross profit 211,774 230,570 229,616 204,490
Income before cumulative
effect of accounting change 17,967 61,030 41,141 30,999
Per average share 0.17 0.57 0.39 0.29
Net income 17,967 61,030 41,141 27,809
Per average share $ 0.17 $ 0.57 $ 0.39 $ 0.26
In the second quarter of 1995, the Company sold its home appliance
37<PAGE>
operations in Europe. In the fourth quarter of 1994, the Company sold its
home appliance operations in Australia and New Zealand. See Industry
Segment and Geographic Information for financial information related to
these businesses.
The quarter ended June 30, 1995 includes a $135.4 million after-tax
loss on the sale of the Company's home appliance operations in Europe. The
quarter ended September 30, 1995 includes a $9.9 million after-tax charge
to settle a lawsuit relating to the closing of the former Dixie-Narco plant
in Ranson, West Virginia. The quarter ended December 31, 1995 includes a
$10.8 million after-tax loss on guarantee of indebtedness relating to the
sale of one of its manufacturing facilities in 1992 and a $3.6 million
after-tax loss on the disposal of its Dixie-Narco manufacturing operations
in Eastlake, Ohio.
The quarter ended September 30, 1994 includes a $20 million one-time
tax benefit associated with the funding of reorganization costs in Europe
over the past several years. The quarter ended December 31, 1994 includes a
$16.4 million after-tax loss from the sale of the Company's home appliance
operations in Australia.
Prior to the quarter ended December 31, 1994, the Company's European
subsidiaries were consolidated as of a date one month earlier than
subsidiaries in the United States. In the fourth quarter of 1994, this one
month reporting lag was eliminated and European results for the quarter
ended December 31, 1994 include activity for four months. The effect of
this change increased net sales by $25.2 million in the fourth quarter and
the impact on gross profit and net income was not significant.
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 8 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 13 through 23 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 23 and 24 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 "Other
Matters" 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 6 through 8 of the Proxy
Statement.
38<PAGE>
Item 13. Certain Relationships and Related Transactions.
Information concerning certain relationships and related transactions is
incorporated herein by reference from pages 2 through 5 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 41.
(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 42 through 45.
(b) A report on Form 8-K was filed during the fourth quarter of 1995
disclosing that the Company entered into a letter of intent to sell the
business and assets of its Dixie-Narco, Inc., manufacturing operation
in Eastlake, Ohio.
(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 42
through 45.
(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 41.
39<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)
s/s 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.
s/s GERALD J. PRIBANIC s/s NEELE E. STEARNS
Gerald J. Pribanic Neele E. Stearns, Jr.
Executive Vice President and Director
Chief Financial Officer
s/s STEVEN H. WOOD s/s HOWARD L. CLARK Jr.
Steven H. Wood Howard L. Clark, Jr.
Vice President Financial Reporting Director
and Auditing and Chief Accounting
Officer
s/s EDWARD C. CAZIER s/s FRED G. STEINGRABER
Edward C. Cazier, Jr. Fred G. Steingraber
Director Director
s/s CAROLE J. UHRICH s/s BARBARA ALLEN
Carole J. Uhrich Barbara R. Allen
Director Director
s/s P. S. WILLMOTT s/s BERNARD G. RETHORE
Peter S. Willmott Bernard G. Rethore
Director Director
Date: March 22, 1996
40<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, 1995
MAYTAG CORPORATION
NEWTON, IOWA
FORM 10-K--ITEM 14(a)(1), (2) 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 (Loss)--Years Ended
December 31, 1995, 1994 and 1993 . . . . . . . . . . . . . 18
Statements of Consolidated Financial Condition--
December 31, 1995 and 1994 . . . . . . . . . . . . . . . . 19
Statements of Consolidated Shareowners' Equity--Years Ended
December 31, 1995, 1994 and 1993 . . . . . . . . . . . . . 21
Statements of Consolidated Cash Flows--Years Ended
December 31, 1995, 1994 and 1993 . . . . . . . . . . . . . 23
Notes to Consolidated Financial Statements . . . . . . . . . 24
Quarterly Results of Operations--Years 1995 and 1994 . . . . 37
The following consolidated financial statement schedule of Maytag
Corporation and subsidiaries is included in Item 14(d):
Schedule II Valuation and Qualifying Accounts . . . . . . . 46
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.
41<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 1993 Annual
Registrant. Report on
Form 10-K
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 1993 Annual
February 7, 1991. Report on
Form 10-K
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.
42<PAGE>
Incorporated Filed with
Exhibit Herein by Electronic
Number Description of Document Reference to Submission
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.
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. $300,000,000 Credit Agreement Dated 1994 Annual
as of July 14, 1994 among Registrant, the Report on
banks Party Hereto and Bank of Montreal, Form 10-K
Chicago Branch as Agent and Royal Bank of
Canada as Co-Agent. (Superseded by
$400,000,000 Agreement of July 28, 1995.)
4(g) U.S. $400,000,000 Credit Agreement Dated X
as of July 28, 1995 among Registrant, the
banks Party Hereto and Bank of Montreal,
Chicago Branch as Agent and Royal Bank of
Canada as Co-Agent.
4(h) 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) Revised definition of Change of Control X
adopted by the Board of Directors
amending the definition included in the
Executive Severance Agreement listed in
Exhibits 10(b) and 10(c).
10(e) Severance Agreement with Jerry Schiller, 1993 Annual
former Chief Financial Officer of Maytag Report on
Corporation (1). Form 10-K
43<PAGE>
Incorporated Filed with
Exhibit Herein by Electronic
Number Description of Document Reference to Submission
10(f) Severance Agreement with Joseph Fogliano, X
former Executive Vice President and
President North American Appliance Group
(1).
10(g) 1989 Non-Employee Directors Stock Option Exhibit A to
Plan (1). Registrant's
Proxy
Statement
dated March
18, 1990.
10(h) 1986 Stock Option Plan for Executives and Exhibit A to
Key Employees (1). Registrant's
Proxy
Statement
dated March
14, 1986.
10(i) 1992 Stock Option Plan for Executives and Exhibit A to
Key Employees (1). Registrant's
Proxy
Statement
dated March
16, 1992.
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
Employees (1). (Superseded by Deferred No. 1 on
Compensation Plan, as amended and Form 8 dated
restated effective January 1, 1996) April 5,
1990 to 1989
Annual
Report on
Form 10-K.
44<PAGE>
Incorporated Filed with
Exhibit Herein by Electronic
Number Description of Document Reference to Submission
10(m) Maytag Deferred Compensation Plan, as X
amended and restated effective January 1,
1996.
10(n) 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 LLP. X
27 Financial Data Schedule X
45<PAGE>
<TABLE>
SCHEDULE II--VALUATION AND QUALIFYING ACCOUNTS
Maytag Corporation
Thousands of Dollars
<CAPTION>
COL. A COL. B COL. C COL. D COL. E
ADDITIONS
DESCRIPTION Balance at Deductions-- Balance at
Beginning Charged to Charged to Describe End of
of Period Costs and Other Period
Expenses Accounts--
Describe
<S> <C> <C> <C> <S> <C>
Year ended December 31, 1995:
Allowance for doubtful $20,037 $ 16,630 $19,387 <F1> $12,540
accounts receivable (183) <F2>
4,923 <F3>
$20,037 $ 16,630 $24,127 $12,540
Year ended December 31, 1994:
Allowance for doubtful $15,629 $ 12,412 $ 2,703 <F3> $20,037
accounts receivable 5,852 <F1>
(551) <F2>
$15,629 $ 12,412 $ 8,004 $20,037
Year ended December 31, 1993:
Allowance for doubtful $16,380 $ 6,678 $ 7,054 <F1> $15,629
accounts receivable 375 <F2>
$16,380 $ 6,678 $ 7,429 $15,629
<FN>
Note <F1> - Uncollectible accounts written off
Note <F2> - Effect of foreign currency translation
Note <F3> - Resulting from divestiture of the Company's European Operations and Australian Operations
in June 1995 and December 1994, respectively.
</TABLE>
46<PAGE>
MAYTAG CORPORATION
Exhibit 4(g)
U.S. $400,000,000 Credit Agreement Dated as of July 28, 1995 Among Registrant,
the banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal
Bank of Canada as Co-agent.
<PAGE>
================================================================================
U.S. $400,000,000
CREDIT AGREEMENT
Dated as of
July 28, 1995
Among
MAYTAG CORPORATION,
THE BANKS PARTY HERETO,
AND
BANK OF MONTREAL, CHICAGO BRANCH
as Agent
AND
ROYAL BANK OF CANADA
as Co-Agent
================================================================================
402302.01.08
1418565/rel
7/26/95<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 Loans and Designating Interest Rates
Applicable to Loans..................................... 3
SECTION 2. GENERAL PROVISIONS APPLICABLE TO LOANS...................... 5
Section 2.1. Interest Periods........................................ 5
Section 2.2. Maturity of Loans....................................... 6
Section 2.3. Prepayments............................................. 6
Section 2.4. Default Rate............................................ 7
Section 2.5. The Notes............................................... 7
Section 2.6. Commitment Terminations................................. 8
Section 2.7. Funding Indemnity....................................... 8
SECTION 3. FEES........................................................ 8
Section 3.1. Facility Fee............................................ 8
Section 3.2. Usage Fee............................................... 9
Section 3.3. Agent Fees.............................................. 9
SECTION 4. PLACE AND APPLICATION OF PAYMENTS........................... 9
Section 4.1. Place and Application of Payments....................... 9
SECTION 5. DEFINITIONS................................................. 10
Section 5.1. Definitions............................................. 10
Section 5.2. Interpretation.......................................... 16
SECTION 6. REPRESENTATIONS AND WARRANTIES.............................. 16
Section 6.1. Organization and Qualification.......................... 16
Section 6.2. Subsidiaries............................................ 16
Section 6.3. Corporate Authority and Validity of Obligations......... 17
Section 6.4. Not an Investment Company............................... 17
Section 6.5. Margin Stock............................................ 17
Section 6.6. Financial Reports....................................... 17
Section 6.7. No Material Adverse Change.............................. 18
Section 6.8. Litigation.............................................. 18
-i-<PAGE>
Section 6.9. Tax Returns............................................. 18
Section 6.10. Approvals............................................... 18
Section 6.11. Liens................................................... 18
Section 6.12. ERISA................................................... 18
Section 6.13. Compliance with Environmental Laws...................... 19
SECTION 7. CONDITIONS PRECEDENT........................................ 19
Section 7.1. Initial Borrowing....................................... 20
Section 7.2. All Loans............................................... 20
SECTION 8. COVENANTS................................................... 21
Section 8.1. Corporate Existence..................................... 21
Section 8.2. Maintenance............................................. 21
Section 8.3. Taxes................................................... 21
Section 8.4. Insurance............................................... 22
Section 8.5. Financial Reports and Other Information................. 22
Section 8.6. Leverage Ratio.......................................... 23
Section 8.7. Interest Coverage Ratio................................. 23
Section 8.8. Mergers, Consolidations, Leases, and Sales.............. 23
Section 8.9. Change of Control....................................... 24
Section 8.10. ERISA................................................... 24
Section 8.11. Conduct of Business..................................... 24
Section 8.12. Liens................................................... 24
Section 8.13. Use of Proceeds; Margin Stock........................... 26
Section 8.14. Compliance with Laws.................................... 26
SECTION 9. EVENTS OF DEFAULT AND REMEDIES.............................. 27
Section 9.1. Events of Default....................................... 27
Section 9.2. Non-Bankruptcy Defaults................................. 29
Section 9.3. Bankruptcy Defaults..................................... 29
Section 9.4. Expenses................................................ 29
SECTION 10. CHANGE IN CIRCUMSTANCES..................................... 29
Section 10.1. Change of Law........................................... 29
Section 10.2. Unavailability of Deposits or Inability to Ascertain, or
Inadequacy of, LIBOR.................................... 30
Section 10.3. Increased Cost and Reduced Return....................... 30
Section 10.4. Lending Offices......................................... 31
Section 10.5. Discretion of Bank as to Manner of Funding.............. 32
Section 10.6. Substitution of Bank.................................... 32
SECTION 11. THE AGENT................................................... 32
Section 11.1. Appointment and Authorization........................... 32
-ii-<PAGE>
Section 11.2. Agent and Affiliates.................................... 32
Section 11.3. Action by Agent......................................... 33
Section 11.4. Consultation with Experts............................... 33
Section 11.5. Liability of Agent...................................... 33
Section 11.6. Indemnification......................................... 33
Section 11.7. Credit Decision......................................... 34
Section 11.8. Resignation of Agent and Successor Agent................ 34
Section 11.9. Payments................................................ 34
Section 11.10. Co-Agent................................................ 35
SECTION 12. MISCELLANEOUS............................................... 35
Section 12.1. Withholding Taxes....................................... 35
Section 12.2. No Waiver of Rights..................................... 36
Section 12.3. Non-Business Day........................................ 36
Section 12.4. Documentary Taxes....................................... 36
Section 12.5. Survival of Representations............................. 36
Section 12.6. Survival of Indemnities................................. 36
Section 12.7. Sharing of Set-Off...................................... 37
Section 12.8. Notices................................................. 37
Section 12.9. Counterparts............................................ 38
Section 12.10. Successors and Assigns.................................. 38
Section 12.11. Participants and Note Assignees......................... 38
Section 12.12. Assignment of Commitments by Banks...................... 38
Section 12.13. Amendments.............................................. 39
Section 12.14. Legal Fees and Indemnification.......................... 39
Section 12.15. Currency................................................ 39
Section 12.16. Currency Equivalence.................................... 40
Section 12.17. Governing Law........................................... 40
Section 12.18. Termination of Existing Credit Agreement................ 40
Section 12.19. Headings................................................ 40
Section 12.20. Entire Agreement........................................ 41
Signatures................................................................ 42
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 11.8
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 "LOAN" and collectively "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 12.12 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 exceed the Commitments then in effect, which
Commitments on the date hereof total U.S. $400,000,000. Each Borrowing of Loans
shall be advanced 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 Loans be advanced or maintained as Domestic Rate Loans or
Eurocurrency Loans, which 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 in effect, payable
on the last day of the applicable Interest Period and at maturity (whether by
acceleration or otherwise).<PAGE>
"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 Period and in an amount
equal to the principal amount of the Eurocurrency Loan scheduled to be advanced,
-2-<PAGE>
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) 0.170% per
annum for any day Level I Status exists, (ii) 0.180% per annum for any day Level
II Status exists, (iii) 0.185% per annum for any day Level III Status exists,
(iv) 0.2625% per annum for any day Level IV Status exists and (v) 0.500% 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 10.2 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 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 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 three (3) Business Days
before the date on which the Borrower requests the Banks to advance a Borrowing
of Eurocurrency Loans and (ii) on the date the Borrower requests the Banks to
advance a Borrowing of Domestic Rate Loans. The Loans included in each
-3-<PAGE>
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 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 denominated in U.S. Dollars 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. 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 and, if such Borrowing is denominated in an 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 7.2 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
2.3(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
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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 2.3(a) that it intends
to prepay such Borrowing, such Borrowing shall automatically be converted into a
Borrowing of Domestic Rate Loans, subject to Section 7.2 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 2.3(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 7.2 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 7 hereof, each Bank
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 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 the
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. Outstanding Borrowings of Loans that are continued for an additional
Interest Period or converted into Loans of a different type, as permitted by
Section 1.4(a), are maintained by each Bank in the same principal amount as
originally advanced.
SECTION 2. GENERAL PROVISIONS APPLICABLE TO LOANS; REDUCTION OF COMMITMENTS.
SECTION 2.1. INTEREST PERIODS. As provided in Section 1.4 hereof, 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, September 30, and December 31); and (b) in the
case of Eurocurrency Loans 1, 2, 3, 6, or, if available from all the Banks, 9
months thereafter, as the Borrower may select; PROVIDED, HOWEVER, that:
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(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 2.2. MATURITY OF LOANS. Each Loan shall mature and become due and
payable by the Borrower on the Termination Date.
SECTION 2.3. 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 interest thereon to the date fixed
for prepayment and, in the case of Eurocurrency Loans, any compensation required
by Section 2.7 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.
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SECTION 2.4. 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 2.5. 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 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
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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 2.6. 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 2.6 may not be reinstated.
SECTION 2.7. 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 7 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
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.
SECTION 3. FEES.
SECTION 3.1. FACILITY FEE. The Borrower shall pay to the Agent for the
ratable account of the Banks, based on their Commitments, 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) 0.085% per annum for each
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day Level I Status exists, (ii) 0.100% per annum for each day Level II Status
exists, (iii) 0.120% per annum for each day Level III Status exists, (iv)
0.1875% per annum for each day Level IV Status exists, and (v) 0.300% 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, 1995, 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 7 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 3.1 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 3.2. USAGE FEE. For each day that the outstanding principal amount
of the Loans exceeds 50% of the Commitments then in effect, the Borrower shall
pay to the Agent for the ratable benefit of the Banks, based on their
outstanding Loans, a fee equal to 1/10th of 1% (0.10%) per annum of the
principal amount of all Loans outstanding on each such day, payable in arrears
on the last day of each calendar quarter.
SECTION 3.3. AGENT FEES. The Borrower shall pay to the Agent the fees
agreed to between the Agent and the Borrower.
SECTION 4. PLACE AND APPLICATION OF PAYMENTS.
SECTION 4.1. 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 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.
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SECTION 5. DEFINITIONS; INTERPRETATION.
SECTION 5.1. 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 11.8 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 John P. Cunningham, Jr., Executive
Vice President and Chief Financial Officer, David D. Urbani, Vice President and
Treasurer, and Mark S. Ayers, Assistant Treasurer, as shown on the list of
officers provided by the Borrower pursuant to Section 7.1(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 12.12 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 Loans are advanced ratably from each of the Banks according to
their Unused Commitments and are continued or converted in the same amounts as
originally advanced. 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).
"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 advance, continuation,
conversion of or into, or payment of a Eurocurrency Loan, on which banks are
dealing in U.S. Dollar deposits or the relevant Alternative Currency in the
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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 9.1(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.
"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.
"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.
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"CONSOLIDATED SUBSIDIARY" means any Subsidiary or other entity whose
accounts are required to be consolidated with those of the Borrower in
accordance with GAAP.
"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 6.12 hereof.
"EUROCURRENCY LOAN" means a 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 9.1 hereof.
"EXISTING CREDIT AGREEMENT" is defined in Section 12.18 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.
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"INTEREST PERIOD" is defined in Section 2.1 hereof.
"LENDING OFFICE" is defined in Section 10.4 hereof.
"LEVEL I STATUS" means the S&P Rating is at least A+ or higher OR the
Moody's Rating is at least A1 or higher.
"LEVEL II STATUS" means Level I Status does not exist, but the S&P Rating
is at least A- or higher OR the Moody's Rating is at least A3 or higher.
"LEVEL III STATUS" means neither Level I Status nor Level II Status exists,
but the S&P Rating is at least BBB+ or higher OR the Moody's Rating is at least
Baa1 or higher.
"LEVEL IV STATUS" means none of Level I Status, Level II Status, and Level
III Status exists, but the S&P Rating is at least BBB- or higher OR the Moody's
Rating is at least Baa3 or higher.
"LEVEL V STATUS" means none of Level I Status, Level II Status, Level III
Status, and Level IV Status exists.
"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 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" is defined in Section 1.1 hereof and the term "TYPE" of Loan refers
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 9.1(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.
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"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 2.5(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 6.12 hereof.
"PERMITTED SECURITIZATIONS" means sales at no less than fair market value
of accounts receivable owed to the Borrower or any Subsidiary.
"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 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.
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"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 12.7 hereof.
"S&P RATING" means the rating assigned by Standard & Poor's Ratings
Services Group, a division of The McGraw-Hill Companies, 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 Standard & Poor's Ratings Group, a division of
The McGraw-Hill Companies, Inc. 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.
"TERMINATION DATE" means July 27, 2000.
"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.
"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 12.1(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.
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"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 5.2. 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 6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks as follows:
SECTION 6.1. 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.
SECTION 6.2. 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 8.5(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
-16-<PAGE>
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 6.3. 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 6.4. NOT AN INVESTMENT COMPANY. The Borrower is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
SECTION 6.5. 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 6.6. FINANCIAL REPORTS. The consolidated statement of financial
condition of the Borrower and the Consolidated Subsidiaries as at December 31,
1994 and the related statements of consolidated income and consolidated cash
flows of the Borrower and the Consolidated Subsidiaries 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 June 30, 1995 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.
-17-<PAGE>
SECTION 6.7. NO MATERIAL ADVERSE CHANGE. From June 30, 1995 to the date of
this Agreement, 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 6.8. 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 6.9. 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 6.10. 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 6.11. LIENS. There are no Liens on any of the Property of the
Borrower or any Subsidiary, except those which are permitted by Section 8.12
hereof.
SECTION 6.12. 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, 1993 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.
-18-<PAGE>
SECTION 6.13. 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 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 8.12 hereof.
SECTION 7. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan
hereunder shall be subject to the following conditions precedent:
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SECTION 7.1. INITIAL BORROWING. Prior to the advance of the initial
Borrowing hereunder:
(a) 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.
SECTION 7.2. 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 hereof;
(b) Each of the representations and warranties of the Borrower set
forth in Section 6 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
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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 7.2. If any
conditions contained in this Section 7.2 are not fulfilled for a Borrowing on
the last day of its Interest Period, notwithstanding Section 2.2 hereof, such
Borrowing shall be due and payable on the last day of its Interest Period.
SECTION 8. 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 8.1. CORPORATE EXISTENCE. The Borrower shall, and shall cause each
Subsidiary to, preserve and maintain its corporate existence, subject to the
provisions of Section 8.8 hereof.
SECTION 8.2. 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 8.3. 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.
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SECTION 8.4. 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 8.4.
SECTION 8.5. 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 change in any of the facts
specified in Exhibit B hereto, as then most recently updated.
-22-<PAGE>
(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 8.5 shall be accompanied by a written
certificate signed by the chief financial officer or treasurer 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 6 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 8 hereof, and (iv) a compliance certificate in the form of Exhibit E
hereto showing the calculations necessary to determine compliance with Sections
8.6 and 8.7 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 8.6. 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 0.55.
SECTION 8.7. 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 for the four
most recently completed fiscal quarters ending on such date of not less than 2.5
to 1.0.
SECTION 8.8. 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
-23-<PAGE>
corporation if, after giving effect to such merger, the surviving
corporation is a Wholly-Owned Consolidated Subsidiary; and
(c) except for Permitted Securitizations, 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 June 30, 1995 financial statements
described in Section 6.6 hereof.
SECTION 8.9. 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 8.10. 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 8.11. 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 8.12. 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 8.12 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
-24-<PAGE>
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;
(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;
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(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);
(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; or
(l) Liens arising out of any Permitted Securitization.
SECTION 8.13. 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 8.14. COMPLIANCE WITH LAWS. Without limiting any of the other
covenants of the Borrower in this Section 8, 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
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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 9. EVENTS OF DEFAULT AND REMEDIES.
SECTION 9.1. 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 8.6, 8.7, 8.8, 8.9, 8.11 or 8.13 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
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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 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
9.1(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 9.1(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.
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SECTION 9.2. NON-BANKRUPTCY DEFAULTS. When any Event of Default other than
those described in Sections 9.1(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 9.1 or this Section 9.2, 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 9.3. BANKRUPTCY DEFAULTS. When any Event of Default described in
subsections (i) or (j) of Section 9.1 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 9.4. 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 10. CHANGE IN CIRCUMSTANCES.
SECTION 10.1. CHANGE OF LAW. Notwithstanding any other provision 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.
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SECTION 10.2. 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 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 10.3. 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
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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 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 10.1 hereof, determines to seek compensation
under this Section 10.3, or becomes entitled to receive additional amounts under
Section 12.1(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 10.3 and 12.1, 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 10.3 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 10.4. 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
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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 10.5. 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 10.6. SUBSTITUTION OF BANK. If (a) any Bank has demanded
compensation or given notice of its intention to demand compensation under
Section 10.3 or (b) the Borrower is required to pay any additional amount to any
Bank pursuant to Section 12.1, 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
12.12 hereof, provided that such Bank's entire Commitment is replaced, and the
U.S. $2,500 fee payable under Section 12.12 shall not be payable in connection
with any such assignment required under this Section 10.6.
SECTION 11. THE AGENT.
SECTION 11.1. 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 11.2. 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.
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SECTION 11.3. 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
9.2. 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 11.4. 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 11.5. 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 7, 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 12.12 hereof.
SECTION 11.6. 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.
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SECTION 11.7. 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 11.8. 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 11
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent.
SECTION 11.9. 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 2.7 hereof with respect to
such payment. "FEDERAL FUNDS RATE" shall mean the rate described in clause (x)
of Section 1.2(a)(ii) hereof.
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SECTION 11.10. CO-AGENT. Nothing in this Agreement shall impose any
obligations on Royal Bank of Canada in its capacity as Co-Agent hereunder.
SECTION 12. MISCELLANEOUS.
SECTION 12.1. 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 12.1, 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
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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 12.1 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 12.2. 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 12.3. 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 12.4. 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 12.5. 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 12.6. SURVIVAL OF INDEMNITIES. All indemnities and all other
provisions relative to reimbursement to the Banks of amounts sufficient to
-36-<PAGE>
protect the yield of the Banks with respect to the Loans, including, but not
limited to, Section 2.7 and Section 10.3 hereof, shall survive the termination
of this Agreement and the payment of the Loans and the Notes.
SECTION 12.7. 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
9.2 or 9.3 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 12.8. 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: David D. Urbani
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
-37-<PAGE>
specified in this Section; PROVIDED THAT any notice given pursuant to Section 1
hereof shall be effective only upon receipt.
SECTION 12.9. 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 12.10. 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 12.11. 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 12.11, 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
2.7 and Section 10.3 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 12.12. 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
-38-<PAGE>
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 12.13. 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 7 hereof or the provisions of Sections 9.1.(i), 9.1.(j) or 9.3,
or affect the number of Banks required to take any action hereunder.
SECTION 12.14. 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
limitation, 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 12.15. 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
-39-<PAGE>
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 12.16. 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 12.7 hereof, such Bank or the Agent, as the case may be,
agrees to remit such excess to the Borrower.
SECTION 12.17. 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 12.18. TERMINATION OF EXISTING CREDIT AGREEMENT. The Borrower and
each of the Banks hereunder that is a party to the Credit Agreement dated as of
July 14, 1994 with a scheduled "TERMINATION DATE" of July 13, 1998 (the
"EXISTING CREDIT AGREEMENT") among Maytag Corporation, the Banks party thereto,
Bank of Montreal, Chicago Branch, as Agent, and Royal Bank of Canada, as
Co-Agent, consents to the termination of the "COMMITMENTS" thereunder effective
on the date the conditions set forth in Section 7.1 hereof are fulfilled,
notwithstanding the notice requirements for such termination set forth in
Section 3.6 of the Existing Credit Agreement. Because such Banks hereunder
constitute the "REQUIRED BANKS" under the Existing Credit Agreement, the
Existing 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 3.1 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 7.1 hereof have been fulfilled.
SECTION 12.19. HEADINGS. Section headings used in this Agreement are for
reference only and shall not affect the construction of this Agreement.
-40-<PAGE>
SECTION 12.20. 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.
-41-<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 July 28, 1995.
MAYTAG CORPORATION
By s/s David Urbani
David D. Urbani,
Vice President and Treasurer
-42-<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
Telecopy: (312) 750-6057 as Agent
Telephone: (312) 750-3737
Attention: Lisa S. Donoghue, Director
Commitment: $60,000,000
By s/s Jonathan D. Hook
Name Jonathan D. Hook
Title Director
Lending Offices:
Domestic Rate Loans: 115 South LaSalle Street
Chicago, Illinois 60603
Eurocurrency Loans: 115 South LaSalle Street
Chicago, Illinois 60603
-43-<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
One North Franklin ROYAL BANK OF CANADA, in its
Suite 700 individual capacity as a Bank and as
Chicago, IL 60606 Co-Agent
Telecopy: (312) 551-0805
Telephone: (312) 551-1615
Attention: Molly Drennan, Manager Corporate
Banking
Commitment: $50,000,000
By s/s Molly Drennan
Name Molly Drennan
Title Manager, Corporate Banking
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
-44-<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
611 Woodward NBD BANK
Detroit, MI 48226
Telecopy: (313) 225-2649
Telephone: (313) 225-2557
Attention: Thomas A. Levasseur, Vice President
Commitment: $40,000,000
By s/s Thomas A. Levasseur
Name Thomas A. Levasseur
Title Vice President
Lending Offices:
Domestic Rate Loans: 611 Woodward
Detroit, MI 48226
Eurocurrency Loans: 611 Woodward
Detroit, MI 48226
-45-<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
Telecopy: (216) 689-4981
Telephone: (216) 689-3176
Attention: Janice M. Cook, Vice President
Commitment: $40,000,000
By s/s Marianne Meil
Name Marianne T. Meil
Title Assistant Vice President
Lending Offices:
Domestic Rate Loans: 127 Public Square
Cleveland, Ohio 44114
Eurocurrency Loans: 127 Public Square
Cleveland, Ohio 44114
-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 0088-14 OF CHICAGO
Chicago, Illinois 60670
Telecopy: (312) 732-5161
Telephone: (312) 732-4244
Attention: Susan L. Comstock, Vice President
Commitment: $40,000,000
By s/s M. Elizabeth Gonzalez
Name M. Elizabeth Gonzalez
Title Assistant Vice President
Lending Offices:
Domestic Rate Loans: One First National Plaza
Suite 0088-14
Chicago, Illinois 60670
Eurocurrency Loans: One First National Plaza
Suite 0088-14
Chicago, Illinois 60670
-47-<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) 876-6452
Attention: Stephen Flaherty, Assistant
Vice President
Commitment: $40,000,000
By s/s H. Iwami
Name Hiroyuki Iwami
Title 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
-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
Suite 2000
Chicago, Illinois 60606
Telecopy: (312) 621-0539
Telephone: (312) 621-9484
Attention: Stephen P. Peca, Vice President
and Assistant Manager
Commitment: $40,000,000
By s/s Peter L. Chinnici
Name Peter L. Chinnici
Title 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:
500 W. Madison Street PNC BANK, NATIONAL ASSOCIATION
Suite 3140
Chicago, IL 60661
Telecopy: (312) 906-3420
Telephone: (312) 906-3425
Attention: Jon Otterberg, Commercial
Banking Officer
Commitment: $40,000,000
By s/s Jon C. Otterberg
Name Jon C. Otterberg
Title Commercial Banking Officer
Lending Offices:
Domestic Rate Loans: 5th Avenue and Wood Street
Pittsburgh, PA 15222
Eurocurrency Loans: 5th Avenue and Wood Street
Pittsburgh, PA 15222
-50-<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
31 West 52nd Street TORONTO DOMINION (TEXAS), INC.
New York, New York 10019
Telecopy: (212) 262-1926
Telephone: (212) 468-0559
Attention: Horace Zona III, Director
Corporate Finance
Commitment: $25,000,000
By s/s Diane Bailey
Name Diane Bailey
Title Vice President
Lending Offices:
Domestic Rate Loans: c/o The Toronto-Dominion Bank
909 Fannin, Suite 1700
Houston, Texas 77010
Eurocurrency Loans: c/o The Toronto-Dominion Bank
909 Fannin, Suite 1700
Houston, Texas 77010
-51-<PAGE>
Accepted and Agreed to as of the day and year last above written.
Address and Amount of Commitment:
1211 Avenue of the Americas WESTDEUTSCHE LANDESBANK
New York, New York 10036 GIROZENTRALE, NEW YORK AND
Telecopy: (212) 852-6300 CAYMAN ISLANDS BRANCHES
Telephone: (212) 852-6000
Attention: Mr. Craig D. Rockey
Commitment: $25,000,000
By s/s Michael F. McWalters
Name Michael F. McWalters
Title Managing Director
By s/s C. D. Rockey
Name C. D. Rockey
Title Associate
Lending Offices:
Domestic Rate Loans: 1211 Avenue of the Americas
New York, New York 10036
Eurocurrency Loans: 1211 Avenue of the Americas
New York, New York 10036
With a copy to:
Westdeutsche Landesbank
Chicago Representative Office
181 West Madison Street
Chicago, Illinois 60602
Attention: Mr. Mark R. Worley
Telecopy: (312) 553-1609
Telephone: (312) 553-1600
-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 4.1 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
July 28, 1995, 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 JULY 1, 1995
JURISDICTION OF PERCENTAGE OF
NAME INCORPORATION OWNERSHIP
Maytag Limited 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 Inc. Delaware 100%
Maytag Foreign Sales Corp. Virgin Islands 100%
Lineset PLC* England 100%
The Hoover Company Delaware 100%
Hoover Holdings Inc. Delaware 100%
Phase IV Products, Inc. Delaware 100%
Hoover Mexicana S.A. de C.V. Mexico 100%
Juver Industrial S.A. de C.V. Mexico 100%
Readylink Limited* United Kingdom 100%
Hoover Commercial Limitada* Brazil 100%
Maharashtra Investment Ltd. Delaware 100%
Maytag International Ltd.* England 100%
D.N. Holdings, Inc. Delaware 100%
Maytag Worldwide N.V. Netherlands Antilles 100%
All Subsidiaries are Consolidated Subsidiaries. All Subsidiaries other than
those with an asterisk next to their name are Material Subsidiaries as of
July 1, 1995.<PAGE>
EXHIBIT C
July 28, 1995
To each of the Banks parties to
the "CREDIT AGREEMENT" (as defined below),
and to Bank of Montreal, Chicago Branch, 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 $400,000,000 Credit Agreement of even date
herewith (the "CREDIT AGREEMENT") among the Borrower, the financial institutions
parties thereto (the "BANKS") and Bank of Montreal, Chicago Branch, as Agent,
and the transactions contemplated thereby.
This opinion is furnished to you at the request of the Borrower pursuant to
Section 7.1(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
<PAGE>
their respective jurisdictions of organization and have the requisite
corporate power to enter into the Credit Agreement; and
(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 and constitutes the valid
and binding obligation of all parties thereto other than the Borrower,
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 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
-2-<PAGE>
Borrower's execution or delivery of the Credit Agreement or the Notes or for the
Borrower's performance of any of the terms thereof.
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 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, the nature of the
business of the Agent or any of the Banks or the qualification of any such
party to conduct business in any jurisdiction.
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).
-3-<PAGE>
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 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 facts, laws and regulations
existing or in effect on the date hereof, and we assume no obligation to revise
or supplement this opinion should such facts change or should such laws or
regulations be changed by legislative or regulatory action, judicial decision or
otherwise, notwithstanding that such changes may affect the legal analysis or
conclusions contained herein.
Very truly yours,
-4-<PAGE>
EXHIBIT D
July 28, 1995
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 $400,000,000 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 7.1(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.
3. The Credit Agreement and the Notes have been duly executed and delivered
by a duly authorized officer of the Borrower.
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, 2 and 3. The
opinions expressed above are based solely on facts, laws and regulations
existing or in effect on the date hereof, and I assume no obligation to revise
or supplement this opinion should such facts change or should such laws or
regulations be changed by legislative or regulatory action, judicial decision or
otherwise, notwithstanding that such changes may affect the legal analysis or
conclusions contained herein.
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 July 28, 1995 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 treasurer 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 6 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 8
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 Treasurer
-2-<PAGE>
Attachment To Compliance Certificate
Compliance Calculations for Credit Agreement
Dated as of July 28, 1995
Calculations as of _____________, 19__
_____________________________________________________________________________
A. LEVERAGE RATIO (SECTION 8.6)
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 .55:1.00) _____:1.00
B. INTEREST COVERAGE RATIO (SECTION 8.7)
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 2.50 to 1.00) _____1.00
-1-<PAGE>
MAYTAG CORPORATION
Exhibit 10(b)
Executive Severance Agreements.
<PAGE>
The following executives are covered under this severance agreement:
1. Robert W. Downing
2. Mark A. Garth
3. Brian A. Girdlestone
4. Edward H. Graham
5. Leonard A. Hadley
6. Richard J. Haines
7. Donald M. Lorton
8. Carl R. Moe
9. Jon O. Nicholas
10. Jerry K. Rinehart
11. Carl 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 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.
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 stockholders,
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.
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:
<PAGE>
- 2 -
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 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.
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
<PAGE>
- 3 -
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 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),
<PAGE>
- 4 -
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 accountants (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.
(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 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;<PAGE>
- 5 -
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 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 becomes
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) indi-
viduals 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<PAGE>
- 6 -
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 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 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 inter-
pret any provision contained herein, the Company hereby indemnifies the Execu-
tive 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
<PAGE>
- 7 -
interest rate on the date that payment(s) to him or her should have been made
under this agreement.
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 here-
under 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. Tom A. Briatico
2. Frederick P. Foltz
3. 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 stockholders,
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.
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) 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
1<PAGE>
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.
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
2<PAGE>
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
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.
3<PAGE>
(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 accountants (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.
(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 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
4<PAGE>
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 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 becomes
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) indi-
viduals 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
5<PAGE>
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 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 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 inter-
pret any provision contained herein, the Company hereby indemnifies the Execu-
tive 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.
6<PAGE>
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 here-
under 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 ___________________________
XXXXXXXXXXXXXXXX , CEO
___________________________
XXXXXXXXXXXXXX, Executive
7<PAGE>
MAYTAG CORPORATION
Exhibit 10(d)
Revised definition of Change of Control adopted by
the Board of Directors amending the definition included
in the Executive Severence Agreement listed in Exhibits
10(b) and 10(c).
<PAGE>
CHANGE OF CONTROL
Revised definition of Change of Control adopted by the Board of Directors
amending the definition included in the Executive Severance Agreements
listed in Exhibits 10(b) and 10(c) hereof, as follows:
A. The acquisition by any individual, entity or group (within the meaning
of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more
of either (i) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (ii) the combined voting power
of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a),
the following acquisitions shall not constitute a Change of Control: (i)
any acquisition by the Company, (ii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company or (iii) any acquisition by any
corporation pursuant to a transaction which complies with clauses (i), (ii)
and (iii) of subsection (c) below; or
B. Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for election by
the Company's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be considered as
though such individual were a member of the Incumbent Board, but excluding,
for this purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with respect
to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the Board; or
C. Consummation of a reorganization, merger or consolidation or sale or
other disposition of all or substantially all of the assets of the Company
(a "Business Combination"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities
who were the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or indirectly, more
than 50% of, respectively, the then outstanding shares of common stock and
the combined voting power of the then outstanding voting securities entitled
to vote generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly
or through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting Securities,
as the case may be, (ii) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 20% or more
of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation except
to the extent that such ownership existed prior to the Business Combination
<PAGE>
and (iii) at least a majority of the members of the board of directors of
the corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business Combination; or
D. Approval by the shareholders of the Company of a complete liquidation
or dissolution of the Corporation.
2<PAGE>
MAYTAG CORPORATION
Exhibit 10(f)
Severance Agreement with Joseph Fogliano, former Executive
Vice President and President North American Appliance Group.
<PAGE>
August 10, 1995
Joseph F. Fogliano
1310 Golf View Lane
Newton, Iowa 50208
Dear Joe,
This letter will confirm your separation from the Maytag Corporation, outline
your separation benefits, and offer you enhanced benefits available to you
contingent upon your agreement to certain conditions.
Your employment with Maytag Corporation will terminate effective August 31, 1995
(the date of separation). You will resign all officer positions held with
Maytag Corporation and any of its subsidiary and associated companies effective
August 31, 1995. Your last day worked will be Thursday, August 10, 1995.
I. As a former executive, you will receive:
1. Salary through August 31, 1995, less normal withholdings, payable that
date.
2. Vacation pay based on unused, but accrued, vacation hours computed and
payable as of August 31, 1995, less applicable withholdings.
3. Maytag Salary Savings Plan 401(k) match through August 31, 1995.
4. The opportunity to withdraw all sums from the Maytag Salary Savings
Plan 401(k), the Employee Stock Ownership Plan, Employee Stock
Purchase Plan, Capital Accumulation Plan, or other similar plan, as
applicable under the plan, upon the date of separation.
5. The opportunity to exercise stock options (vested to you as of
August 31, 1995) in accordance with the plan.
6. The opportunity to continue health coverage, at your full expense,
under COBRA, effective as of the date of separation.
7. The opportunity to convert your group health and life coverage to
individual coverage, at your full expense, effective as of the date of
separation.
You should contact Clark Benning at (515) 246-4016 to determine what options you
have in the Executive Life Insurance Program.<PAGE>
II. Provided you sign the attached agreement and return it to Jon Nicholas on
or before 5:00p.m. Friday, September 1, 1995, and you do not revoke your
decision within seven (7) days after our receipt of that document, Maytag offers
you in addition to the items outlined in Item I above the following enhanced
separation benefits:
1. Severance Pay - You will receive twelve (12) monthly payments
equivalent to your monthly payroll rate as of the date of separation
($33,750) less applicable withholdings. These payments will be made at
the end of each month beginning in September, 1995 and ending in
August, 1996. During this time period, you will not be a Maytag
employee and you will not be expected or authorized to perform any
services for Maytag Corporation or any of its companies.
2. Benefits Continuation - Maytag will provide at no cost to you the
benefits outlined above in Item I.6. You will be eligible for this
enhanced benefit until the earlier of (a) August 31, 1996, (b) your
becoming a full-time employee of another employer, or (c) your
becoming eligible for Medicare. The level of benefits provided will
be according to the applicable plans.
3. Annual Incentive Compensation - Your 1995 annual incentive opportunity
will be prorated as of August 31, 1995 based on your ending base
salary, your plan opportunity of 66%, an individual performance factor
of 100%, and a projected corporate performance rating of 65%. This
proration totals $115,830 and will be payable, less applicable
withholdings, September 30, 1995.
4. Stock Incentive Award Plan - Rather than forfeiture of all your shares
of Restricted Stock and Restricted Stock Units under this plan, you
will receive a payment equivalent to but in lieu of all such shares
and units held by you as of August 31, 1995, prorated as of that date
based on the preceding 40-day average closing stock price, and the
following projected achievements: 1993 - 120%, 1994 - 100%, and 1995
- 60%. This proration is estimated to total $610,300 and will be
payable, less applicable withholdings, September 30, 1995.
5. Capital Accumulation Plan - If you request, and your request is
approved by Maytag, you will be allowed to withdrawal your CAP balance
in a lump sum.
6. Sale of Residence - Maytag will assist you in the sale of your
residence in Newton, Iowa through its third party relocation program.
7. Relocation Expense - Maytag will pay for the relocation of your
household goods currently located in Newton, Iowa per the applicable
provisions of the attached Maytag Relocation Policy to a location of
your choice within the continental United States provided the move
takes place prior to November 30, 1995. Alternatively, Maytag will at
your request pay for the movement of such household goods to storage
for up to six months (but will not pay for movement out of storage).
<PAGE>
8. Temporary Living Expenses - Maytag will provide to you a payment of
$24,000 less applicable withholdings. This payment is intended to
assist you with approximately six months of temporary living expenses
following the date of separation.
9. Outplacement - Maytag will provide you with outplacement services
through Hardy Freeman & Associates, or other such service of your
choice with Maytag approval, not to exceed 15% of your ending base
salary.
10. Executive Appliances - You may retain the appliances you have under
the Executive Appliance Test Program.
We trust that you will agree with this proposal to provide you with enhanced
benefits not otherwise available. If so, please sign and return the enclosed
Agreement to Jon Nicholas no later than 5:00 p.m. Friday, September 1, 1995, the
date on which this offer will expire if not accepted by you.
Should you have any questions regarding this matter, please let me know.
Sincerely, <PAGE>
August 28, 1995
Joseph F. Fogliano
1310 Golf View Lane
Newton, Iowa 50208
Dear Joe,
In addition to the enhanced separation benefits offered to you in Len Hadley's
letter dated August 10, 1995, the following items will amend or add to
Section II:
6. (Amended) - Maytag will purchase your Newton, Iowa residence through
a third party for $400,000.
7. (Amended) - Maytag will pay for the relocation of your household
goods currently located in Newton, Iowa per the applicable provisions
of the Maytag Relocation Policy to a location of your choice within
the continental United States provided the move takes place prior to
December 31, 1995. Alternatively, Maytag will at your request pay
for the movement of such household goods to storage for up to one (1)
year not to exceed $24,000. Additionally, Maytag will pay for the
transport and storage of up to two (2) automobiles for up to one (1)
year not to exceed $4,800.
9. (Amended) - Maytag will approve outplacement services through Drake
Beam Morin not to exceed 15% of your ending base salary ($60,750).
10. (Amended) - You may remove portable appliances from your current
residence, but not built-in appliances. You will not incur a
prorated charge.
11. (Added) - Maytag will pay consultant fees and reasonable business
travel expenses for your trip to the Center for Creative Leadership
in Colorado Springs, Colorado for the purpose of receiving instrument
feedback.
12. (Added) - You may maintain the use of the Corporate VISA and MCI
cards through December 31, 1995 for bona fide job search purposes not
otherwise eligible for reimbursement by a prospective employer, not
to exceed $10,000 in aggregate.
13. (Added) - Maytag will provide income tax preparation services for
calendar year 1995, not to exceed $1,000 in fees.
<PAGE>
Please understand that all enhanced separation benefits offered to you must be
contingent upon your returning to Maytag any and all documents in your
possession that would be considered company sensitive, including copies of
materials presented to the Maytag Board of Directors.
It is my understanding that these additional considerations will bring this
matter to a satisfactory conclusion. If you have any questions, please feel
free to call me.
Sincerely,
s/s J.O. Nicholas<PAGE>
MAYTAG CORPORATION
Exhibit 10(m)
Maytag Deferred Compensation Plan, as amended and restated
effective January 1, 1996.
<PAGE>
MAYTAG DEFERRED COMPENSATION PLAN
As Amended and Restated Effective January 1, 1996
<PAGE>
MAYTAG DEFERRED COMPENSATION PLAN
As Amended and Restated Effective January 1, 1996
ARTICLE 1
INTRODUCTION
1.1 Purpose of Plan
The Corporation has adopted the Plan set forth herein to provide a means by
which certain employees may elect to defer receipt of designated percentages or
amounts of their Compensation.
1.2 Status of Plan
The Plan is intended to be "a plan which is unfunded and is maintained by
an employer primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees" within the meaning
of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and shall be interpreted
and administered consistent with that intent. Employee Elective Deferral
contributions are used to fund the Plan.
ARTICLE 2
DEFINITIONS
Wherever used herein, the following terms have the meanings set forth
below, unless a different meaning is clearly required by the context:
2.1 Account means, for each Participant, the account established for his
or her benefit under Section 5.1.
2.2 Beneficiary means the person or persons, including legal entities, who
have been designated by a Participant to receive benefits under this Plan upon
such Participant's death, and who survive the Participant.
2.3 Change of Control of the Corporation shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act")) (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the Corporation (the
"Outstanding Corporation Common Stock") or (ii) the combined voting power of the
then outstanding voting securities of the Corporation entitled to vote generally
in the election of directors (the "Outstanding Corporation Voting Securities");
provided, however, that for purposes of this subsection (a), the following
acquisitions shall not constitute a Change of Control: (i) any acquisition by
the Corporation, (ii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation controlled
by the Corporation or (iii) any acquisition by any corporation pursuant to a
<PAGE>
- 2 -
transaction which complies with clauses (i), (ii) and (iii) of subsection (c)
below; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the
Corporation (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Corporation or all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination
of the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (ii) no Person (excluding any employee benefit
plan (or related trust) of the Corporation or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly, 20% or
more of, respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the business combination and
(iii) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination; or
(d) Approval by the shareholders of the Corporation of a complete
liquidation or dissolution of the Corporation.
2.4 Code means the Internal Revenue Code of 1986, as amended from time to
time. Reference to any section or subsection of the Code includes reference to
any comparable or succeeding provisions of any legislation which amends, <PAGE>
- 3 -
supplements or replaces such section or subsection.
2.5 Committee means the Compensation Committee of the Corporation or any
successor to such Committee. The Committee shall serve as Plan Administrator.
2.6 Compensation means the cash compensation payable to a Participant by
the Corporation, including any commissions and bonuses.
2.7 Corporation means Maytag Corporation, a Delaware corporation, and any
successor to all or a major portion of the Corporation's assets or business that
assumes the obligations of the Corporation, and each other entity that is
affiliated with the Corporation and that adopts the Plan with the consent of the
Corporation.
2.8 Effective Date means January 1, 1996.
2.9 Elective Deferral means the portion of Compensation which is deferred
by a Participant under Section 4.1.
2.10 Eligible Employee means, on the Effective Date or any entry date
thereafter as provided in Section 4.1, those employees of the Corporation who
are designated by the Committee and who are eligible to participate in the
Qualified Plan. Each Eligible Employee's status will be reviewed by the Plan
Administrator prior to the beginning of each calendar quarter. An individual
who no longer meets the description in the first sentence of this Section will
no longer qualify as an Eligible Employee as of the first day of the applicable
calendar quarter.
2.11 ERISA means the Employee Retirement Income Security Act of 1974, as
amended from time to time. Reference to any section or subsection of ERISA
includes reference to any comparable or succeeding provisions of any legislation
that amends, supplements or replaces such section or subsection.
2.12 Insolvent means either (i) the Corporation is unable to pay its debts
as they become due, or (ii) the Corporation is subject to a pending proceeding
as a debtor under the United States Bankruptcy Code.
2.13 Participant means any individual who participates in the Plan in
accordance with Article 3.
2.14 Plan means the Maytag Deferred Compensation Plan, as provided herein
and as amended from time to time. The Plan was formerly called the "Maytag
Corporation 1988 Capital Accumulation Plan for Key Employees."
2.15 Plan Administrator means the person, persons or entity designated by
the Corporation to administer the Plan and to serve as the agent for the settlor
of the Trust as contemplated by the agreement establishing the Trust. If no
<PAGE>
- 4 -
such person or entity is so serving at any time, the Corporation shall be the
Plan Administrator.
2.16 Plan Year means the 12-month period ending on December 31.
2.17 Qualified Plan means the Maytag Corporation Salary Savings Plan.
2.18 Trust means the grantor trust established by the Corporation to hold
assets contributed under the Plan.
2.19 Trustee means the trustee or trustees under the Trust.
ARTICLE 3
PARTICIPATION
3.1 Commencement of Participation
An Eligible Employee shall become a Participant in the Plan on the first
date as of which he or she begins to defer Compensation in accordance with
Section 4.1.
3.2 Continued Participation
A Participant in the Plan shall continue to be a Participant so long as any
amount remains credited to his or her Account.
ARTICLE 4
ELECTIVE DEFERRALS
4.1 Elective Deferrals
(a) An individual who is an Eligible Employee may elect to defer a
percentage or dollar amount of the Compensation otherwise payable to him or her.
An Eligible Employee who desires to elect such a deferral shall complete and
file an Enrollment Form with the Plan Administrator.
(b) Each Enrollment Form shall be effective for all Compensation to
be paid for the Plan Year to which it applies, or in the case of an Enrollment
Form filed after the Plan Year commences, for Compensation payable after the
date on which the Eligible Employee files the Enrollment Form with the Plan
Administrator. Each Enrollment Form shall be filed no later than the last day
of the year preceding the Plan Year to which it applies, provided that (i) for
an individual who is an Eligible Employee as of the Effective Date, the
Enrollment Form for the first Plan Year shall be filed no later than 30 days
following the Effective Date and (ii) for an individual who becomes an Eligible
Employee after the Effective Date, the Enrollment Form for the first year of
eligibility shall be filed no later than 30 days following the date the
individual becomes an Eligible Employee.<PAGE>
- 5 -
(c) An election to defer a percentage or dollar amount of
Compensation for any Plan Year shall apply for subsequent Plan Years unless
changed or revoked. A Participant may change or revoke his or her deferral
election as of the first day of any Plan Year by giving written notice to the
Plan Administrator before such first day (or any such earlier date as the Plan
Administrator may prescribe).
ARTICLE 5
ACCOUNTS
5.1 Accounts
The Plan Administrator shall establish an Account for each Participant
reflecting Elective Deferrals made for the Participant's benefit together with
any adjustments for income, gain or loss and any payments from the Account. As
of the last business day of each calendar quarter, the Plan Administrator shall
provide the Participant with a statement of his or her Account reflecting the
income, gains and losses (realized and unrealized), amounts of deferrals, and
distributions of such Account since the prior statement.
5.2 Investments
(a) The assets of the Trust shall be invested in such investments as the
Trustee shall determine. The Trustee may (but is not required to) consider the
Corporation's or a Participant's investment preferences when investing the
assets attributable to a Participant's Account.
(b) Expense charges for transactions performed for each Participant's
Account shall be paid from each respective Account and will be listed on the
quarterly Account Statement. Other Plan administrative expenses will be paid by
the Corporation.
(c) Notwithstanding any other provision of the Plan to the contrary, at
the time of a Change of Control and thereafter, the Corporation shall make
contributions to the Trust as necessary so that at all times the assets of the
Trust equal or exceed the aggregate liabilities to Participants under the Plan.
ARTICLE 6
VESTING
6.1 General
Subject to Section 7.5, the Participant shall at all times have a fully
vested and nonforfeitable right to all Elective Deferrals credited to his or her
Account, adjusted for income, gain and loss attributable thereto. <PAGE>
- 6 -
ARTICLE 7
PAYMENTS
7.1 Election as to Form of Payment
(a) The Participant may elect for payments to be made in either in
the form of:
(i) A single lump-sum payment; or
(ii) Annual installments over a period elected by the Participant of
up to 10 years, the amount of each installment to equal the then
balance of the Account divided by the number of installments
remaining to be paid. The Participant may designate the date of
the initial payment, and then the year the remaining payments are
to begin, or may designate the age at which installments shall
commence.
(b) Except as provided in Sections 7.2, and 7.3, payment of a
Participant's Account shall be made in accordance with the Participant's
elections under this Section 7.1. If no election is made by a Participant,
distribution shall be made upon the Participant's termination of employment in a
single lump-sum.
7.2 Termination of Employment
Upon termination of a Participant's employment for any reason other than
death, the balance of the Participant's Account shall be paid to the Participant
within the calendar quarter immediately following his or her termination of
employment according to the Participant's distribution election, unless the Plan
Administrator elects, in its sole discretion, to pay out a Participant's Account
balance in a single lump-sum as soon as practicable following the date of
termination.
7.3 Death
(a) If a Participant dies prior to the complete distribution of his
or her Account, the balance of the Account shall be paid to the Participant's
designated Beneficiary or Beneficiaries within the calendar quarter immediately
following his or her death, according to the Participant's distribution
election, unless the Plan Administrator elects, in its sole discretion, to pay
out a Participant's Account balance in a single lump-sum as soon as practicable
following the date of death.
(b) A Participant may designate a Beneficiary by so notifying the
Plan Administrator in writing, at any time before Participant's death, on a form
prescribed by the Plan Administrator for that purpose. A Participant may revoke
any Beneficiary designation or designate a new Beneficiary at any time without
the consent of a Beneficiary or any other person. If no Beneficiary is <PAGE>
- 7 -
designated or no designated Beneficiary survives the Participant, payment shall
be made to the Participant's surviving spouse, or, if none, to the Participant's
issue per stirpes, in a single payment. If no spouse or issue survives the
Participant, payment shall be made in a single lump-sum to the Participant's
estate.
(c) The Participant's Beneficiary designation prior to the Effective
Date will remain in effect unless the Participant revokes the designation as
provided in this Section 7.3.
7.4 Taxes
All federal, state or local taxes that the Plan Administrator determines
are required to be withheld from any payments made pursuant to this Article 7
shall be withheld.
7.5 Agreement Regarding Competition and Confidential Information
Notwithstanding anything contained in this Plan to the contrary, by
agreeing to become a Participant in the Plan and in consideration of the
benefits to be provided hereunder, each Participant agrees as follows:
(a) During the period commencing on the date the Participant signs
his or her Enrollment Form and ending on the last day of the 24th calendar month
following the voluntary termination by the Participant of his or her employment
with the Corporation, the Participant:
(i) Shall not engage in any activities, whether as employer,
proprietor, partner, stockholder (other than the holder of less
than 5% of the stock of the corporation the securities of which
are traded on a national securities exchange or in the over-the-
counter market), director, officer, employee or otherwise, in
competition with any business in which the Corporation or any
subsidiary or other affiliate of the Corporation (hereinafter the
"Companies") are substantially engaged at any time after the date
of this Plan while the Participant is employed by the Corporation
(the "Employment Period");
(ii) Shall not solicit, in competition with the Companies, any
customer of any business in which the Companies are substantially
engaged at any time during the Employment Period; and
(iii)Shall not induce or attempt to persuade any employee of the
Companies to terminate his or her employment relationship in
order to enter into competitive employment.<PAGE>
- 8 -
(b) The Participant shall not, at any time during the Employment
Period or thereafter, make use of any bidding information (or computer programs
therefore) of any of the Companies, nor divulge any trade secrets or other
confidential information of any of the Companies, except to the extent the Board
of Directors of the Corporation may so authorize in writing, and upon the
termination of the Employment Period the Participant shall surrender to the
Corporation all records and other documents obtained by him or her or entrusted
to him or her during the course of his employment by the Companies (together
with all copies thereof) which pertain specifically to any of the businesses
covered by the covenants in Section 7.5(a) or which are paid for by any of the
Companies.
(c) The following provisions shall apply to the covenants of the
Participant contained in Sections 7.5(a)(i) and (ii):
(i) The covenants contained in Section 7.5(a)(i) shall apply within
all the territories in which any of the Companies are actively
engaged in the conduct of business at the relevant time,
including, without limitation, the territories in which customers
are then being solicited.
(ii) If prior to the end of the period described in the first sentence
in Section 7.5(a), the Participant shall agree to engage in
activity described in Sections 7.5(a)(i) or (ii) prior to such
date, determined without regard to whether such activity would
violate such clause, the Participant shall notify the Corporation
in writing prior to the commencement of such activities so that
the Corporation may determine whether such activity would violate
such provisions. Such notice shall be delivered to the
Corporation not later than 30 days prior to the commencement of
such activity, provided that if such activities are to commence
less than 30 days after the Participant has agreed thereto, such
notice shall be delivered to the Corporation as soon as
practicable after such agreement. The Corporation shall maintain
any such notice as confidential, and shall not disclose such
notice to any person outside the Companies except as consented to
by the Participant or in connection with any legal action
instituted by the Corporation to enforce its rights under this
Agreement.
(iii)Upon any violation by the Participant of the covenants contained
in Sections 7.5(a)(i) or (ii), the Participant shall receive a
single lump-sum payment of his Account balance, less a sum equal
to 25% of the total adjustments made to his or her Account for
income or gain (realized and unrealized) for each full or partial
Plan Year during which such Participant participated in the Plan.
Payment shall be made 30 days following the Committee's
determination that the Participant has violated the covenants of
the agreement.<PAGE>
- 9 -
(d) If a Participant has been paid a lump-sum because of his
termination of employment, such Participant shall promptly remit to the
Corporation upon demand the difference between the amount previously paid to him
or her and the amount of the lump-sum as calculated in Section 7.5(c)(iii)
above.
(e) Determination that a former employee is in violation of his
agreement with the Corporation shall be made by the Committee, in its sole and
absolute discretion. In exercising its discretion, the Committee shall
consider, among other factors, the nature of the violation, including
competitive activity, the potential harm to the Corporation which may result,
the former employee's ability to find non-competitive employment if that is the
violation, and the former employee's financial need. Upon request, the
Committee shall advise a Participant whether an activity in which the
Participant proposes to engage to be a competitive activity.
(f) Without limiting the right of the Corporation to pursue all other
legal and equitable remedies available for violation by the Participant of the
covenants contained in Section 7.5(a), it is expressly agreed by the Participant
and the Corporation that such other remedies cannot fully compensate the
Corporation for any such violation, and that the Corporation shall be entitled
to injunctive relief to prevent any such violation or any continuing violation
thereof.
(g) Each party intends and agrees that if in any action before any
court or agency legally empowered to enforce the covenants contained in Section
7.5(a) any term, restriction, covenant or promise contained therein is found to
be unreasonable and accordingly unenforceable, then such term, restriction,
covenant or promise shall be deemed modified to the extent necessary to make it
enforceable by such court or agency.
ARTICLE 8
PLAN ADMINISTRATOR
8.1 Plan Administration and Interpretation
The Plan Administrator shall oversee the administration of the Plan. The
Plan Administrator shall have complete control and authority to determine the
rights and benefits and all claims, demands and actions arising out of the
provisions of the Plan of any Participant, Beneficiary, deceased Participant, or
other person having or claiming to have any interest under the Plan. The Plan
Administrator shall have complete discretion to interpret the Plan and to decide
all matters under the Plan. Such interpretation and decision shall be final,
conclusive and binding on all Participants and any person claiming under or
through any Participant, in the absence of clear and convincing evidence that
the Plan Administrator acted arbitrarily and capriciously. Any individual(s)
serving as a Plan Administrator member who is a Participant will not vote or act
on any matter relating solely to himself or herself. When making a
determination or calculation, the Plan Administrator shall be entitled to rely
on information furnished by a Participant, a Beneficiary, the Corporation or the
<PAGE>
- 10 -
Trustee. The Plan Administrator shall have the responsibility for complying
with any reporting and disclosure requirements of ERISA.
8.2 Powers, Duties, Procedures, Etc.
The Plan Administrator shall have such powers and duties, may adopt such
rules and tables, may act in accordance with such procedures, may appoint such
officers or agents, may delegate such powers and duties, may receive such
reimbursements and compensation, and shall follow such claims and appeal
procedures with respect to the Plan as it may establish.
8.3 Information
To enable the Plan Administrator to perform its functions, the Corporation
shall supply full and timely information to the Plan Administrator on all
matters relating to the compensation of Participants, their employment,
retirement, death, termination of employment, and such other pertinent facts as
the Plan Administrator may require.
8.4 Indemnification of Plan Administrator
The Corporation agrees to indemnify and to defend to the fullest extent
permitted by law any officer(s) or employee(s) who serve as Plan Administrator
(including any such individual who formerly served as Plan Administrator)
against all liabilities, damages, costs and expenses (including attorneys' fees
and amounts paid in settlement of any claims approved by the Corporation)
occasioned by any act or omission to act in connection with the Plan, if such
act or omission is in good faith.
ARTICLE 9
AMENDMENT AND TERMINATION
9.1 Amendments
The Corporation shall have the right to amend the Plan from time to time,
subject to Section 9.3, by an instrument in writing which has been executed on
its behalf by a duly authorized officer.
9.2 Termination of Plan
The Plan is strictly a voluntary undertaking on the part of the Corporation
and shall not be deemed to constitute a contract between the Corporation and any
Eligible Employee (or any other employee) or a consideration for, or an
inducement or condition of employment for, the performance of the services by
any Eligible Employee (or other employee). The Corporation reserves the right
to terminate the Plan at any time, subject to Section 9.3, by an instrument in
writing which has been executed on its behalf by a duly authorized officer.
<PAGE>
- 11 -
Upon termination, the Corporation may (a) elect to continue to maintain the
Trust to pay benefits hereunder as they become due as if the Plan had not
terminated or (b) direct the Trustee to pay promptly to Participants (or their
Beneficiaries) the balance of their Accounts.
9.3 Existing Rights
No amendment or termination of the Plan shall adversely affect the rights
of any Participant with respect to amounts that have been credited to his or her
Account prior to the date of such amendment or termination.
9.4 Change of Control
Notwithstanding any provision of the Plan to the contrary, at the time of a
Change of Control and thereafter, all the powers, rights and authorities of the
Corporation under this Article 9 shall reside in and be exercised by the person
or persons who were the Plan Administrator immediately prior to the Change of
Control.
ARTICLE 10
MISCELLANEOUS
10.1 No Funding
The Plan constitutes a mere promise by the Corporation to make payments in
accordance with the term of the Plan and Participants and Beneficiaries shall
have the status of general unsecured creditors of the Corporation. Nothing in
the Plan will be construed to give any employee or any other person rights to
any specific assets of the Corporation or of any other person. In all events,
it is the intent of the Corporation that the Plan be treated as unfunded for tax
purposes and for purposes of Title I of ERISA.
10.2 Non-assignability
None of the benefits, payments, proceeds or claims of any Participant or
Beneficiary shall be subject to any claim of any creditor of any Participant or
Beneficiary and, in particular, the same shall not be subject to attachment or
garnishment or other legal process by any creditor of such Participant or
Beneficiary, nor shall any Participant or Beneficiary have any right to
alienate, anticipate, commute, pledge, encumber or assign any of the benefits or
payments or proceeds which he or she may expect to receive, contingently or
otherwise under the Plan.
10.3 Limitation of Participants' Rights
Nothing contained in the Plan shall confer upon any person a right to be
employed or to continue in the employ of the Corporation, or interfere in any
way with the right of the Corporation to terminate the employment of a
Participant in the Plan at any time, with or without cause.<PAGE>
- 12 -
10.4 Participants Bound
Any action with respect to the Plan taken by the Plan Administrator or the
Trustee or any action authorized by or taken at the direction of the Plan
Administrator, the Corporation or the Trustee shall be conclusive upon all
Participants and Beneficiaries entitled to benefits under the Plan.
10.5 Receipt and Release
Any payment to any Participant or Beneficiary in accordance with the
provisions of the Plan shall, to the extent thereof, be in full satisfaction of
all claims against the Corporation, the Plan Administrator and the Trustee under
the Plan, and the Plan Administrator may require such Participant or
Beneficiary, as a condition precedent to such payment, to execute a receipt and
release to such effect. If any Participant or Beneficiary is determined by the
Plan Administrator to be incompetent by reason of physical or mental disability
(including minority) to give a valid receipt and release, the Plan Administrator
may cause the payment or payments becoming due to such person to be made to
another person for his or her benefit without responsibility on the part of the
Plan Administrator, the Corporation or the Trustee to follow the application of
such funds.
10.6 Governing Law
The Plan shall be construed, administered, and governed in all respects
under and by the laws of the State of Iowa. If any provision shall be held by a
court of competent jurisdiction to be invalid or unenforceable, the remaining
provisions hereof shall continue to be fully effective.
10.7 Headings and Subheadings
Headings and subheading in this Plan are inserted for convenience only and
are not to be considered in the construction of the provisions hereof.
10.8 Address of Participant or Beneficiary
A Participant shall keep the Plan Administrator apprised of his current
address and that of any Beneficiary at all time during his or her participation
in the Plan. Upon the death of a Participant, a Beneficiary who is entitled to
receive payment of benefits under the Plan shall keep the Plan Administrator
apprised of his or her current address until the entire amount to be distributed
to him or her has been paid.<PAGE>
- 13 -
10.9 Arbitration
Disputes arising under the Plan will be submitted to arbitration in Newton,
Iowa for resolution in accordance with the American Arbitration Association's
Commercial Arbitration Rules as then in effect. The award of such arbitration
shall be final and binding. Neither party shall be entitled to file suit in any
court to resolve any dispute under the Plan.
10.10 Plan Document Governs
The Plan document shall govern in the event of any inconsistency between
the Plan document and any materials distributed to Participants.
* * * * *
IN WITNESS WHEREOF, MAYTAG CORPORATION has caused this amended and restated
Plan to be executed below by its duly authorized officers on this _____ day of
______________ 1996, to be effective as of the Effective Date stated herein.
MAYTAG CORPORATION
By: _________________________________
Name: ______________________________
Title: _____________________________
ATTEST:
By: _________________________________
Name: ______________________________
Title: _____________________________
1079084<PAGE>
MAYTAG CORPORATION
Exhibit 11
Computation of Per Share Earnings.
<PAGE>
MAYTAG CORPORATION
Exhibit 11
Computation of Per Share Earnings
(Amounts in thousands except per share data)
Year Ended December 31
1995 1994 1993
PRIMARY
Average shares outstanding 106,734 106,485 106,123
Net effect of dilutive stock options--
based on the treasury stock method using
average market price 251 243 107
Employee stock ownership plans 77 67 22
TOTAL 107,062 106,795 106,252
Income (loss) before extraordinary item
and cumulative effect of accounting
change $ (14,996) $ 151,137 $ 51,270
Per average share $ (0.14) $ 1.42 $ 0.48
Extraordinary item - loss on early
retirement of debt $ (5,480)
Cumulative effect of accounting change $ (3,190)
Per average share $ (0.05) $ (0.03)
Net income (loss) $ (20,476) $ 147,947 $ 51,270
Per average share $ (0.19) $ 1.39 $ 0.48
FULLY DILUTED
Average shares outstanding 106,734 106,485 106,123
Net effect of dilutive stock options--
based on the treasury stock method
using greater of average or ending
market price 354 264 159
Employee stock ownership plans 77 67 22
Assumed conversion of 6 1/2%
convertible debentures 411
TOTAL 107,165 106,816 106,715
Income (loss) before extraordinary item
and cumulative effect of accounting
change $ (14,996) $ 151,137 $ 51,270
Per average share $ (0.14) $ 1.41 $ 0.48
Extraordinary item - loss on early
retirement of debt $ (5,480)
Cumulative effect of accounting change $ (3,190)
Per average share $ (0.05) $ (0.03)
Net income (loss) $ (20,476) $ 147,947 $ 51,270
Per average share $ (0.19) $ 1.39 $ 0.48
<PAGE>
MAYTAG CORPORATION
Exhibit 12
Computation of Ratio of Earnings to Fixed Charges.
<PAGE>
MAYTAG CORPORATION
Exhibit 12
Computation of Ratio of Earnings to Fixed Charges
(Amounts in thousands of dollars except ratios)
Year Ended December 31
1995 1994 1993 1992 1991
Consolidated pretax
income from continuing
operations before
extraordinary item
and cumulative effect
of accounting changes $ 59,804 $ 241,337 $ 89,870 $ 7,546 $ 123,417
Interest expense 52,087 74,077 75,364 75,004 75,159
Depreciation of
capitalized interest 1,695 1,772 1,546 933 348
Interest portion of
rental expense 8,789 10,722 10,480 11,264 11,177
Earnings $ 122,375 $ 327,908 $ 177,260 $ 94,747 $ 210,101
Interest expense $ 52,087 $ 74,077 $ 75,364 $ 75,004 $ 75,159
Interest capitalized 2,534 547 1,484 3,886 6,329
Interest portion of
rental expense 8,789 10,722 10,480 11,264 11,177
Fixed charges $ 63,410 $ 85,346 $ 87,328 $ 90,154 $ 92,665
Ratio of earnings to
fixed charges 1.93 3.84 2.03 1.05 2.27
<PAGE>
MAYTAG CORPORATION
Exhibit 21
List of Subsidiaries of the Registrant.
<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, 1995.
State or Country
Corporate Name of Organization
D.N. Holdings, Inc. Delaware
Dixie-Narco Inc. West Virginia
Maytag Financial Services Corporation Delaware
Maytag Foreign Sales Corporation Virgin Islands
The Hoover Company Delaware
Maytag International Inc. Delaware
Maharashtra Investment, Inc. Delaware
Hoover Holdings Inc. Delaware
Hoover Mexicana S.A. de C.V. Mexico
Juver Industrial S.A. de C.V. Mexico
Maytag International Limited United Kingdom
Maytag Ltd. Canada
Maytag Worldwide N.V. The Netherlands Antilles
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 LLP.
<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 January 30, 1996, with respect to the consolidated financial statements
and schedule of Maytag Corporation included in this Annual Report (Form 10-K)
for the year ended December 31, 1995.
Ernst & Young LLP
Chicago, Illinois
March 22, 1996<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1995
<PERIOD-END> DEC-31-1995
<CASH> 141,214
<SECURITIES> 0
<RECEIVABLES> 429,997
<ALLOWANCES> 12,540
<INVENTORY> 265,119
<CURRENT-ASSETS> 910,134
<PP&E> 1,411,926
<DEPRECIATION> 710,791
<TOTAL-ASSETS> 2,125,066
<CURRENT-LIABILITIES> 366,703
<BONDS> 536,579
0
0
<COMMON> 146,438
<OTHER-SE> 490,913
<TOTAL-LIABILITY-AND-EQUITY> 2,125,066
<SALES> 3,039,524
<TOTAL-REVENUES> 3,039,524
<CGS> 2,250,616
<TOTAL-COSTS> 2,250,616
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 16,630
<INTEREST-EXPENSE> 52,087
<INCOME-PRETAX> 59,804
<INCOME-TAX> 74,800
<INCOME-CONTINUING> (14,996)
<DISCONTINUED> 0
<EXTRAORDINARY> (5,480)
<CHANGES> 0
<NET-INCOME> (20,476)
<EPS-PRIMARY> (0.19)
<EPS-DILUTED> (0.19)
</TABLE>
