-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, tQUe8t+aYrbOC1tl4aXpBX9VwADKFFbR8pH8CjtD5l28A0Ik1oQ4toRCvv8vMd39 LpXdAfUz4vW9MjKgIZAamQ== 0000063541-94-000003.txt : 19940404 0000063541-94-000003.hdr.sgml : 19940404 ACCESSION NUMBER: 0000063541-94-000003 CONFORMED SUBMISSION TYPE: 10-K PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 19931231 FILED AS OF DATE: 19940331 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MAYTAG CORP CENTRAL INDEX KEY: 0000063541 STANDARD INDUSTRIAL CLASSIFICATION: 3630 IRS NUMBER: 420401785 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K SEC ACT: 34 SEC FILE NUMBER: 001-00655 FILM NUMBER: 94519673 BUSINESS ADDRESS: STREET 1: 403 W 4TH ST N CITY: NEWTON STATE: IA ZIP: 50208 BUSINESS PHONE: 5157928000 MAIL ADDRESS: STREET 1: 403 W. 4TH STREET NW CITY: NEWTON STATE: IA ZIP: 50208 FORMER COMPANY: FORMER CONFORMED NAME: MAYTAG CO DATE OF NAME CHANGE: 19870602 10-K 1 10K FILING 1993 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 10-K (Mark one) (X) Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (Fee Required) For the fiscal year ended December 31, 1993 or ( ) Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (No Fee Required) For the transition period from _____________________ to _____________________ Commission file Number 1-655 MAYTAG CORPORATION 403 West Fourth Street North, Newton, Iowa 50208 A Delaware Corporation I.R.S. Employer Identification No. 42-0401785 Registrant's telephone number, including area code: 515-792-8000 Securities registered pursuant to Section 12(b) of the Act: Name of Each Exchange on Title of Each Class Which Registered Common Stock, $1.25 per share par value New York Stock Exchange Preferred Stock Purchase Rights New York Stock Exchange Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. (X) The aggregate market value of the voting stock held by non-affiliates of the registrant as of March 1, 1994: Common Stock, $1.25 Par Value - $1,858,556,733 The number of shares outstanding of the registrant's Common Stock, as of March 1, 1994: Common Stock, $1.25 Par Value - 106,967,294 1 1993 FORM 10-K CONTENTS Item Page _____________________________________________________________________________ Part I: 1. Business 3 Business - Home Appliances . . . . . . . . . . . . . . . . . . 3 Business - Vending Equipment . . . . . . . . . . . . . . . . . 4 2. Properties . . . . . . . . . . . . . . . . . . . . . . . . . . 5 3. Legal Proceedings . . . . . . . . . . . . . . . . . . . . . . 6 4. Submission of Matters to a Vote of Security Holders . . . . . 6 Executive Officers of the Registrant . . . . . . . . . . . . . 6 Part II: 5. Market for the Registrant's Common Equity and Related Stockholder Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 6. Selected Financial Data . . . . . . . . . . . . . . . . . . . 8 7. Management's Discussion and Analysis of Financial Condition and Results of Operations . . . . . . . . . . . . . . . . . . . . 9 8. Financial Statements and Supplementary Data . . . . . . . . 12 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure . . . . . . . . . . . . . . . . . . . . 30 Part III: 10. Directors and Executive Officers of the Registrant . . . . . 30 11. Executive Compensation . . . . . . . . . . . . . . . . . . . 30 12. Security Ownership of Certain Beneficial Owners and Management 30 13. Certain Relationships and Related Transactions . . . . . . . 31 Part IV: 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K 31 Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 2 DOCUMENTS INCORPORATED BY REFERENCE Portions of the Company's definitive proxy statement dated March 22, 1994 (the "Proxy Statement"), which has been filed with the Securities and Exchange Commission pursuant to regulation A, are incorporated by reference into Part III. Part I Item 1. Business. Maytag Corporation (the "Company") was organized as a Delaware corporation in 1925. In 1989, the Company completed the acquisition of Chicago Pacific Corporation ("CPC"), a furniture and international home appliance company, through a cash tender offer followed by a stock merger. CPC operated in two segments, home appliances and furniture; however, the Company later sold the furniture companies segment. The Company is engaged in two industry segments: home appliances and vending equipment. Financial and other information relating to industry segment and geographic data is included in Part II, Item 7 and Item 8. HOME APPLIANCES The home appliances segment comprises approximately 95% of 1993 consolidated net sales. The Company, through its various business units, manufactures and distributes a broad line of home appliances including laundry equipment, gas and electric ranges, refrigerators, freezers, dishwashers, and floor care products. In 1992, the Company sold its microwave oven and dehumidifier manufacturing operations. The Company continues to distribute microwave ovens and dehumidifiers, as well as compactors. Maytag Customer Service (formerly Maycor Appliance Parts & Service Co.) provides product service and parts distribution in the United States and Canada for all of the Company's appliance brands, except Hoover. Maytag International Inc., the Company's international marketing subsidiary, handles the sales of appliances and licensing of certain home appliance brands in markets outside the United States and Canada. Maytag Financial Services Corporation provides financing programs primarily to certain customers of the Company in North America. The Company markets its home appliances to all major United States and many major international markets, including the replacement market, the commercial laundry market, the new home and apartment builder market, the manufactured housing (mobile home) market, the recreational vehicle market, the private label market and the household/commercial floor care market. Products are primarily sold directly to dealers but are also sold through independent distributors, mass merchandisers and large national department stores. Sales of appliances to manufacturers of mobile homes and recreational vehicles are made directly by specialized marketing personnel. Most home appliance sales are made within North America. A portion of the Company's operations and sales are outside the United States. The risks involved in foreign operations vary from country to country and include tariffs, trade restrictions, changes in currency values, economic conditions and international relations. Geographic information is included in Part II, Item 8, Page 29. 3 The Company uses basic raw materials such as steel, copper, aluminum, rubber and plastic in its manufacturing process in addition to purchased motors, compressors, timers, valves and other components. These materials are supplied by established sources and the Company anticipates that such sources will, in general, be able to meets its future requirements. The Company holds a number of patents which are important in the manufacture of its products. The licenses it holds on other patents are not considered to be critical to its business. The Company holds a number of trademark registrations of which the most important are ADMIRAL, HOOVER, JENN-AIR, MAGIC CHEF, MAYTAG, NORGE and the associated corporate symbols. The Company's home appliance business is not seasonal. The Company is not dependent upon a single home appliance customer or a few customers. Therefore, the loss of any one customer would not have a material adverse effect on its business. The dollar amount of backlog orders of the Company is not considered significant for home appliances in relation to the total annual dollar volume of sales. Because it is the Company's practice to maintain a level of inventory sufficient to cover anticipated shipments and since orders are generally shipped upon receipt, a large backlog would be unusual. The home appliance market is highly competitive with the principal competitors being larger than the Company. Because of continued competitiveness within the industry, price increases continue to be difficult to implement. There were no significant increases in the costs of the Company's raw materials or components in 1993. Information regarding the Company's improvement in gross margin over 1992 is included in Part II, Item 7. The Company uses product quality, customer service, advertising and sales promotion, warranty and pricing as its principal methods of competition. Although the Company has many manufacturing sites with environmental concerns, compliance with laws and regulations regarding the discharge of materials into the environment or relating to the protection of the environment has not had a material effect on capital expenditures, earnings or the Company's competitive position. The scheduled phase-out of chlorofluorocarbons ("CFCs", an aerosol propellant and refrigerant) by the mid-1990s, mandated by government standards, continues to cause concern throughout the refrigeration industry. In addition, alternative washing machine designs to meet anticipated future government regulations dealing with energy and water usage are being evaluated by the Company and the industry. Because compliance with these current and anticipated laws and regulations is essentially prospective, it has not had a significant impact on current operations. It is anticipated that the industry and the Company will meet all final standards. The number of employees of the Company within the home appliances segment as of December 31, 1993 was 19,661. VENDING EQUIPMENT The vending equipment segment comprises approximately 5% of 1993 consolidated net sales. The Company manufactures, through its Dixie-Narco subsidiary, a variety of soft drink vending machines and money changers. The products are sold primarily to companies bottling soft drinks such as Coca-Cola, Dr. Pepper, Pepsi Cola, Royal Crown Cola and Seven-Up. 4 The Company uses steel as a basic raw material in its manufacturing processes in addition to purchased motors, compressors and other components made of copper, aluminum, rubber and plastic. These materials are supplied by established sources and the Company anticipates that such sources will, in general, be able to meet its future requirements. The Company holds a number of patents which are important in the manufacture of its products. The Company holds a DIXIE-NARCO trademark registration and its associated corporate symbol. Vending equipment sales, though stronger in the first six months of the year, are considered by the Company to be essentially nonseasonal. The Company's vending equipment segment is dependent upon a few major soft drink suppliers. Therefore, the loss of one or more of these customers could have a material adverse effect on this segment. The Company manufactures and sells its vending machines in competition with a small number of other manufacturers and is the major manufacturer of such equipment. The principal methods of competition utilized by the vending equipment segment are product quality, customer service, delivery, warranty and price. Positive factors pertaining to the Company's competitive position include product design, manufacturing efficiency and superior service, while new product innovations by competitors and severe price competition negatively impact its position. The dollar amount of backlog orders of the Company is not considered significant for vending equipment in relation to the total annual dollar volume of sales. Because it is the Company's practice to maintain a level of inventory sufficient to cover shipments and since orders are generally shipped upon receipt, a large backlog would be unusual. Although the Company has manufacturing sites with environmental concerns, compliance with laws and regulations regarding the discharge of materials into the environment or relating to the protection of the environment has not had a material effect on capital expenditures, earnings or the Company's competitive position. The scheduled phase-out of chlorofluorocarbons ("CFCs', an aerosol propellant and refrigerant) by the mid-1990s, mandated by government standards, will also not affect the production technology in the vending equipment industry. This has not had a significant impact on current operations, and it is anticipated that the industry and the Company will meet all final standards. The number of employees of the Company within the vending equipment segment as of December 31, 1993 was 1,136. Item 2. Properties. The Company's corporate headquarters is located in Newton, Iowa. Major offices and manufacturing facilities in the United States related to the home appliances segment are located at: Galesburg, Illinois; Jackson, Tennessee; Indianapolis, Indiana; Cleveland, Tennessee; Herrin, Illinois; Newton, Iowa; North Canton, Ohio; and El Paso, Texas. Maytag Customer Service, which is located in Cleveland, Tennessee, operates an automated national parts distribution center in Milan, Tennessee which services all of the Company's appliance brands, except Hoover. In addition to manufacturing facilities in the United States, the Company has three other North American manufacturing facilities located in Canada and Mexico. The Company also has five manufacturing facilities outside North America in Australia, Portugal and the United Kingdom. A sixth manufacturing facility in Dijon, France was closed in 1993. Major facilities related to the vending equipment segment are: Dixie-Narco, Inc., with offices and manufacturing facilities located in 5 Williston, South Carolina and Eastlake, Ohio. The manufacturing facilities are well maintained, suitably equipped and in good operating condition. The facilities used in the production of home appliances and vending equipment had sufficient capacity to meet production needs in 1993, and the Company expects that such capacity will be adequate for planned production in 1994. The Company's 1993 capital expenditures and the planned 1994 capital expenditures include an ongoing program of product improvements and enhanced manufacturing efficiencies. The Company also owns or leases sales offices in many large metropolitan areas throughout the United States, Australia, Canada, the United Kingdom and Western Europe. Lease commitments were not material at December 31, 1993. Item 3. Legal Proceedings. The Company is involved in contractual disputes, environmental, administrative and legal proceedings and investigations of various types. Although any litigation, proceeding or investigation has an element of uncertainty, the Company believes that the outcome of any proceeding, lawsuit or claim which is pending or threatened, or all of them combined, will not have a material adverse effect on its consolidated financial position. Item 4. Submission of Matters to a Vote of Security Holders. The Company did not submit any matters to a vote of security holders during the fourth quarter of 1993 through a solicitation of proxies or otherwise. Executive Officers of the Registrant The following sets forth the names of all executive officers of the Company, the offices held by them, the year they first became an officer of the Company and their ages: First Became Name Office Held an Officer Age - ----------------- ----------------------- ------------ --- Leonard A. Hadley Chairman and Chief Executive Officer 1979 59 John P. Cunningham Executive Vice President and Chief Financial Officer 1994 56 Joseph F. Fogliano Executive Vice President and President North American Appliance Group 1993 54 Jon O. Nicholas Senior Vice President, Human Resources 1993 54 Carleton F. Zacheis Senior Vice President, Planning 1988 60 and Business Development Terry A. Carlson Vice President, Purchasing 1991 51 Janis C. Cooper Vice President, Public 1989 46 Affairs Randall J. Espeseth Vice President, Taxes 1992 47 6 Mark A. Garth Vice President - Controller and Chief Accounting Officer 1994 34 Edward H. Graham Vice President, General Counsel 1990 58 and Assistant Secretary Douglass C. Horstman Vice President, Government Affairs 1993 54 John H. Jansen Vice President, Technology 1992 54 Thomas C. Vice President and Treasurer 1989 55 Ringgenberg Steven H. Wood Vice President, Information Services 1992 36 E. James Bennett Secretary and Assistant General Counsel 1985 52 The executive officers were elected to serve in the indicated office until the organizational meeting of the Board of Directors following the annual meeting of shareholders on April 26, 1994 or until their successors are elected. Each of the executive officers has served the Company or an acquired company in various executive or administrative positions for at least five years except for: Name Company/Position Period - -------------------- ---------------------------- -------- Terry A. Carlson Estee Lauder, Inc - Vice President, Corporate Purchasing 1987-1991 John P. Cunningham IBM Corporation - Vice President and Assistant General Manager, Main Frame Division 1992-1993 - Vice President, Member Europe Executive Committee, Paris, 1990-1992 France - Vice President, Corporate 1988-1990 Controller Joseph F. Fogliano Thomson Consumer Electronics, Inc. 1988-1993 - President and CEO Douglass C. Horstman D. C. Horstman & Associates (government affairs consulting firm) 1973-1993 - Owner/Operator John H. Jansen Ridge Tool Company (a division of Emerson Electric Company) - Vice President, Engineering 1985-1992 Steven H. Wood Ernst & Young, Chicago, Illinois - Senior Manager 1985-1989 7 Part II Item 5. Market for Registrant's Common Equity and Related Stockholder Matters. MARKET AND DIVIDEND INFORMATION - ------------------------------------------------------------------------------- Sales Price of Common Shares Dividends In Whole Dollars Per Share ------------------------------------------ ---------------- 1993 1992 1993 1992 ----------------- ----------------- ---- ---- Quarter High Low High Low - ------- ---- --- ---- --- First $16 $13 $20 $15 $.125 $.125 Second 16 13 21 16 .125 .125 Third 18 15 18 13 .125 .125 Fourth 19 15 16 13 .125 .125 The principal U.S. market in which the Company's common stock is traded is the New York Stock Exchange. As of March 1, 1994 the Company had 32,334 shareowners of record. Item 6. Selected Financial Data. Thousands of Dollars Except Per Share Data (1) (2) (3) 1993 1992 1991 1990 1989 ---------- ---------- ---------- ---------- ---------- Net sales $2,987,054 $3,041,223 $2,970,626 $3,056,833 $3,088,753 Cost of sales 2,262,942 2,339,406 2,254,221 2,309,138 2,312,645 Income taxes 38,600 15,900 44,400 60,500 75,500 Income (loss) from continuing operations 51,270 (8,354) 79,017 98,905 131,472 Percent of income (loss) from continuing operations to net sales 1.7% (.3%) 2.7% 3.2% 4.3% Income (loss) from continuing operations per share $ .48 $ (.08) $ .75 $ .94 $ 1.27 Dividends paid per share .50 .50 .50 .95 .95 Average shares outstanding (in thousands) 106,252 106,077 105,761 105,617 103,694 Working capital $ 406,181 $ 452,626 $ 509,025 $ 612,802 $ 650,905 Depreciation of property, plant and equipment 102,459 94,032 83,352 76,836 68,077 Additions to property, plant and equipment 99,300 129,891 143,372 141,410 127,838 Total assets 2,469,498 2,501,490 2,535,068 2,586,541 2,436,319 Long-term debt 724,695 789,232 809,480 857,941 876,836 Total debt to capitalization 60.6% 58.7% 45.9% 47.7% 50.6% Shareowners' equity per share of Common stock $ 5.50 $ 5.62 $ 9.50 $ 9.60 $ 8.89 8 (1) Includes $60.4 million in pretax charges ($50 million in a special charge and $10.4 million in selling, general and administrative expenses) for additional costs associated with two Hoover Europe "free flights" promotion programs. (2) Includes a $95 million pretax charge relating to the reorganization of the North American and European business units and before cumulative effect of accounting changes. (3) These amounts reflect the acquisition of Hoover on January 26, 1989. Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations. _____________________________________________________________________________ COMPARISON OF 1993 WITH 1992 The Company operates in two business segments, home appliances and vending equipment. The operations of the home appliance segment represented 95.0 percent of net sales in 1993 and 1992. Consolidated net sales decreased 1.8 percent in 1993 compared to 1992. Although sales volumes in the United States increased due to improved consumer confidence, the overall decline in sales resulted from a decrease in European sales, less favorable currency conversions of sales outside the United States, and the absence of sales from the microwave oven operation that was sold in June 1992. North American home appliance sales increased 3.1 percent in spite of the absence of sales from the microwave oven operation. European sales decreased 22.1 percent from 1992 due to less favorable currency conversions and lower sales volumes due to some market share declines. Lower sales volumes in Europe are expected in 1994 compared to 1993. Sales in the Company's vending equipment segment declined 5.3 percent from 1992 due to slow economic activity in Europe, cutbacks by domestic bottlers and increased competition. Gross profit as a percent of sales increased to 24.2 percent from 23.1 percent in 1992. The increase in margins resulted principally from improvements in the North American Appliance Group. The improvement in the North American Appliance Group was primarily due to production efficiencies, reductions of certain employee-related costs and some selective price increases. In addition, 1992 results for the North American Appliance Group included plant start-up costs. Gross margins in Hoover Europe declined primarily due to operating inefficiencies associated with previously announced plans to close a factory in Dijon, France and higher pension costs. Vending equipment margins improved in 1993 due to reductions in material, distribution and warranty costs from 1992. In 1994, although consolidated pension and postretirement medical costs are expected to increase due to a reduction in the discount rate assumption and lower pension assets, this is expected to be offset by other cost reductions. Selling, general and administrative (S,G&A) expenses decreased to 17.2 percent in 1993 from 17.4 percent in 1992. The decline was principally due to cost efficiencies resulting from the reorganization of the North American Appliance Group. Special charges consisted of a $50 million pretax charge in the first quarter of 1993 to cover anticipated additional costs associated with two "free flights" promotional programs in Europe and a $95 million pretax charge in the third quarter of 1992 for a reorganization of U.S. and European operations. Total pretax charges relating to the "free flights" promotion programs in 1993 were $60.4 million ($50 million in a special charge and $10.4 million in S,G&A) and in 1992 were $12.2 million. See the notes to the financial statements for a discussion of this matter. Offsetting a portion of the 1993 European "free flights" expenses in S,G&A was a $5 million reversal of excess reorganization reserves in Europe. Operating income for 1993 totaled $158.9 million compared to $78.6 million in 1992. Before special charges, operating income would have been $208.9 million or 7.0 percent of sales in 1993 compared to $173.6 million or 5.7 percent of sales in 1992. The decrease in the effective tax rate for 1993 was primarily due to the 1992 tax rate reflecting the impact of non-recoverable losses outside the 9 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS - continued _____________________________________________________________________________ United States. The notes to the financial statements include a reconciliation between the statutory tax and the actual tax provided. Excluding special charges in 1993 and 1992 and the cumulative effect of accounting changes in 1992, net income would have been $81.3 million or $.76 per share in 1993 compared to net income of $65.4 million or $.62 per share in 1992. In November 1992, the Financial Accounting Standards Board issued Statement No. 112 (FAS 112), "Employers' Accounting for Postemployment Benefits." The new rules require recognition of specified postemployment benefits provided to former or inactive employees, such as severance pay, workers' compensation, supplemental unemployment benefits, disability benefits and continuation of healthcare and life insurance coverages. The Company has estimated that the cumulative effect of adopting FAS 112, which will be recorded in the first quarter of 1994, will be between $.02-$.04 per share. The ongoing expenses associated with the adoption of the new rules are not expected to be material. _____________________________________________________________________________ COMPARISON OF 1992 WITH 1991 The Company operates in two business segments, home appliances and vending equipment. The operations of the home appliance segment represented 95.0 percent of net sales in 1992 and 1991. Effective January 1, 1992, the Company adopted Statement of Financial Accounting Standards No. 106 (FAS106) "Employers' Accounting for Postretirement Benefits Other than Pensions." FAS 106 requires companies to recognize the cost of postretirement benefits over an employee's service period. The Company's previous practice had been to recognize these costs as claims were received. The one-time transitional cost for adopting FAS106 resulted in an aftertax charge of $222 million or $2.09 per share in the first quarter of 1992. FAS106 also resulted in an additional pretax charge of approximately $24 million in 1992. Implementation of FAS106 had no impact on cash flows and the Company continues to pay the cost of postretirement benefits as claims are received. Also effective January 1, 1992, the Company adopted Statement of Financial Accounting Standards No. 109 (FAS109) "Accounting for Income Taxes." The adoption of FAS109 required a one-time aftertax charge of $85 million or $.80 per share. However, there was no cash flow impact of adopting the pronouncement since deferred taxes changed by a like amount. The one-time cumulative impact of adopting both FAS106 and FAS109 totaled $307 million or $2.89 per share. Consolidated net sales increased 2.4 percent in 1992 compared to 1991. The overall sales increase, although partially offset by lower prices, was due to market share gains in most product categories and increased volume as a result of improved consumer confidence in the United States. Sales of the Company's home appliances within North America increased 2.7 percent from 1991. While European sales were 1.3 percent higher in 1992 compared to 1991, the majority of the increase is due to favorable currency translation with volume remaining flat. The Company's vending sales increased 10.4 percent in 1992, primarily due to increased volume within the United States. Gross profit as a percent of sales decreased to 23.1 percent from 24.1 percent in 1991. The deterioration in margins was principally caused by additional expenses arising from the use of FAS106 as well as expenses related to a plant start-up, new product introductions and price reductions. Excluding FAS106 charges, gross profit as a percent of sales would have been 23.8 percent for 1992. Selling, general and administrative expenses as a percent of sales and 10 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS - continued _____________________________________________________________________________ before reorganization remained relatively level at 17.4 percent in 1992 and 17.7 percent in 1991. The slight decrease was caused primarily by increased sales in 1992. During the third quarter of 1992, the Company provided for the costs of reorganizing its North American and European operations. In North America, several manufacturing facilities are being realigned, effectively combining expertise in research, engineering and product development. In addition, sales forces were reorganized and streamlined. The Company was also implementing a centralized distribution and order system for its North American operations designed to enhance customer service and operational efficiency. The effort in Europe was aimed at downsizing production capacity and streamlining sales, marketing, administration and distribution activities. This special charge reduced income before income taxes by $95 million or $.70 per share after tax. Operating income for 1992 amounted to $78.6 million compared to $191.5 million in 1991. Before the special reorganization charge, 1992 operating income would have been $173.6 million or 5.7 percent of sales, down $17.9 million or 9.4 percent from 1991. The net operating loss of the Company's European operations in 1992 increased $66.2 million from 1991 primarily due to a provision of $55 million for reorganization expenses relating to plant closings and other organizational changes and the continuing recession in the United Kingdom. The increase in the effective tax rate was primarily due to the effect of non-recoverable losses outside of the United States. The notes to the financial statements contain a reconciliation between the statutory tax and the actual tax provided. Excluding the cumulative effect of accounting changes and reorganization expenses, for comparative purposes, net income would have been $65.4 million or $.62 per share compared to net income of $79 million or $.75 per share in 1991. _____________________________________________________________________________ LIQUIDITY AND CAPITAL RESOURCES Cash provided by operations in 1993 totaled $71.3 million compared to $183.1 million in 1992. The overall decrease resulted from the funding of expenditures relating to the reorganization of the North American and European operations, the Hoover Europe "free flights" promotions and working capital needs in the North American Appliance Group. Offsetting this decrease was a $42 million withdrawal from an over-funded pension plan in Europe and lower funding of an employee benefit trust. Current assets were 1.6 times current liabilities at December 31, 1993 and 1.8 times at December 31, 1992. Gross capital expenditures in 1993 were $99.3 million compared to $129.9 million in 1992. The expenditures in 1993 were mainly related to improvements in product design and manufacturing processes and increases in manufacturing capacity. Capital spending in 1992 was higher as it included major plant start-up projects. Planned capital expenditures for 1994 approximate $110 million and relate to ongoing production improvements and product enhancements. Depreciation expense increased to $102.5 million in 1993 from $94.0 million in 1992 resulting from major capital projects completed near the end of 1992. 11 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS - continued _____________________________________________________________________________ Significant investing and financing transactions related to capital expenditures, debt retirement and dividend payments were funded through operations and the issuance of $5.5 million in medium term notes and a $139.0 million increase in notes payable and commercial paper borrowings. The Company also reduced long term debt by $94.4 million during 1993. The Company has two credit facilities which support the Company's commercial paper program. Subject to certain exceptions, the credit agreements require the Company to maintain certain quarterly levels of consolidated tangible net worth, leverage ratios and interest coverage ratios. The Company was in compliance with all covenants at December 31, 1993 and expects to be in compliance with all covenants. The covenants become more stringent commencing in the first quarter of 1994. Additional funds available at December 31, 1993 under all credit agreements, applying the terms of the most restrictive covenant above, totaled $243 million. Dividend payments in both 1993 and 1992 amounted to $53 million or $.50 per share. Dividends amounted to nine percent of average shareowners' equity in 1993 and seven percent in 1992. Any funding requirements for future capital expenditures and other cash requirements in excess of cash generated from operations will be supplemented with issuance of debt securities and bank borrowings. _____________________________________________________________________________ IMPACT OF INFLATION The Company uses the LIFO method of accounting for approximately 79 percent of its inventories. Under this method, the cost of sales reported in the financial statements approximates current costs. The charges to operations for depreciation represent the allocation of historical costs incurred over past years and are significantly less than if they were based upon current costs of productive capacity being consumed. Assets acquired in prior years will, of course, be replaced at higher costs but this will take place over several years. New higher-cost assets will result in higher depreciation charges, but in many cases due to technological improvements, there will be operating cost savings as well. Item 8. Financial Statements and Supplementary Data. Page ---- Report of Independent Auditors 13 Statements of Consolidated Income--Years ended December 31, 1993, 1992 and 1991 14 Statements of Consolidated Financial Condition-- December 31, 1993 and 1992 15 Statements of Consolidated Cash Flows--Years ended December 31, 1993, 1992 and 1991 17 Notes to Consolidated Financial Statements 18 Quarterly Results of Operations--Years 1993 and 1992 30 12 Report of Independent Auditors Shareowners and Board of Directors Maytag Corporation We have audited the accompanying statements of consolidated financial condition of Maytag Corporation and subsidiaries as of December 31, 1993 and 1992, and the related statements of consolidated income and consolidated cash flows for each of the three years in the period ended December 31, 1993. Our audits also included the financial statement schedules listed in the Index at Item 14(a). These financial statements and related schedules are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements and related schedules based on our audits. We conducted our audits in accordance with generally accepted auditing standards. These standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Maytag Corporation and subsidiaries at December 31, 1993 and 1992, and the consolidated results of their operations and their cash flows for each of the three years in the period ended December 31, 1993, in conformity with generally accepted accounting principles. Also, in our opinion, the related financial statement schedules, when considered in relation to the basic financial statements taken as a whole, present fairly in all material respects the information set forth therein. As discussed in notes to consolidated financial statements, in 1992 the Company changed its method of accounting for postretirement benefits other than pensions and income taxes. Ernst & Young February 1, 1994 Chicago, Illinois 13 STATEMENTS OF CONSOLIDATED INCOME (LOSS) Thousands of Dollars Except Per Share Data Year ended December 31 1993 1992 1991 --------- --------- --------- Net sales $2,987,054 $3,041,223 $2,970,626 Cost of Sales 2,262,942 2,339,406 2,254,221 --------- --------- --------- GROSS PROFIT 724,112 701,817 716,405 Selling, general and administrative expenses 515,234 528,250 524,898 Special charges 50,000 95,000 --------- --------- --------- OPERATING INCOME 158,878 78,567 191,507 Interest expense (75,364) (75,004) (75,159) Other--net 6,356 3,983 7,069 --------- --------- --------- INCOME BEFORE INCOME TAXES AND CUMULATIVE EFFECT OF ACCOUNTING CHANGES 89,870 7,546 123,417 Income taxes 38,600 15,900 44,400 --------- --------- --------- INCOME (LOSS) BEFORE CUMULATIVE EFFECT OF ACCOUNTING CHANGES 51,270 (8,354) 79,017 Cumulative effect of accounting changes for postretirement benefits other than pensions and income taxes (307,000) --------- --------- -------- NET INCOME (LOSS) $ 51,270 $ (315,354) $ 79,017 ========= ========= ======== Income (loss) per average share of Common stock: Income (loss) before cumulative effect of accounting changes $ .48 $ (.08) $ .75 Cumulative effect of accounting changes $ (2.89) Net income (loss) per Common share $ .48 $ (2.97) $ .75 See notes to consolidated financial statements. 14 STATEMENTS OF CONSOLIDATED FINANCIAL CONDITION Thousands of Dollars December 31 -------------------- ASSETS 1993 1992 - ------ --------- --------- CURRENT ASSETS Cash and cash equivalents $ 31,730 $ 57,032 Accounts receivable, less allowance-- (1993--$15,629; 1992--$16,380) 532,353 476,850 Inventories 429,154 401,083 Deferred income taxes 46,695 52,261 Other current assets 16,919 28,309 ---------- ---------- Total current assets 1,056,851 1,015,535 NONCURRENT ASSETS Deferred income taxes 68,559 71,442 Pension investments 168,103 215,433 Intangibles, less allowance for amortization-- (1993--$46,936; 1992--$37,614) 319,657 328,980 Other noncurrent assets 35,266 35,989 ----------- ---------- Total noncurrent assets 591,585 651,844 PROPERTY, PLANT AND EQUIPMENT Land 46,149 47,370 Buildings and improvements 288,590 286,368 Machinery and equipment 1,068,199 962,006 Construction in progress 44,753 90,847 ---------- ---------- 1,447,691 1,386,591 Less allowance for depreciation 626,629 552,480 ---------- ---------- Total property, plant and equipment 821,062 834,111 ---------- ---------- TOTAL ASSETS $2,469,498 $2,501,490 ========== ========== 15 December 31 ---------------------- LIABILITIES AND SHAREOWNERS' EQUITY 1993 1992 ---------- ---------- CURRENT LIABILITIES Notes payable $ 157,571 $ 19,886 Accounts payable 195,981 218,142 Compensation to employees 84,405 89,245 Accrued liabilities 178,015 180,894 Income taxes payable 16,193 11,323 Current maturities of long-term debt 18,505 43,419 --------- ---------- Total current liabilities 650,670 562,909 NONCURRENT LIABILITIES Deferred income taxes 44,882 89,011 Long-term debt 724,695 789,232 Postretirement benefits other than pensions 391,635 380,376 Other noncurrent liabilities 70,835 80,737 --------- ---------- Total noncurrent liabilities 1,232,047 1,339,356 SHAREOWNERS' EQUITY Common stock: Authorized--200,000,000 shares (par value $1.25) Issued--117,150,593 shares, including shares in treasury 146,438 146,438 Additional paid-in capital 480,067 478,463 Retained earnings 325,823 328,122 Cost of Common stock in treasury (1993--10,430,833 shares; 1992--10,545,915 shares) (232,510) (234,993) Employee stock plans (62,342) (65,638) Foreign currency translation (70,695) (53,167) --------- ---------- Total shareowners' equity 586,781 599,225 --------- ---------- TOTAL LIABILITIES AND SHAREOWNERS' EQUITY $2,469,498 $2,501,490 ========= ========= See notes to consolidated financial statements. 16 STATEMENTS OF CONSOLIDATED CASH FLOWS Thousands of Dollars Year ended December 31 ------------------------------ 1993 1992 1991 -------- -------- -------- OPERATING ACTIVITIES Net income (loss) $ 51,270 $(315,354) $ 79,017 Adjustments to reconcile net income (loss) to net cash provided by operating activities: Cumulative effect of accounting changes 307,000 Depreciation and amortization 111,781 103,351 92,667 Deferred income taxes (35,833) (30,210) 1,700 Reorganization expenses (5,000) 95,000 "Free flights" promotion expenses 60,379 12,235 Changes in selected working capital items: Inventories (29,323) 80,731 37,075 Receivables and other current assets (48,609) (6,051) 12,867 Reorganization reserve (39,671) (15,530) "Free flights" promotion reserve (42,981) (1,604) Other current liabilities (17,383) (70,422) 46,623 Net change in pension assets and liabilities 43,513 (12,149) (22,385) Postretirement benefits 11,259 21,254 Other--net 11,913 14,814 (12,894) --------- -------- -------- NET CASH PROVIDED BY OPERATIONS 71,315 183,065 234,670 INVESTING ACTIVITIES Capital expenditures--net (95,990) (120,364) (138,100) --------- -------- -------- TOTAL INVESTING ACTIVITIES (95,990) (120,364) (138,100) FINANCING ACTIVITIES Proceeds from credit agreements and long-term borrowings 5,500 73,712 57,900 Increase (decrease) in notes payable 138,951 (2,378) (31,023) Reduction in long-term debt (94,449) (70,158) (92,832) Stock options exercised and other Common stock transactions 5,903 5,558 3,421 Dividends (53,569) (53,269) (53,150) --------- --------- -------- TOTAL FINANCING ACTIVITIES 2,336 (46,535) (115,684) Effect of exchange rates on cash (2,963) (7,886) (1,721) INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (25,302) 8,280 (20,835) Cash and cash equivalents at beginning of year 57,032 48,752 69,587 --------- --------- -------- CASH AND CASH EQUIVALENTS AT END OF YEAR $ 31,730 $ 57,032 $ 48,752 ========= ======== ========= See notes to consolidated financial statements. 17 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS ______________________________________________________________________ SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: Principles of Consolidation: The consolidated financial statements include the accounts and transactions of the Company and its wholly owned subsidiaries. Certain subsidiaries located outside the United States are consolidated as of a date one month earlier than subsidiaries in the United States. Intercompany accounts and transactions are eliminated in consolidation. Exchange rate fluctuations from translating the financial statements of subsidiaries located outside the United States into U.S. dollars and exchange gains and losses from designated foreign currency transactions are recorded in a separate component of shareowners' equity. All other foreign exchange gains and losses are included in income. Certain reclassifications have been made to prior years' financial statements to conform with the 1993 presentation. Cash Equivalents: Highly liquid investments with a maturity of 90 days or less when purchased are considered by the Company to be cash equivalents. Inventories: Inventories are stated at the lower of cost or market. Cost is determined by the last-in, first-out (LIFO) method for approximately 79% and 76% of the Company's inventories at December 31, 1993 and 1992. The remaining inventories, which are primarily outside the United States, are stated using the first-in, first-out (FIFO) method. Intangibles: Intangibles principally represent goodwill, which is the cost of business acquisitions in excess of the fair value of identifiable net tangible assets. Goodwill is amortized over 40 years on the straight-line basis and the carrying value is reviewed annually. If this review indicates that goodwill will not be recoverable as determined based on the undiscounted cash flows of the entity acquired over the remaining amortization period, the Company's carrying value of the goodwill will be reduced by the estimated shortfall of cash flows. Income Taxes: Certain expenses (principally related to accelerated tax depreciation, employee benefits and various other accruals) are recognized in different periods for financial reporting and income tax purposes. Property, Plant and Equipment: Property, plant and equipment is stated on the basis of cost. Depreciation expense is calculated principally on the straight-line method for financial reporting purposes. The depreciation methods are designed to amortize the cost of the assets over their estimated useful lives. Short and Long-Term Debt: The carrying amounts of the Company's borrowings under its short-term revolving credit agreements, including multicurrency loans, approximate their fair value. The fair values of the Company's long- term debt are estimated based on quoted market prices of comparable instruments. - ------------------------------------------------------------------------------ INVENTORIES In thousands 1993 1992 -------- -------- Finished products $282,841 $249,289 Work in process, raw materials and supplies 146,313 151,794 -------- -------- $429,154 $401,083 ======== ======== If the first-in, first-out (FIFO) method of inventory accounting, which approximates current cost, had been used for all inventories, they would have been $76.3 million and $78.1 million higher than reported at December 31, 1993 and 1992. 18 ___________________________________________________________________________ PENSION BENEFITS The Company and its subsidiaries have noncontributory defined benefit pension plans covering most employees. Plans covering salaried and management employees generally provide pension benefits that are based on an average of the employee's earnings and credited service. Plans covering hourly employees generally provide benefits of stated amounts for each year of service. The Company's funding policy is to contribute amounts to the plans sufficient to meet minimum funding requirements. A summary of the components of net periodic pension expense (income) for the defined benefit plans is as follows: Year ended December 31 -------------------------------- In thousands 1993 1992 1991 --------- ---------- --------- Service cost--benefits earned during the period $ 24,067 $ 21,469 $ 23,520 Interest cost on projected benefit obligation 90,322 87,654 85,325 Actual return on plan assets (167,539) (87,263) (141,918) Net amortization and deferral 59,315 (25,239) 23,602 --------- --------- --------- Net pension expense (income) $ 6,165 $ (3,379) $ (9,471) ========= ========= ========= The change in pension expense (income) from 1992 to 1993 resulted from pension benefit improvements, a reduction in the discount rate and lower expected return on assets resulting from lower asset values at the beginning of the year. Assumptions used in determining net periodic pension expense (income) for the defined benefit plans in the United States were: 1993 1992 1991 ---- ---- ---- Discount rates 8.5% 9% 9% Rates of compensation increase 6 6 6 Expected long-term rates of return on assets 9.5 9.5 9.5 For the valuation of pension obligations at the end of 1993 and for determining pension expense in 1994, the discount rate and rate of compensation increase have been decreased to 7.5% and 5.0% respectively. Assumptions for defined benefit plans outside the United States are comparable to the above in all periods. As of December 31, 1993, approximately 87% of the plan assets are invested in listed stocks and bonds. The balance is invested in real estate and short term investments. Certain pension plans in the United States provide that in the event of a change of Company control and plan termination, any excess funding may be used only to provide pension benefits or to fund retirees' health care benefits. The use of all pension assets for anything other than providing employee benefits is either limited by legal restrictions or subject to severe taxation. The following table sets forth the funded status and amounts recognized in the statements of consolidated financial condition for the Company's defined benefit pension plans: 19
> December 31, 1993 December 31, 1992 --------------------------------- --------------------------------- Plans in Which Plans in Which Plans in Which Plans in Which Assets Exceed Accumulated Assets Exceed Accumulated Accumulated Benefits Exceed Accumulated Benefits Exceed Benefits Assets Benefits Assets -------------- --------------- -------------- --------------- In thousands Actuarial present value of benefit obligation: Vested benefit obligation $(1,004,740) $ (15,474) $ (889,570) $ (28,990) =========== ============= ============== ============ Accumulated benefit obligation $(1,084,352) $ (16,380) $ (942,303) $ (29,009) =========== ============= ============== ============ Projected benefit obligation $(1,163,073) $ (18,989) $ (1,015,813) $ (31,186) Plan assets at fair value 1,213,315 569 1,156,506 12,897 ----------- ------------- -------------- ------------ Projected benefit obligation less than (in excess of) plan assets 50,242 (18,420) 140,693 (18,289) Unrecognized net loss 41,037 1,046 47,244 1,087 Prior service cost not yet recognized in net periodic pension cost 110,024 3,272 66,571 2,066 Unrecognized net obligation (asset) at adoption of FASB 87, net of amortization (38,128) 1,647 (43,602) 1,729 ----------- ------------ -------------- ------------ Net pension investment (liability) 163,175 (12,455) 210,906 (13,407) Minimum liability adjustment 4,928 (4,928) 4,527 (4,527) ------------ ------------ -------------- ------------ Pension investment (liability) recognized in the statements of consolidated financial condition $ 168,103 $ (17,383) $ 215,433 $ (17,934) =========== =========== ============== ============
Pension investments above of approximately $104 million and $142 million at December 31, 1993 and 1992, and pension income of $5.4 million, $10.9 million and $7.1 million in 1993, 1992 and 1991 relate to pension plans covering employees in Europe. In 1993 and 1992, the Company recorded $4.9 million and $4.5 million, respectively, to recognize the minimum pension liability required by the provisions of Statement of Financial Accounting Standards No. 87, "Employers' Accounting for Pensions." The transaction, which had no effect on income, was offset by recording an intangible asset of an equivalent amount. ____________________________________________________________________________ POSTRETIREMENT BENEFITS OTHER THAN PENSIONS In addition to providing pension benefits, the Company provides postretirement health care and life insurance benefits for its employees in the United States. Most of the postretirement plans are contributory, and contain certain other cost sharing features such as deductibles and coinsurance. The plans are unfunded. Employees are not vested and these benefits are subject to change. Death benefits for certain retired employees are funded as part of, and paid out of, pension plans. In 1992, the Company adopted Statement of Financial Accounting Standards No. 106, "Employers' Accounting for Postretirement Benefits Other Than Pensions," which requires employers to accrue the cost of such retirement benefits during the employee's service with the Company. Prior to 1992, the 20 cost of providing these benefits to retired employees was recognized as a charge to income as claims were received. The transition obligation of $355 million as of January 1, 1992 was recorded as a one-time charge in the first quarter of 1992 and reduced net income by $222 million or $2.09 per share. The ongoing effect of adopting the new standard increased 1993 and 1992 periodic postretirement benefit cost by $11.3 and $23.9 million respectively. Postretirement benefit costs in 1991 of approximately $11.7 million were recorded on a cash basis and have not been restated. A summary of the components of net periodic postretirement benefit cost is as follows: In thousands 1993 1992 ------- ------- Service cost $10,225 $ 8,258 Interest cost 26,939 30,421 Net amortization and deferral (8,228) 2,106 ------- ------- Net periodic postretirement benefit cost $28,936 $40,785 ======= ======= Postretirement benefit costs for 1993 decreased primarily due to a plan amendment to eligibility requirements. Assumptions used in determining net periodic postretirement benefit cost were: 1993 1992 Health care cost trend rates (1): ---- ---- Current year 14% 15% Decreasing gradually to 6% 6% Until the year 2009 2009 Each year thereafter 6% 6% Discount rates 8.5% 9.0% (1) Weighted-average annual assumed rate of increase in the per capita cost of covered benefits. For the valuation of the accumulated benefit obligation at December 31, 1993 and for determining postretirement benefit costs in 1994, the health care cost trend rates were decreased. This results in a health care cost trend rate of 12.5 percent in 1994, decreasing gradually to 6 percent until 2001 and remaining at that level thereafter. In addition, the discount rate was reduced to 7.5 percent. The health care cost trend rate assumption has a significant impact on the amounts reported. For example, increasing the assumed health care cost trend rates by one percentage point in each year would increase the accumulated postretirement benefit obligation as of December 31, 1993 by $43.6 million and the aggregate of the service and interest cost components of net periodic postretirement benefit cost for 1993 by $5.9 million. The following table presents the status of the plans reconciled with amounts recognized in the statements of consolidated financial condition for the Company's postretirement benefits. 21 December 31 ---------------- 1993 1992 In thousands ---- ---- Accumulated postretirement benefit obligation: Retirees $284,524 $189,764 Fully eligible active plan participants 58,709 60,236 Other active plan participants 56,465 76,587 -------- -------- 399,698 326,587 Unamortized plan amendment 54,248 62,476 Unrecognized net loss (62,311) (8,687) Postretirement benefit liability recognized in the -------- -------- the statements of consolidated financial condition $391,635 $380,376 ======== ======== __________________________________________________________________________ OTHER EMPLOYEE BENEFITS The Company has a leveraged employee stock ownership plan (ESOP) for eligible United States employees. The ESOP is designed to fund the Company's contribution to an existing salaried savings plan. The Company made contributions to the plan of $5.5 million, $5.2 million and $4.9 million for loan payments in 1993, 1992 and 1991, the majority of which represents interest on the ESOP debt. With each loan and interest payment, a portion of the Common stock in the ESOP becomes available for allocation to participating employees. The Company also sponsors other defined contribution plans. Contributions to these plans are generally based on employees' compensation. Expenses of the Company related to these plans, including the ESOP, amounted to $8.6 million in 1993, $7.9 million in 1992 and $7.8 million in 1991. In November 1992, the Financial Accounting Standards Board issued Statement No. 112 (FAS 112), "Employers' Accounting for Postemployment Benefits." The new rules require recognition of specified postemployment benefits provided to former or inactive employees, such as severance pay, workers' compensation, supplemental employment benefits, disability benefits and continuation of healthcare and life insurance coverages. The Company has estimated the cumulative effect of adopting FAS 112, which will be recorded in the first quarter of 1994, will not have a material impact on the annual results for 1994. The ongoing expenses associated with the new statement are not expected to be material. ______________________________________________________________________________ ACCRUED LIABILITIES In thousands 1993 1992 ------ ------ Warranties $ 46,281 $ 50,877 Advertising/sales promotion 51,946 30,054 Other 79,788 99,963 ------ ------ $178,015 $180,894 ======= ======= ______________________________________________________________________________ INCOME TAXES Effective January 1, 1992, the Company adopted Statement of Financial Accounting Standards No. 109, "Accounting for Income Taxes," which requires recognition of deferred tax liabilities and assets for the expected future tax consequences of events that have been included in the financial statements or tax returns. Under this method, deferred tax liabilities and assets are are determined based on the difference between the financial statement and tax bases of assets and liabilities using enacted tax rates in effect for the year in which the differences are expected to reverse. Prior to 1992, the provision 22 for income taxes was based on income and expenses included in the accompanying consolidated statements of income. As permitted under the new rules, prior years' financial statements have not been restated. The cumulative effect of adopting Statement 109 was to decrease net income by $85 million or $.80 per share as of January 1, 1992. At December 31, 1993, the Company has available for tax purposes approximately $177 million of net operating loss carryforwards outside the United States, of which $38 million expire in various years through 1999 and $139 million is available indefinitely. Of this amount, $30 million relates to pre-acquisition net operating losses which will be used to reduce intangibles when utilized. Deferred income taxes reflect the net tax effects of temporary differences between the amount of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. Significant components of the Company's deferred tax assets and liabilities as of December 31, 1993 and 1992 are as follows: In thousands 1993 1992 ---------- --------- Deferred tax assets (liabilities): Tax over book depreciation $(118,973) $(116,725) Postretirement benefit obligation 151,424 143,197 Product warranty accruals 20,021 20,221 Pensions and other employee benefits (38,753) (58,704) Reorganization accrual 8,856 23,586 Net operating loss carryforwards 48,817 23,178 Other 14,937 15,812 --------- --------- 86,329 50,565 Less valuation allowance for deferred tax assets (15,957) (15,873) --------- --------- Net deferred tax assets $ 70,372 $ 34,692 Recognized in statements of consolidated ========= ========= financial condition: Deferred tax assets-current $ 46,695 $ 52,261 Deferred tax assets-noncurrent 68,559 71,442 Deferred tax liabilities (44,882) (89,011) --------- --------- Net deferred tax assets $ 70,372 $ 34,692 ========= ========= Income (loss) before income taxes and cumulative effect of accounting changes consists of the following: Year ended December 31 ------------------------------- In thousands 1993 1992 1991 ------- ------ ------ United States $162,554 $ 80,013 $112,988 Non-United States (72,684) (72,467) 10,429 ------- ------- ------- $ 89,870 $ 7,546 $123,417 ======= ======= ======= 23 Significant components of the provision for income taxes are as follows: Year ended December 31 ---------------------------- In thousands 1993 1992 1991 Current provision: ---- ---- ---- Federal $ 51,700 $ 37,000 $ 28,600 State 9,100 7,100 6,000 Non-United States 20,000 2,000 8,100 ------ ------ ------ 80,800 46,100 42,700 Deferred provision: Federal 400 (13,800) 7,600 State 700 (3,100) Non-United States (43,300) (13,300) (5,900) ------ ------ ------ (42,200) (30,200) 1,700 ------ ------ ------ Provision for income taxes $ 38,600 $ 15,900 $ 44,400 ====== ====== ====== Significant items impacting the effective income tax rate follow: Year ended December 31 ------------------------------- In thousands 1993 1992 1991 ------ ------ ------ Income before cumulative effect of accounting changes computed at the statutory United States income tax rate $31,500 $ 2,600 $42,000 Increase (reduction) resulting from: Acquisitions: Intangibles amortization 3,200 3,100 3,100 Depreciation 2,400 The effect of statutory rate differences outside the United States 2,500 2,600 600 Non-United States losses with no tax benefit 10,700 State income taxes, net of federal tax benefit 6,400 2,700 4,000 Tax credits arising outside the United States (800) (5,400) (7,300) Effect of tax rate changes on deferred taxes (2,500) Other-net (1,700) (400) (400) -------- ------- ------- Provision for income taxes $38,600 $15,900 $44,400 ======== ======= ======= Since the Company plans to continue to finance expansion and operating requirements of subsidiaries outside the United States through reinvestment of the undistributed earnings of these subsidiaries (approximately $81 million at December 31, 1993), taxes which would result from distribution have not been provided on such earnings. If such earnings were distributed, additional taxes payable would be significantly reduced by available tax credits arising from taxes paid outside the United States. Income taxes paid, net of refunds received, during 1993, 1992 and 1991 were $68.3 million, $28.5 million, and $34.5 million, respectively. 24 ______________________________________________________________________________ LONG-TERM DEBT AND NOTES PAYABLE In thousands The following sets forth the long-term debt in the statements of consolidated financial condition: 1993 1992 Notes payable with interest payable semiannually: Due May 15, 2002 at 9.75% $200,000 $200,000 Due July 15, 1999 at 8.875% 175,000 175,000 Due July 1, 1997 at 8.875% 100,000 100,000 Medium-term notes, maturing from 1994 to 2010, from 7.69% to 9.03% with interest payable semiannually 177,750 197,250 Employee stock ownership plan notes payable semiannually through July 2, 2004 at 9.35% 59,129 60,307 Multicurrency loans at 5.4% to 9.475% 63,631 Other 31,321 36,463 --------- -------- 743,200 832,651 Less current portion 18,505 43,419 --------- -------- $724,695 $789,232 ========= ======== The 9.75% notes, the 8.875% notes due in 1999 and the medium-term notes grant the holders the right to require the Company to repurchase all or any portion of their notes at 100% of the principal amount thereof, together with accrued interest, following the occurrence of both a change in Company control and a credit rating decline. The Company has established a trust to administer a leveraged employee stock ownership plan (ESOP) within an existing employee savings plan. The Company has guaranteed the debt of the trust and will service the repayment of the notes, including interest, through the Company's employee savings plan contribution and from the quarterly dividends paid on stock held by the ESOP. Dividends paid by the Company on stock held by the ESOP totaled $1.4 million in 1993, 1992 and 1991. The ESOP notes are secured by the Common stock owned by the ESOP trust. The fair value of the Company's long-term debt, based on public quotes if available, exceeded the amount recorded in the statements of consolidated financial condition at December 31, 1993 and 1992 by $83.7 million and $50 million, respectively. Notes payable at December 31, 1993 and 1992 consisted of notes payable to banks, in addition to $112 million in commercial paper borrowings at December 31, 1993. The Company's commercial paper program is supported by two credit agreements totaling $300 million, which were entered into on June 25, 1993. The $100 million agreement expires June 24, 1994 and the $200 million agreement expires June 25, 1996. Subject to certain exceptions, the credit agreements require the Company to maintain certain quarterly levels of consolidated tangible net worth, leverage ratios and interest coverage ratios. At December 31, 1993, the Company was in compliance with all covenants. Additional funds available at December 31, 1993 under all credit agreements, applying the terms of the most restrictive covenant, totaled $243 million. Interest paid during 1993, 1992 and 1991 was $76.2 million, $77.4 million, and $78.4 million. The aggregate maturities of long-term debt in each of the next five fiscal years is as follows (in thousands): 1994- $18,505; 1995-$45,185; 1996-$5,308; 1997-$106,535; 1998-$7,147. 25 ______________________________________________________________________________ STOCK PLANS In 1992, the shareowners approved the 1992 stock option plan for executives and key employees. The plan provides that options could be granted to key employees for not more than 3.6 million shares of the Common stock of the Company. The option price under the plan is the fair market value at the date of the grant. Options may not be exercised until one year after the date granted. Under the Company's 1986 plan which expired in 1991, options to purchase 1.6 million shares of Common stock were granted at the market value at the date of grant. Some options were also granted under this plan with stock appreciation rights (SAR) which entitle the employee to surrender the right to receive up to one-half of the shares covered by the option and to receive a cash payment equal to the difference between the option price and the market value of the shares being surrendered. Under a plan which expired in 1986, options to purchase 800,000 shares of Common stock were granted at the market value at date of grant. In April 1990, the Company's shareowners approved the Maytag Corporation 1989 Stock Option Plan for Non-Employee Directors which authorizes the issuance of up to 250,000 shares of Common stock to the Company's non-employee directors. Options under this plan are immediately exercisable upon grant. The following is a summary of certain information relating to these plans: Average Option Price Shares SAR ------- ------- ------- Outstanding December 31, 1990 $14.81 966,851 459,131 Granted 14.76 885,920 246,240 Exercised 10.49 (7,526) Canceled or expired 17.59 (18,450) (12,988) --------- ------- Outstanding December 31, 1991 14.76 1,826,795 692,383 Granted 14.54 411,910 Exercised 9.86 (179,736) (11,192) Exchanged for SAR 11.16 (11,192) Canceled or expired 12.63 (34,640) (93,242) --------- ------- Outstanding December 31, 1992 15.09 2,013,137 587,949 Granted 15.92 599,060 Exercised 12.89 (101,156) (5,360) Exchanged for SAR 12.53 (5,360) Canceled or expired 16.26 (147,080) (85,728) --------- ------- Outstanding December 31, 1993 15.33 2,358,601 496,861 ========= ======= Options for 1,777,361 shares, 1,623,227 shares and 964,875 shares were exercisable at December 31, 1993, 1992 and 1991. There were 2,784,030 shares available for future grants at December 31, 1993. In the event of a change in Company control, all stock options granted become immediately exercisable. In 1991, the shareowners approved the 1991 Stock Incentive Award Plan For Key Executives. This plan authorizes the issuance of up to 2.5 million shares of Common stock to certain key employees of the Company, of which 1,980,338 shares are available for future grants as of December 31, 1993. Under the terms of the plan, the granted stock vests three years after the award date and is contingent upon pre-established performance objectives. In the event of a change in Company control, all incentive stock awards become fully vested. No incentive stock awards may be granted under this plan on or after May 1, 1996. Incentive stock award shares outstanding at December 31, 1993 under a 1993 26 grant total 459,957, and $3.6 million has been expensed during 1993 for the the anticipated payout on these awards. Under a 1991 grant which expired in 1993, 53,068 shares are vested and outstanding and $1.1 million has been expensed during 1993. No amounts were expensed in 1992 and 1991 under these awards. ______________________________________________________________________________ SHAREOWNERS' EQUITY
Common Stock Additional Treasury Stock Employee Foreign __________________ Paid-in Retained ___________________ Stock Currency In thousands Shares Amount Capital Earnings Shares Amount Plans Translation ------ ------ ---------- ---------- -------- -------- -------- ----------- Balance 12/31/90 117,151 $146,438 $487,034 $670,878 (11,424) $(254,576) $(63,590) $ 28,547 Net income 79,017 Cash dividends (53,150) Stock issued under employee stock plans (50) 8 168 Stock awards: Granted (6,953) 588 13,110 (6,157) Earned or canceled 96 (17) (376) 2,130 Conversion of subordinated debentures 7 (1) (22) ESOP: Issued (301) 38 848 Allocated 906 Translation adjustments (33,419) _______ _______ _______ _______ ________ _________ ________ _______ Balance 12/31/91 117,151 146,438 479,833 696,745 (10,808) (240,848) (66,711) (4,872) Net loss (315,354) Cash dividends (53,269) Stock issued under employee stock plans (1,221) 178 3,970 Stock awards: Granted (204) 41 921 (718) Earned or canceled 524 (44) (970) 446 ESOP: Issued (469) 87 1,934 Allocated 1,345 Translation adjustments (48,295) _______ _______ _______ _______ _______ _______ ______ Balance 12/31/92 117,151 146,438 478,463 328,122 (10,546) (234,993) (65,638) (53,167) Net income 51,270 Cash dividends (53,569) Stock issued under employee stock plans (911) 92 2,111 Stock awards: Granted (3,645) 491 10,939 (7,294) Earned or canceled 6,136 (550) (12,403) 9,102 ESOP: Issued (651) 82 1,836 Allocated 1,488 Tax benefit of ESOP dividends and stock options 675 Translation adjustments (17,528) -------- -------- -------- -------- -------- -------- -------- ------- Balance 12/31/93 117,151 $ 146,438 $ 480,067 $ 325,823 (10,431) $(232,510) $ (62,342) $ (70,695) ======== ======== ======== ======== ======== ======== ======== ========
The Company has 24 million authorized shares of Preferred stock, par value $1 per share, none of which is issued. Pursuant to a Shareholder Rights Plan approved by the Company in 1988, each share of Common stock carries with it one Right. Until exercisable, the Rights will not be transferable apart from the Company's Common stock. When exercisable, each Right will entitle its holder to purchase one one-hundredth of a share of Preferred stock of the Company at a price of $75. The Rights will only become exercisable if a person or group acquires 20% or more of the Company's Common stock which may be reduced to not less than 10% at the discretion of the Board of Directors. In the event the Company is acquired in a merger or 50% or more of its consolidated assets or earnings power are sold, 27 each Right entitles the holder to purchase Common stock of either the surviving or acquired company at one-half its market price. The Rights may be redeemed in whole by the Company at a purchase price of $.01 per Right. The Preferred shares will be entitled to 100 times the aggregate per share dividend payable on the Company's Common stock and to 100 votes on all matters submitted to a vote of shareowners. The Rights expire May 2, 1998. ______________________________________________________________________________ INDUSTRY SEGMENT AND GEOGRAPHIC INFORMATION Principal financial data by industry segment is as follows: In thousands 1993 1992 1991 Net Sales --------- --------- --------- Home appliances $2,830,457 $2,875,902 $2,820,828 Vending equipment 156,597 165,321 149,798 --------- --------- --------- Total $2,987,054 $3,041,223 $2,970,626 ========= ========= ========= Income (Loss) Before Income Taxes and Cumulative Effect of Accounting Changes Home appliances $ 160,431 $ 62,568 $ 187,018 Vending equipment 17,566 16,311 4,498 Corporate (including interest expense) (88,127) (71,333) (68,099) --------- --------- --------- Total $ 89,870 $ 7,546 $ 123,417 ========= ========= ========= Capital Expenditures-net Home appliances $ 92,194 $ 115,676 $ 133,504 Vending equipment 1,028 771 4,612 Corporate 2,768 3,917 (16) --------- --------- --------- Total $ 95,990 $ 120,364 $ 138,100 ========= ========= ========= Depreciation and Amortization Home appliances $ 105,916 $ 98,116 $ 86,928 Vending equipment 4,377 4,236 4,805 Corporate 1,488 999 934 --------- --------- --------- Total $ 111,781 $ 103,351 $ 92,667 ========= ========= ========= Identifiable Assets Home appliances $2,147,174 $2,135,961 $2,200,227 Vending equipment 103,765 104,119 119,752 Corporate 218,559 261,410 215,089 --------- --------- --------- Total $2,469,498 $2,501,490 $2,535,068 ========= ========= ========= 28 Information about the Company's operations in different geographic locations is as follows: In thousands 1993 1992 1991 Net Sales --------- --------- --------- North America $2,468,374 $2,407,591 $2,332,365 Europe 390,761 501,857 495,517 Other 127,919 131,775 142,744 --------- --------- --------- Total $2,987,054 $3,041,223 $2,970,626 ========= ========= ========= Income (Loss) Before Income Taxes and Cumulative Effect of Accounting Changes North America $ 246,981 $ 145,991 $ 190,820 Europe (72,358) (67,061) (865) Other 3,374 (51) 1,561 Corporate (including interest expense) (88,127) (71,333) (68,099) --------- --------- --------- Total $ 89,870 $ 7,546 $ 123,417 ========= ========= ========= Identifiable Assets North America $1,794,271 $1,677,131 $1,681,304 Europe 359,323 452,995 507,746 Other 97,345 109,954 130,929 Corporate 218,559 261,410 215,089 --------- ---------- --------- Total $2,469,498 $2,501,490 $2,535,068 ========= ========= ========= Sales between affiliates of different geographic regions are not significant. The amount of exchange gain or loss included in operations in any of the years presented was not material. In 1993 the Company incurred $60.4 million in pretax charges for two "free flights" promotion programs in Europe ($50 million in a special charge and $10.4 million in selling, general and administrative expenses). In 1992 the Company incurred $95 million of reorganization expenses for marketing and distribution changes in North America and plant closings and other organizational changes in Europe. Of the $95 million allocated to Home Appliances, $40 million was allocated to North America and $55 million to Europe. _____________________________________________________________________________ CONTINGENT LIABILITIES In 1993 and 1992, the Company made provisions to cover the cost of two Hoover Europe "free flights" promotion programs, including a $50 million special charge in the first quarter of 1993. The promotions began in August, 1992 and included qualified purchases through January, 1993. The terms of the promotions require all flights to be completed by the end of the second quarter of 1994. The Company believes that it has made adequate provisions for any costs to be incurred relating to these promotions. Although the final costs of the promotions cannot be determined at this time, management does not believe that any additional costs that may be incurred will have a material adverse effect on the financial condition of the Company. At December 31, 1993, the Company is contingently liable for guarantees of indebtedness owed by a third party ("the borrower") of $21.3 million relating to the sale of one of its manufacturing facilities in 1992. The borrower is performing under the payment terms of the loan agreement; however, it had been out of compliance with certain financial covenants at December 31, 1993 for which it has requested a waiver from the lender involved. The indebtedness is collateralized by the assets of the borrower. Other contingent liabilities arising in the normal course of business, including guarantees, repurchase agreements, pending litigation, environmental issues, taxes and other claims are not considered to be material in relation to the Company's financial position. 29 QUARTERLY RESULTS OF OPERATIONS (Unaudited) ________________________________________________________________________________ The following is a summary of unaudited quarterly results of operations for the years ended December 31, 1993 and 1992. December 31 September 30 June 30 March 31 ----------- ------------ ---------- --------- In thousands except per share data 1993 Net sales $746,723 $770,222 $753,256 $716,853 Gross profit 179,066 188,501 183,812 172,733 Net income (loss) 17,469 23,040 21,307 (10,546) Per average share $ .16 $ .22 $ .20 $ (.10) 1992 Net sales $782,446 $735,540 $770,060 $753,177 Gross profit 173,495 161,871 176,803 189,648 Income (loss) before cumulative effect of accounting change 11,238 (63,234) 18,937 24,705 Per average share .11 (.60) .18 .23 Net income (loss) 11,238 (63,234) 18,937 (282,295) Per average share $ .11 $ (.60) $ .18 $ (2.66) The quarter ended March 31, 1993 includes a $50 million pretax special charge for additional costs associated with two Hoover Europe "free flights" promotion programs. The quarter ended September 30, 1992 includes a nonrecurring $95 million pretax charge relating to the reorganization of the Company's North American and European operations. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure. None Part III Item 10. Directors and Executive Officers of the Registrant. Information concerning directors and officers on pages 1 through 6 of the Proxy Statement of the Company is incorporated herein by reference. Additional information concerning executive officers of the Company is included under "Executive Officers of the Registrant" included in Part I,Item 4. Item 11. Executive Compensation. Information concerning executive compensation on pages 7 through 12 of the Proxy Statement, is incorporated herein by reference; provided that the information contained in the Proxy Statement under the heading "Compensation Committee Report on Executive Compensation" is specifically not incorporated herein by reference. Information concerning director compensation on pages 15 and 16 of the Proxy Statement is incorporated herein by reference, provided that the information contained in the Proxy Statement under the headings "Shareholder Return Performance" and "Shareholder Proposal Concerning Chief Executive Officer Compensation" is specifically not incorporated herein by reference. Item 12. Security Ownership of Certain Beneficial Owners and Management. The security ownership of certain beneficial owners and management is incorporated herein by reference from pages 4 through 6 of the Proxy Statement. 30 Item 13. Certain Relationships and Related Transactions. Information concerning certain relationships and related transactions is incorporated herein by reference from pages 2 through 4 of the Proxy Statement. PART IV Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K. (a)(1) and (2) The response to this portion of Item 14 is submitted as a separate section of this report in the "List of Financial Statements and Financial Statement Schedules" on page 34. (3) The response to this portion of Item 14 is submitted as a separate section of this report in the "List of Exhibits" on pages 35 through 38. (b) No reports on Form 8-K were filed during the fourth quarter of 1993. (c) Exhibits--The response to this portion of Item 14 is submitted as a separate section of this report in the "List of Exhibits" on pages 35 through 38. (d) Financial Statement Schedules--The response to this portion of Item 14 is submitted as a separate section of this report in the "List of Financial Statements and Financial Statement Schedules" on page 34. 31 SIGNATURES Pursuant to the requirements of Section 13 or 15 (d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. MAYTAG CORPORATION (Registrant) Leonard A. Hadley Leonard A. Hadley Chairman and Chief Executive Officer Director Pursuant to the requirement of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated. John P. Cunningham John A. Sivright John P. Cunningham John A. Sivright Executive Vice President and Director Chief Financial Officer Mark A. Garth Lester Crown Mark A. Garth Lester Crown Vice President-Controller and Director Chief Accounting Officer Fred G. Steingraber Edward C. Cazier, Jr. Fred G. Steingraber Edward C. Cazier, Jr. Director Director Neele E. Stearns, Jr. Peter S. Willmott Neele E. Stearns, Jr. Peter S. Willmott Director Director Date: March 30, 1994 32 ANNUAL REPORT ON FORM 10-K Item 14(a)(1), (2) and (3), (c) and (d) LIST OF FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES LIST OF EXHIBITS FINANCIAL STATEMENT SCHEDULES Year Ended December 31, 1993 MAYTAG CORPORATION NEWTON, IOWA 33 FORM 10-K--ITEM 14(a)(1) AND ITEM 14(d) MAYTAG CORPORATION LIST OF FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULES The following consolidated financial statements and supplementary data of Maytag Corporation and subsidiaries are included in Part II, Item 8: Page ---- Statements of Consolidated Income--Years Ended December 31, 1993, 1992 and 1991 . . . . . . . . . . . . . 14 Statements of Consolidated Financial Condition-- December 31, 1993 and 1992 . . . . . . . . . . . . . . . . 15 Statements of Consolidated Cash Flows--Years Ended December 31, 1993, 1992 and 1991 . . . . . . . . . . . . . 17 Notes to Consolidated Financial Statements . . . . . . . . . 18 Quarterly Results of Operations--Years 1993 and 1992 . . . . 30 The following consolidated financial statement schedules of Maytag Corporation and subsidiaries are included in Item 14(d): Schedule V Property, Plant and Equipment . . . . . . . . . 39 Schedule VI Accumulated Depreciation, Depletion and Amortization of Property, Plant and Equipment . 40 Schedule VIII Valuation and Qualifying Accounts . . . . . . 41 Schedule IX Short-Term Borrowings . . . . . . . . . . . . . 42 Schedule X Supplementary Income Statement Information . . 43 All other schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable, and therefore have been omitted. 34 FORM 10-K--ITEM 14(a) (3) AND ITEM 14(c) MAYTAG CORPORATION LIST OF EXHIBITS The following exhibits are filed herewith or incorporated by reference. Items indicated by (1) are considered a compensatory plan or arrangement required to be filed pursuant to Item 14 of Form 10-K. Incorporated Filed with Exhibit Herein by Electronic Number Description of Document Reference to Submission - ------- ----------------------- ------------ ---------- 3(a) Restated Certificate of Incorporation of X Registrant. 3(b) Certificate of Designations of Series A 1988 Annual Junior Participating Preferred Stock of Report on Registrant. Form 10-K. 3(c) Certificate of Increase of Authorized 1988 Annual Number of Shares of Series A Junior Report on Participating Preferred Stock of Form 10-K. Registrant. 3(d) By-Laws of Registrant, as amended through X February 7, 1991. 4(a) Rights Agreement dated as of May 2, 1988 Current between Registrant and The First National Report on Bank of Boston. Form 8-K dated May 5, 1988, Exhibit 1. 4(b) Amendment, dated as of September 24, 1990 Current to the Rights Agreement, dated as of May Report on 2, 1988 between the Registrant and The Form 8-K First National Bank of Boston. dated October 3, 1990, Exhibit 1. 4(c) Indenture dated as of June 15, 1987 Quarterly between Registrant and The First National Report on Bank of Chicago. Form 10-Q for the quarter ended June 30, 1987. 4(d) First Supplemental Indenture dated as of Current September 1, 1989 between Registrant and Report on The First National Bank of Chicago. Form 8-K dated September 28, 1989, Exhibit 4.3. 35 Incorporated Filed with Exhibit Herein by Electronic Number Description of Document Reference to Submission - ------ ----------------------- ------------ ---------- 4(e) Second Supplemental Indenture dated as of Current November 15, 1990 between Registrant and Report on The First National Bank of Chicago. Form 8-K dated November 29, 1990. 4(f) U.S. $100,000,000 Credit Agreement Dated X as of June 25, 1993 Among Registrant, the Banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada. 4(g) U.S. $200,000,000 Credit Agreement Dated X as of June 25, 1993 Among Registrant, the Banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada. 4(h) First Amendment, Dated as of March 4, X 1994 to the U.S. $100,000,000 Credit Agreement, Dated as of June 25, 1993 among Registrant, the Banks party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada as Co- Agent. 4(i) First Amendment, Dated as of March 4, X 1994 to the U.S. $200,000,000 Credit Agreement, dated as of June 25, 1993 among Registrant, the banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada as Co- Agent. 4(j) Copies of instruments defining the rights of holders of long-term debt not required to be filed herewith or incorporated herein by reference will be furnished to the Commission upon request. 10(a) Annual Management Incentive Plan, as 1990 Annual amended through December 21, 1990 (1). Report on Form 10-K 10(b) Executive Severance Agreements (1). X 10(c) Corporate Severance Agreements (1). 1989 Annual Report on Form 10-K. 10(d) Termination Agreement with Harvey 1989 Annual Kapnick, Director and former Chief Report on Executive Officer of Chicago Pacific Form 10-K. Corporation (1). 36 Incorporated Filed with Exhibit Herein by Electronic Number Description of Document Reference to Submission - ------- ----------------------- ------------ ---------- 10(e) 1989 Non-Employee Directors Stock Option Exhibit A to Plan (1). Registrant's Proxy Statement dated March 18, 1990. 10(f) 1981 Stock Option Plan for Executives 1992 Annual and Key Employees (1). Report on Form 10-K. 10(g) 1986 Stock Option Plan for Executives Exhibit A to and Key Employees (1). Registrant's Proxy Statement dated March 14, 1986. 10(h) 1992 Stock Option Plan for Executives Exhibit A to and Key Employees (1). Registrant's Proxy Statement dated March 16, 1992. 10(i) 1987 Stock Incentive Award Plan for Key Exhibit B to Executives (1). Registrant's Proxy Statement dated March 25, 1987. 10(j) 1991 Stock Incentive Award Plan for Key Exhibit A to Executives (1). Registrant's Proxy Statement dated March 15, 1991. 10(k) Directors Deferred Compensation Plan (1). Amendment No. 1 on Form 8 dated April 5, 1990 to 1989 Annual Report on Form 10-K. 10(l) 1988 Capital Accumulation Plan for Key Amendment No. Employees (1). 1 on Form 8 dated April 5, 1990 to 1989 Annual Report on Form 10-K. 37 Incorporated Filed with Exhibit Herein by Electronic Number Description of Document Reference to Submission - ------- ----------------------- ------------ ---------- 10(m) Directors Retirement Plan (1). Amendment No. 1 on Form 8 dated April 5, 1990 to 1989 Annual Report on Form 10-K. 11 Computation of Per Share Earnings. X 12 Ratio of Earnings to Fixed Charges. X 21 List of Subsidiaries of the Registrant. X 23 Consent of Ernst & Young. X 99(a) Annual Report on Form 11-K of the Maytag X Corporation Salary Savings Plan. 99(b) Annual Report on Form 11-K of the Hoover X Company Retirement Savings Plan for Hourly-Rated Employees. 38 SCHEDULE V--PROPERTY, PLANT AND EQUIPMENT Thousands of Dollars
COL. A COL. B COL. C COL. D COL. E COL. F Balance at Beginning Other Changes--Add Balance at End CLASSIFICATION of Period Additions at Cost Retirements (Deduct)--Describe of Period - ---------------------------- -------------------- ----------------- ------------ ------------------- --------------- Year ended December 31, 1993: Land $ 47,370 $ 10 $ 174 $ (1,057) $ 46,149 Buildings and improvements 286,368 5,766 1,549 (1,994) 288,591 Machinery and equipment 962,006 122,420 14,350 (1,875) 1,068,201 Construction in progress 90,847 (28,896) (17,201) 44,750 --------- ------- ------ ------- --------- TOTAL $1,386,591 $ 99,300 $ 16,073 $ (22,127) $1,447,691 ========= ======= ====== ======= ========= Year ended December 31, 1992: Land $ 51,147 $ 588 $ 838 $ (3,527) $ 47,370 Buildings and improvements 296,684 5,242 3,662 (11,896) 286,368 Machinery and equipment 895,025 124,376 35,765 (21,630) 962,006 Construction in progress 92,954 (315) (1,792) 90,847 --------- ------- ------ ------- --------- TOTAL $1,335,810 $129,891 $ 40,265 $ (38,845) $1,386,591 ========= ======= ====== ======= ========= Year ended December 31, 1991: Land $ 50,613 $ 913 $ 64 $ (315) $ 51,147 Buildings and improvements 282,828 19,615 1,891 (3,868) 296,684 Machinery and equipment 828,464 91,581 14,840 (10,180) 895,025 Construction in progress 61,775 31,263 (84) 92,954 --------- ------- ------ ------- ------- TOTAL $3,895,300 $403,154 $ 97,325 $ (92,137) $4,108,992 ========= ======= ====== ======= ========= The annual provisions for depreciation have been computed principally in accordance with the following ranges in rates: Buildings and improvements 2% to 10% Machinery and equipment 7% to 20% Note 1 - Net of transfers to buildings and improvements and machinery and equipment Note 2 - Effect of foreign currency translation Note 3 - Reclassifications to other assets Note 4 - Reclassifications associated with plant closing Note 5 - Reclassifications between machinery and equipment and construction in progress
39 SCHEDULE VI--ACCUMULATED DEPRECIATION, DEPLETION AND AMORTIZATION OF PROPERTY, PLANT AND EQUIPMENT Thousands of Dollars
COL. A COL. B COL. C COL. D COL. E COL. F Balance at Beginning Additions Charged to Other Changes--Add Balance at End DESCRIPTION of Period Costs and Expenses Retirements (Deduct)--Describe of Period - -------------------- -------------------- -------------------- ----------- ------------------ -------------- Year ended December 31, 1993: Buildings and improvements $ 98,755 $ 11,297 $ 780 $ (477) $ 108,795 Machinery and equipment 453,725 91,162 11,542 (15,511) 517,834 ------- ------- ------ ------- ------- TOTAL $552,480 $102,459 $ 12,322 $ (15,988) $ 626,629 ======= ======= ====== ======= ======= Year ended December 31, 1992: Buildings and improvements $ 93,033 $ 11,833 $ 2,327 $ (3,784) $ 98,755 Machinery and equipment 407,284 82,199 28,411 (7,347) 453,725 ------- ------- ------ ------ ------- TOTAL $500,317 $ 94,032 $ 30,738 $ (11,131) $ 552,480 ======= ======= ====== ======= ======= Year ended December 31, 1991: Buildings and improvements $ 83,006 $ 11,711 $ 1,288 $ (396) $ 93,033 Machinery and equipment 350,217 71,641 10,235 (4,339) 407,284 ------- ------- ------ ------- ------- TOTAL $433,223 $ 83,352 $ 11,523 $ (4,735) $ 500,317 ======= ======= ====== ======= ======= Note 1 - Effect of foreign currency translation Note 2 - Reclassifications to other assets Note 3 - Reclassifications associated with plant closing
40 SCHEDULE VIII--VALUATION AND QUALIFYING ACCOUNTS Thousands of Dollars COL. A COL. B COL. C COL. D COL. E ADDITIONS DESCRIPTION Balance at Beginning ----------------- Deductions--Describe Balance at End of Period Charged to Costs Charged to Other of Period and Expenses Accounts--Describe - ------------------------ ------------------- --------------- ------------------ -------------------- -------------- Year ended December 31, 1993: Allowance for doubtful $16,380 $ 6,678 $ 7,054 $ 15,629 accounts receivable 375 ------- ------- ----- ------ $16,380 $ 6,678 $ 7,429 $ 15,629 ======= ====== ===== ====== Year ended December 31, 1992: Allowance for doubtful $14,119 $10,974 $ 7,969 $ 16,380 accounts receivable 744 ------ ------ ----- ------ $14,119 $10,974 $ 8,713 $ 16,380 ====== ====== ===== ====== Year ended December 31, 1991: Allowance for doubtful $17,600 $ 8,670 $(3,493) $ 8,283 $ 14,119 accounts receivable 375 ------ ------ ------- ----- ------ $17,600 $ 8,670 $(3,493) $ 8,658 $ 14,119 ====== ====== ======= ===== ====== Note 1 - Reclassifications Note 2 - Uncollectible accounts written off Note 3 - Effect of foreign currency translation
41 SCHEDULE IX--SHORT-TERM BORROWINGS Thousands of Dollars
COL. A COL. B COL. C COL. D COL. E COL. F Balance Weighted Average Maximum Amount Average Amount Weighted Average CATEGORY OF AGGREGATE SHORT-TERM BORROWINGS at End of Interest Rate Outstanding During Outstanding During Interest Rate Period the Period the Period(f3> During the Period - ---------------------------------------------- --------- --------------- ---------------- ---------------- --------------------- 1993: Notes Payable to Banks $157,571 3.98% $215,181 $136,233 5.22% ======= ===== ======= ======= ==== 1992: Notes Payable to Banks $ 19,886 11.36% $130,085 $ 77,288 8.62% ======= ===== ======= ======= ==== 1991: Notes Payable to Banks $ 23,504 11.98% $ 91,465 $ 48,500 11.81% ======= ===== ======= ======= ===== Note 1 - The Company maintains both secured and unsecured lines of credit and utilizes the issuance of commercial paper for short-term borrowing requirements. Note 2 - The maximum amount outstanding as of any month-end during the fiscal year. Note 3 - The average amount outstanding during the period was calculated by dividing fiscal month-end balances by the number of months during the period. Note 4 - The weighted average interest rate during the period was calculated by dividing interest expense relating to short-term debt by the average amount outstanding during the period. The rate differs from the weighted average interest rate in Column C due to changes in the composition of borrowings (United States and non-United States) during the year.
42 SCHEDULE X--SUPPLEMENTARY INCOME STATEMENT INFORMATION Thousands of Dollars COL. A COL. B ITEM Charged to Costs and Expenses - ------------------------ ------------------------------------------------ 1993 1992 1991 ---- ---- ---- Maintenance and repairs $ 53,128 $ 54,982 $ 50,504 Advertising costs 136,452 134,024 119,391 NOTE - All other items are not stated as such amounts are less than 1% of total sales and revenues. 43 EX-3 2 EXH 3(A)-CERT OF INC & EXH 3(D)-BYLAWS MAYTAG CORPORATION Exhibit 3(a) Restated Certificate of Incorporation of Registrant. MAYTAG CORPORATION Incorporated Under the Laws of the State of Delaware RESTATED CERTIFICATE OF INCORPORATION November 6, 1989 RESTATED CERTIFICATE OF INCORPORATION of MAYTAG CORPORATION Maytag Corporation was originally incorporated as The Maytag Company by filing its original Certificate of Incorporation with the Secretary of State on the 15th day of August, A.D. 1925. FIRST. The name of this corporation is Maytag Corporation. SECOND. Its principal office in the State of Delaware is located at No. 1209 Orange Street, in the City of Wilmington, County of New Castle. The name and address of its resident agent is The Corporation Trust Company, No. 1209 Orange Street, Wilmington, Delaware. THIRD. The nature of the business, or objects or purposes proposed to be transacted, promoted or carried on are: To manufacture, obtain, use and operate under licenses or otherwise, and to sell, license others to manufacture or use, lease or otherwise acquire, use or in any manner dispose of any and all kinds of equipment, devices, machines or machinery, motors, adjuncts and appurtenances, manufactured or used under any one or more inventions, processes, methods or otherwise, relating to or useful in domestic, industrial, manufacturing, mercantile, agricultural and other pursuits; also metal, electrical, mechanical and mercantile specialties and machines, appliances, utilities, devices, mechanical or otherwise, cast- ings, implements, tools, fixtures, instruments and apparatus of every kind and nature, and any other articles of commerce ordinarily made or used in a thor- oughly equipped plant, machine shop, foundry, factory or laboratory, and more particularly to manufacture, buy, sell, repair, alter and generally deal in washing machines, laundry machinery, refrigerators and refrigerating devices and household or other equipment, supplies, specialities and articles of every kind and nature. To carry on the business of mechanical, laundry engineers and electrical engineers, toolmakers, machinists, founders, metal workers, smiths, builders, fitters, cutlers, and merchants, and any other business or businesses which may seem calculated, directly or indirectly, to enhance the value of or render profitable any of the company's property or rights, or conducive to any of the company's objects. To design, manufacture, buy, sell, make, repair, alter, let on hire and deal in apparatus, machinery, hardware and articles of all kinds capable of being used for the purpose of any business herein mentioned or likely to be required by customers of any such business. To manufacture, purchase or otherwise acquire, hold, own, mortgage, pledge, sell, assign and transfer or otherwise dispose of, to invest, trade, deal in and deal with goods, wares, merchandise and real and personal property of every class and description, and in particular, in lands, buildings, busi- ness concerns and undertakings, mortgages, shares, stocks, debentures, securi- ties, scrip, concessions, produce, policies, book debts and claims against such property or against any person or corporation and to carry on any busi- ness, concern or undertaking so acquired. To acquire the good will, rights and property, and to undertake the whole or any part of the assets and liabilities of any person, firm, association, or corporation and to pay for the some in cash, stocks, or bonds of this corpora- tion or otherwise. To acquire, hold, use, sell, assign, lease, grant licenses in respect of, mortgage or otherwise dispose of letters patent of the United States or any foreign country, patents, patent rights, licenses and privileges, inventions, improvements and processes, copyrights, trademarks and trade names, relating to or useful in connection with any business of this corporation. To purchase, subscribe for or in any manner acquire, own, hold, receive, dispose of the income from, sell, assign, transfer, pledge, mortgage or in any manner dispose of and to exercise all the rights of individuals or natural persons with respect to bonds, securities, evidences of indebtedness of, or shares of stock or interest in any corporation, association or joint stock company of the State of Delaware, or any other state, territory or country, and while the owners of shares of stock of or interest in any corporation, joint stock company, firm or association, to exercise all the rights and privileges of such ownership, including the right to vote thereon, and to do anything needful or convenient for the protection, improvement, betterment or enhancement in value of such shares of stock or interest or bonds or obliga- tions owned by the company, and to aid, in any manner, any such corporation, joint stock company, firm or association, the stock, bonds, or other obliga- tions of or interest in which are held by the company. To enter into, make, perform and carry out contracts of every kind neces- sary and incidental to the business of the corporation, for any lawful pur- pose, without limit as to amount, with any person, firm, association or corpo- ration. To draw, make, accept, endorse, discount, execute and issue promissory notes, bills of exchange, warrants, scrip and other negotiable or transferable instruments or obligations. To guarantee the payment of dividends or interest on any shares of stock, debentures, bonds or other securities, issued by this corporation or by any other person, firm or corporation or on any contract or obligation of the corporation, firm or individual whatever, which may be proper or necessary for the business of the corporation. To lend and advance money or give credit to such persons, firms, or corporations and on such terms as may seem expedient, and in particular to customers and others having dealings with this company, to give, guarantee or become surety for such person, firm or corporation. To issue bonds, debentures or obligations of the corporation, from time to time, for any of the objects or purposes of the corporation, and to secure the same by mortgage, pledge, deed of trust or otherwise. To purchase, hold, acquire and reissue the shares of its capital stock; provided it shall not use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of its capi- tal; and provided further that shares of its own capital stock belonging to it shall not be voted upon directly or indirectly. To have one or more offices, to carry on all or any part of its opera- tions and business, without restriction or limit as to amount, and to purchase or otherwise acquire, take, hold, own, mortgage, sell, convey or otherwise dispose of real and personal property of every class and description in any of the States, Districts, Territories, Possessions or Colonies of the United States, and in any and all foreign countries. The foregoing clauses shall be construed both as objects and powers; and it is hereby expressly provided that the foregoing enumeration of specific powers shall not be held to limit or restrict in any manner the powers of this corporation. In general, to carry on any other business in connection with the forego- ing, whether manufacturing or otherwise, and to have and to exercise all the powers conferred by the lows of Delaware upon corporations formed under the act hereinafter referred to. FOURTH. The total number of shares of all classes of capital stock which the Corporation shall have the authority to issue is 224,000,000 shares which shall be divided into two classes as follows: (a) 24,000,000 shares of Pre- ferred Stock ("Preferred Stock") of the par value of $1.00 per share; and (b) 200,000,000 shares of Common Stock ("Common Stock") of the par value of $1.25 per share. Each share of Common Stock, par value $1.25 per share, issued immediately prior to the taking effect of said amendment including shares held by the Corporation as treasury shares, shall, upon the taking effect thereof, be changed and reclassified into two (2) shares of Common Stock, par value $1.25 per share (hereinafter called "New Common Stock"), and such shares of New Common Stock shall thereupon be deemed to be validly issued, fully paid and nonassessable. Each certificate representing shares of Common Stock issued immediately prior to the taking effect of the amendment shall thereafter continue to represent the same number of shares of New Common Stock. The Corporation shall issue to or upon the order of each person who held shares of Common Stock of record immediately prior to the taking effect of the amend- ment, a new certificate or certificates representing one (1) additional share of New Common Stock for each share so held of record by the holder. The designations, voting powers, preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions of the above classes of stock shall be as follows: A. PREFERRED STOCK (i) Shares of Preferred Stock may be issued in one or more series at such time or times, and for such consideration as the Board of Directors may determine. (ii) The Board of Directors is expressly authorized at any time, and from time to time, to provide for the issuance of shares of Preferred Stock in one or more series with such designations, preferences and relative, partici- pating, optional or other special rights and qualifications, limitations or restrictions thereof as shall be stated and expressed in the resolution or resolutions providing for the issue thereof adopted by the Board of Directors, and as are not stated and expressed in this Certificate of Incorporation or any amendment hereto including, but not limited to, determination of any of the following: (a) The distinctive designation and the number of shares constituting a series, which number may (except as otherwise provided by the Board of Directors) be increased or decreased (but not below the number of shares then outstanding) from time to time by like action of the Board of Directors; (b) the dividend rate or rates and the preferences, if any, over any other class or series (or of any other class or series over such series) with respect to dividends, the terms and conditions upon which and the periods in respect of which dividends shall be payable, whether and upon what conditions such dividends shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate; (c) the voting powers, multiple, full or limited, if any, of the shares of such series and the extent of such voting powers; (d) whether the shares shall be redeemable and, if so, the terms and conditions on which the shares may be redeemed, including the time or times when, the price or prices at which and the manner in which such shares shall be redeemable (including the manner of selecting shares for redemption if less than all shares are to be redeemed); (e) the rights of the holders of the shares of such series, and the preferences, if any, over any other class or series (or of any other class or series over such series), upon the voluntary or involuntary liquidation, dissolution or winding up or merger, consolidation or distribution or sale of assets of the corporation; (f) whether the shares shall be entitled to the benefit of a sinking or retirement fund and, if so, the terms and conditions of such fund; (g) whether the shares shall be convertible into, or exchangeable for, shares of any other class or classes or of any other series of the same or any other class or classes of stock of the corporation or any other corporation, and if so convertible or exchangeable, the conversion price or prices, or the rate or rates of exchange, and the adjustments thereof, if any, at which such conversion or exchange may be made, and any other terms and conditions of such conversion or exchange; and (h) any other preferences, privileges and powers, and relative, participating, optional or other special rights, and qualifications, limitations or restrictions of such series, as the Board of Directors may deem advisable and as shall not be inconsistent with the provisions of this Certificate of Incorporation or any amendment hereto. (iii) Shares of Preferred Stock which have been issued and reacquired in any manner by the corporation (excluding, until the corporation elects to retire them, shares which are held as treasury shares, but including shares redeemed, shares purchased and retired and shares which have been converted into or exchanged for shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation or any other corporation) shall have the status of authorized but unissued shares of Preferred Stock and may be reissued. B. COMMON STOCK (i) Subject to the preferential rights of the Preferred Stock, the holders of the Common Stock shall be entitled to receive, to the extent per- mitted by law, such dividends as may be declared from time to time by the Board of Directors. (ii) Except as may be otherwise required by law or this Certificate of Incorporation, each holder of Common Stock shall have one vote in respect of each share of stock held by such holder of record on the books of the corporation on all matters voted upon by the stockholders. (iii) In the event of the voluntary or involuntary liquidation, dissolution, distribution of assets or winding up of the corporation, after distribution in full of the preferential amount to be distributed to the holders of shares of the Preferred Stock, holders of the Common Stock shall be entitled to receive all the remaining assets of the corporation of whatever kind available for distribution to stockholders, ratably in proportion to the number of shares of Common Stock held by them respectively. C. OTHER PROVISIONS (i) Subject to the conditions and restrictions of any outstanding Preferred Stock, any amendment to this Certificate of Incorporation which shall increase or decrease the authorized capital stock of any class or class- es may be adopted by the affirmative vote of the holders of a majority of the outstanding shares of the stock of the corporation entitled to vote thereon. (ii) No holder of Preferred Stock or Common Stock shall have any right, as such holder, to purchase or subscribe for any security of the corpo- ration now or hereafter authorized or issued. All such securities may be issued and disposed of by the Board of Directors to such persons, firms, corporations and associations for such lawful consideration, and on such terms, as the Board of Directors in its discretion may determine, without first offering the same, or any part thereof, to the holders of Preferred Stock or Common Stock. FIFTH. Section 1. No person who is or was at any time a director of the Company shall be personally liable to the Company or its stockholders for monetary damages for any breach of fiduciary duty by such person as a director; provid- ed, however, that, unless and except to the extent otherwise permitted from time to time by applicable law. The provisions of this Section shall not eliminate or limit the liability of a director (i) for any breach of the director's duty of loyalty to the Company or its stockholders, (ii) for any act or omission by the director which is not in good faith or which involves intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, (iv) for any transaction from which the director derived an improper personal benefit, or (v) for any act or omission occurring prior to the date this Section becomes effective. If the Delaware General Corporation Law is amended after approval by the stockholders of this provision to authorize corporate action further limiting or eliminat- ing the personal liability of directors, then the liability of a director of the Company shall be limited or eliminated to the fullest extent permitted by the Delaware General Corporation Law, as so amended. Any repeal or modification of the foregoing paragraph by the stockholders of the Company shall not adversely affect any right or protection of a direc- tor of the Company existing at the time of such repeal or modification. Section 2. Any person who is or was a director, officer, employee, or agent of the Company, or of any other corporation, partnership, joint venture, trust, or other enterprise which he served as such at the request of the Company shall in accordance with the provisions of this Article hereinafter set forth be indemnified by the Company against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reason- ably incurred by him in connection with any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, or inves- tigative (other than an action by or in the right of the Company), to which he was or is a party, or is threatened to be made a party, by reason of his being or having been a director, officer, employee, or agent of the Company or of such other corporation, partnership, joint venture, trust, or other enter- prise. The director, officer, employee, or agent shall be entitled to such indemnification if he acted in good faith and in a manner he reasonably be- lieved to be in, or not opposed to, the best interests of the Company, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendre or its equivalent, shall not, in itself create a presumption that the person did not meet the standards of conduct set forth herein. In the case of any action or suit by or in the right of the Company to procure a judgment in its favor, such director, officer, employee, or agent shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company, and except that no indemnification shall be made in respect of any claim, issue, or matter as to which such person shall have been adjudged to be liable to the Company unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudica- tion of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to such expenses which the Court of Chancery or such other court shall deem proper. Section 3. To the extent that a director, officer, employee, or agent of the Company has been successful on the merits or otherwise in defense of any action, suit, or proceeding referred to in the preceding paragraph, or in defense of any claim, issue, or matter therein, he shall be entitled, as of right, to indemnification as provided in this Article. Any indemnification under this Article (unless ordered by a court) shall be made by the Company as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2 of this Article. Such determination shall be made (1) by the board of direc- tors by a majority vote of a quorum consisting of directors who were not parties to such action, suit, or proceeding; or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel (who shall not be regular counsel of the Company and shall have generally recognized competence to advise upon the matter) in a written opinion; or (3) by the stockholders. Section 4. Expenses incurred in defending a civil or criminal action, suit, or proceeding of the character described in this Article may be paid by the Company in advance of the final disposition thereof upon receipt of an undertaking by or on behalf of the director, officer, employee, or agent to repay such amount if it shall be ultimately determined that he is not entitled to indemnification under this Article. Section 5. The rights of indemnification and advancement of expenses provided in or granted pursuant to this Article shall be in addition to any other rights to which any such director, officer, employee, or agent may be entitled as a matter of law, under any contract, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and in the event of such person's death, such rights shall extend to his heirs and legal representatives. The foregoing rights shall be available whether or not such person continues to be a director, officer, employee, or agent at the time of incurring or becoming subject to such liability or ex- penses and whether or not the claim asserted against him is based on matters which antedate the adoption of this Article. Section 6. The Company shall have power to purchase and maintain insur- ance on behalf of any person who is or was a director, officer, employee, or agent of the Company, or is or was serving at the request of the Company as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Company would have the power to indemnify him against such liability under the provisions of this Article. Section 7. For purposes of Sections 2 through 8 of this Article, refer- ences to "the Company" shall include, in addition to the resulting corpora- tion, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a direc- tor, officer, employee, or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust, or other enterprise, shall stand in the same position under the provisions of this Article with respect to such constituent corporation if its separate existence had continued. Section 8. For purposes of this Article, references to "other enterpris- es" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to "serving at the request of the Company" shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants, or bene- ficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Company" as referred to in this Article. SIXTH. This corporation is to have perpetual existence. SEVENTH. The private property of the stockholders shall not be subject to the payment of corporate debts to any extent whatever. EIGHTH. In furtherance, and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized: To make and alter the bylaws of this corporation, to fix the amount to be reserved as working capital over and above its capital stock paid in, to authorize and cause to be executed mortgages and liens upon the real and personal property of this corporation. From time to time to determine whether and to what extent, and at what times and places and under what conditions and regulations, the accounts and books of this corporation (other than the stock ledger), or any of them, shall be open to inspection of stockholders; and no stockholder shall have any right of inspecting any account, book or document of this corporation, except as conferred by statute, unless authorized by a resolution of the stockholders or directors. If the bylaws so provide, to designate two or more of its number to constitute an executive committee, which committee shall for the time being, as provided in said resolution or in the bylaws of this corporation, have and exercise any or all of the powers of the Board of Directors in the management of the business and affairs of this corporation, and have power to authorize the seal of this corporation to be affixed to all papers which may require it. This corporation may in its bylaws confer powers upon its directors in addition to the foregoing, and in addition to the powers and authorities expressly conferred upon them by the statute. Both stockholders and directors shall have power, if the bylaws so pro- vide, to hold their meetings, and to have one or more offices within or with- out the State of Delaware, and to keep the books of this corporation (subject to the provisions of the statutes), outside of the State of Delaware at such places as may be from time to time designated by the Board of Directors. The number, classification, qualifications and election of the Board of Directors and the filling of vacancies thereon shall be as provided in the bylaws. This final paragraph of Article EIGHTH shall not be amended or re- scinded except by the affirmative vote of the holders of at least two-thirds of the stock of the corporation issued and outstanding and entitled to vote, at any regular or special meeting of the stockholders if notice of the pro- posed alteration or amendment be contained in the notice of the meeting. NINTH. Except as otherwise expressly provided in this Article NINTH: (i) any merger or consolidation of the corporation with or into any other corporation; or (ii) any sale, lease, exchange or other disposition of all or substantially all of the assets of the corporation to or with any other corpo- ration, person or other entity, shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares of capital stock of the corporation issued and outstanding and entitled to vote if, as of the record date for the determination of stockholders entitled to notice thereof and to vote thereon, such other corporation, person or entity is the benefi- cial owner, directly or indirectly, of 5 percent or more of the outstanding shares of capital stock of the corporation issued and outstanding and entitled to vote. The provisions of this Article NINTH shall not apply to any transaction described in clauses (i) or (ii) of this Article, (a) with another corpora- tion, person or other entity if the Board of Directors of the corporation shall by resolution have approved a memorandum of understanding with such other corporation, person, or other entity with respect to and substantially consistent with such transaction prior to the time such other corporation, person or other entity became the beneficial owner, directly or indirectly, of 5 percent or more of the outstanding shares of capital stock of the corpora- tion entitled to vote; or (b) which has been approved by resolution unanimous- ly adopted by the whole Board of Directors of the corporation at any time prior to the consummation thereof. For the purposes of this Article NINTH, a corporation, person or other entity shall be deemed to be the beneficial owner of any shares of capital stock of the corporation (i) which it has the right to acquire pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise, or (ii) which are beneficially owned, directly or indirectly (in- cluding shares deemed owned through application of clause (i) of this para- graph above), by any other corporation, person or other entity (a) with which it or its "affiliate" or "associate" (as referenced below) has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of capital stock of the corporation or (b) which is its "affiliate" or "associate" as those terms were defined in Rule 12B-2 of the General Rules and Regulations under the Securities Exchange Act of 1934 as in effect on March 1, 1977. For the purposes of this Article NINTH, the outstanding shares of capital stock of the corporation shall include shares deemed owned through the application of clauses (i) and (ii) of this paragraph but shall not in- clude any other shares which may be issuable pursuant to any agreement, or upon exercise of conversion rights, warrants or options, or otherwise. The Board of Directors of the corporation shall have the power and duty to determine for the purposes of this Article NINTH, on the basis of informa- tion then known to it, whether (a) any corporation, person or other entity beneficially owns, directly or indirectly, 5 percent or more of the outstand- ing shares of capital stock of the corporation entitled to vote, (b) any sale, lease, exchange or other disposition of part of the assets of the corporation involves substantially all of the assets of the corporation, and (c) the memorandum of understanding referred to above is substantially consistent with the transaction to which it relates. Any such determination by the Board shall be conclusive and binding for all purposes of this Article NINTH. This Article NINTH may not be amended or rescinded except by the affirma- tive vote of the holders of at least two-thirds of the outstanding shares of capital stock of the corporation issued and outstanding and entitled to vote at any regular or special meeting of the stockholders if notice of the pro- posed alteration or amendment be contained in the notice of the meeting. TENTH. This corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. ELEVENTH. Section 1. Vote Required for Certain Business Combinations. A. Higher Vote for Certain Business Combinations. In addition to any affirmative vote required by law or this Certificate of Incorporation (includ- ing, without limitation, Article NINTH hereof), and except as otherwise ex- pressly provided in Section 2 of this Article ELEVENTH: (i) any merger or consolidation of the corporation or any subsidiary (as hereinafter defined) with (a) any Interested Shareholder (as hereinafter defined) or (b) any other corporation or other person (whether or not itself an Interested Shareholder) which is, or after such merger or consolidation would be, an Affiliate (as hereinafter defined) of an Interested Shareholder; or (ii) any plan of exchange for all outstanding shares of the corporation or any subsidiary or for any class of shares of either with (a) any Interested Shareholder or (b) any other corporation or other person (whether or not itself an Interested Shareholder) which is, or after such plan of exchange would be, an Affiliate of an Interested Shareholder; or (iii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Interested Shareholder or any Affiliate of any Interested Shareholder of any assets of the corporation or any subsidiary having an aggregate Fair Market Value of 10% or more of the total assets of the corporation and its subsidiaries on a consolidated basis; or (iv) the issuance or transfer by the corporation or any subsidiary (in one transaction or a series of transactions) of any securities of the corporation or any subsidiary to any Interested Shareholder or any Affil- iate of any Interested Shareholder in exchange for cash, securities or other property (or a combination thereof) having an aggregate Fair Market Value of 10% or more of the total assets of the corporation and its subsidiaries on a consolidated basis; or (v) the adoption of any plan or proposal for the liquidation or dissolu- tion of the corporation proposed by or on behalf of an Interested Share- holder or any Affiliate of any Interested Shareholder; or (vi) any reclassification of securities (including any reverse stock split), or recapitalization of the corporation, or any merger or consoli- dation of the corporation with any of its subsidiaries or any other transaction (whether or not with or into or otherwise involving an Inter- ested Shareholder) which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of equity or convertible securities of the corporation or any subsidiary which is directly or indirectly owned by an Interested Shareholder or any Affiliate of any Interested Shareholder; shall require the affirmative vote of the holders of at least 80% of the voting power of the then outstanding shares of capital stock of the corpora- tion entitled to vote generally in the election of directors ("Voting Stock"), voting together as a single class (it being understood that for purposes of this Article ELEVENTH each share of the Voting Stock shall have the number of votes granted to it pursuant to bylaw or this Certificate of Incorporation). Such affirmative vote shall be required notwithstanding the fact that no vote may be required, or that a lesser vote may be specified by law, this Certifi- cate of Incorporation or in any agreement with any national securities ex- change or otherwise. B. Definition of "Business Combination". The term "Business Combination" as used in this Article ELEVENTH shall mean any transaction which is referred to in any one or more of clauses (i) through (vi) of paragraph A of this Section 1. Section 2. When Higher Vote is Not Required. The provisions of Section I of this Article ELEVENTH shall not be applicable to any particular Business Combination, and such Business Combination shall require only such affirmative vote as is required by law and any other provision of this Certificate of Incorporation, if all of the conditions specified in either of the following paragraphs A and B are met: A. Approval by Continuing Directors. The Business Combination shall have been approved by a majority of the Continuing Directors (as hereinafter de- fined), it being understood that this condition shall not be capable of satis- faction unless there is at least one Continuing Director. B. Price and Procedure Requirements. All of the following conditions shall have been met: (i) The aggregate amount of the cash and the Fair Market Value (as here- inafter defined) as of the date of the consummation of the Business Combina- tion of consideration other than cash to be received per share by holders of each class of Voting Stock in such Business Combination shall be at least equal to the highest of the following: (a) (if applicable) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the Interested Shareholder for any shares of such class of Voting Stock acquired by it (1) within the two-year period immediately prior to the first public announcement of the proposed Business Combination (the "Announcement Date") or (2) in the transaction in which it became an Interested Shareholder, whichever is higher; (b) the Fair Market Value per share of such class of Voting Stock on the Announcement Date or on the date on which the Interested Shareholder became an Interested Shareholder (such latter date is referred to in this Article ELEVENTH as the "Determination Date"), whichever is higher; (c) (if applicable) the price per share equal to the Fair Market Value per share of such class of Voting Stock determined pursuant to paragraph B (i) (b) above, multiplied by the ratio of (1) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the Interested Shareholder for any shares of such class of Voting Stock acquired by it within the two-year period immedi- ately prior to the Announcement Date to (2) the Fair Market Value per share of such class of Voting Stock on the first day in such two-year period upon which the Interested Shareholder acquired any shares of such class of Voting Stock; and (d) (if applicable) the highest preferential amount per share to which the holders of shares of such class of Voting Stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation. Shares acquired or paid for by an Affiliate of the Interested Shareholder shall be deemed to have been acquired or paid for at the same time by the Interested Shareholder. (ii) The consideration to be received by holders of such class of Voting Stock shall be in cash or in the same form as the Interested Shareholder has previously paid for shares of such class. If the Interested Shareholder has paid for shares of a class of Voting Stock with varying forms of considera- tion, the form of consideration for such Voting Stock shall be either cash or the form used to acquire the largest number of shares of such class previously acquired by it. (iii) After such Interested Shareholder has become an Interested Share- holder and prior to the consummation of such Business Combination: (a) except as approved by a majority of the Continuing Directors, there shall have been no failure to declare and pay at the regular date therefor any full quarterly dividends (whether or not cumulative) on then outstanding shares of Preferred Stock; (b) there shall have been (1) no reduction in the annual rate of divi- dends paid on the Common Stock (except as necessary to reflect any subdivision of the Common Stock), except as approved by a majority of the Continuing Directors, and (2) an increase in such annual rate of dividends as necessary to reflect any reclassification (including any reverse stock split), recapi- talization, reorganization or any similar transaction which has the effect of reducing the number of outstanding shares of Common Stock, unless the failure so to increase such annual rate is approved by a majority of the Continuing Directors; and (c) such Interested Shareholder shall have not become the beneficial owner of any additional shares of Voting Stock except as part of the transaction which results in such Interested Shareholder becoming an Interested Shareholder. (iv) After such Interested Shareholder has become an Interested Share- holder, such Interested Shareholder shall not have received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the corporation, whether in antic- ipation of or in connection with such Business Combination or otherwise. (v) A proxy or information statement describing the proposed Business Combination and complying with the requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed to all holders of Voting Stock at least 30 days prior to the consummation of such Business Combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act, rules or regulations or subsequent provi- sions). The requirements of subparagraphs (i) and (ii) above shall not apply to any class of Voting Stock (other than Common Stock) hereafter authorized if the provision creating or authorizing such class so provides and such provi- sion has been approved by a majority of the Continuing Directors. Section 3. Certain Definitions. For the purposes of this Article ELEVENTH: A. A "person" shall mean any individual, firm, corporation or other entity. B. "Interested Shareholder" shall mean any person (other than the corpo- ration or any subsidiary) who or which: (i) is the beneficial owner, directly or indirectly, of more than 10% of the voting power of the outstanding Voting Stock; or (ii) is an Affiliate of the corporation and at any time within the two- year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then outstanding Voting Stock; or (iii) is an assignee of or has otherwise succeeded to any shares of Voting Stock which were at any time within the two-year period immediate- ly prior to the date in question beneficially owned by any Interested Shareholder, if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933. C. A person shall be a "beneficial owner" of any Voting Stock: (i) which such person or any of its Affiliates or Associates (as herein- after defined) beneficially owns, directly or indirectly; or (ii) which such person or any of its Affiliates or Associates has (a) the right to acquire (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise, or (b) the right to vote pursuant to any agreement, arrangement or understanding; or (iii) which are beneficially owned, directly or indirectly, by any other person with which such person or any of its Affiliates or Associates has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting or disposing of any shares of Voting Stock. D. For the purpose of determining whether a person is an Interested Shareholder pursuant to paragraph B of this Section 3, the number of shares of Voting Stock deemed to be outstanding shall include shares deemed owned through application of paragraph C of this Section 3 but shall not include any other shares of Voting Stock which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. E. "Affiliate" or "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as in effect on March 1, 1984. F. "Subsidiary" means any corporation of which a majority of any class of equity security is owned, directly or indirectly, by the corporation; provid- ed, however, that for the purposes of the definition of Interested Shareholder set forth in paragraph B of this Section 3, the term "subsidiary" shall mean only a corporation of which a majority of each class of equity security is owned, directly or indirectly, by the corporation. G. "Continuing Director" means any member of the Board of Directors of the corporation (the "Board") who is unaffiliated with the Interested Share- holder and was a member of the Board prior to the time that the Interested Shareholder became an Interested Shareholder, and any successor of a Continu- ing Director who is unaffiliated with the Interested Shareholder and is recom- mended to succeed a Continuing Director by a majority of Continuing Directors then on the Board. H. "Fair Market Value" means: (i) in the case of stock, the highest closing sale price during the 30-day period immediately preceding the date in question of a share of such stock on the Composite Tape for New York Stock Exchange-Listed Stocks, or, if such stock is not quoted on the Composite Tape, on the New York Stock Exchange, or, if such stock is not listed on such Ex- change, on the principal United States securities exchange on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing sale price or bid quotation, whichever is reported in the financial press, with respect to a share of such stock during the 30-day period preced- ing the date in question on the National Association of Securities Dealers, Inc., Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by the Board in good faith; and (ii) in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by the Board in good faith. I. In the event of any Business Combination in which the corporation survives, the phrase "other consideration to be received" as used in paragraph B (i) of Section 2 of this Article ELEVENTH shall include the shares of any class of outstanding Voting Stock retained by the holders of such shares. J. References to a "class of Voting Stock" shall include any separate series of a class. Section 4. Powers of the Board. The Board shall have the power and duty to determine for the purposes of this Article ELEVENTH, on the basis of infor- mation known to it after reasonable inquiry, (A) whether a person is an Inter- ested Shareholder, (B) the number of shares of Voting Stock beneficially owned by any person, (C) whether a person is an Affiliate or Associate of another and (D) whether the assets which are the subject of any Business Combination have, or the consideration to be received for the issuance or transfer of securities by the corporation or any subsidiary in any Business Combination have or has an aggregate Fair Market Value of 10% or more of the total assets of the corporation and its subsidiaries on a consolidated basis. Any such determination made in good faith shall be binding and conclusive on all par- ties. Section 5. No Effect on Fiduciary Obligations of Interested Shareholders. Nothing contained in this Article ELEVENTH shall be construed to relieve any Interested Shareholder from any fiduciary obligation imposed by law. Section 6. Amendment or Repeal. Notwithstanding any other provision of law, this Certificate of Incorporation or the bylaws of the corporation (and notwithstanding the fact that a lesser vote may be specified by law, this Certificate of Incorporation or the bylaws of the corporation), and in addi- tion to any affirmative vote of holders of any class of capital stock of the corporation or any series of any such class then outstanding which is required by law or by or pursuant to this Certificate of Incorporation, the affirmative vote of the holders of 80% or more of the voting power of the shares of the then outstanding Voting Stock, voting together as a single class, shall be required to amend or repeal this Article ELEVENTH. TWELFTH. Any action required or permitted to be taken by the stockholders of the Corporation may be be effected solely at a duly called annual or spe- cial meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders. This restated Certificate of Incorporation was duly adopted by the Board of Directors of the Corporation at it's regular meeting held November 6, 1989 in accordance with the provisions of Section 245 of the Delaware Corporation Law. It relates and integrates and does not further amend the provisions of Maytag Corporation's Certificate of Incorporation as heretofore amended and supplemented, and there is no discrepancy between those provisions and the provisions of this restated Certificate of Incorporation. Dated this 6th day of November, A.D. 1989. _________________________ D. J. Krumm, Chairman ____________________________ Attest STATE OF DELAWARE OFFICE OF SECRETARY OF STATE I, GLENN C. KENTON, Secretary of the State of Delaware, do hereby certify that the above and foregoing corresponds with and includes all of the provi- sions of the Restated Certificate of Incorporation of Maytag Corporation," as received and filed in this office the 6th day of November, A. D. 1989, at 10 o'clock A.M. IN TESTIMONY WHEREOF, I have hereunder set my hand and official seal at Dover this 6th day of November in the year of our Lord one thousand nine hundred and eighty-nine. /s/ Glenn C. Kenton________ Secretary of State SEAL By: /s/ M. Toon____________ MAYTAG CORPORATION Exhibit 3(d) By-Laws of Registrant, as amended through February 7, 1991. MAYTAG CORPORATION A Delaware Corporation BYLAWS Revised as of February 7, 1991 MAYTAG CORPORATION BYLAWS Offices 1. The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware, and the name of the registered agent in charge thereof is the Corporation Trust Company. The corporation may also have an office in the City of Newton, Jasper County, State of Iowa, and also offices at such other places as the board of directors may from time to time appoint or the business of the corporation may require. Seal 2. The corporate seal shall have inscribed thereon the name of the cor- poration, the year of its organization and the words "Corporate Seal, Dela- ware." Stockholders' Meetings 3. Meetings of the stockholders may be held at such place as shall be determined by resolution of the board of directors. 4. An annual meeting of the stockholders shall be held on such date and at such time and place as shall be fixed by resolution of the board of direc- tors. Any previously scheduled annual or special meeting of the stockholders may be postponed by resolution of the board of directors upon public notice given prior to the date previously scheduled for such meeting of stockholders. At the annual meeting the stockholders shall elect directors of the class for which the term expires on such date and shall transact such other business as may properly be brought before the meeting. Except as otherwise provided by statute or the Certificate of Incorpo- ration, the only business which properly shall be conducted at any annual meeting of the stockholders shall (i) have been specified in the written no- -2- tice of the meeting (or any supplement thereto) given as provided in Bylaw 7, (ii) be brought before the meeting by or at the direction of the Board of Directors or the officer of the corporation presiding at the meeting or (iii) have been specified in a written notice (a "Stockholder Meeting Notice") given to the corporation, in accordance with all of the following requirements, by or on behalf of any stockholder who is entitled to vote at such meeting. Each Stockholder Meeting Notice must be delivered personally to, or be mailed to and received by, the secretary of the corporation at the principal executive offices of the corporation, in Newton, Iowa, not less than 60 days nor more than 90 days prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days or delayed by more than 60 days from such anniversary date, the Stockholder Meeting Notice to be timely must be so delivered not earlier than the 90th day prior to such annual meeting and not later than the close of business on the later of the 60th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. For purposes of these Bylaws, "public announcement" shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Securities Exchange Act of 1934, as amended. Each Stockholder Meeting Notice shall set forth: (i) a description of each item of business proposed to be brought before the meeting and the reasons for conducting such business at the annual meeting; (ii) the name and record address of the stockholder proposing to bring such item of business before the meeting; (iii) the class and number of shares of stock held of record, owned beneficially and represented by proxy by such stockholder as of the record date for the meeting (if such date shall then have been made publicly available) and as of the date of such Stockholder Meeting Notice and; (iv) all other information which would be required to be included in a proxy statement filed with the Securities and Exchange Commis- sion if, with respect to any such item of business, such stockholder were a participant in a solicitation subject to Section 14 of the Securities Exchange Act of 1934 as amended. No business shall be brought before any annual meet- ing of stockholders of the corporation otherwise than as provided in this Bylaw 4; provided, however, that nothing contained in this Bylaw 4 shall be deemed to preclude discussion by any stockholder of any business properly brought before the annual meeting. The officer of the corporation presiding at the annual meeting of stockholders shall, if the facts so warrant, deter- mine that business was not properly brought before the meeting in accordance with the provisions of this Bylaw 4 and, if he should so determine, he should so declare to the meeting and any such business so determined to be not prop- erly brought before the meeting shall not be transacted. 5. The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person, or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by law, by the Certificate of Incorporation or by these Bylaws. The officer of the corpora- tion presiding at the meeting or a majority of the shares so represented may adjourn the meeting from time to time, whether or not there is such a quorum present. Notice of the time or place of an adjourned meeting shall be given only as required by law. The stockholders present at a duly called meeting may continue to transact business until adjournment, notwithstanding the with- -3- drawal of sufficient stockholders to constitute the remaining stockholders less than a quorum. At such adjourned meeting at which the requisite amount of voting stock shall be represented any business may be transacted which might have been transacted at the meeting as originally notified. If the ad- journment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 6. At each meeting of the stockholders every stockholder having the right to vote shall be entitled to vote in person, or by proxy appointed by an instrument in writing subscribed by such stockholder and bearing a date not more than three years prior to said meeting, unless said instrument provides for a longer period. Each stockholder shall have one vote for each share of stock having voting power, registered in his name on the books of the corpora- tion. The vote for directors, and upon the demand of any stockholder, the vote upon any question before the meeting, shall be by ballot. Directors shall be elected by a plurality of the votes of the shares present in person or repre- sented by proxy at the meeting and entitled to vote on the election of direc- tors. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, in all matters other than the election of directors, the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter shall be the act of the stockholders. 7. Written notice of the annual meeting shall be prepared and mailed by the corporation to each stockholder entitled to vote thereat at such address as appears on the stock book of the corporation at least ten and not more than sixty days prior to the meeting. 8. A complete list of the stockholders entitled to vote at the ensuing meeting, arranged in alphabetical order, with the address of each, and the number of voting shares held by each, shall be prepared by the secretary and filed in the office where the meeting is to be held, at least ten days before every meeting of stockholders, and shall, during the usual hours of business during such ten day period, and during the whole time of said meeting of stockholders, be open to the examination of any stockholder for any purpose germane to the meeting. 9. Special meetings of stockholders of the corporation may be called only by the board of directors pursuant to a resolution approved by a majority of the whole board of directors. Any previously scheduled annual or special meeting of the stockholders may be postponed by resolution of the board of directors upon public notice given prior to the date previously scheduled for such meeting of stockholders. This Bylaw 9 may not be amended or rescinded except by the affirmative vote of the holders of at least two-thirds of the stock of the corporation issued and outstanding and entitled to vote, at any regular or special meeting of the stockholders if notice of the proposed al- teration or amendment be contained in the notice of meeting. 10. Business transacted at all special meetings shall be confined to the objects stated in the notice of the special meeting. Written notice of a special meeting of stockholders stating the time and place and object thereof shall be prepared and mailed by the corporation, postage prepaid, at least ten and not more than sixty days before such meeting, to each stockholder entitled -4- to vote thereat at such address as appears on the books of the corporation. 11. The board of directors by resolution shall appoint one or more in- spectors, which inspector or inspectors may include individuals who serve the corporation in other capacities, including, without limitation, as officers, employees, agents or representatives of the corporation, to act at a meeting of stockholders and make a written report thereof. One or more persons may be designated by the board of directors as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate has been appointed to act or is able to act at a meeting of stockholders, the officer appointed to act or is able to act at a meeting of stockholders, the officer of the corporation presiding at the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall have the duties prescribed by law. The officer of the corporation presiding at the meeting shall fix and announce at the meeting the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at the meeting. Directors 12. The property and business of this corporation shall be managed by its board of directors. Except as otherwise provided in these Bylaws or by law, the directors of the corporation shall be elected at the annual meeting of stockholders in each year. The number of directors which shall constitute the whole board of directors shall be at least three and such number may be fixed from time to time by a majority of the whole board, or if the number is not so fixed, the number shall be eleven. The directors of the corporation shall be divided into three classes, each class to consist, as nearly as may be, of one-third of the number of directors then constituting the whole board of directors. At the 1977 Annual Meeting of Stockholders, (a) one-third of the number of directors shall be elected to serve until the 1978 Annual Meeting of Stockholders; (b) one-third of the number of directors shall be elected to serve until the 1979 Annual Meeting of Stockholders; and (c) one-third of the number of directors shall be elected to serve until the 1980 Annual Meeting of Stockholders, and until their successors shall be duly elected and qualified. At each annual election of directors after the 1977 Annual Meeting of stockholders, the successors to the directors of each class whose term shall expire in that year shall be elected to hold office for a term of three -5- years from the date of their election and until their successors shall be duly elected and qualified. In the case of any increase or decrease in the number of directors, the increase or decrease shall be distributed among the several classes as nearly equally as possible, as shall be determined by a majority of the whole board at the time of such increase or decrease. This Section 12 may not be amended or rescinded except by the affirma- tive vote of the holders of at least two-thirds of the stock of the corpora- tion issued and outstanding and entitled to vote, at any regular or special meeting of the stockholders if notice of the proposed alteration or amendment be contained in the notice of the meeting. 13. The directors may hold their meetings and have one or more offices, and keep the books of the corporation outside of Delaware, at the office of the corporation in the city of Newton, Iowa, or at such other places as they may from time to time determine. 14. In addition to the powers and authorities by these Bylaws expressly conferred upon them, the board may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Certif- icate of Incorporation or by these Bylaws directed or required to be exercised or done by stockholders. 14A. Except as otherwise fixed pursuant to the Certificate of Incorpora- tion relating to the rights of the holders of any one or more classes or se- ries of Preferred Stock issued by the corporation, acting separately by class or series, to elect, under specified circumstances, directors at a meeting of stockholders, nominations for the election of directors may be made by the board of directors or a committee appointed by the board of directors or by any stockholder entitled to vote in the election of directors generally. However, any stockholder entitled to vote in the election of directors gener- ally may nominate one or more persons for election as directors at an annual meeting only if written notice of such stockholder's intent to make such nomi- nation or nominations has been delivered personally to, or been mailed to and received by, the secretary of the corporation at the principal executive of- fices of the corporation in Newton, Iowa, not less than 60 days nor more than 90 days prior to the first anniversary of the preceding year's annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days or delayed by more than 60 days from such anni- versary date, notice by the stockholder to be timely must be so delivered not earlier than the 90th day prior to such annual meeting and not later than the close of business on the later of the 60th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made. Each such notice shall set forth: (i) the name and record address of the stockholder who intends to make the nomination; (ii) the name, age, principal occupation or employment, business address and residence address of the person or persons to be nominated; (iii) the class and number of shares of stock held of record, owned beneficially and repre- sented by Proxy by such stockholder and by the person or persons to be nomi- nated as of the date of such notice; (iv) a representation that the stockhold- er intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (v) a description of all arrange- ments or understandings between such stockholder and each nominee and any -6- other person or persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by such stockholder; (vi) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy statement filed pursuant to the Securities Exchange Act of 1934, as amended, and the proxy rules of the Securities and Exchange Commission; and (vii) the consent of each nominee to serve as a di- rector of the corporation if so elected. The corporation may require any proposed nominee to furnish such other information as may reasonably be re- quired by the corporation to determine the eligibility of such proposed nomi- nee to serve as a director of the corporation. Notwithstanding anything in the second sentence of this Bylaw 14A to the contrary, in the event that the number of directors to be elected to the board of directors of the corporation is increased and there is no public announcement naming all of the nominees for director or specifying the size of the increased board of directors made by the corporation at least 70 days prior to the first anniversary of the preceding year's annual meeting, a stockholder's notice required by this Bylaw 14A shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the secre- tary at the principal executive offices of the corporation, in Newton, Iowa, not later than the close of business on the 10th day following the day on which such public announcement is first made by the corporation. The officer of the corporation presiding at the annual meeting of stockholders shall, if the facts so warrant, determine that a nomination was not made in accordance with the provisions of this Bylaw 14A, and if he should so determine, he should so declare to the meeting and the defective nomination shall be disre- garded. Nominations of persons for election to the board of directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to the corporation's notice of meeting (a) by or at the direction of the board of directors or (b) provided that the board of directors has deter- mined that directors shall be elected at such meeting, by any stockholder of the corporation who is a stockholder of record at the time of giving of notice provided for in this Bylaw 14A, who shall be entitled to vote at the meeting and who complies with the notice procedures set forth in this Bylaw 14A. In the event the corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the board, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the corporation's notice of meeting, if the stock- holder's notice required by the first paragraph of this Bylaw 14A shall be delivered to the secretary at the principal executive offices of the corpora- tion not earlier than the 90th day prior to such special meeting and not later than the close of business on the later of the 60th day prior to such special meeting or the 10th day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the board of directors to be elected at such meeting. No person shall be eligible for election as a director of the corpora- tion unless nominated in accordance with the procedures set forth in these Bylaws. Notwithstanding the provisions of Bylaw 4 and this Bylaw 14A, a stock- holder shall also comply with all applicable requirements of the Securities and Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in Bylaw 4 and this Bylaw 14A. Nothing -7- in Bylaw 4 and this Bylaw 14A shall be deemed to affect any rights of stock- holders to request inclusion of proposals in the corporation's proxy statement pursuant to Rule 14a-8 under the Securities and Exchange Act of 1934, as amended. Executive Committee 15. There may be an executive committee of two or more directors desig- nated by resolution passed by a majority of the whole board. Said committee may meet at stated times, or on notice to all by any of their own number. During the intervals between meetings of the board such committee shall advise with and aid the officers of the corporation in all matters concerning its interests and the management of its business, and generally perform such duties and exercise such powers as may be directed or delegated by the board of directors from time to time. The board may delegate to such committee authority to exercise all the powers of the board excepting power to amend the Bylaws, while the board is not in session. Vacancies in the membership of the committee shall be filled by the board of directors at a regular meeting or at a special meeting called for that purpose. 16. The executive committee shall keep regular minutes of its proceedings and report the same to the board when required. Compensation of Directors 17. Directors who as officers or employees of the corporation receive compensation from it shall not receive any stated compensation for their services as directors; but by resolution of the board reasonable compensation for attendance at board meetings may be allowed and paid. Directors who do not receive compensation from the corporation for employment with it in the capacity of an officer or employee shall be allowed and paid such stated compensation as may be fixed by the board of directors; and such directors shall be reimbursed for expenses incurred in connection with the performance of their duties or services as director, the amount thereof to be allowed and paid by resolution of the board. Nothing herein contained shall be construed as precluding a director from serving the company in any other capacity and receiving compensation therefor. 18. Members of special or standing committees may be allowed and paid compensation for their services as such, and expenses incident thereto, in -8- such amounts as from time to time are fixed and allowed by the board of direc- tors. Meetings of the Board 19. The newly elected board may meet without notice for the purpose of organization or otherwise immediately following the annual meeting of the stockholders or at such place and time as shall be fixed by resolution of the board. 20. Regular meetings of the board may be held without notice at such time and place as shall from time to time be determined by resolution of the board. 21. Special meetings of the board may be called by the chairman of the board or the president on two days' written notice mailed to each director, or on not less than 24 hours' notice delivered to each director personally, tele- phonically or by telegram or telecopy at such number as has been provided by the director; special meetings shall be called by the chairman of the board, the president or secretary in like manner and on like notice on the written request of a majority of the directors then in office. A special meeting may be held without notice if all the directors are present or, if those not present waive notice of the meeting in writing, either before or after such meeting. 22. At all meetings of the board, four directors, but not less than one- third of the total number of directors, shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum, shall be the act of the board of directors, except as may be otherwise provided by statute or by the Certificate of Incorporation or by these Bylaws. Officers 23. The officers of this corporation shall be chosen by the directors and shall be a president, one or more vice presidents, a secretary, controller, and such assistant secretaries as the board of directors may designate. The board may also elect a chairman of the board and in that event, shall desig- nate whether he or the president shall be the chief executive officer of the corporation. 24. The board of directors, at its first meeting after each annual meet- ing of stockholders, shall elect the corporate officers. 25. The board may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such -9- powers and perform such duties as shall be determined from time to time by the board. 26. The salaries of the officers of the corporation shall be fixed from time to time by the board of directors; provided that in the case of officer members of the board of directors their salaries may be fixed from time to time by either of the following additional methods: (i) by a salary committee of not less than three members appointed, by a resolution passed by a majority of the whole board of directors, from among the members of the board of direc- tors who are not officers of the corporation, or (ii) by a salary committee composed of all members of the board of directors who are not officers of the corporation, such committee to act by a majority of its members. None of the officers of the corporation shall be prevented from receiving a salary by reason of the fact that he is also a member of the board of directors; but an officer who shall also be a member of the board of directors shall not have any vote in a determination by the board of directors of the amount of salary that shall be paid to him. 27. The officers of the corporation shall hold office until their succes- sors are chosen and qualify in their stead. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the whole board of directors. Chairman of the Board of Directors 28. Whenever a chairman of the board of directors has been elected by the board, he shall preside at all meetings of the board of directors and of the stockholders. If no chairman of the board is elected, the president shall act as the chairman of the board and shall assume the powers and duties of the chairman. President 29. (a) The president shall be the chief executive officer of the corpo- ration unless a chairman of the board has been elected and designated as such officer. Subject to the authority of the chairman of the board in such event, the president shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board are carried into effect. In the absence or disability of the chairman of the board, where that office has been filled by election of the board, the powers and duties of the chairman shall be assumed by the president. (b) He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation. -10- (c) He shall be ex-officio a member of all standing committees, and shall have the general powers and duties of supervision and management usually vested in the office of president of the corporation. Vice President 30. The board of directors may elect one or more vice presidents and may designate one or more of the vice presidents to be executive vice presidents. Subject to the succession provided for in Bylaw 29(a), in the absence or dis- ability of the CEO, the executive vice presidents, or the vice presidents in the event none have been designated "Executive", in the order designated, (or in the absence of any designation, then in the order of their election) shall perform the duties and exercise the powers of the CEO. The vice president(s) shall perform such other duties as the board of directors may prescribe. Secretary 31. The secretary shall attend all sessions of the board and all meetings of the stockholders and record all votes and the minutes of all proceedings in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall be custodian of the corporate records and of the seal of the corporation and see that the seal of the corpo- ration is affixed to all documents, the execution of which on behalf of the corporation under its seal is duly authorized. He shall give, or cause to be given, notice of all meetings of the stockholders and of the board of direc- tors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. Treasurer 32. (a) The treasurer shall, under the general direction of the Chief Finan- cial Officer, be responsible for the planning and directing of corporate finance activities. He shall have the custody of corporate funds and securi- ties and shall deposit all moneys, and other valuable effects in the name and to the credit of the Corporation, in such depositories as may be designated by the Board of Directors. -11- (b) He shall disburse the funds of the Corporation as may be ordered by the Board, taking proper vouchers for such disbursements, and shall render to the Chairman of the Board, the President and the directors, at the regular meetings of the Board, or whenever they may require it, an account of all his transactions as Treasurer. (c) He shall give the Corporation a bond if required by the Board of Di- rectors in a sum, and with one or more sureties satisfactory to the Board, for the faithful performance of the duties of his office, and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of what- ever kind in his possession or under his control belonging to the Corporation. Chief Financial Officer 33. The Chief Financial Officer of the corporation shall have the general responsibility for the financial operations of the corporation and for all receipts and disbursements of the funds of the corporation. Controller 34. The controller shall be the chief accounting officer of the corporation. Assistant Secretary 35. The assistant secretaries in the order of their seniority shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary, and shall perform such other duties as the board of directors shall prescribe. Assistant Treasurer 36. Repealed. -12- Vacancies and Newly Created Directorships 37. If the office of any officer or agent becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, such vacancy may be filled by the board of directors. Vacancies in the board of directors and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quo- rum, and the directors so chosen shall hold office until the expiration of the term of the class to which they have been chosen and until their successors are duly elected and qualified. This second paragraph of Section 37 may not be amended or rescinded except by the affirmative vote of the holders of at least two-thirds of the stock of the corporation issued and outstanding and entitled to vote, at any regular or special meeting of the stockholders if notice of the proposed alteration or amendment be contained in the notice of the meeting. Duties of Officers May be Delegated 38. In case of the absence of any officer of the corporation, or for any other reason that the board may deem sufficient, the board may delegate, for the time being, the powers or duties, or any of them, of such officer to any other officer, or to any director, provided a majority of the entire board concur therein. Certificates of Stock 39. The certificates of stock of the corporation shall be numbered and shall be entered in the books of the corporation as they are issued. They shall exhibit the holder's name and number of shares and shall be signed by the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary. Transfers of Stock 40. Transfers of stock shall be made on the books of the corporation only -13- by the person named in the certificate or by attorney, lawfully constituted in writing, and upon surrender of the certificate therefor. 41. The board of directors shall have power to appoint one or more trans- fer agents and/or one or more registrars of transfers and may provide that the issuance of certificates of stock of this corporation shall not be valid unless signed by such transfer agent or transfer agents and/or registrar of transfers or registrars of transfers, and if such certificate is countersigned (1) by a transfer agent other than the corporation or its employee, or (2) by a registrar other than the corporation or its employee, any other signature on the certificate may be a facsimile. Record Dates 42. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the board of directors, and shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any such other action. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business of the day next preceding the day on which notice is given, and the record date for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. Registered Stockholders 43. The corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and accordingly shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of Delaware. -14- Lost Certificate 44. Any person claiming a certificate of stock to be lost, stolen or destroyed, shall make an affidavit or affirmative of the fact and advertise the same in such manner as the board of directors may require, and shall if the directors so require give the corporation a bond of indemnity, sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of a new replacement certificate, whereupon a new certificate may be issued of the same tenor and for the same number of shares as the one alleged to be lost, stolen or destroyed. Inspection of Books 45. The directors shall determine from time to time whether and, if allowed, when and under what conditions and regulations the accounts and books of the corporation (except such as may by statute be specifically open to inspection) or any of them shall be open to the inspection of the stockhold- ers, and the stockholders' rights in this respect are and shall be restricted and limited accordingly. Checks 46. All checks or demands for money and notes of the corporation, shall be signed by such officer or officers, employee or employees as the board of directors may from time to time designate. Fiscal Year 47. The fiscal year shall begin the first day of January in each year. -15- Directors' Annual Statement 48. The board of directors shall present at each annual meeting, and when called for by vote of the stockholders at any special meeting of the stock- holders, a full and clear statement of the business and condition of the corporation. Notices 49. Except as otherwise provided in these Bylaws, whenever under the provisions of these Bylaws notice is required to be given to any director, officer or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by telecopy as provided in Bylaw 21, by mail, by depositing the same in the post office or letter box, in a postpaid sealed wrapper, addressed to such stockholder, officer or director at such address as appears on the books of the corporation, or, in default of other address, to such director, officer or stockholder at the General Post Office in the City of Wilmington, Delaware, and such notice shall be deemed to be given at the time when the same shall be thus mailed. Any stockholder, director, or officer may waive any notice required to be given under these Bylaws, either before or after the event for which such notice was required. Incentive Payments 50. Repealed. 51. Unless otherwise provided by resolution adopted by the board of directors, the president or any vice president or the secretary may from time to time appoint an attorney or attorneys, or an agent or agents, to exercise in the name and on behalf of the company the powers and rights which it may have as the holder of stock or other securities in any other corporation or membership in any organization, to vote or consent in respect of such stock or other securities or membership, and the president, or any vice president or the secretary may execute or cause to be executed in the name and on behalf of the company and under its corporate seal, or otherwise all such written prox- ies or other instruments as he may deem necessary or proper in order that the company may exercise its powers and rights. - 16 - Amendments 52. Except as otherwise provided in these Bylaws, these Bylaws may be altered or amended by the affirmative vote of a majority of the stock issued and outstanding and entitled to vote thereat, at any regular or special meet- ing of the stockholders, if notice of the proposed alteration or amendment be contained in the notice of the meeting, or (except as otherwise provided in these Bylaws) by the affirmative vote of a majority of the board of directors at a regular or special meeting of the board. * * * * * I, E. James Bennett, Secretary of MAYTAG CORPORATION, a corporation organized and existing under the laws of the State of Delaware, do hereby certify that as such Secretary, I have custody and possession of the records and corporate seal of said corporation, and that the foregoing is a full, true and correct copy of the Bylaws of said corporation in my custody and posses- sion; and that the seal hereto affixed is the common or corporate seal of said corporation so in my custody and possession. IN WITNESS WHEREOF, I have hereunto set my hand as such Secretary and affixed the corporate seal of said corporation this 8th day of November, A.D., 1990. /s/ E. James Bennett Secretary EX-4 3 EXH'S 4(F), 4(G), 4(H) & 4(I) CREDIT AGREEMENTS MAYTAG CORPORATION Exhibit 4(f) U.S. $100,000,000 Credit Agreement Dated as of June 25, 1993 Among Registrant, the Banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada. CONFORMED COPY U.S. $100,000,000 CREDIT AGREEMENT Dated as of June 25, 1993 Among MAYTAG CORPORATION, THE BANKS PARTY HERETO, AND BANK OF MONTREAL, CHICAGO BRANCH as Agent AND ROYAL BANK OF CANADA as Co-Agent TABLE OF CONTENTS Introduction 1 SECTION 1. THE COMMITTED FACILITY 1 Section 1.1. The Commitments. 1 Section 1.2. Applicable Interest Rates. 1 Section 1.3. Minimum Borrowing Amounts. 3 Section 1.4. Manner of Borrowing Committed Loans and Designating Interest Rates Applicable to Loans. 3 SECTION 2. THE SWING LINE LOANS 5 Section 2.1. The Swing Line Loans. 5 Section 2.2. Notices. 6 Section 2.3. The Participating Interests. 6 SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS 6 Section 3.1. Interest Periods. 6 Section 3.2. Maturity of Loans. 7 Section 3.3. Prepayments. 7 Section 3.4. Default Rate. 8 Section 3.5. The Notes. 8 Section 3.6. Commitment Terminations. 9 Section 3.7. Funding Indemnity. 9 SECTION 4. FEES 10 Section 4.1. Facility Fee. 10 Section 4.2. Closing Fee. 10 Section 4.3. Agent Fees. 10 SECTION 5. PLACE AND APPLICATION OF PAYMENTS. 10 Section 5.1. Place and Application of Payments. 10 SECTION 6. DEFINITIONS 11 Section 6.1. Definitions. 11 Section 6.2. Interpretation. 17 SECTION 7. REPRESENTATIONS AND WARRANTIES. 17 Section 7.1. Organization and Qualification. 17 Section 7.2. Subsidiaries. 18 -i- Section 7.3. Corporate Authority and Validity of Obligations. 18 Section 7.4. Not an Investment Company. 18 Section 7.5. Margin Stock. 18 Section 7.6. Financial Reports. 19 Section 7.7. No Material Adverse Change. 19 Section 7.8. Litigation. 19 Section 7.9. Tax Returns. 19 Section 7.10. Approvals. 19 Section 7.11. Liens. 19 Section 7.12. ERISA. 20 Section 7.13. Compliance with Environmental Laws. 20 SECTION 8. CONDITIONS PRECEDENT. 21 Section 8.1. Initial Borrowing. 21 Section 8.2. All Loans. 21 SECTION 9. COVENANTS. 22 Section 9.1. Corporate Existence. 22 Section 9.2. Maintenance. 22 Section 9.3. Taxes. 22 Section 9.4. Insurance. 23 Section 9.5. Financial Reports and Other Information. 23 Section 9.6. Consolidated Tangible Net Worth. 24 Section 9.7. Leverage Ratio. 25 Section 9.8. Interest Coverage Ratio. 25 Section 9.9. Mergers, Consolidations, Leases, and Sales. 25 Section 9.10. Change of Control. 26 Section 9.11. ERISA. 26 Section 9.12. Conduct of Business. 26 Section 9.13. Liens. 26 Section 9.14. Use of Proceeds; Margin Stock. 28 Section 9.15. Compliance with Laws. 28 SECTION 10. EVENTS OF DEFAULT AND REMEDIES. 28 Section 10.1. Events of Default. 28 Section 10.2. Non-Bankruptcy Defaults. 30 Section 10.3. Bankruptcy Defaults. 30 Section 10.4. Expenses. 31 SECTION 11. CHANGE IN CIRCUMSTANCES. 31 Section 11.1. Change of Law. 31 Section 11.2. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR. 31 Section 11.3. Increased Cost and Reduced Return. 32 -ii- Section 11.4. Lending Offices. 34 Section 11.5. Discretion of Bank as to Manner of Funding. 34 Section 11.6. Substitution of Bank. 34 SECTION 12. THE AGENT. 34 Section 12.1. Appointment and Authorization. 34 Section 12.2. Agent and Affiliates. 34 Section 12.3. Action by Agent. 35 Section 12.4. Consultation with Experts. 35 Section 12.5. Liability of Agent. 35 Section 12.6. Indemnification. 35 Section 12.7. Credit Decision. 36 Section 12.8. Resignation of Agent and Successor Agent. 36 Section 12.9. Payments. 36 Section 12.10. Co-Agent. 37 SECTION 13. MESCELLANEOUS. 37 Section 13.1. Withholding Taxes. 37 Section 13.2. No Waiver of Rights. 38 Section 13.3. Non-Business Day. 38 Section 13.4. Documentary Taxes. 38 Section 13.5. Survival of Representations. 38 Section 13.6. Survival of Indemnities. 38 Section 13.7. Sharing of Set-Off. 39 Section 13.8. Notices. 39 Section 13.9. Counterparts. 40 Section 13.10. Successors and Assigns. 40 Section 13.11. Participants and Note Assignees. 40 Section 13.12. Assignment of Commitments by Banks. 40 Section 13.13. Amendments. 41 Section 13.14. Legal Fees and Indemnification. 41 Section 13.15. Currency. 41 Section 13.16. Currency Equivalence. 42 Section 13.17. Governing Law. 42 Section 13.18. Termination of Existing Credit Agreement. 42 Section 13.19. Headings. 42 Section 13.20. Entire Agreement. 42 Signatures 43 EXHIBIT A FORM OF NOTE EXHIBIT B SUBSIDIARIES EXHIBIT C FORM OF OPINION OF COUNSEL EXHIBIT D FORM OF OPINION OF COUNSEL EXHIBIT E FORM OF COMPLIANCE CERTIFICATE -iii- Credit Agreement To each of the Banks signatory hereto Ladies and Gentlemen: Introduction; The undersigned, Maytag Corporation, a Delaware corporation (the "Borrower"), applies to you for your several commitments, subject to all the terms and conditions hereof and on the basis of the representations and warranties hereinafter set forth, to make available a revolving credit as more fully hereinafter set forth. Each of you is hereinafter referred to individually as a "Bank" and all of you are hereinafter referred to collectively as the "Banks". Bank of Montreal, acting through its Chicago Branch, in its capacity as agent for the Banks hereunder, and any successor thereto pursuant to Section 12.8 hereof, is hereinafter referred to as the "Agent" and Royal Bank of Canada in its capacity as co-agent hereunder is hereinafter referred to as the "Co-Agent". SECTION 1. THE COMMITTED FACILITY. Section 1.1.The Commitments. Subject to the terms and conditions hereof, each Bank, by its acceptance hereof, severally agrees to make a loan or loans (individually a "Committed Loan" and collectively "Committed Loans") to the Borrower from time to time in U.S. Dollars or Alternative Currencies on a revolving basis in an aggregate outstanding Original Dollar Amount up to the amount of its commitment to make Loans set forth on the applicable signature page hereof or pursuant to Section 13.12 hereof (its "Commitment" and cumulatively for all the Banks the "Commitments") (subject to any reductions thereof pursuant to the terms hereof) prior to the Termination Date. At no time shall the aggregate Original Dollar Amount of all outstanding Loans (whether Committed or Swing Line Loans) exceed the Commitments then in effect, which Commitments on the date hereof total U.S. $100,000,000. Each Borrowing of Committed Loans shall be advanced, continued, or converted, as applicable pursuant to Section 1.4 hereof, ratably from the Banks in proportion to their respective Unused Commitments. Subject to Section 1.4 hereof, the Borrower may elect that each Borrowing of Committed Loans be advanced or maintained as Domestic Rate Loans or Eurocurrency Loans, which Committed Loans may be repaid and the principal amount thereof reborrowed prior to the Termination Date, subject to all reductions in the Commitments and all other terms and conditions hereof. Section 1.2. Applicable Interest Rates. (a) Domestic Rate Loans. Each Domestic Rate Loan made or maintained by a Bank shall bear interest during each Interest Period that it constitutes a Domestic Rate Loan (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, continued or created by conversion from a Eurocurrency Loan until maturity (whether by acceleration or otherwise) at a rate per annum equal to the Domestic Rate from time to time in effect, payable on the last day of the applicable Interest Period and at maturity (whether by acceleration or otherwise). "Domestic Rate" means for any day the greater of: (i) the rate of interest announced by the Agent from time to time as its prime commercial rate, or equivalent, for U.S. Dollar loans to borrowers located in the United States, with any change in the Domestic Rate resulting from a change in said prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate; and (ii) the sum of (x) the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (i) if such day is not a Business Day, the rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on any such next succeeding Business Day, the rate for such day shall be the average of the rates quoted to the Agent by two or more New York or Chicago Federal funds brokers on such day for such transactions as determined by the Agent, plus (y) 3/8 of 1% (0.375%). (b) Eurocurrency Loans. Each Eurocurrency Loan made or maintained by a Bank shall bear interest during each Interest Period that it constitutes a Eurocurrency Loan (computed on the basis of a year of 360 days and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, continued or created by conversion from a Domestic Rate Loan until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the applicable Eurocurrency Margin plus the Adjusted LIBOR applicable to such Loan, payable on the last day of the applicable Interest Period and at maturity (whether by acceleration or otherwise), and, if the applicable Interest Period is longer than three months, on each day occurring every three months after the date such Loan is made. "Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a rate per annum determined in accordance with the following formula: ____________LIBOR______________ Adjusted LIBOR = 100% - Eurocurrency Reserve Percentage "LIBOR" means, with respect to an Interest Period for a Borrowing of Eurocurrency Loans, the average of the respective rates of interest per annum, as determined by the Agent (rounded upwards, if necessary, to the nearest whole multiple of 1/16 of 1%), at which deposits of U.S. Dollars or the relevant Alternative Currency, as applicable, in immediately available and freely transferable funds are offered to each of the Reference Banks at 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period by major banks in the eurocurrency interbank market upon request by each such Reference Bank for a period equal to such Interest -2- Period and in an amount equal to the principal amount of the Eurocurrency Loan scheduled to be advanced, continued or created by conversion from a Domestic Rate Loan by such Reference Bank as part of such Borrowing. "Eurocurrency Reserve Percentage" means, for any Borrowing of Eurocurrency Loans, the daily average for the applicable Interest Period of the maximum rate at which reserves (including, without limitation, any supplemental, marginal and emergency reserves) are imposed during such Interest Period by the Board of Governors of the Federal Reserve System (or any successor) on "eurocurrency liabilities", as defined in such Board's Regulation D (or in respect of any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Loans is determined or any category of extension of credit or other assets that include loans by non-United States offices of any Bank to United States residents) subject to any amendments of such reserve requirement by such Board or its successor, taking into account any transitional adjustments thereto. For purposes of this definition, the Eurocurrency Loans shall be deemed to be "eurocurrency liabilities" as defined in Regulation D without benefit or credit for any prorations, exemptions or offsets under Regulation D. "Eurocurrency Margin" means for each Eurocurrency Loan: (i) 0.250% per annum for any day Level I Status exists, (ii) 0.375% per annum for any day Level II Status exists, (iii) 0.500% per annum for any day Level III Status exists, and (iv) 1.000% per annum for any day Level IV Status exists; provided that for any day the aggregate outstanding Original Dollar Amount of the Loans is greater than 50% of the Commitments then in effect, the Eurocurrency Margin shall be an additional 0.125% per annum for each day Level I Status, Level II Status or Level III Status exists and shall be an additional 0.250% per annum for each day Level IV Status exists. (c) Rate Quotations. Each Reference Bank agrees to use its best efforts to furnish quotations to the Agent as contemplated by this Section. If any Reference Bank does not furnish a timely quotation, the Agent shall determine the relevant interest rate on the basis of the quotation or quotations furnished by the remaining Reference Bank or, if no such quotation is provided on a timely basis, the provisions of Section 11.2 shall apply. (d) Rate Determinations. The Agent shall determine each interest rate applicable to the Loans hereunder and the Original Dollar Amount of each Loan hereunder, and its determination thereof shall be conclusive and binding except in the case of manifest error or willful misconduct. The Original Dollar Amount of each Eurocurrency Loan shall be determined or redetermined, as applicable, effective as of the first day of each Interest Period applicable to such Loan. Section 1.3. Minimum Borrowing Amounts. Each Borrowing of Committed Loans at any time outstanding shall be in an amount not less than an Original Dollar Amount of U.S. $10,000,000. Section 1.4. Manner of Borrowing Committed Loans and Designating Interest Rates Applicable to Loans. -3- (a) Notice to the Agent. The Borrower shall give notice to the Agent by no later than 9:00 a.m. (Chicago time) (i) at least four (4) Business Days before the date on which the Borrower requests the Banks to advance a Borrowing of Eurocurrency Loans denominated in an Alternative Currency, (ii) at least three (3) Business Days before the date on which the Borrower requests the Banks to advance a Borrowing of Eurocurrency Loans denominated in U.S. Dollars and (iii) on the date the Borrower requests the Banks to advance a Borrowing of Domestic Rate Loans. The Loans included in each Borrowing shall bear interest initially at the type of rate specified in such notice of a new Borrowing. Thereafter, the Borrower may from time to time elect to change or continue the type of interest rate borne by each Borrowing or, subject to Section 1.3's minimum amount requirement for each outstanding Borrowing, a portion thereof, as follows: (i) if such Borrowing is of Eurocurrency Loans, on the last day of the Interest Period applicable thereto, the Borrower may continue part or all of such Borrowing as Eurocurrency Loans for an Interest Period or Interest Periods specified by the Borrower or, if such Eurocurrency Loan is denominated in U.S. Dollars, convert part or all of such Borrowing into Domestic Rate Loans, (ii) if such Borrowing is of Domestic Rate Loans, on any Business Day, the Borrower may convert all or part of such Borrowing into Eurocurrency Loans denominated in U.S. Dollars for an Interest Period or Interest Periods specified by the Borrower. The Borrower shall give all such notices requesting the advance, continuation, or conversion of a Borrowing to the Agent by telephone or telecopy (which notice shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing). Notices of the continuation of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars for an additional Interest Period or of the conversion of part or all of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars into Domestic Rate Loans or of Domestic Rate Loans into Eurocurrency Loans must be given by no later than 9:00 a.m. (Chicago time) at least three (3) Business Days before the date of the requested continuation or conversion. Notices of the continuation of a Borrowing of Eurocurrency Loans denominated in an Alternative Currency must be given no later than 9:00 a.m. (Chicago time) at least four (4) Business Days before the requested continuation. All such notices concerning the advance, continuation, or conversion of a Borrowing shall specify the date of the requested advance, continuation or conversion of a Borrowing (which shall be a Business Day), the amount of the requested Borrowing to be advanced, continued, or converted, the type of Loans to comprise such new, continued or converted Borrowing and, if such Borrowing is to be comprised of Eurocurrency Loans, the currency and Interest Period applicable thereto. The Borrower agrees that the Agent may rely on any such telephonic or telecopy notice given by any person it in good faith believes is an Authorized Representative without the necessity of independent investigation, and in the event any such notice by telephone conflicts with any written confirmation, such telephonic notice shall govern if the Agent has acted in reliance thereon. (b) Notice to the Banks. The Agent shall give prompt telephonic or telecopy notice to each of the Banks of any notice from the Borrower received pursuant to Section 1.4.(a) above. The Agent shall give notice to the Borrower and each Bank by like means of the interest rate applicable to each Borrowing of Eurocurrency Loans (unless such Borrowing is a Borrowing of Swing Line Loans in which case such notice shall only be given to the Borrower and the Bank or Banks making such Swing Line Loans) and, if such Borrowing (including a Borrowing of Swing Line Loans) is denominated in an Alternative Currency, shall give notice by such means to the Borrower and each Bank of the Original Dollar Amount thereof. -4- (c) Borrower's Failure to Notify. Any outstanding Borrowing of Domestic Rate Loans shall, subject to Section 8.2 hereof, automatically be continued for an additional Interest Period on the last day of its then current Interest Period unless the Borrower has notified the Agent within the period required by Section 1.4(a) that it intends to convert such Borrowing into a Borrowing of Eurocurrency Loans or notifies the Agent within the period required by Section 3.3(a) that it intends to prepay such Borrowing. In the event the Borrower fails to give notice pursuant to Section 1.4(a) above of the continuation or conversion of any outstanding principal amount of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars before the last day of its then current Interest Period within the period required by Section 1.4(a) and has not notified the Agent within the period required by Section 3.3(a) that it intends to prepay such Borrowing, such Borrowing shall automatically be converted into a Borrowing of Domestic Rate Loans, subject to Section 8.2 hereof. In the event the Borrower fails to give notice pursuant to Section 1.4(a) above of the continuation of any outstanding principal amount of a Borrowing of Eurocurrency Loans denominated in an Alternative Currency before the last day of its then current Interest Period within the period required by Section 1.4(a) and has not notified the Agent within the period required by Section 3.3(a) that it intends to prepay such Borrowing, such Borrowing shall automatically be continued as a Borrowing of Eurocurrency Loans in the same Alternative Currency with an Interest Period of one month, subject to Section 8.2 hereof, including the restrictions contained in the definition of Interest Period. (d) Disbursement of Loans. Not later than 11:00 a.m. (Chicago time) on the date of any requested advance of a new Borrowing of Eurocurrency Loans, and not later than 12:00 noon (Chicago time) on the date of any requested advance of a new Borrowing of Domestic Rate Loans, subject to Section 8 hereof, each Bank (or, in the case of a Swing Line Loan, the Bank or Banks making such Swing Line Loan) shall make available its Loan comprising part of such Borrowing in funds immediately available at the principal office of the Agent in Chicago, Illinois, except that if such Borrowing is denominated in an Alternative Currency each Bank (or each Bank participating in any such Borrowing of Swing Line Loans) shall make available its Loan comprising part of such Borrowing at such office as the Agent has previously notified to each Bank, in such funds then customary for the settlement of international transactions in such currency and no later than such local time as is necessary for such funds to be received and transferred to the Borrower for same day value on the date of the Borrowing. The Agent shall make available to the Borrower Loans denominated in U.S. Dollars at the Agent s principal office in Chicago, Illinois and Loans denominated in Alternative Currencies at such office as the Agent has previously notified the Borrower, in each case in the type of funds received by the Agent from the Banks. SECTION 2. THE SWING LINE LOANS. Section 2.1. The Swing Line Loans. The Borrower may request any Bank to make uncommitted loans denominated in currencies other than U.S. Dollars (each a "Swing Line Loan" and collectively the "Swing Line Loans") in amounts such that the Original Dollar Amount of (i) all Swing Line Loans outstanding hereunder shall not exceed U.S. $20,000,000 and (ii) all Committed Loans and Swing Line Loans at any time outstanding hereunder shall not exceed the Commitments of the Banks then in effect. Each Bank may, but shall have no -5- obligation to, make Swing Line Loans; provided that the aggregate Original Dollar Amount of Swing Line Loans outstanding from any Bank, when added to the aggregate Original Dollar Amount of Committed Loans outstanding from such Bank, does not exceed such Bank's Commitment. Each Swing Line Loan shall be a Eurocurrency Loan subject to Section 1.2(b) hereof and the other terms and provisions hereof applicable to Eurocurrency Loans other than the provisions of Section 1.1 applicable only to Committed Loans and the provisions of Section 1.4(a) and (c). Section 2.2. Notices. No later than 9:00 a.m. (Chicago time) on the date three (3) Business Days prior to any Borrowing of Swing Line Loans, the Borrower shall give telephonic or telecopy notice to the Agent (which notice, if by telephone, shall be promptly confirmed by telecopy or other written notice) of the Bank making each Swing Line Loan, the currency and principal amount of such Swing Line Loan, and the Interest Period of such Swing Line Loan. Section 2.3. The Participating Interests. Upon the occurrence of an Event of Default and the acceleration of the maturity of the Notes pursuant to Section 10.2 or 10.3 hereof, if any Swing Line Loans are then outstanding, each Bank shall purchase a pro rata interest, (based on the Commitment of each Bank hereunder (whether used or unused, and if then terminated pursuant to Section 10, as in effect immediately before such termination)) in the Swing Line Loans of each other Bank, in the currency of such Swing Line Loan so that, after giving effect to such adjustment, the outstanding principal amount of Loans of all the Banks, calculated using quotations of the U.S. Dollar Equivalent of such Swing Line Loans received on the date of acceleration, shall be pro rata based on the Banks' Commitments. Such purchase price shall be paid in the respective currencies of such Swing Line Loans. The several obligations of the Banks under this Section 2.3 shall be absolute, irrevocable and unconditional under any and all circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to payment which any Bank may have or have had against the Borrower, any other Bank or any other Person whatever. Without limiting the generality of the foregoing, such obligations shall not be affected by any Default or Event of Default or by any reduction or termination of the Commitments of any Bank, and each payment made by a Bank under this Section 2.3 shall be made without any offset, abatement, withholding or reduction whatsoever. SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS; REDUCTION OF COMMITMENTS. Section 3.1. Interest Periods. As provided in Section 1.4 hereof, in the case of Committed Loans, and Section 2.2 hereof, in the case of Swing Line Loans, at the time of each request to advance, continue, or create through conversion a Borrowing of Eurocurrency Loans, the Borrower shall select an Interest Period applicable to such Loans from among the available options. The term "Interest Period" means the period commencing on the date a Borrowing is made, continued, or created through conversion and ending: (a) in the case of Domestic Rate Loans, on the last day of the calendar quarter in which such Borrowing is advanced, continued, or created by conversion (i.e. the first to occur thereafter of March 31, June 30, -6- September 30, and December 31); (b) in the case of Eurocurrency Loans which are Committed Loans, 1, 2, 3, 6, or, if available from all the Banks, 9 months thereafter, as the Borrower may select; and (c) in the case of Eurocurrency Loans which are Swing Line Loans, the date, 1, 2, or 3 months thereafter as the Borrower may select; provided, however, that: (a) any Interest Period for a Borrowing of Domestic Rate Loans commencing less than 90 days before the Termination Date shall end on the Termination Date; (b) with respect to any Borrowing of Eurocurrency Loans, the Borrower may not select an Interest Period that extends beyond the Termination Date; (c) whenever the last day of any Interest Period would otherwise be a day that is not a Business Day, the last day of such Interest Period shall be extended to the next succeeding Business Day, provided that, if such extension would cause the last day of an Interest Period for a Borrowing of Eurocurrency Loans to occur in the following calendar month, the last day of such Interest Period shall be the immediately preceding Business Day; and (d) for purposes of determining an Interest Period for a Borrowing of Eurocurrency Loans, a month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month; provided, however, that if there is no numerically corresponding day in the month in which such an Interest Period is to end or if such an Interest Period begins on the last Business Day of a calendar month, then such Interest Period shall end on the last Business Day of the calendar month in which such Interest Period is to end. Section 3.2. Maturity of Loans. Each Committed Loan shall mature and become due and payable by the Borrower on the Termination Date. Each Swing Line Loan shall mature and become due and payable by the Borrower on the last day of the Interest Period applicable thereto. Section 3.3. Prepayments. (a) Loans. The Borrower shall have the privilege of prepaying without premium or penalty and in whole or in part (but, if in part, then: (i) if such Borrowing is denominated in U.S. Dollars, in an amount not less than U.S. $10,000,000 and in integral multiples of U.S. $1,000,000, (ii) if such Borrowing is denominated in an Alternative Currency, an amount for which the U.S. Dollar Equivalent is not less than U.S. $10,000,000 and (iii) in an amount such that the minimum amount required for a Borrowing pursuant to Section 1.3 hereof remains outstanding) any Borrowing of Loans at any time upon three Business Days', in the case of Eurocurrency Loans, or one Business Day s, in the case of Domestic Rate Loans, prior notice to the Agent (which shall advise each Bank thereof promptly thereafter), such prepayment to be made by the payment of the principal amount to be prepaid and accrued -7- interest thereon to the date fixed for prepayment and, in the case of Eurocurrency Loans, any compensation required by Section 3.7 hereof. (b) Reborrowings. Any amount paid or prepaid before the Termination Date may, subject to the terms and conditions of this Agreement, be borrowed, repaid and borrowed again. Section 3.4. Default Rate. If any payment of principal on any Loan is not made when due (whether by acceleration or otherwise), such Loan shall bear interest (computed on the basis of a year of 360 days and actual days elapsed) from the date such payment was due until paid in full, payable on demand, at a rate per annum equal to: (a) with respect to any Domestic Rate Loan, the sum of two percent (2%) plus the Domestic Rate from time to time in effect; and (b) with respect to any Eurocurrency Loan, the sum of two percent (2%) plus the rate of interest in effect thereon at the time of such default until the end of the Interest Period applicable thereto and, thereafter, if such Loan is denominated in U.S. Dollars, at a rate per annum equal to the sum of two percent (2%) plus the Domestic Rate from time to time in effect or, if such Loan is denominated in an Alternative Currency, at a rate per annum equal to the sum of the Eurocurrency Margin, plus two (2%) plus the rate of interest per annum as determined by the Agent (rounded upwards, if necessary, to the nearest whole multiple of one-sixteenth of one percent (1/16%) at which overnight or weekend deposits of the appropriate currency (or, if such amount due remains unpaid more than three Business Days, then for such other period of time not longer than six months as the Agent may elect in its absolute discretion) for delivery in immediately available and freely transferable funds would be offered by the Agent to major banks in the interbank market upon request of such major banks for the applicable period as determined above and in an amount comparable to the unpaid principal amount of any such Eurocurrency Loan (or, if the Agent is not placing deposits in such currency in the interbank market, then the Agent's cost of funds in such currency for such period). Section 3.5. The Notes. (a) Each Loan made to the Borrower by a Bank shall be evidenced by a single promissory note of the Borrower issued to such Bank in the form of Exhibit A hereto. Each such promissory note is hereinafter referred to as a "Note" and collectively such promissory notes are referred to as the "Notes." (b) Each Bank shall record on its books and records or on a schedule to its Note the amount of each Loan advanced, continued, or converted by it, all payments of principal and interest and the principal balance from time to time outstanding thereon, the type of such Loan, and, in respect of any Eurocurrency Loan, the Interest Period, the currency in which such Loan is denominated, and the interest rate applicable thereto; provided that prior to the transfer of any Note all such amounts shall be recorded on a schedule to such Note. The record thereof, whether shown on such books and records of a -8- Bank or on a schedule to any Note, shall be prima facie evidence as to all such matters; provided, however, that the failure of any Bank to record any of the foregoing or any error in any such record shall not limit or otherwise affect the obligation of the Borrower to repay all Loans made to it hereunder together with accrued interest thereon. At the request of any Bank and upon such Bank tendering to the Borrower the Note to be replaced, the Borrower shall furnish a new Note to such Bank to replace any outstanding Note, and at such time the first notation appearing on a schedule on the reverse side of, or attached to, such Note shall set forth the aggregate unpaid principal amount of all Loans, if any, then outstanding thereon. Section 3.6. Commitment Terminations. The Borrower shall have the right at any time and from time to time, upon five (5) Business Days' prior written notice to the Agent, to terminate the Commitments, in whole or in part, without premium or penalty, any partial termination to be in an amount not less than U.S. $10,000,000 or any larger amount that is an integral multiple of U.S. $1,000,000, and to reduce ratably the Commitments of the Banks; provided that the Commitments may not be reduced to an amount less than the Original Dollar Amount of Loans then outstanding. Any termination of Commitments pursuant to this Section 3.6 may not be reinstated. Section 3.7. Funding Indemnity. In the event any Bank shall incur any loss, cost or expense (including, without limitation, any loss of profit, and any loss, cost or expense incurred by reason of the liquidation or re-employment of deposits or other funds acquired by such Bank to fund or maintain any Eurocurrency Loan or the relending or reinvesting of such deposits or amounts paid or prepaid to such Bank) as a result of: (a) any payment, prepayment or conversion of a Eurocurrency Loan on a date other than the last day of its Interest Period, (b) any failure (because of a failure to meet the conditions of Section 8 or otherwise) by the Borrower to borrow or continue a Eurocurrency Loan, or to convert a Domestic Rate Loan into a Eurocurrency Loan, on the date specified in a notice given pursuant to Section 1.4 or 2.2 hereof, (c) any failure by the Borrower to make any payment of principal on any Eurocurrency Loan when due (whether by acceleration or otherwise), or (d) any acceleration of the maturity of a Eurocurrency Loan as a result of the occurrence of any Event of Default hereunder, then, upon the demand of such Bank, the Borrower shall pay to such Bank such amount as will reimburse such Bank for such loss, cost or expense. If any Bank makes such a claim for compensation, it shall provide to the Borrower, with a copy to the Agent, a certificate executed by an officer of such Bank setting forth the amount of such loss, cost or expense in reasonable detail (including an explanation of the basis for and the computation of such loss, cost or expense) and the amounts shown on such certificate if reasonably calculated shall be conclusive. -9- SECTION 4. FEES. Section 4.1. Facility Fee. The Borrower shall pay to the Agent for the ratable account of the Banks a facility fee (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed) on the average daily amount of the Commitments hereunder (whether used or unused) at a rate of (i) 0.1500% per annum for each day Level I Status exists, (ii) 0.1875% per annum for each day Level II Status exists, (iii) 0.2500% per annum for each day Level III Status exists, and (iv) 0.5000% per annum for each day Level IV Status exists. Such fee shall be payable in arrears on the last day of each calendar quarter, commencing September 30, 1993, and on the Termination Date, unless the Commitments are terminated in whole on an earlier date, in which event the facility fees for the period to the date of such termination in whole shall be paid on the date of such termination. If any Bank fails to fund a Loan at a time when, pursuant to Section 8 hereof, it is obligated to fund such Loan, it shall not accrue a facility fee hereunder until it cures such default by funding such Loan. The Borrower shall not be obligated to pay such Bank's portion of the facility fee otherwise payable under this Section 4.1 if it notifies the Agent of such Bank's default and of the amount of the facility fee thereby not earned by such defaulting Bank. If the Agent receives any payment of the facility fee hereunder from which an amount has been so deducted as provided above, the Agent shall be entitled to not remit to any Bank identified by the Borrower as such a defaulting Bank its pro rata share of the portion of the facility fee not earned by such Bank as notified by the Borrower as provided above. Section 4.2. Closing Fee. On the date hereof, the Borrower shall pay to the Agent for the account of the Banks signatory hereto a closing fee equal to (i) for each Bank with a Commitment of U.S. $8,333,333 or less, 0.10% of such Bank's Commitment and (ii) for each Bank with a Commitment greater than U.S. $8,333,333, 0.12% of such Bank's Commitment. Section 4.3. Agent Fees. The Borrower shall pay to the Agent and Co-Agent the fees agreed to between the Agent and the Borrower. SECTION 5. PLACE AND APPLICATION OF PAYMENTS. Section 5.1. Place and Application of Payments. All payments of principal of and interest on the Loans and all payments of facility fees and all other amounts payable under this Agreement shall be made to the Agent by no later than 12:00 noon (Chicago time) at the principal office of the Agent in Chicago, Illinois (or such other location in the State of Illinois as the Agent may designate to the Borrower) or, if such payment is to be made in an Alternative Currency, no later than 12:00 noon local time at the place of payment to such office as the Agent has previously notified the Borrower for the benefit of the Person or Persons entitled thereto. Any payments received after such time shall be deemed to have been received by the Agent on the next Business Day. All such payments shall be made (i) in lawful money of the United States of America, in immediately available funds at the place of payment, or (ii) in the case of amounts payable hereunder in an Alternative Currency, in such Alternative Currency in such funds then customary for the settlement of international transactions in such currency, in each case without setoff or counterclaim. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest on -10- Committed Loans or fees ratably to the Banks and like funds relating to the payment of any other amount payable to any Bank to such Bank, in each case to be applied in accordance with the terms of this Agreement. SECTION 6. DEFINITIONS; INTERPRETATION. Section 6.1. Definitions. The following terms when used herein have the following meanings: "Adjusted LIBOR" is defined in Section 1.2(b) hereof. "Agent" means Bank of Montreal, acting through its Chicago Branch, and any successor pursuant to Section 12.8 hereof. "Alternative Currency" means Pounds Sterling, Deutsche Marks, French Francs, Australian Dollars, Canadian Dollars, Italian Lire and any other currency requested by the Borrower as an "Alternative Currency" hereunder which is available to each Bank as confirmed by the Agent to the Borrower after consultation with the Banks. "Authorized Officer" means each Authorized Representative and in any case shall include the Chief Financial Officer, Treasurer, and any Assistant Treasurer, or, in each case, any other officer performing comparable duties however designated. "Authorized Representative" means any of Jerry A. Schiller, Executive Vice President and Chief Financial Officer, Thomas C. Ringgenberg, Vice President and Treasurer, and Mark S. Ayers, Assistant Treasurer, as shown on the list of officers provided by the Borrower pursuant to Section 8.1(c) hereof, or any other person shown on any updated list provided by the Borrower to the Agent, or any further or different officer(s) or employee(s) of the Borrower so named by any Authorized Representative of the Borrower in a written notice to the Agent. "Bank" means each bank signatory hereto or that becomes a Bank hereunder pursuant to Section 13.12 hereof. "Borrower" means Maytag Corporation, a Delaware corporation. "Borrowing" means the total of Loans of a single type advanced, continued for an additional Interest Period, or converted from a different type into such type by one or more Banks on a single date and for a single Interest Period. Borrowings of Committed Loans are made and maintained ratably from each of the Banks according to their Commitments. Borrowings of Swing Line Loans are made from a Bank or Banks in accordance with Section 2 hereof. A Borrowing is "advanced" on the day Banks advance funds comprising such Borrowing to the Borrower, is "continued" on the date a new Interest Period for the same type of Loans commences for such Borrowing, and is "converted" when such Borrowing is changed from one type of Loans to the other, all as requested by the Borrower pursuant to Section 1.4(a) or, in the -11- case of the "advance" of Swing Line Loans, as agreed between the Borrower and the relevant Bank or Banks pursuant to Section 2.1. "Business Day" means any day other than a Saturday or Sunday on which Banks are not authorized or required to close in Chicago, Illinois or New York, New York and, if the applicable Business Day relates to the borrowing or payment of a Eurocurrency Loan, on which banks are dealing in U.S. Dollar deposits or the relevant Alternative Currency in the interbank market in London, England and, if the applicable Business Day relates to the borrowing or payment of a Eurocurrency Loan denominated in an Alternative Currency, on which banks and foreign exchange markets are open for business in the city where disbursements of or payments on such Loans are to be made. "Capital Lease" means at any date any lease of Property which in accordance with GAAP at the time in effect would be required to be capitalized on the balance sheet of the lessee. "Capital Lease Obligations" of a Person means the amount of the obligations of such Person under Capital Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP. "Change of Control" is defined in Section 10.1(h) hereof. "Co-Agent" means Royal Bank of Canada. "Code" means the Internal Revenue Code of 1986, as amended. "Commitment" is defined in Section 1.1 hereof. "Committed Loan" is defined in Section 1.1 hereof. "Consolidated Income Before Interest and Taxes" means, for any fiscal quarter, determined on a consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP, (i) earnings (not including any gains or losses from discontinued operations) before income taxes for such fiscal quarter, plus (ii) Consolidated Interest Expense for such fiscal quarter. "Consolidated Indebtedness" means all Indebtedness of the Borrower and its Subsidiaries of the types described in clauses (i), (ii), (iii) and (v) of the definition of "Indebtedness," determined (without duplication) on a consolidated basis in accordance with GAAP. "Consolidated Interest Expense" means, for any fiscal quarter of the Borrower and its Subsidiaries, an amount equal to interest expense on Consolidated Indebtedness, as determined in accordance with GAAP. -12- "Consolidated Net Income" means, for any period, the consolidated net income of the Borrower and Consolidated Subsidiaries for such period determined in accordance with GAAP. "Consolidated Net Worth" means the aggregate amount of the Borrower's and its Subsidiaries' shareholders' equity as determined from the consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP; provided, however, that Consolidated Net Worth shall not be increased or reduced on account of foreign currency translations. "Consolidated Subsidiary" means any Subsidiary or other entity whose accounts are required to be consolidated with those of the Borrower in accordance with GAAP. "Consolidated Tangible Net Worth" means the aggregate amount of the Borrower's and its Subsidiaries' shareholders' equity as determined from the consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP, less the net book value of all assets of the Borrower and its Subsidiaries which would be treated as intangibles under GAAP, including, without limitation, deferred charges, leasehold conversion costs, franchise rights, non-compete agreements, goodwill, unamortized debt discounts, patents, patent applications, trademarks, trade names, copyrights, licenses and premiums on purchased assets; provided, however, that Consolidated Tangible Net Worth shall not be increased or reduced on account of foreign currency translations. "Controlled Group" has the same meaning as in Section 414(b) of the Code. "Default" means any event or condition the occurrence of which would, with the passage of time or the giving of notice, or both, constitute an Event of Default. "Domestic Rate" is defined in Section 1.2(a) hereof. "Domestic Rate Loan" means a Loan denominated in U.S. Dollars bearing interest before maturity at the rate specified in Section 1.2(a) hereof. "ERISA" is defined in Section 7.12 hereof. "Eurocurrency Loan" means either a Committed Loan or a Swing Line Loan bearing interest before maturity at the rate specified in Section 1.2(b) hereof. "Eurocurrency Margin" is defined in Section 1.2(b) hereof. "Eurocurrency Reserve Percentage" is defined in Section 1.2(b) hereof. "Event of Default" means any of the events or circumstances specified in Section 10.1 hereof. -13- "GAAP" means generally accepted accounting principles, from time to time in effect, consistently applied. "Guaranty" of a Person means any agreement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes liable upon, the obligation of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or letter of credit. Indebtedness means for any Person all (i) obligations of such Person for borrowed money, (ii) obligations of such Person representing the deferred purchase price of property or services other than accounts payable for property or other accrued expenses for services, in each case arising in the ordinary course of business on terms customary in the trade, (iii) obligations of such Person evidenced by notes, acceptances, or other instruments of such Person, (iv) obligations, whether or not assumed, secured by Liens on, or payable out of the proceeds or production from, Property now or hereafter owned or acquired by such Person, (v) Capital Lease Obligations of such Person and (vi) obligations for which such Person is obligated pursuant to a Guaranty. "Interest Period" is defined in Section 3.1 hereof. "Lending Office" is defined in Section 11.4 hereof. "Level I Status" means the S&P Rating is greater than BBB+ and the Moody's Rating is greater than Baa1. "Level II Status" means Level I Status does not exist, but the S&P Rating is BBB or higher and the Moody's Rating is Baa2 or higher. "Level III Status" means neither Level I Status, nor Level II Status exists, but the S&P Rating is BBB- or higher and the Moody's Rating is Baa3 or higher. "Level IV Status" means the S&P Rating is less than BBB- or the Moody's Rating is less than Baa3 or either such rating is suspended, withdrawn or otherwise not provided. "LIBOR" is defined in Section 1.2(b) hereof. "Lien" means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, including, but not limited to, the security interest lien arising from a mortgage, encumbrance, pledge, conditional sale, security agreement or trust receipt, or a lease, consignment or bailment for security purposes. The term "Lien" shall also include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting Property. For the purposes of this definition, a Person shall be deemed to be the owner of any Property which it has acquired -14- or holds subject to a conditional sale agreement, Capital Lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person for security purposes, and such retention of title shall constitute a "Lien." "Loan" means and includes Committed Loans and Swing Line Loans, and each of them singly, and the term "type" of Loan refers to its status as a Committed Loan or Swing Line Loan, or, if a Committed Loan, to its status as a Domestic Rate Loan or Eurocurrency Loan. "Margin Stock" means "margin stock" as defined in Regulation U of the Board of Governors of the Federal Reserve System. "Material Plan" is defined in Section 10.1(f) hereof. "Material Subsidiary" means any Subsidiary of the Borrower except a Subsidiary that (i) is incorporated outside the United States, and (ii) has neither (a) assets with a book value in excess of U.S. $5,000,000 nor (b) annual revenues for the most recently completed calendar year in excess of U.S. $5,000,000. "Moody's Rating" means the rating assigned by Moody's Investors Service, Inc. to the outstanding senior unsecured non-credit enhanced long-term indebtedness of the Borrower. Any reference in this Agreement to any specific rating is a reference to such rating as currently defined by Moody's Investors Service, Inc. and shall be deemed to refer to the equivalent rating if such rating system changes. "Note" is defined in Section 3.5(a) hereof. "Original Dollar Amount" means the amount of any Loan denominated in U.S. Dollars and, in relation to any Loan denominated in an Alternative Currency, the U.S. Dollar Equivalent of such Loan on the day it is advanced or continued for an Interest Period. "PBGC" is defined in Section 7.12 hereof. "Person" means an individual, partnership, corporation, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof. "Plan" means with respect to the Borrower and each Subsidiary at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and either (i) is maintained by a member of the Controlled Group for employees of a member of the Controlled Group of which the Borrower or such Subsidiary is a part, (ii) is maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group of which the Borrower or such Subsidiary is a part is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, or (iii) under which a member of the Controlled Group of which the Borrower or such Subsidiary is a part has any liability, including any liability by -15- reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years or by reason of being deemed a contributing sponsor under Section 4069 of ERISA. "Property" means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, whether now owned or hereafter acquired. "Reference Banks" means Bank of Montreal and Royal Bank of Canada. "Required Banks" means as of the date of determination thereof, Banks holding at least 66-2/3% of the Commitments or, in the event that no Commitments are outstanding hereunder, Banks holding at least 66-2/3% in aggregate principal amount of the Loans outstanding hereunder. "Security" has the same meaning as in Section 2(l) of the Securities Act of 1933, as amended. "SEC" means the Securities and Exchange Commission. "Set-Off" is defined in Section 13.7 hereof. "S&P Rating" means the rating assigned by Standard & Poor's Corporation to the outstanding senior unsecured non-credit enhanced long-term indebtedness of the Borrower. Any reference in this Agreement to any specific rating is a reference to such rating as currently defined by Standard & Poor's Corporation and shall be deemed to refer to the equivalent rating if such rating system changes. "Subsidiary" means any corporation or other entity of which more than fifty percent (50%) of the outstanding Voting Stock, in the case of a corporation, or comparable equity interests having ordinary voting power for the election of the governing body of such non-corporate entity is at the time directly or indirectly owned by the Borrower, by one or more of its Subsidiaries, or by the Borrower and one or more of its Subsidiaries. "Swing Line Loan" is defined in Section 2.1 hereof. "Termination Date" means June 24, 1994. "Unfunded Vested Liabilities" means, with respect to any Plan at any time, the amount (if any) by which (i) the present value of all vested nonforfeitable accrued benefits under such Plan exceeds (ii) the fair market value of all Plan assets allocable to such benefits, all determined as of the then most recent ongoing actuarial valuation date for such Plan. "Unused Commitment" means as to each Bank, the difference between such Bank's Commitment and the Original Dollar Amount of all outstanding Loans of such Bank. -16- "U.S. Dollars" and the sign "U.S.$" means the lawful currency of the United States of America. "U.S. Dollar Equivalent" means the amount of U.S. Dollars which would be realized by converting an Alternative Currency into U.S. Dollars in the spot market at the exchange rate quoted by the Agent, at approximately 11:00 a.m. (London time) two Business Days prior to the date on which a computation thereof is required to be made, to major banks in the interbank foreign exchange market for the purchase of U.S. Dollars for such Alternative Currency. "U.S. Taxes" is defined in Section 13.1(c) hereof. "Voting Stock" of any Person means capital stock of any class or classes (however designated) having ordinary voting power for the election of directors of such Person, other than stock having such power only by reason of the happening of a contingency. "Welfare Plan" means a "welfare plan," as said term is defined in Section 3(1) of ERISA. "Wholly-Owned" when used in connection with any Subsidiary of the Borrower means a Subsidiary of which all of the issued and outstanding shares of stock (other than directors' qualifying shares as required by law) are owned by the Borrower and/or one or more of its Wholly-Owned Subsidiaries. Section 6.2. Interpretation. The foregoing definitions shall be equally applicable to both the singular and plural forms of the terms defined. All references to times of day herein shall be references to Chicago, Illinois time unless otherwise specifically provided. Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, the same shall be done in accordance with GAAP, to the extent applicable, except where such principles are inconsistent with the specific provisions of this Agreement. SECTION 7. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Banks as follows: Section 7.1. Organization and Qualification. The Borrower is duly organized and validly existing in good standing under the laws of the State of Delaware, has full and adequate corporate power to carry on its business as now conducted, is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business transacted by it or the nature of the Property owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified and in good standing would not have a material adverse effect on the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. -17- Section 7.2. Subsidiaries. As of the date hereof, the only Subsidiaries of the Borrower are designated in Exhibit B hereto; each Subsidiary is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction in which it was incorporated, has full and adequate corporate power to carry on its business as now conducted, and is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business transacted by it or the nature of the Property owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified and in good standing would not have a material adverse effect on the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. Exhibit B hereto, as from time to time updated pursuant to Section 9.5(e), correctly sets forth, as to each Subsidiary required to be listed thereon, whether or not it is a Consolidated Subsidiary, the jurisdiction of its incorporation, the percentage of issued and outstanding shares of each class of its capital stock owned by the Borrower and the Subsidiaries and, if such percentage is not 100% (excluding directors' qualifying shares as required by law or nominal ownership by other shareholders required by local law for a non-U.S. Subsidiary), a description of each class of its authorized capital stock and the number of shares of each class issued and outstanding. All of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares indicated in Exhibit B as owned by the Borrower or a Subsidiary are owned, beneficially and of record, by the Borrower or such Subsidiary, free of any Lien. Section 7.3. Corporate Authority and Validity of Obligations. The Borrower has full right and authority to enter into this Agreement, to make the borrowings herein provided for, to issue its Notes in evidence thereof and to perform all of its obligations hereunder and under the Notes; this Agreement and each Note delivered by the Borrower have been duly authorized, executed and delivered by the Borrower and constitute valid and binding obligations of the Borrower enforceable in accordance with their terms, except insofar as enforceability may be limited by bankruptcy, insolvency or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and this Agreement and the Notes do not, nor does the performance or observance by the Borrower or any Subsidiary of any of the matters or things therein provided for, contravene any provision of law or any charter or by-law provision of the Borrower or any Subsidiary or any material covenant, indenture or agreement of or affecting the Borrower or any Subsidiary or a substantial portion of their respective Properties. Section 7.4. Not an Investment Company. The Borrower is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended. Section 7.5. Margin Stock. Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its primary activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and neither the Borrower nor any of its Subsidiaries will use the proceeds of any Loan in a manner that violates any provision of Regulation U, G or X of the Board of Governors of the Federal Reserve System. -18- Section 7.6. Financial Reports. The consolidated statement of financial condition of the Borrower and the Consolidated Subsidiaries as at December 31, 1992 and the related statements of consolidated income and consolidated cash flows of the Borrower and the Consolidated Subsidiaries for the year then ended and accompanying notes thereto, which financial statements are accompanied by the report of Ernst & Young, independent public accountants, and the unaudited condensed statement of consolidated financial condition of the Borrower and the Consolidated Subsidiaries as at March 31, 1993 and the related condensed statements of consolidated income and consolidated cash flows of the Borrower and the Consolidated Subsidiaries for the three months then ended and accompanying notes, heretofore furnished to the Banks, fairly present the consolidated financial conditions of the Borrower and the Consolidated Subsidiaries as at such dates and the consolidated results of their operations and their consolidated cash flows for the periods then ended in conformity with GAAP. Section 7.7. No Material Adverse Change. Since March 31, 1993 to the date hereof, there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Borrower and the Consolidated Subsidiaries taken as a whole. Section 7.8. Litigation. There is no litigation or governmental proceeding pending, nor to the knowledge of the Borrower threatened, against the Borrower or any Consolidated Subsidiary which if adversely determined would (a) in any material way impair the validity or enforceability of, or materially impair the ability of the Borrower to perform its obligations under, this Agreement or the Notes or (b) other than as previously disclosed in writing to the Banks, result in any material adverse change in the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. Section 7.9. Tax Returns. The consolidated United States federal income tax returns of the Borrower for the taxable year ended December 31, 1986 and for all taxable years ended prior to said date have been examined by the Internal Revenue Service and have been approved as filed, and any additional assessments in connection with any of such years have been paid or the applicable statute of limitations therefor has expired. There are no assessments in respect of the consolidated United States federal income tax returns of the Borrower and the Consolidated Subsidiaries of a material nature for any taxable year ended after December 31, 1986 pending, nor to the knowledge of the Borrower is any such assessment threatened, other than for those which are provided for by adequate reserves. Section 7.10. Approvals. No authorization, consent, license, exemption or filing or registration with any court or governmental department, agency or instrumentality, or any approval or consent of the stockholders of the Borrower or from any other Person, is necessary to the valid execution, delivery or performance by the Borrower of this Agreement or the Notes. Section 7.11. Liens. There are no Liens on any of the Property of the Borrower or any Subsidiary, except those which are permitted by Section 9.13 hereof. -19- Section 7.12. ERISA. The Borrower and each Subsidiary are in compliance in all material respects with the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), to the extent applicable to them and have received no notice to the contrary from the Pension Benefit Guaranty Corporation ("PBGC") or any other governmental entity or agency. As of December 31, 1992 there were no Unfunded Vested Liabilities of Plans maintained by the Borrower and its Subsidiaries. No condition exists or event or transaction has occurred with respect to any Plan which could reasonably be expected to result in the incurrence by the Borrower or any Subsidiary of any material liability, fine or penalty. Except as disclosed to the Agent in writing, neither the Borrower nor any Subsidiary has any contingent liability with respect to any post-retirement benefits under a Welfare Plan, other than liability for continuation coverage described in Part 6 of Title I of ERISA. Section 7.13. Compliance with Environmental Laws. (a) The business and operation of the Borrower and its Subsidiaries comply in all respects with all applicable federal, state, regional, county and local laws, statutes, rules, regulations and ordinances relating to public health, safety or the environment, including, without limitation, relating to releases, discharges, emissions or disposals to air, water, land or groundwater, to the withdrawal or use of groundwater, to the use, handling or disposal of polychlorinated biphenyls (PCB's), asbestos or urea formaldehyde, to the treatment, storage, disposal or management of hazardous substances (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons), to exposure to toxic, hazardous, or other controlled, prohibited or regulated substances, to the transportation, storage, disposal, management or release of gaseous or liquid substances, and any regulation, order, injunction, judgment, declaration, notice or demand issued thereunder, except to the extent that such noncompliance in the aggregate would not (i) impair the validity or enforceability of, or materially impair the ability of the Borrower to perform its obligations under, this Agreement or the Notes or (ii) result in any material adverse change in the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. (b) The Borrower has not given, nor is it obligated to give, nor has it received, any notice, letter, citation, order, warning, complaint, inquiry, claim or demand that: (i) the Borrower has violated, or is about to violate, any federal, state, regional, county or local environmental, health or safety statute, law, rule, regulation, ordinance, judgment or order; (ii) there has been a release, or there is a threat of release (other than, in either case, a federally permitted release), of hazardous substances (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons) from the Borrower's property, facilities, equipment or vehicles (whether now or heretofore owned); (iii) the Borrower may be or is liable, in whole or in part, for the costs of cleaning up, remediating or responding to a release of hazardous substances (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons); or (iv) any of the Borrower's property or assets are subject to a Lien in favor of any governmental entity for any liability, costs or damages, under any federal, state, regional, county or local environmental law, rule or regulation arising from, or costs incurred by such governmental entity in response to, a release of a hazardous substance (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons), except to the extent that such violation, release, liability or Lien could not (A) impair the validity or enforceability of, or materially -20- impair the ability of the Borrower to perform its obligations under, this Agreement or the Notes or (B) result in any material adverse change in the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole, and provided that, in the case of a Lien, such Lien does not violate Section 9.13 hereof. SECTION 8. CONDITIONS PRECEDENT. The obligation of each Bank to advance, continue, or convert any Loan hereunder shall be subject to the following conditions precedent: Section 8.1. Initial Borrowing. Prior to the advance of the initial Borrowing hereunder: (a) The Agent shall have received for each Bank the favorable written opinion of Sidley & Austin, counsel to the Borrower, in substantially the form of Exhibit C hereto, and of Edward H. Graham, Vice President and General Counsel of the Borrower, in substantially the form of Exhibit D hereto, and otherwise in form and substance satisfactory to the Required Banks; (b) The Agent shall have received for each Bank certified copies of resolutions of the Board of Directors of the Borrower and of a Special Committee thereof, together authorizing the execution and delivery of this Agreement and the Notes, indicating the authorized signers of this Agreement and the Notes and all other documents relating thereto and the specimen signatures of such signers; and (c) The Agent shall have received from the Borrower a list of its Authorized Representatives and the closing fee required by Section 4.2 hereof. Section 8.2. All Loans. As of the time of the advance, continuation, or conversion of each Borrowing hereunder (including the initial Borrowing): (a) The Agent shall have received for each Bank the Notes of the Borrower and the notice required by Section 1.4 or 2.2 hereof; (b) Each of the representations and warranties of the Borrower set forth in Section 7 hereof shall be true and correct as of said time, except that any such representation or warranty that expressly relates solely to an earlier date need only be true and correct as of such date; (c) The Borrower shall be in full compliance with all of the terms and conditions hereof, and no Default or Event of Default shall have occurred and be continuing or would occur as a result of the advance, continuation, or conversion of such Borrowing; (d) After giving effect to the advance, continuation, or conversion of such Borrowing the aggregate amount of all indebtedness for borrowed money of the Borrower and its -21- Subsidiaries will not exceed any limit on such indebtedness then established by the Board of Directors of the Borrower; and (e) After giving effect to the advance, continuation or conversion of such Borrowing (i) the Original Dollar Amount of all Loans outstanding hereunder shall not exceed the Commitments then in effect and (ii) the Original Dollar Amount of all Loans outstanding from each Bank shall not exceed such Bank's Commitment; and (f) Such Borrowing shall not violate any order, judgment or decree of any court or other authority or any provision of law or regulation applicable to any Bank (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System) as then in effect, provided that if any such circumstances affect fewer than all the Banks then the unaffected Banks shall not be relieved of their obligations to continue or convert their Loans that form part of such Borrowing. Each request for a Borrowing hereunder shall be deemed to be a representation and warranty by the Borrower on the date of such Borrowing as to the facts specified in paragraphs (b), (c) and (d) of this Section 8.2. If any conditions contained in this Section 8.2 are not fulfilled for a Borrowing on the last day of its Interest Period, notwithstanding Section 3.2 hereof, such Borrowing shall be due and payable on the last day of its Interest Period. SECTION 9. COVENANTS. The Borrower agrees that, so long as any Note is outstanding hereunder or any credit is available to or in use by the Borrower hereunder except to the extent compliance in any case or cases is waived in writing by the Required Banks: Section 9.1. Corporate Existence. The Borrower shall, and shall cause each Subsidiary to, preserve and maintain its corporate existence, subject to the provisions of Section 9.9 hereof. Section 9.2. Maintenance. The Borrower will maintain, preserve and keep its plants, properties and equipment necessary to the proper conduct of its business in reasonably good repair, working order and condition and will from time to time make all reasonably necessary repairs, renewals, replacements, additions and betterments thereto so that at all times such plants, properties and equipment shall be reasonably preserved and maintained, and will cause each Subsidiary so to do in respect of Property owned or used by it; provided, however, that nothing in this Section shall prevent the Borrower or a Subsidiary from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the judgment of the Borrower, desirable in the conduct of its business or the business of the Subsidiary and not disadvantageous in any material respect to the Banks or the holders of the Notes. Section 9.3. Taxes. The Borrower will duly pay and discharge, and will cause each Subsidiary to pay and discharge, all taxes, rates, assessments, fees and governmental charges upon or against the Borrower or -22- such Subsidiary or against their respective Properties, in each case before the same becomes delinquent and before penalties accrue thereon, unless and to the extent that the same is being contested in good faith and by appropriate proceedings and adequate reserves are provided therefor. Section 9.4. Insurance. The Borrower will insure, and keep insured, and will cause each Subsidiary to insure, and keep insured, with good and responsible insurance companies, all insurable Property owned by it which is of a character usually insured by companies similarly situated and operating like Property; and to the extent usually insured (subject to self-insured retentions) by companies similarly situated and conducting similar businesses, the Borrower will also insure, and cause each Subsidiary to insure, employers' and public and product liability risks with good and responsible insurance companies. The Borrower will upon request of the Agent furnish a summary setting forth the nature and extent of the insurance maintained pursuant to this Section 9.4. Section 9.5. Financial Reports and Other Information. The Borrower will, and will cause each Consolidated Subsidiary to, maintain a standard system of accounting in accordance with GAAP and will furnish to the Banks and their respective duly authorized representatives such information respecting the business and financial condition of the Borrower and the Subsidiaries as may be reasonably requested; and without any request will furnish to each Bank: (a) within 50 days after the end of each of the first three quarterly fiscal periods of the Borrower, a copy of the Borrower's Form 10-Q Report filed with the SEC; (b) within 120 days after the end of each fiscal year of the Borrower, a copy of the Borrower s Form 10-K Report filed with the SEC, including a copy of the annual report of the Borrower and the Consolidated Subsidiaries for such year with accompanying financial statements, prepared by the Borrower and certified by Ernst & Young or any other independent public accountants of recognized national standing selected by the Borrower, in accordance with GAAP; (c) promptly after the sending or filing thereof, copies of all proxy statements, financial statements and reports which the Borrower sends to its shareholders, and copies of all other regular, periodic and special reports and all registration statements which the Borrower files with the SEC or any successor thereto, or with any national securities exchange; and (d) as promptly as possible, and in any event within one Business Day after an Authorized Officer has knowledge thereof, notice of (i) any change in the S&P Rating or the Moody's Rating and (ii) any Default or Event of Default; and (e) an updated Exhibit B along with the financial statements delivered under subsection (a) or (b) above, as applicable, for any calendar quarter during which there is a -23- change in any of the facts specified in Exhibit B hereto, as then most recently updated. (f) the Borrower will permit each Bank to visit and inspect, under the Borrower's guidance, any of the Properties of such Borrower or any Subsidiary, to examine all their books of account and records, to make copies and abstracts therefrom, and to discuss the Borrower's and its Subsidiaries' respective affairs, finances and accounts with such officers or employees as the Borrower may designate for such purpose, all at such reasonable times as may be reasonably requested; provided that unless a Default or an Event of Default exists, all such inspections shall be at the expense of the Bank or Banks making such inspections. Each of the financial statements furnished to the Banks pursuant to subsections (a) and (b) of this Section 9.5 shall be accompanied by a written certificate signed by the chief financial officer of the Borrower to the effect that (i) to the best of the knowledge and belief of the signer thereof no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower to remedy the same, (ii) the representations and warranties contained in Section 7 hereof are true and correct as though made on the date of such certificate, except as otherwise described, (iii) the Borrower is in compliance with all covenants contained in Section 9 hereof, and (iv) a compliance certificate in the form of Exhibit E hereto showing the calculations necessary to determine compliance with Sections 9.6 through 9.8 hereof. In the event the Borrower is no longer required to file Form 10Q and 10K Reports with the SEC, the Borrower will nevertheless furnish to the Banks at the time hereinabove set forth all the financial and other information that would have comprised such filings. Section 9.6. Consolidated Tangible Net Worth. The Borrower will at all times maintain Consolidated Tangible Net Worth in an amount not less than: (i) U.S. $260,000,000 from the date hereof to and including September 29, 1993, (ii) U.S. $270,000,000 from September 30, 1993 to and including December 30, 1993, (iii) U.S. $275,000,000 from December 31, 1993 to and including March 30, 1994, and (iv) thereafter, U.S. $275,000,000 plus, on a cumulative basis for each fiscal quarter, from the last day of each fiscal quarter during the Borrower s 1994 fiscal year, 33.33% of Consolidated Net Income, if positive, earned during the fiscal quarter ending on such date. -24- Section 9.7. Leverage Ratio. The Borrower will, as of the last day of each fiscal quarter of the Borrower, maintain a ratio of Consolidated Indebtedness to the sum of Consolidated Indebtedness plus Consolidated Net Worth of not more than: (i) 0.635 to 1.00 as of the last day of each fiscal quarter of the Borrower during the Borrower's 1993 fiscal year, and (ii) 0.600 to 1.00 as of the last day of each fiscal quarter thereafter. Section 9.8. Interest Coverage Ratio. The Borrower will, as of the last day of each fiscal quarter of the Borrower, maintain the ratio of Consolidated Income Before Interest and Taxes to Consolidated Interest Expense of not less than: (i) 1.50 to 1.00 for the fiscal quarter of the Borrower ending June 30, 1993, (ii) 1.50 to 1.00 for the two most recently completed fiscal quarters of the Borrower ending September 30, 1993, (iii) 1.75 to 1.00 for the three most recently completed fiscal quarters of the Borrower ending December 31, 1993, (iv) 1.75 to 1.00 for the four most recently completed fiscal quarters of the Borrower ending March 31, 1994, and (v) thereafter through June 30, 1994, 2.00 to 1.00 for the four most recently completed fiscal quarters of the Borrower ending on the last day of such fiscal quarter. Section 9.9. Mergers, Consolidations, Leases, and Sales.' The Borrower: (a) will not be a party to any merger or consolidation unless the Borrower is the surviving corporation; (b) except as permitted in Subsection (c) hereof, will not permit any Consolidated Subsidiary to be a party to any merger or consolidation unless the Consolidated Subsidiary is the surviving corporation and remains a Consolidated Subsidiary after the merger or consolidation, except any Consolidated Subsidiary may merge into the Borrower or a Wholly-Owned Consolidated Subsidiary and except that this subsection (b) shall not prohibit any merger where the Consolidated Subsidiary is not the surviving corporation if, after giving effect to such merger, the surviving corporation is a Wholly-Owned Consolidated Subsidiary; and (c) will not, and will not permit any Consolidated Subsidiary to, sell, assign, lease or otherwise transfer to any Person other than the Borrower or one or more Consolidated Subsidiaries any Properties (including, without limitation, any capital stock of any Consolidated Subsidiary) other than in the ordinary course of its business as conducted on the date hereof, unless such sale, assignment, lease or transfer is for a -25- consideration not less than the fair market value thereof and unless, after giving effect to such sale, assignment, lease or transfer, the aggregate proceeds to the Borrower and the Consolidated Subsidiaries of all such sales, assignments, leases and transfers (other than in the ordinary course of its business as conducted on the date hereof) shall not exceed 10% of the Borrower's consolidated assets as shown on the Borrower's December 31, 1992 financial statements described in Section 7.6 hereof. Section 9.10. Change of Control. If a Change of Control shall occur, the Borrower will, within 1 Business Day after the Borrower becomes aware of the occurrence thereof, give the Agent notice thereof and describe in reasonable detail the facts and circumstances giving rise thereto. Section 9.11. ERISA. The Borrower will promptly pay and discharge all obligations and liabilities arising under ERISA of a character which if unpaid or unperformed might result in the imposition of a Lien against any of its properties or assets and will promptly notify the Agent of (i) the occurrence of any reportable event (as defined in ERISA) with respect to a Plan, other than any such event of which the PBGC has waived notice by regulation, (ii) receipt of any notice from PBGC of its intention to seek termination of any Plan or appointment of a trustee therefor, (iii) its or any Subsidiary's intention to terminate or withdraw from any Plan, and (iv) the occurrence of any event with respect to any Plan which could result in the incurrence by the Borrower or any Subsidiary of any material liability, fine or penalty, or any material increase in the contingent liability of the Borrower or any Subsidiary with respect to any post-retirement Welfare Plan benefit. Section 9.12. Conduct of Business. The Borrower will not engage in any business if, as a result, the general nature of the business which would then be engaged in by the Borrower would be substantially changed from the general nature of the business engaged in by the Borrower on the date of this Agreement. Section 9.13. Liens. The Borrower will not nor will it permit any Subsidiary to create, incur, permit to exist or to be incurred any Lien of any kind on any Property owned by the Borrower or any Subsidiary; provided, however, that this Section 9.13 shall not apply to nor operate to prevent: (a) Liens existing as of the date of this Agreement (which in the aggregate secure less than U.S. $10,000,000 in indebtedness and other liabilities and which in the aggregate apply to Property constituting less than 5% of the Borrower's consolidated assets); (b) Liens in connection with worker's compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments, statutory obligations or other similar charges, good faith deposits in connection with tenders, contracts or leases to which the Borrower or any Subsidiary is a party (other than contracts for borrowed money), or other deposits required to be made in the ordinary course of business; provided that in each case the obligation secured is not overdue -26- or, if overdue, is being contested in good faith by appropriate proceedings and adequate reserves have been established therefor; (c) mechanics', workmen's, materialmen's, landlords', carriers' or other similar Liens arising in the ordinary course of business with respect to obligations which are not due or which are being contested in good faith by appropriate proceedings and adequate reserves have been established therefor; (d) Liens arising out of judgments or awards against the Borrower or any Subsidiary with respect to which the Borrower or such Subsidiary shall be prosecuting an appeal or proceeding for review and with respect to which it shall have obtained a stay of execution pending such appeal or proceeding for review; provided that the aggregate amount of liabilities (including interest and penalties, if any) of the Borrower and the Subsidiaries secured by such Liens shall not exceed U.S. $25,000,000 at any one time outstanding; (e) Liens for property taxes not yet subject to penalties for nonpayment, or survey exceptions, encumbrances, mineral or royalty reservations, easements or reservations of, or rights of others for, rights of way, sewers, electric lines, pipe lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of its properties, which exceptions, encumbrances, easements, reservations, rights and restrictions do not in the aggregate materially detract from the value of such properties or materially impair their use in the operation of the business of the Borrower and its Subsidiaries; (f) Liens upon any Property acquired by the Borrower or any Subsidiary after the date hereof (A) to secure the payment of all or any part of the purchase price of such Property upon the acquisition thereof by the Borrower or such Subsidiary, or (B) to secure any indebtedness issued, assumed or guaranteed by the Borrower or any Subsidiary prior to, at the time of, or within 270 days after the acquisition of such Property, which indebtedness is issued, assumed or guaranteed for the purpose of financing all or any part of the purchase price of such Property, provided that in the case of any such acquisition the Lien shall not apply to any Property other than the Property so acquired or purchased; (g) Liens of or upon any Property existing at the time of acquisition thereof by the Borrower or any Subsidiary and not created in contemplation of such acquisition; (h) Liens of or upon any Property of a corporation existing at the time such corporation is merged with or into or consolidated with the Borrower or any Subsidiary or existing at the time of a sale or transfer of the properties of a corporation (or division thereof) as an entirety or substantially as an entirety to the Borrower or any Subsidiary and not created in contemplation of such transaction; (i) Liens to secure indebtedness of any Subsidiary to the Borrower or to another Subsidiary; -27- (j) Liens in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country or political subdivision, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred or guaranteed for the purpose of financing or refinancing all or any part of the purchase price of the Property subject to such Liens, or the cost of constructing or improving the Property subject to such mortgages (including, without limitation, mortgages incurred in connection with pollution control, industrial revenue or similar financings); or (k) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any Lien referred to in the foregoing paragraphs (a) through (j), inclusive, provided, however, that the principal amount of indebtedness secured thereby shall not exceed the principal amount of indebtedness so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to the Property which was subject to the Lien so extended, renewed or replaced. Section 9.14. Use of Proceeds; Margin Stock. (a) The Borrower shall only use the proceeds of the Loans for general corporate purposes. (b) The Borrower shall not directly or indirectly use the proceeds of any of the Loans to purchase or carry any Margin Stock, and at no time will Margin Stock constitute 25% or more of the assets of the Borrower or of the consolidated assets of the Borrower and the Subsidiaries. Section 9.15. Compliance with Laws. Without limiting any of the other covenants of the Borrower in this Section 9, the Borrower will, and will cause each of its Subsidiaries to, conduct its business, and otherwise be, in compliance with all applicable laws, regulations, ordinances and orders of any governmental or judicial authorities, non-compliance with which would (a) in any material way impair the validity or enforceability or the ability of the Borrower to perform its obligations under this Agreement or the Notes or (b) result in any material adverse change in the financial condition or properties, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole; provided, however, that the Borrower or any Subsidiary shall not be required to comply with any such law, regulation, ordinance or order if it shall be contesting such law, regulation, ordinance or order in good faith by appropriate proceedings and adequate reserves, if appropriate, shall have been established therefor. SECTION 10. EVENTS OF DEFAULT AND REMEDIES. Section 10.1. Events of Default. Any one or more of the following shall constitute an Event of Default: (a) (i) default in the payment when due of any principal on any Note or any Loan evidenced thereby, whether at the stated maturity thereof or at any other time provided in this Agreement; -29- or (ii) default for a period of five days in the payment when due of interest on any Note or any Loan evidenced thereby or of any other sums required to be paid pursuant to this Agreement; (b) default by the Borrower in the observance or performance of any covenant set forth in Sections 9.6, 9.7, 9.8, 9.9, 9.10, 9.12 or 9.14 hereof; (c) default by the Borrower in the observance or performance of any other provision hereof not mentioned in (a) or (b) above, which is not remedied within 30 days after notice thereof to the Borrower by the Agent or any Bank; (d) any representation or warranty made herein by the Borrower, or in any statement or certificate furnished pursuant hereto by the Borrower, or in connection with any Loan advanced hereunder, proves untrue in any material respect as of the date of the issuance or making thereof; (e) the Borrower or any Subsidiary shall fail within thirty (30) days to pay, bond or otherwise discharge any judgment or order for the payment of money in excess of U.S. $25,000,000, which is not stayed on appeal or otherwise being appropriately contested in good faith in a manner that stays enforcement thereof; (f) the Borrower or any other member of its Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of U.S. $10,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of U.S. $10,000,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA by the Borrower or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any member of its Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; (g) (A) default shall occur in the payment when due of any indebtedness for borrowed money issued or assumed by the Borrower or any Subsidiary aggregating in excess of U.S. $10,000,000 or the Borrower or any Subsidiary shall default in the payment of any guaranty of indebtedness in such an amount, or (B) default shall occur under any indenture, agreement or other instrument under which any indebtedness for borrowed money of the Borrower or any Subsidiary may be issued, assumed or guaranteed, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such indebtedness for borrowed money of the Borrower or any Subsidiary aggregating in excess of U.S. $10,000,000 (whether or not such maturity is in fact accelerated); -29- (h) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under said Act) of 20% or more in voting power of the outstanding Voting Stock of the Borrower (a "Change of Control"); (i) the Borrower or any Material Subsidiary shall (i) have entered against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (vi) fail to contest in good faith any appointment or proceeding described in Section 10.1(j) hereof; or (j) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Material Subsidiary or any substantial part of any of their Property, or a proceeding described in Section 10.1(i)(v) shall be instituted against the Borrower, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days. Section 10.2. Non-Bankruptcy Defaults. When any Event of Default other than those described in Sections 10.1(i) or (j) has occurred and is continuing, the Agent shall, by notice to the Borrower, (a) if so directed by the Required Banks, terminate the remaining Commitments of the Banks hereunder on the date stated in such notice (which may be the date thereof); and (b) if so directed by the Banks holding Notes evidencing more than 66-2/3% of the aggregate principal amount of all Loans then outstanding, declare the principal of and the accrued interest on all outstanding Notes of the Borrower to be forthwith due and payable and thereupon all of said Notes, including both principal and interest, shall be and become immediately due and payable together with all other amounts payable under this Agreement without further demand, presentment, protest or notice of any kind. The Agent, after giving notice to the Borrower pursuant to Section 10.1 or this Section 10.2, shall also promptly send a copy of such notice to the other Banks, but the failure to do so shall not impair or annul the effect of such notice. Section 10.3. Bankruptcy Defaults. When any Event of Default described in subsections (i) or (j) of Section 10.1 hereof has occurred and is continuing, then all outstanding Notes shall immediately become due and payable together with all other amounts payable under this Agreement without presentment, demand, protest or notice of any kind, and the obligation of the -30- Banks to extend further credit pursuant to any of the terms hereof shall immediately terminate. Section 10.4. Expenses. The Borrower agrees to pay to the Agent and each Bank, or any other holder of any Note outstanding hereunder, all reasonable costs and expenses incurred or paid by the Agent and such Bank or any such holder, including reasonable attorneys' fees and court costs, in connection with any Default or Event of Default by the Borrower hereunder or in connection with the enforcement of any of the terms hereof or of the Notes. SECTION 11. CHANGE IN CIRCUMSTANCES. Section 11.1. Change of Law. Notwithstanding any other provisions of this Agreement or any Note, if at any time after the date hereof any change in applicable law or regulation or in the interpretation thereof makes it unlawful for any Bank to make or continue to maintain Eurocurrency Loans in any currency or to give effect to its obligations as contemplated hereby, such Bank shall promptly give notice thereof to the Borrower, with a copy to the Agent, and such Bank's obligations to make or maintain Eurocurrency Loans in such currency under this Agreement shall terminate until it is no longer unlawful for such Bank to make or maintain Eurocurrency Loans in such currency. The Borrower shall prepay on demand the outstanding principal amount of any such affected Eurocurrency Loans, together with all interest accrued thereon and all other amounts then due and payable to such Bank under this Agreement; provided, however, subject to all of the terms and conditions of this Agreement, the Borrower may instead elect to convert the principal amount of the affected Eurocurrency Loan if denominated in U.S. Dollars into a Domestic Rate Loan from such Bank that shall not be maintained through conversion ratably by the Banks but only by such affected Bank. Section 11.2. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period for any Borrowing of Eurocurrency Loans: (a) the Agent is advised by the Reference Banks that deposits in U.S. Dollars or the applicable Alternative Currency (in the applicable amounts) are not being offered to the Reference Banks in the eurocurrency interbank market for such Interest Period, or that by reason of circumstances affecting the interbank eurocurrency market adequate and reasonable means do not exist for ascertaining the applicable LIBOR, or (b) Banks having 25% or more of the aggregate amount of the Commitments advise (or, in the case of a Swing Line Loan, a Bank scheduled to make such a Loan advises) the Agent that (i) LIBOR as determined by the Agent will not adequately and fairly reflect the cost to such Banks or Bank of or its funding their Eurocurrency Loans or Loan for such Interest Period or (ii) that the making or funding of Eurocurrency Loans in the relevant currency has become impracticable as a result of an event occurring after the date of the Agreement which in the opinion of such Banks or Bank materially affects such Loans, -31- then the Agent shall forthwith give notice thereof to the Borrower and the Banks, whereupon until the Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligations of the Banks or of the relevant Bank to make Eurocurrency Loans in the currency so affected shall be suspended. Section 11.3. Increased Cost and Reduced Return. (a) If on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (i) shall subject any Bank (or its Lending Office) to any tax, duty or other charge with respect to its Eurocurrency Loans, its Notes or its obligation to make Eurocurrency Loans, or shall change the basis of taxation of payments to any Bank (or its Lending Office) of the principal of or interest on its Eurocurrency Loans or any other amounts due under this Agreement in respect of its Eurocurrency Loans or its obligation to make Eurocurrency Loans (except for taxes imposed on or measured by the overall net income of such Bank or its Lending Office imposed by the jurisdiction in which such Bank's principal executive office or Lending Office is located); or (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any Eurocurrency Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank (or its Lending Office) or shall impose on any Bank (or its Lending Office) or on the interbank market any other condition affecting its Eurocurrency Loans, its Notes or its obligation to make Eurocurrency Loans; and the result of any of the foregoing is to increase the cost to such Bank (or its Lending Office) of making or maintaining any Eurocurrency Loan, or to reduce the amount of any sum received or receivable by such Bank (or its Lending Office) under this Agreement or under its Notes with respect thereto, by an amount deemed by such Bank to be material, then, within fifteen (15) days after demand by such Bank (with a copy to the Agent), the Borrower shall be obligated to pay to such Bank such additional amount or amounts as will compensate such Bank for such increased cost or reduction. (b) If after the date hereof, any Bank shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, the adoption of any risk-based capital guidelines, or any revisions thereof, currently proposed by banking regulators), or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof -32- (including, without limitation, any requirement under existing risk-based capital guidelines to maintain capital against such Bank's Commitment hereunder), or compliance by any Bank (or its Lending Office) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Bank's capital, or on the capital of any corporation controlling such Bank, as a consequence of its obligations hereunder to a level below that which such Bank could have achieved but for such adoption, change or compliance (taking into consideration such Bank s policies with respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to time, within fifteen (15) days after demand by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such reduction; provided, however, that if a Bank determines that under risk-based capital guidelines in effect on the date hereof it becomes required to maintain capital to support its Commitment such Bank's rights under this Section 11.3(b) shall be solely to give notice of such requirement to the Borrower and Agent, whereupon such Bank s Commitment shall terminate 30 days after such notice unless by such time the Borrower has agreed to increase the facility fee payable hereunder to the rate of "facility fee" payable under the U.S. $200,000,000 Credit Agreement dated of even date herewith among the Borrower, the Banks party thereto, and Bank of Montreal, as Agent (the "Long-Term Agreement"); provided that if any Loans from such Bank are outstanding at the time its Commitment is so terminated, the Borrower shall have the right to require that the Commitment of such Bank remain in effect in the amount of such outstanding Loans and thereafter continue to remain in effect in the aggregate amount of all unpaid Loans of such Bank that remain outstanding hereunder; provided, however, that any repayment of such Bank's outstanding Loans shall automatically reduce the amount of the Commitment of such Bank by the amount of such repayment and any Commitment of such Bank so remaining in effect shall continue to accrue a facility fee at the rate set forth in Section 4.1 hereof. Notwithstanding the foregoing, if Banks holding 50% or more of the Commitments determine that under existing risk-based capital guidelines they are required to maintain capital against their Commitments hereunder, then the facility fee payable under Section 4.1 hereof shall automatically increase to equal the rate for the "facility fee" payable under the Long-Term Agreement and no Bank shall have the right to terminate its Commitment as a result of such capital requirement. (c) Each Bank that suspends its obligation to advance or maintain Eurocurrency Loans under Section 11.1 hereof, determines to seek compensation under this Section 11.3, or becomes entitled to receive additional amounts under Section 13.1(c) hereof shall notify the Borrower and the Agent of the circumstances that entitle the Bank to such right pursuant to any of such Sections and will designate a different Lending Office if such designation will avoid such situation or, in the case of Sections 11.3 and 13.1, reduce the amount of compensation payable thereunder, and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank claiming compensation under this Section 11.3 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive if reasonably determined. In determining such amount, such Bank may use any reasonable averaging and attribution methods. -33- Section 11.4. Lending Offices. Each Bank may, at its option, elect to make its Loans hereunder at the branch, office or affiliate specified on the appropriate signature page hereof (each a "Lending Office") for each type of Loan available hereunder or at such other of its branches, offices or affiliates or an international banking facility created by such Bank to make such Loan as it may from time to time elect and designate in a notice to the Borrower and the Agent; provided, however, that in such event such Loan shall be deemed to have been made by such Bank from its relevant Lending Office for such Loans, and the obligation of the Borrower to repay such Loan shall nevertheless be to such Bank and shall be deemed to be held by such Bank, to the extent of such Loan, for the account of such branch, office, affiliate or international banking facility. Section 11.5. Discretion of Bank as to Manner of Funding. Notwithstanding any other provision of this Agreement, each Bank shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes of this Agreement all determinations hereunder shall be made as if each Bank had actually funded and maintained each Eurocurrency Loan through the purchase of deposits in the eurocurrency interbank market having a maturity corresponding to such Loan's Interest Period and bearing an interest rate equal to LIBOR for such Interest Period. Section 11.6. Substitution of Bank. If (a) any Bank has demanded compensation or given notice of its intention to demand compensation under Section 11.3 or (b) the Borrower is required to pay any additional amount to any Bank pursuant to Section 13.1, and in any such case the Required Banks are not in the same situation, the Borrower shall have the right, with the assistance of the Agent if desired, to seek a substitute bank or banks reasonably satisfactory to the Agent (which may be one or more of the Banks) to replace such Bank under this Agreement. The Bank to be so replaced shall cooperate with the Borrower and substitute bank to accomplish such substitution on the terms of Section 13.12 hereof, provided that such Bank's entire Commitment is replaced, and the U.S. $2,500 fee payable under Section 13.12 shall not be payable in connection with any such assignment required under this Section 11.6. SECTION 12. THE AGENT. Section 12.1. Appointment and Authorization. Each Bank hereby irrevocably appoints Bank of Montreal its Agent under this Agreement and hereby authorizes the Agent to take such action as Agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto. Section 12.2. Agent and Affiliates. The Agent shall have the same rights and powers under this Agreement as any other Bank and may exercise or refrain from exercising the same as though it were not the Agent, and each Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Subsidiary or affiliate of the Borrower as if it were not the Agent hereunder. The term Bank as used herein, unless the context otherwise clearly requires, includes the Agent in its individual capacity as a Bank. References in Section 1 hereof to the Agent's Loans, or to the amount owing to the Agent for which an -34- interest rate is being determined, refer to the Agent in its individual capacity as a Bank. Section 12.3. Action by Agent. Except for action expressly required of the Agent hereunder, the Agent shall in all cases be fully justified in failing or refusing to act hereunder unless the Agent shall be indemnified to its reasonable satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. In all cases in which this Agreement does not require the Agent to take certain actions, the Agent shall be fully justified in using their discretion in failing to take or in taking any action hereunder. Without limiting the generality of the foregoing, the Agent shall not be required to take any action with respect to any Event of Default, except as expressly provided in Section 10.2. The Agent shall not be deemed to have knowledge of any Default or Event of Default until it receives written notice thereof from the Borrower or a Bank specifically identified as a "notice of default." The Agent shall be acting as an independent contractor hereunder and nothing herein shall be deemed to impose on the Agent any fiduciary obligations to the Banks or the Borrower. Section 12.4. Consultation with Experts. The Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. Section 12.5. Liability of Agent. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct. Neither the Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement or any borrowing hereunder; (ii) the performance or observance of any of the covenants or agreements of the Borrower; (iii) the satisfaction of any condition specified in Section 8, except receipt of items required to be delivered to the Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the Notes or any other instrument or writing furnished in connection herewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, request or statement, (whether written or oral) or other documents believed by it to be genuine or to be signed by the proper party or parties and, in the case of legal matters, in relying on the advice of counsel (including counsel for the Borrower). The Agent may treat the Banks that are named herein as the holders of the Notes and the indebtedness contemplated herein unless and until the Agent receive notice of the assignment of the Note and the indebtedness held by a Bank hereunder pursuant to an assignment contemplated by Section 13.12 hereof. Section 12.6. Indemnification. Each Bank shall, ratably in accordance with its Commitments (or, if the Commitments have been terminated in whole, ratably in accordance with its outstanding Loans), indemnify the Agent, its directors, officers, and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including counsels' fees and disbursements), claim, demand, action, loss, obligation, damages, penalties, judgments, suits or liability (except such as result from the Agent's gross -35- negligence or willful misconduct) that any of them may suffer or incur in connection with this Agreement or any action taken or omitted by any of them hereunder. Section 12.7. Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement. Section 12.8. Resignation of Agent and Successor Agent. Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by giving written notice thereof to the Banks and the Borrower, and the Required Banks may remove the Agent, with the consent of the Borrower, at any time. Upon any such resignation or removal of the Agent, the Required Banks shall have the right to appoint, with the consent of the Borrower, a successor Agent. If no successor Agent shall have been so appointed by the Required Banks, and shall have accepted such appointment, within thirty (30) days after the retiring Agent's giving of notice of resignation or receiving notice of its removal, then the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least U.S. $200,000,000. Upon the acceptance of its appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After any retiring Agent's resignation or removal hereunder as Agent, the provisions of this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent. Section 12.9. Payments. Unless the Agent shall have been notified by a Bank prior to the date on which such Bank is scheduled to make payment to the Agent of the proceeds of a Loan (which notice shall be effective upon receipt) that such Bank does not intend to make such payment, the Agent may assume that such Bank has made such payment when due and the Agent may in reliance upon such assumption (but shall not be required to) make available to the Borrower the proceeds of the Loan to be made by such Bank and, if any Bank has not in fact made such payment to the Agent, such Bank shall, on demand, pay to the Agent the amount made available to the Borrower attributable to such Bank together with interest thereon in respect of each day during the period commencing on the date such amount was made available to the Borrower and ending on (but excluding) the date such Bank pays such amount to the Agent at a rate per annum equal to the Federal Funds Rate. If such amount is not received from such Bank by the Agent immediately upon demand, the Borrower will, on demand, repay to the Agent the proceeds of the Loan attributable to such Bank with interest thereon at a rate per annum equal to the interest rate applicable to the relevant Loan, but without such payment being considered a payment or prepayment of a Loan, so that the -36- Borrower will have no liability under Section 3.7 hereof with respect to such payment. "Federal Funds Rate" shall mean the rate described in Section 1.2(a)(ii) hereof. Section 12.10. Co-Agent. Nothing in this Agreement shall impose any obligation on Royal Bank of Canada in its capacity as Co-Agent hereunder. SECTION 13. MISCELLANEOUS. Section 13.1. Withholding Taxes. (a) U.S. Withholding Tax Exemptions. Each Bank that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower and the Agent on or before the date the initial Borrowing is made hereunder, two duly completed and signed copies of either Form 1001 (relating to such Bank and entitling it to a complete exemption from withholding on all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans) or Form 4224 (relating to all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans) of the United States Internal Revenue Service. Thereafter and from time to time, each such Bank shall submit to the Borrower and the Agent such additional duly completed and signed copies of one or the other of such Forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be (i) notified by the Borrower or Agent to such Bank and (ii) required under then-current United States law or regulations to avoid or reduce United States withholding taxes on payments in respect of all amounts to be received by such Bank, including fees, pursuant to this Agreement or the Loans. Upon the request of the Borrower or Agent, each Bank that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower a certificate to the effect that it is such a United States person. (b) Inability of Bank to Submit Forms. If any Bank determines, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof, that it is unable to submit to the Borrower any form or certificate that such Bank is obligated to submit pursuant to subsection (a) of this Section 13.1, or that such Bank is required to withdraw or cancel any such form or certificate previously submitted or any such form or certificate otherwise become ineffective or inaccurate, such Bank shall promptly notify the Borrower and Agent of such fact and the Bank shall to that extent not be obligated to provide any such form or certificate and will be entitled to withdraw or cancel any affected form or certificate, as applicable. (c) Payment of Additional Amounts. If, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof, the Borrower is required by law or regulation to make any deduction, withholding or backup withholding of any taxes, levies, imposts, duties, fees, liabilities or similar charges of the United States of America, any possession or territory of the United States of America (including the Commonwealth of Puerto Rico) or any area subject to the jurisdiction of the United States of America ("U.S. Taxes") from any payments to a Bank in respect of Loans then or thereafter outstanding, or other amounts owing hereunder, the amount payable by the Borrower will be increased to the amount which, after deduction from such increased amount of all U.S. Taxes required to be withheld or deducted therefrom, will yield the amount -37- required under this Agreement to be payable with respect thereto; provided that the Borrower shall not be required to pay any additional amount pursuant to this subsection (c) to any Bank that (i) is not, on the date this Agreement is executed by such Bank, either (x) entitled to submit Form 1001 relating to such Bank and entitling it to a complete or partial exemption from withholding on all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans (and in the case of a Bank that on such date is only entitled to present a Form 1001 entitling it to a partial exemption from such withholding the Borrower shall in no event be required to make any such additional payment beyond the value of the partial exemption to which such Bank was originally entitled) or Form 4224 relating to all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans or (y) a U.S. person (as such term is defined in Section 7701(a)(30) of the Code), or (ii) has failed to submit any form or certificate that it was required to file pursuant to subsection (a) of this Section 13.1 and entitled to file under applicable law, or (iii) is no longer entitled to submit Form 1001 or Form 4224 as a result of any change in circumstances other than a change in applicable law, regulation or treaty or in any official application or interpretation thereof. Within 30 days after the Borrower's payment of any such U.S. Taxes, the Borrower shall deliver to the Agent, for the account of the relevant Bank(s), originals or certified copies of official tax receipts evidencing such payment. The obligations of the Borrower under this subsection (c) shall survive the payment in full of the Loans and the termination of the Commitments. Section 13.2. No Waiver of Rights. No delay or failure on the part of any Bank or on the part of the holder or holders of any Note in the exercise of any power or right shall operate as a waiver thereof, nor as an acquiescence in any default, nor shall any single or partial exercise thereof preclude any other or further exercise of any other power or right, and the rights and remedies hereunder of the Banks and of the holder or holders of any Notes are cumulative to, and not exclusive of, any rights or remedies which any of them would otherwise have. Section 13.3. Non-Business Day. If any payment of principal or interest on any Loan or of any fee hereunder shall fall due on a day which is not a Business Day, interest at the rate such Loan bears for the period prior to maturity or at the rate such fee accrues shall continue to accrue from the stated due date thereof to and including the next succeeding Business Day, on which the same shall be payable. Section 13.4. Documentary Taxes. The Borrower agrees that it will pay any documentary, stamp or similar taxes payable in respect to this Agreement or any Note, including interest and penalties, in the event any such taxes are assessed irrespective of when such assessment is made and whether or not any credit is then in use or available hereunder. Section 13.5. Survival of Representations. All representations and warranties made herein or in certificates given pursuant hereto shall survive the execution and delivery of this Agreement and of the Notes, and shall continue in full force and effect with respect to the date as of which they were made as long as any credit is in use or available hereunder. Section 13.6. Survival of Indemnities. All indemnities and all other provisions relative to reimbursement to the Banks of amounts sufficient to protect the yield of the Banks with respect to the Loans, including, but not -38- limited to, Section 3.7 and Section 11.3 hereof, shall survive the termination of this Agreement and the payment of the Loans and the Notes. Section 13.7. Sharing of Set-Off. Each Bank agrees with each other Bank a party hereto that if on or after the date of the occurrence of an Event of Default and the acceleration of the maturity of the Notes pursuant to Section 10.2 or 10.3 hereof such Bank shall receive and retain any payment, whether by set-off or application of deposit balances or otherwise ("Set-off"), on any of its Loans outstanding under this Agreement in excess of its ratable share of payments on all Loans then outstanding to the Banks, then such Bank shall purchase for cash at face value, but without recourse, ratably from each of the other Banks such amount of the Loans held by each such other Bank (or interest therein) as shall be necessary to cause such Bank to share such excess payment ratably with all the other Banks; provided, however, that if any such purchase is made by any Bank, and if such excess payment or part thereof is thereafter recovered from such purchasing Bank, the related purchases from the other Banks shall be rescinded ratably and the purchase price restored as to the portion of such excess payment so recovered, but without interest. Each Bank's ratable share of any such Set-off shall be determined by the proportion that the aggregate amount of Loans then due and payable to such Bank bears to the total aggregate amount of the Loans then due and payable to all the Banks. Section 13.8. Notices. Except as otherwise specified herein, all notices hereunder shall be in writing (including cable, telecopy or telex) and shall be given to the relevant party at its address, telecopier number or telex number set forth below, in the case of the Borrower, or on the appropriate signature page hereof, in the case of the Banks and the Agent, or such other address, telecopier number or telex number as such party may hereafter specify by notice to the Agent and the Borrower, given by United States certified or registered mail, by telecopy or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices hereunder to the Borrower shall be addressed to: Maytag Corporation 403 West 4th Street, North Newton, Iowa 50208 Attention: Thomas C. Ringgenberg Vice President and Treasurer Telephone: (515) 791-8955 Telecopy: (515) 791-8115 Each such notice, request or other communication shall be effective (i) if given by telecopier, when such telecopy is transmitted to the telecopier number specified in this Section and a confirmation of such telecopy has been received by the sender, (ii) if given by telex, when such telex is transmitted to the telex number specified in this Section and the answerback is received by sender, (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses specified in this Section; provided that any notice given pursuant to Section 1 or Section 2 hereof shall be effective only upon receipt. -39- Section 13.9. Counterparts. This Agreement may be executed in any number of counterparts, and by the different parties on different counterparts, each of which when executed shall be deemed an original but all such counterparts taken together shall constitute one and the same instrument. Section 13.10. Successors and Assigns. This Agreement shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of each of the Banks and the benefit of their respective successors and assigns, including any subsequent holder of any Note. The Borrower may not assign any of its rights or obligations hereunder without the written consent of all of the Banks. Section 13.11 Participants and Note Assignees. Each Bank shall have the right at its own cost to grant participations (to be evidenced by one or more agreements or certificates of participation) in the Loans made, and/or Commitments held, by such Bank at any time and from time to time, and to assign its rights under such Loans or the Notes evidencing such Loans to one or more other financial institutions; provided that no such participation or assignment shall relieve any Bank of any of its obligations under this Agreement, and provided further that no such assignee or participant shall have any rights under this Agreement except as provided in this Section 13.11, and the Agent shall have no obligation or responsibility to such participant or assignee, except that nothing herein provided is intended to affect the rights of an assignee of a Note to enforce the Note assigned. Any party to which such a participation or assignment has been granted shall have the benefits of Section 3.7 and Section 11.3 hereof but shall not be entitled to receive any greater payment under either such Section than the Bank granting such participation or assignment would have been entitled to receive with respect to the rights transferred. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or wavier of any provision of this Agreement; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement that would (A) increase any Commitment of such Bank if such increase would also increase the participant's obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or of any fee payable hereunder in which such participant has an interest or (C) reduce the stated rate at which interest or fees accrue or other amounts payable hereunder in which such participant has an interest. Section 13.12. Assignment of Commitments by Banks.; Each Bank shall have the right at any time, with the prior consent of the Borrower and Agent, to sell, assign, transfer or negotiate all or any part of its Commitment to one or more commercial banks or other financial institutions. Upon any such assignment, its notification to the Agent, and the payment of a U.S. $2,500 recordation and administration fee to the Agent (which fee shall in no event be the obligation of the Borrower), the assignee shall become a Bank hereunder, all Loans and the Commitment it thereby holds shall be governed by all the terms and conditions hereof, and the Bank granting such assignment shall have its Commitment and its obligations and rights in connection therewith, reduced by the amount of such assignment. -40- Section 13.13. Amendments. Any provision of this Agreement or the Notes may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by (a) the Borrower, (b) the Required Banks, and (c) if the rights or duties of the Agent are affected thereby, the Agent; provided that: (i) no amendment or waiver pursuant to this Section shall (A) increase any Commitment of any Bank without the consent of such Bank or (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or of any fee payable hereunder or reduce the stated rate at which interest or fees accrue hereunder without the consent of the Bank to which such payment is owing or which has committed to make such Loan hereunder; and (ii) no amendment or waiver pursuant to this Section shall, unless signed by each Bank, change the provisions of this Section, the definition of Required Banks or Termination Date, or any condition precedent set forth in Section 8 hereof or the provisions of Sections 10.1.(i), 10.1.(j) or 10.3, or affect the number of Banks required to take any action hereunder. Section 13.14. Legal Fees and Indemnification. The Borrower agrees to pay the reasonable fees and disbursements of Chapman and Cutler, counsel to the Agent, in connection with the preparation and execution of this Agreement, and any amendment, waiver or consent related hereto, whether or not the transactions contemplated herein are consummated. The Borrower further agrees to indemnify each Bank, its directors, officers and employees against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitations, all expenses of litigation or preparation therefor whether or not any Bank is a party thereto) which any of them may pay or incur arising out of or relating to this Agreement, any Note, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of any Loan hereunder, other than (i) those which arise from the gross negligence or willful misconduct of the party claiming indemnification or (ii) those covered by another explicit provision hereof or required to be paid by a Bank or Banks hereunder. The obligations of the Borrower under this Section shall survive the termination of this Agreement. Section 13.15. Currency. Each reference in this Agreement to U.S. Dollars or to an Alternative Currency (the "relevant currency") is of the essence. To the fullest extent permitted by law, the obligation of the Borrower in respect of any amount due in the relevant currency under this Agreement shall, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the Bank entitled to receive such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the Borrower shall pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligations of the Borrower not discharged by such payment shall, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect. -41- Section 13.16. Currency Equivalence If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder or under the Notes in the currency expressed to be payable herein or under the Notes (the "specified currency") into another currency, the parties agree that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agent could purchase the specified currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrower in respect of any such sum due to any Bank or the Agent hereunder or under any Note shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Bank or the Agent, as applicable, may in accordance with normal banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Bank or the Agent in the specified currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Bank and the Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum of (a) the amount originally due to the applicable Bank or the Agent in the specified currency plus (b) any amounts shared with other Banks as a result of allocations of such excess as a disproportionate payment to such Bank under Section 13.7 hereof, such Bank or the Agent, as the case may be, agrees to remit such excess to the Borrower. Section 13.17. Governing Law. This Agreement and the Notes, and the rights and duties of the parties hereto, shall be construed and determined in accordance with the laws of the State of Illinois, without regard to conflicts of law doctrine. Section 13.18. Termination of Existing Credit Agreement. The Borrower and each of the Banks hereunder that is a party to the Credit Agreement dated as of November 30, 1988 (the "Existing Domestic Credit Agreement") among Maytag Corporation, the Banks signatory thereto, and Harris Trust and Savings Bank and Bank of Montreal, as Co-Agents, consents to the termination of the "Commitments" thereunder effective on the date the conditions set forth in Section 8.1 hereof are fulfilled, notwithstanding the notice requirements for such termination set forth in Section 3.7(a) of the Existing Domestic Credit Agreement. Because such Banks hereunder constitute the "Required Banks" under the Existing Domestic Credit Agreement, the Existing Domestic Credit Agreement shall terminate and all amounts payable thereunder, including accrued and unpaid facility fees payable under Section 4.1 thereof, shall be payable, and the facility fee payable under Section 4.1 hereof shall begin to accrue, on the date that this Agreement has been executed by all the parties hereto and the conditions set forth in Section 8.1 hereof have been fulfilled. Section 13.19. Headings. Section headings used in this Agreement are for reference only and shall not affect the construction of this Agreement. Section 13.20. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and any prior or contemporaneous agreements, whether written or oral, with respect thereto are superseded hereby. -42- Upon your acceptance hereof in the manner hereinafter set forth, this Agreement shall be a contract between us for the purposes hereinabove set forth. Dated as of June 25, 1993. MAYTAG CORPORATION By /s/ J. A. Schiller Its Executive Vice President and Chief Financial Officer -43- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 115 S. LaSalle Street BANK OF MONTREAL, CHICAGO BRANCH, Chicago, Illinois 60603 in its individual capacity as a Bank Telecopy: (312) 750-4314 and as Agent Telephone: (312) 750-3742 Commitment: $30,000,001 By /s/ Robert K. Strong, Jr. Its Managing Director Lending Offices: Domestic Rate Loans: 115 South LaSalle Street Chicago, Illinois 60603 Eurocurrency Loans: 115 South LaSalle Street Chicago, Illinois 60603 -44- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: Pierrepont Plaza ROYAL BANK OF CANADA, in its 300 Cadman Plaza West individual capacity as a Bank and as Brooklyn, New York 11201-2701 Co-Agent Telecopy: (718) 522-6292 Telephone: (718) 858-7176 with copy to: By /s/ Patricia J. Herbig Its Manager Corporate Banking 33 N. Dearborn Suite 2300 Chicago, Illinois 60602 Telecopy: (312) 782-3429 Telephone: (312) 372-4404 Commitment: $16,666,667 Lending Offices: Domestic Rate Loans: Royal Bank of Canada, New York Branch Financial Square New York, New York 10005-3531 Eurocurrency Loans: Royal Bank of Canada, New York Branch Financial Square New York, New York 10005-3531 -45- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 611 Woodward Avenue NBD BANK, N.A. Detroit, Michigan 48226 Telecopy: (313) 225-2649 Telephone: (313) 225-2557 Commitment: $11,666,667 By /s/ Jack J. Csernits Its Vice President Lending Offices: Domestic Rate Loans: 611 Woodward Avenue Detroit, Michigan 48226 Eurocurrency Loans: 611 Woodward Avenue Detroit, Michigan 48226 -46- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: One First National Plaza THE FIRST NATIONAL BANK Suite 0088, 14th Floor OF CHICAGO Chicago, Illinois 60670 Telecopy: (312) 732-2715 Telephone: (312) 732-4244 Commitment: $8,333,333 By /s/ Susan L. Comstock Its Vice President Lending Offices: Domestic Rate Loans: One First National Plaza Suite 0088, 14th Floor Chicago, Illinois 60670 Eurocurrency Loans: One First National Plaza Suite 0088, 14th Floor Chicago, Illinois 60670 -47- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 225 West Wacker Drive THE FUJI BANK, LIMITED Chicago, Illinois 60606 Telecopy: (312) 621-0539 Telephone: (312) 621-0500 Commitment: $8,333,333 By /s/ Peter L. Chinnici Its Joint General Manager Lending Offices: Domestic Rate Loans: 225 West Wacker Drive Chicago, Illinois 60606 Eurocurrency Loans: 225 West Wacker Drive Chicago, Illinois 60606 -48- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 33 North Dearborn NATIONAL WESTMINSTER BANK PLC Chicago, Illinois 60602 Telecopy: (312) 621-1564 Telephone: (312) 621-1500 Commitment: $8,333,333 By /s/ David H. Hannah Its Vice President Lending Offices: Domestic Rate Loans: National Westminster Bank PLC, Chicago Branch c/o National Westminster Bank PLC 175 Water Street New York, New York 10038 Eurocurrency Loans: National Westminster Bank PLC, Nassau Branch c/o National Westminster Bank PLC 175 Water Street New York, New York 10038 -49- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 127 Public Square SOCIETY NATIONAL BANK Cleveland, Ohio 44114-1306 Telecopy: (216) 689-4981 Telephone: (216) 689-3176 Commitment: $8,333,333 By /s/ Janice M. Cook Its Vice President Lending Offices: Domestic Rate Loans: 127 Public Square Cleveland, Ohio 44114-1306 Eurocurrency Loans: 127 Public Square Cleveland, Ohio 44114-1306 -50- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 233 South Wacker Drive THE SUMITOMO BANK, LIMITED, Suite 4800 CHICAGO BRANCH Chicago, Illinois 60606 Telecopy: (312) 876-6436 Telephone: (312) 876-6406 Commitment: $8,333,333 By /s/ Katsuyasu Iwasawa Its Joint General Manager Lending Offices: Domestic Rate Loans: 233 South Wacker Drive Suite 4800 Chicago, Illinois 60606 Eurocurrency Loans: 233 South Wacker Drive Suite 4800 Chicago, Illinois 60606 -51- Exhibit A NOTE ________________, 19___ FOR VALUE RECEIVED, the undersigned, Maytag Corporation, a Delaware corporation (the "Borrower"), promises to pay to the order of _____________________ (the "Bank") on the Termination Date of the hereinafter defined Credit Agreement, at the principal office of Bank of Montreal, Chicago Branch, in Chicago, Illinois, (or in the case of Eurocurrency Loans denominated in an Alternative Currency, at such office as the Agent has previously notified the Borrower) in the currency of such Loan in accordance with Section 5.1 of the Credit Agreement, the aggregate unpaid principal amount of all Loans made by the Bank to the Borrower pursuant to the Credit Agreement, together with interest on the principal amount of each Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement. The Bank shall record on its books or records or on a schedule attached to this Note, which is a part hereof, each Loan made by it pursuant to the Credit Agreement, together with all payments of principal and interest and the principal balances from time to time outstanding hereon, whether the Loan is a Domestic Rate Loan or a Eurocurrency Loan, the currency thereof and the interest rate and Interest Period applicable thereto, provided that prior to the transfer of this Note all such amounts shall be recorded on a schedule attached to this Note. The record thereof, whether shown on such books or records or on a schedule to this Note, shall be prima facie evidence of the same, provided, however, that the failure of the Bank to record any of the foregoing or any error in any such record shall not limit or otherwise affect the obligation of the Borrower to repay all Loans made to it pursuant to the Credit Agreement together with accrued interest thereon. This Note is one of the Notes referred to in the Credit Agreement dated as of ________________________, 1993, among the Borrower, Bank of Montreal, as Agent, and others (the "Credit Agreement"), and this Note and the holder hereof are entitled to all the benefits provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of Illinois. Prepayments may be made hereon and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement. The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder. MAYTAG CORPORATION By ______________________ Its ___________________ -2- EXHIBIT B SUBSIDIARIES OF MAYTAG CORPORATION AS OF JUNE 25, 1993 JURISDICTION OF PERCENTAGE OF NAME INCORPORATION OWNERSHIP M.H. Canadian Holdings Ltd. Ontario 100% Maytag Financial Services Corp. Delaware 100% Dixie Narco Inc. West Virginia 100% Master Care Inc. Illinois 100% Holland Distributors Inc. Delaware 100% Maytag International Inc. Delaware 100% Admiral International Corp. Delaware 100% Crosley International Corp. Delaware 100% Maytag Foreign Sales Corp. Virgin Islands 100% Lineset PLC England 100% S.A. Hoover France 100% Hoover GmbH Federal Republic of Germany 100% Hoover Pty. Limited Australia 100% Hoover Appliances Ltd. Australia 100% Maytag Group Sourcing Company Delaware 100% The Hoover Company Delaware 100% Hoover Holdings Inc. Delaware 100% Phase IV Products, Inc. Delaware 100% Clayton Victoria Holdings Pty, Ltd. Australia 100% De Hoover Handelmaatschappig B.V.* The Netherlands 100% Hoover Italiana S.P.A. Italy 100% Hoover Mexicana S.A. de C.V. Mexico 100% Juver Industrial S.A. de C.V. Mexico 100% Hoover N.Z. Limited New Zealand 100% Hoover Electrica Portuguesa, LDA Portugal 100% Hoover Espanola S.A.* Spain 100% Hoover Apparate A.G. Switzerland 100% Readylink Limited United Kingdom 100% Meadowbank Properties Pty. Ltd. Australia 100% Hoover Austria G.E.S. M.B.H. Austria 100% Hoover Benelux SA/NV Belgium 100% JURISDICTION OF PERCENTAGE OF NAME INCORPORATION OWNERSHIP Hoover Commercial Limitada* Brazil 100% Hoover OY Finland 100% Hoover Pacific Holdings Pty. Ltd. Australia 100% Hoover European Holdings Delaware 100% Domicor Holdings B.V. The Netherlands 100% Hoover Limited England 100% Maharashtra Investment Ltd. Delaware 100% Maytag International Ltd.* England 100% All Subsidiaries are Consolidated Subsidiaries. All Subsidiaries other than those with an asterisk next to their name are Material Subsidiaries as of June 25, 1993. -B2- Exhibit C June ___, 1993 To each of the Banks parties to the "Credit Agreement" (as defined below), and to Bank of Montreal, as Agent Re: Loans to Maytag Corporation Ladies and Gentlemen: We have acted as counsel to Maytag Corporation, a Delaware corporation (the "Borrower"), in connection with the $100,000,000 Credit Agreement of even date herewith (the "Credit Agreement") among the Borrower, the financial institutions parties thereto (the "Banks") and Bank of Montreal, as Agent, and the transactions contemplated thereby. This opinion is furnished to you at the request of the Borrower pursuant to Section 8.1(a) of the Credit Agreement. Capitalized terms used herein and not otherwise defined are used as defined in the Credit Agreement. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Credit Agreement and the promissory notes delivered on the date hereof to the Banks signatory to the Credit Agreement (the "Notes"). In rendering the opinions set forth herein, we have also examined originals or copies, certified to our satisfaction, of such (i) certificates of public officials, (ii) certificates of officers and representatives of the Borrower, and (iii) other documents and records, and we have made such inquiries of officers and representatives of the Borrower, as we have deemed relevant or necessary as the basis for such opinions. We have relied as to factual matters upon, and assumed the accuracy of, such certificates, the representations and warranties of the Borrower made in the Credit Agreement, and other statements, documents and records supplied to us by the Borrower, and we have assumed the genuineness of all signatures (other than signatures of officers of the Borrower) and the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or photostatic copies. In rendering the opinions set forth herein, we have assumed that: (i) all the parties to the Credit Agreement, other than the Borrower, are duly organized, validly existing, and in good standing under the laws of their respective jurisdictions of organization and have the requisite corporate power to enter into the Credit Agreement; and (ii) the execution and delivery of the Credit Agreement have been duly authorized by all necessary corporate action and proceedings on the part of all parties thereto other than the Borrower; the Credit Agreement has been duly executed and delivered by all parties thereto other than the Borrower and constitutes the valid and binding obligation of such parties, enforceable against such parties in accordance with its terms; the terms and provisions of the Credit Agreement do not, and the execution, delivery and performance thereof by each of the parties thereto other than the Borrower will not, violate or conflict with the certificate of incorporation or bylaws of any such party, any contract or indenture to which it is a party or by which it is created or bound, or any law, order or decree of any court, administrative agency or other governmental authority applicable to any such party. Based upon the foregoing and subject to the qualifications stated herein, we are of the opinion that, as of the date hereof: 1. The Borrower has been duly organized and is validly existing and in good standing under the laws of the State of Delaware. The Borrower has the requisite corporate power and authority to conduct its business as currently conducted. 2. The Borrower has the requisite corporate power and authority to execute, deliver and perform its obligations under the Credit Agreement and the Notes. Such execution, delivery and performance: (a) have been duly authorized by all necessary and proper corporate action of the Borrower, (b) do not violate any provision of the certificate of incorporation or by-laws of the Borrower or require any approval of the Borrower's stockholders, and (c) will not violate any law or regulation of the State of Illinois (including, without limitation, any usury laws) or of the United States of America applicable to the Borrower. 3. The Credit Agreement and the Notes have been duly executed and delivered by a duly authorized officer of the Borrower, and constitute the valid and binding obligations of the Borrower, enforceable in accordance with their respective terms. 4. The Borrower is not an "investment company" registered or required to be registered under the Investment Company Act of 1940, as amended, or, to our knowledge, controlled by such a company. 5. No approval, consent or authorization of, or filing or registration with, any governmental department, agency or instrumentality is necessary for the Borrower's execution or delivery of the Credit Agreement or the Notes or for the Borrower's performance of any of the terms thereof. -2- Our opinions above are subject to the following qualifications: (a) Our opinions relating to validity, binding effect and enforceability in Paragraph 3 above are subject to limitations imposed by any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws affecting creditors' rights generally. In addition, our opinions relating to enforceability in Paragraph 3 above are subject to (i) the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law) and (ii) limitations imposed by public policy under certain circumstances on the enforceability of provisions indemnifying a party against liability for its own wrongful or negligent acts. In applying principles of equity referred to in clause (i) above, a court, among other things, might not allow a creditor to accelerate maturity of a debt upon the occurrence of a default deemed immaterial. Such principles applied by a court might include a requirement that a creditor act reasonably and in good faith. (b) Certain remedial provisions of the Credit Agreement may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Credit Agreement; however, the unenforceability of such provisions may result in delays in the enforcement of the Agent's and the Banks' rights and remedies under the Credit Agreement (and we express no opinion as to the economic consequences, if any, of such delays). (c) We express no opinion as to the effect of the compliance or noncompliance of the Agent or any of the Banks with any state or federal laws or regulations applicable to the Agent or any of the Banks because of the Agent's or any of the Banks legal or regulatory status or the nature of the business of the Agent or any of the Banks. The foregoing opinions are limited to the laws of the United States and the State of Illinois and the General Corporation Law of the State of Delaware, and we express no opinion with respect to the laws of any other state or jurisdiction. Whenever in this opinion reference is made to our knowledge, such reference is to the conscious awareness of Dennis V. Osimitz and Jeffrey S. Rothstein of information regarding factual matters. With respect to such matters, such persons have not, with your express permission and consent, undertaken any investigation or inquiry either of other lawyers, files maintained by the firm, or officers or employees of the Borrower or any of its Subsidiaries. The reference to "conscious awareness" as used in this paragraph has the meaning given that phrase in the Third-Party Legal Opinion Report, Including the Legal Opinion Accord, of the Section of Business Law, American Bar Association, 47 Bus. Law. 167, 192 (1991). The opinions expressed herein are being delivered to you as of the date hereof and are solely for your benefit in connection with the transactions contemplated in the Credit Agreement and may not be relied on in any manner or for any purpose by any other person, nor any copies published, communicated or otherwise made available in whole or in part to any other person or entity without our express prior written consent, except that you may furnish copies thereof to any party that becomes a Bank after the date -3- hereof pursuant to the Credit Agreement. We do not express any opinion, either implicitly or otherwise, on any issue not expressly addressed in numbered Paragraphs 1 through 5. The opinions expressed above are based solely on laws and regulations in effect on the date hereof, and we assume no obligation to revise or supplement this opinion should such laws or regulations be changed by legislative or regulatory action, judicial decision or otherwise. Very truly yours, -4- EXHIBIT D June ___, 1993 To each of the Banks parties to the "Credit Agreement" (as defined below), and to Bank of Montreal, as Agent Re: Loans to Maytag Corporation Ladies and Gentlemen: I am Vice President and General Counsel of Maytag Corporation, a Delaware corporation (the "Borrower"). I am familiar with the $100,000,000 Credit Agreement of even date herewith (the "Credit Agreement") among the Borrower, the financial institutions parties thereto (the "Banks") and Bank of Montreal, as Agent, and the transactions contemplated thereby. This opinion is furnished to you at the request of the Borrower pursuant to Section 8.1(a) of the Credit Agreement. Capitalized terms used herein and not otherwise defined are used as defined in the Credit Agreement. In connection with this opinion, I have examined originals or copies, certified or otherwise identified to my satisfaction, of the Credit Agreement and the promissory notes delivered on the date hereof to the Banks signatory to the Credit Agreement (the "Notes"). In rendering the opinions set forth herein, I have also examined originals or copies, certified to my satisfaction, of such (i) certificates of public officials, (ii) certificates of officers and representatives of the Borrower, and (iii) other documents and records, and I have made such inquiries of officers and representatives of the Borrower, as I have deemed relevant or necessary as the basis for such opinions. I have relied as to factual matters upon, and assumed the accuracy of, such certificates and other statements, documents and records supplied to me by the Borrower and I have assumed the genuineness of all signatures (other than signatures of officers of the Borrower) and the authenticity of all documents submitted to me as originals and the conformity to original documents of all documents submitted to me as certified or photostatic copies. Based upon the foregoing and subject to the qualifications stated herein, I am of the opinion that, as of the date hereof: 1. The Borrower has the requisite corporate power and authority to execute, deliver and perform its obligations under the Credit Agreement and the Notes. Such execution, delivery and performance: (a) have been duly authorized by all necessary and proper corporate action of the Borrower, (b) do not violate any provision of the certificate of incorporation or by-laws of the Borrower or require any approval of the Borrower's stockholders, and (c) to my knowledge, do not violate any material indenture or agreement to which the Borrower is a party or by which it is bound or any provision of any judgment or decree applicable to the Borrower. 2. There is no litigation or governmental proceeding pending or, to my knowledge, threatened, against the Borrower or any Subsidiary which could reasonably be expected to (i) materially adversely affect the business and properties of the Borrower and its Subsidiaries on a consolidated basis or (ii) impair the validity or enforceability of the Credit Agreement or the Notes or materially impair the ability of the Borrower to perform its obligations under the Credit Agreement or the Notes. The foregoing opinions are limited to the laws of the United States and the State of Iowa, and the General Corporation Law of the State of Delaware, and I express no opinion with respect to the laws of any other state or jurisdiction. The opinions expressed herein are being delivered to you as of the date hereof and are solely for your benefit in connection with the transactions contemplated in the Credit Agreement and may not be relied on in any manner or for any purpose by any other person, nor any copies published, communicated or otherwise made available in whole or in part to any other person or entity without my express prior written consent, except that you may furnish copies thereof to any party that becomes a Bank after the date hereof pursuant to the Credit Agreement. I do not express any opinion, either implicitly or otherwise, on any issue not expressly addressed in numbered Paragraphs 1 and 2. The opinions expressed above are based solely on laws and regulations in effect on the date hereof, and I assume no obligation to revise or supplement this opinion should such laws or regulations be changed by legislative or regulatory action, judicial decision or otherwise. Very truly yours, -2- EXHIBIT E COMPLIANCE CERTIFICATE This Compliance Certificate is furnished to Bank of Montreal as Agent pursuant to that certain Credit Agreement dated as of ______________, 1993 by and among Maytag Corporation (the "Borrower"), the Banks party thereto, and Bank of Montreal, as Agent (the "Credit Agreement"). Unless otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed thereto in the Credit Agreement. THE UNDERSIGNED ON BEHALF OF THE BORROWER HEREBY CERTIFIES THAT: 1. I am the duly elected chief financial officer of the Borrower; 2. I have reviewed or caused to be reviewed the terms of the Credit Agreement and I have made or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower during the accounting period covered by the attached financial statements; 3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or the occurrence of any event which constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; 4. The representations and warranties contained in Section 7 of the Credit Agreement are true and correct as though made on the date hereof, except as set forth below; 5. The Borrower is in compliance with all covenants contained in Section 9 of the Credit Agreement, except as set forth below. 6. The Attachment hereto sets forth financial data and computations evidencing the Borrower's compliance with certain covenants of the Credit Agreement, all of which data and computations are, to the best of my knowledge, true, complete and correct and have been made in accordance with the relevant Sections of the Credit Agreement. Described below are the exceptions, if any, to paragraphs 3, 4 and 5 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action the Borrower has taken, is taking, or proposes to take with respect to each such condition or event: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The foregoing certifications, together with the computations set forth in the Attachment hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this _________ day of __________________ 19___. MAYTAG CORPORATION By_____________________ Its Chief Financial Officer -2- ATTACHMENT TO COMPLIANCE CERTIFICATECOMPLIANCE CALCULATIONS FOR CREDIT AGREEMENT Dated as of _____________, 19___ Calculations as of _____________, 19___ ___________________________________________________________________________ A. Consolidated Tangible Net Worth (Section 9.6) 1. Consolidated Net Worth of the Borrower $____________ 2. Consolidated net book value of assets of the Borrower which would be treated as intangibles under GAAP $____________ 3. Subtract Line 2 from Line 1 $____________ (Line 3 must be equal to or greater than $__________) B. Leverage Ratio (Section 9.7) 1. Consolidated Indebtedness $____________ 2. Consolidated Net Worth of the Borrower $____________ 3. Sum of Lines 1 and 2 $____________ 4. Ratio of Line 1 to 3 (Line 4 Ratio must be equal to or less than ____:1.00) ________:1.00 C. Interest Coverage Ratio (Section 9.8) 1. Consolidated Income Before Interest and Taxes $____________ 2. Consolidated Interest Expense $____________ 3. Ratio of Line 1 to 2 (Line 3 Ratio must be equal to or greater than ____ to 1.00) ________:1.00 -1- MAYTAG CORPORATION Exhibit 4(g) U.S. $200,000,000 Credit Agreement Dated as of June 25, 1993, Among Registrant, the Banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada. U.S. $200,000,000 CREDIT AGREEMENT Dated as of June 25, 1993 Among MAYTAG CORPORATION, THE BANKS PARTY HERETO, AND BANK OF MONTREAL, CHICAGO BRANCH as Agent AND ROYAL BANK OF CANADA as Co-Agent TABLE OF CONTENTS Introduction 1 SECTION 1. THE COMMITTED FACILITY 1 Section 1.1. The Commitments. 1 Section 1.2. Applicable Interest Rates. 1 Section 1.3. Minimum Borrowing Amounts. 3 Section 1.4. Manner of Borrowing Committed Loans and Designating Interest Rates Applicable to Loans. 3 SECTION 2. THE SWING LINE LOANS 5 Section 2.1. The Swing Line Loans. 5 Section 2.2. Notices. 6 Section 2.3. The Participating Interests. 6 SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS 6 Section 3.1. Interest Periods. 6 Section 3.2. Maturity of Loans. 7 Section 3.3. Prepayments. 7 Section 3.4. Default Rate. 8 Section 3.5. The Notes. 8 Section 3.6. Commitment Terminations. 9 Section 3.7. Funding Indemnity. 9 SECTION 4. FEES 10 Section 4.1. Facility Fee. 10 Section 4.2. Closing Fee. 10 Section 4.3. Agent Fees. 10 SECTION 5. PLACE AND APPLICATION OF PAYMENTS 10 Section 5.1. Place and Application of Payments. 10 SECTION 6. DEFINITIONS 11 Section 6.1. Definitions. 11 Section 6.2. Interpretation. 17 SECTION 7. REPRESENTATIONS AND WARRANTIES 17 Section 7.1. Organization and Qualification. 17 Section 7.2. Subsidiaries. 18 -i- Section 7.3. Corporate Authority and Validity of Obligations. 18 Section 7.4. Not an Investment Company. 18 Section 7.5. Margin Stock. 19 Section 7.6. Financial Reports. 19 Section 7.7. No Material Adverse Change. 19 Section 7.8. Litigation. 19 Section 7.9. Tax Returns. 19 Section 7.10. Approvals. 19 Section 7.11. Liens. 20 Section 7.12. ERISA. 20 Section 7.13. Compliance with Environmental Laws 20 SECTION 8. CONDITIONS PRECEDENT 21 Section 8.1. Initial Borrowing. 21 Section 8.2. All Loans. 21 SECTION 9. COVENANTS 22 Section 9.1. Corporate Existence. 22 Section 9.2. Maintenance. 23 Section 9.3. Taxes. 23 Section 9.4. Insurance. 23 Section 9.5. Financial Reports and Other Information. 23 Section 9.6. Consolidated Tangible Net Worth. 24 Section 9.7. Leverage Ratio 25 Section 9.8. Interest Coverage Ratio 25 Section 9.9. Mergers, Consolidations, Leases, and Sales. 26 Section 9.10. Change of Control. 26 Section 9.11. ERISA. 26 Section 9.12. Conduct of Business. 27 Section 9.13. Liens. 27 Section 9.14. Use of Proceeds; Margin Stock. 29 Section 9.15. Compliance with Laws. 29 SECTION 10. EVENTS OF DEFAULT AND REMEDIES 29 Section 10.1. Events of Default. 29 Section 10.2. Non-Bankruptcy Defaults. 31 Section 10.3. Bankruptcy Defaults. 31 Section 10.4. Expenses. 31 SECTION 11. CHANGE IN CIRCUMSTANCES 32 Section 11.1. Change of Law. 32 Section 11.2. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR. 32 Section 11.3. Increased Cost and Reduced Return. 32 -ii- Section 11.4. Lending Offices. 34 Section 11.5. Discretion of Bank as to Manner of Funding. 34 Section 11.6. Substitution of Bank 34 SECTION 12. THE AGENT 35 Section 12.1. Appointment and Authorization. 35 Section 12.2. Agent and Affiliates. 35 Section 12.3. Action by Agent. 35 Section 12.4. Consultation with Experts. 35 Section 12.5. Liability of Agent. 35 Section 12.6. Indemnification. 36 Section 12.7. Credit Decision. 36 Section 12.8. Resignation of Agent and Successor Agent. 36 Section 12.9. Payments. 37 Section 12.10. Co-Agent 37 SECTION 13. MISCELLANEOUS 37 Section 13.1. Withholding Taxes. 37 Section 13.2. No Waiver of Rights. 38 Section 13.3. Non-Business Day. 39 Section 13.4. Documentary Taxes. 39 Section 13.5. Survival of Representations. 39 Section 13.6. Survival of Indemnities. 39 Section 13.7. Sharing of Set-Off. 39 Section 13.8. Notices. 39 Section 13.9. Counterparts. 40 Section 13.10. Successors and Assigns. 40 Section 13.11. Participants and Note Assignees. 40 Section 13.12. Assignment of Commitments by Banks. 41 Section 13.13. Amendments. 41 Section 13.14. Legal Fees and Indemnification. 41 Section 13.15. Currency 42 Section 13.16. Currency Equivalence 42 Section 13.17. Governing Law. 43 Section 13.18. Termination of Existing Credit Agreement 43 Section 13.19. Headings. 43 Section 13.20. Entire Agreement. 43 Signatures 44 EXHIBIT A FORM OF NOTE EXHIBIT B SUBSIDIARIES EXHIBIT C FORM OF OPINION OF COUNSEL EXHIBIT D FORM OF OPINION OF COUNSEL EXHIBIT E FORM OF COMPLIANCE CERTIFICATE -iii- CREDIT AGREEMENT To each of the Banks signatory hereto Ladies and Gentlemen: The undersigned, Maytag Corporation, a Delaware corporation (the "Borrower"), applies to you for your several commitments, subject to all the terms and conditions hereof and on the basis of the representations and warranties hereinafter set forth, to make available a revolving credit as more fully hereinafter set forth. Each of you is hereinafter referred to individually as a "Bank" and all of you are hereinafter referred to collectively as the "Banks". Bank of Montreal, acting through its Chicago Branch, in its capacity as agent for the Banks hereunder, and any successor thereto pursuant to Section 12.8 hereof, is hereinafter referred to as the "Agent" and Royal Bank of Canada in its capacity as co-agent hereunder is hereinafter referred to as the "Co-Agent". SECTION 1. THE COMMITTED FACILITY. Section 1.1. The Commitments. Subject to the terms and conditions hereof, each Bank, by its acceptance hereof, severally agrees to make a loan or loans (individually a "Committed Loan" and collectively "Committed Loans") to the Borrower from time to time in U.S. Dollars or Alternative Currencies on a revolving basis in an aggregate outstanding Original Dollar Amount up to the amount of its commitment to make Loans set forth on the applicable signature page hereof or pursuant to Section 13.12 hereof (its "Commitment" and cumulatively for all the Banks the "Commitments") (subject to any reductions thereof pursuant to the terms hereof) prior to the Termination Date. At no time shall the aggregate Original Dollar Amount of all outstanding Loans (whether Committed or Swing Line Loans) exceed the Commitments then in effect, which Commitments on the date hereof total U.S. $200,000,000. Each Borrowing of Committed Loans shall be advanced, continued, or converted, as applicable pursuant to Section 1.4 hereof, ratably from the Banks in proportion to their respective Unused Commitments. Subject to Section 1.4 hereof, the Borrower may elect that each Borrowing of Committed Loans be advanced or maintained as Domestic Rate Loans or Eurocurrency Loans, which Committed Loans may be repaid and the principal amount thereof reborrowed prior to the Termination Date, subject to all reductions in the Commitments and all other terms and conditions hereof. Section 1.2. Applicable Interest Rates. (a) Domestic Rate Loans. Each Domestic Rate Loan made or maintained by a Bank shall bear interest during each Interest Period that it constitutes a Domestic Rate Loan (computed on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, continued or created by conversion from a Eurocurrency Loan until maturity (whether by acceleration or otherwise) at a rate per annum equal to the Domestic Rate from time to time in effect, payable on the last day of the applicable Interest Period and at maturity (whether by acceleration or otherwise). "Domestic Rate" means for any day the greater of: (i) the rate of interest announced by the Agent from time to time as its prime commercial rate, or equivalent, for U.S. Dollar loans to borrowers located in the United States, with any change in the Domestic Rate resulting from a change in said prime commercial rate to be effective as of the date of the relevant change in said prime commercial rate; and (ii) the sum of (x) the rate per annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day, provided that (i) if such day is not a Business Day, the rate for such day shall be such rate on such transactions on the immediately preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on any such next succeeding Business Day, the rate for such day shall be the average of the rates quoted to the Agent by two or more New York or Chicago Federal funds brokers on such day for such transactions as determined by the Agent, plus (y) 3/8 of 1% (0.375%). (b) Eurocurrency Loans. Each Eurocurrency Loan made or maintained by a Bank shall bear interest during each Interest Period that it constitutes a Eurocurrency Loan (computed on the basis of a year of 360 days and actual days elapsed) on the unpaid principal amount thereof from the date such Loan is advanced, continued or created by conversion from a Domestic Rate Loan until maturity (whether by acceleration or otherwise) at a rate per annum equal to the sum of the applicable Eurocurrency Margin plus the Adjusted LIBOR applicable to such Loan, payable on the last day of the applicable Interest Period and at maturity (whether by acceleration or otherwise), and, if the applicable Interest Period is longer than three months, on each day occurring every three months after the date such Loan is made. "Adjusted LIBOR" means, for any Borrowing of Eurocurrency Loans, a rate per annum determined in accordance with the following formula: ____________LIBOR______________ Adjusted LIBOR = 100% - Eurocurrency Reserve Percentage "LIBOR " means, with respect to an Interest Period for a Borrowing of Eurocurrency Loans, the average of the respective rates of interest per annum, as determined by the Agent (rounded upwards, if necessary, to the nearest whole multiple of 1/16 of 1%), at which deposits of U.S. Dollars or the relevant Alternative Currency, as applicable, in immediately available and freely transferable funds are offered to each of the Reference Banks at 11:00 a.m. (London time) two Business Days prior to the commencement of such -2- Interest Period by major banks in the eurocurrency interbank market upon request by each such Reference Bank for a period equal to such Interest Period and in an amount equal to the principal amount of the Eurocurrency Loan scheduled to be advanced, continued or created by conversion from a Domestic Rate Loan by such Reference Bank as part of such Borrowing. "Eurocurrency Reserve Percentage" means, for any Borrowing of Eurocurrency Loans, the daily average for the applicable Interest Period of the maximum rate at which reserves (including, without limitation, any supplemental, marginal and emergency reserves) are imposed during such Interest Period by the Board of Governors of the Federal Reserve System (or any successor) on "eurocurrency liabilities", as defined in such Board's Regulation D (or in respect of any other category of liabilities that includes deposits by reference to which the interest rate on Eurocurrency Loans is determined or any category of extension of credit or other assets that include loans by non-United States offices of any Bank to United States residents) subject to any amendments of such reserve requirement by such Board or its successor, taking into account any transitional adjustments thereto. For purposes of this definition, the Eurocurrency Loans shall be deemed to be "eurocurrency liabilities" as defined in Regulation D without benefit or credit for any prorations, exemptions or offsets under Regulation D. "Eurocurrency Margin" means for each Eurocurrency Loan: (i) 0.375% per annum for any day Level I Status exists, (ii) 0.500% per annum for any day Level II Status exists, (iii) 0.625% per annum for any day Level III Status exists, (iv) 0.750% per annum for any day Level IV Status exists and (v) 1.250% per annum for any day Level V Status exists. (c) Rate Quotations. Each Reference Bank agrees to use its best efforts to furnish quotations to the Agent as contemplated by this Section. If any Reference Bank does not furnish a timely quotation, the Agent shall determine the relevant interest rate on the basis of the quotation or quotations furnished by the remaining Reference Bank or, if no such quotation is provided on a timely basis, the provisions of Section 11.2 shall apply. (d) Rate Determinations. The Agent shall determine each interest rate applicable to the Loans hereunder and the Original Dollar Amount of each Loan hereunder, and its determination thereof shall be conclusive and binding except in the case of manifest error or willful misconduct. The Original Dollar Amount of each Eurocurrency Loan shall be determined or redetermined, as applicable, effective as of the first day of each Interest Period applicable to such Loan. Section 1.3.Minimum Borrowing Amounts.; Each Borrowing of Committed Loans at any time outstanding shall be in an amount not less than an Original Dollar Amount of U.S. $10,000,000. Section 1.4.Manner of Borrowing Committed Loans and Designating Interest Rates Applicable to Loans. (a) Notice to the Agent. The Borrower shall give notice to the Agent by no later than 9:00 a.m. (Chicago time) (i) at least four (4) Business Days -3- before the date on which the Borrower requests the Banks to advance a Borrowing of Eurocurrency Loans denominated in an Alternative Currency, (ii) at least three (3) Business Days before the date on which the Borrower requests the Banks to advance a Borrowing of Eurocurrency Loans denominated in U.S. Dollars and (iii) on the date the Borrower requests the Banks to advance a Borrowing of Domestic Rate Loans. The Loans included in each Borrowing shall bear interest initially at the type of rate specified in such notice of a new Borrowing. Thereafter, the Borrower may from time to time elect to change or continue the type of interest rate borne by each Borrowing or, subject to Section 1.3 s minimum amount requirement for each outstanding Borrowing, a portion thereof, as follows: (i) if such Borrowing is of Eurocurrency Loans, on the last day of the Interest Period applicable thereto, the Borrower may continue part or all of such Borrowing as Eurocurrency Loans for an Interest Period or Interest Periods specified by the Borrower or, if such Eurocurrency Loan is denominated in U.S. Dollars, convert part or all of such Borrowing into Domestic Rate Loans, (ii) if such Borrowing is of Domestic Rate Loans, on any Business Day, the Borrower may convert all or part of such Borrowing into Eurocurrency Loans denominated in U.S. Dollars for an Interest Period or Interest Periods specified by the Borrower. The Borrower shall give all such notices requesting the advance, continuation, or conversion of a Borrowing to the Agent by telephone or telecopy (which notice shall be irrevocable once given and, if by telephone, shall be promptly confirmed in writing). Notices of the continuation of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars for an additional Interest Period or of the conversion of part or all of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars into Domestic Rate Loans or of Domestic Rate Loans into Eurocurrency Loans must be given by no later than 9:00 a.m. (Chicago time) at least three (3) Business Days before the date of the requested continuation or conversion. Notices of the continuation of a Borrowing of Eurocurrency Loans denominated in an Alternative Currency must be given no later than 9:00 a.m. (Chicago time) at least four (4) Business Days before the requested continuation. All such notices concerning the advance, continuation, or conversion of a Borrowing shall specify the date of the requested advance, continuation or conversion of a Borrowing (which shall be a Business Day), the amount of the requested Borrowing to be advanced, continued, or converted, the type of Loans to comprise such new, continued or converted Borrowing and, if such Borrowing is to be comprised of Eurocurrency Loans, the currency and Interest Period applicable thereto. The Borrower agrees that the Agent may rely on any such telephonic or telecopy notice given by any person it in good faith believes is an Authorized Representative without the necessity of independent investigation, and in the event any such notice by telephone conflicts with any written confirmation, such telephonic notice shall govern if the Agent has acted in reliance thereon. (b) Notice to the Banks. The Agent shall give prompt telephonic or telecopy notice to each of the Banks of any notice from the Borrower received pursuant to Section 1.4(a) above. The Agent shall give notice to the Borrower and each Bank by like means of the interest rate applicable to each Borrowing of Eurocurrency Loans (unless such Borrowing is a Borrowing of Swing Line Loans in which case such notice shall only be given to the Borrower and the Bank or Banks making such Swing Line Loans) and, if such Borrowing (including a Borrowing of Swing Line Loans) is denominated in an -4- Alternative Currency, shall give notice by such means to the Borrower and each Bank of the Original Dollar Amount thereof. (c) Borrower's Failure to Notify. Any outstanding Borrowing of Domestic Rate Loans shall, subject to Section 8.2 hereof, automatically be continued for an additional Interest Period on the last day of its then current Interest Period unless the Borrower has notified the Agent within the period required by Section 1.4(a) that it intends to convert such Borrowing into a Borrowing of Eurocurrency Loans or notifies the Agent within the period required by Section 3.3(a) that it intends to prepay such Borrowing. In the event the Borrower fails to give notice pursuant to Section 1.4(a) above of the continuation or conversion of any outstanding principal amount of a Borrowing of Eurocurrency Loans denominated in U.S. Dollars before the last day of its then current Interest Period within the period required by Section 1.4(a) and has not notified the Agent within the period required by Section 3.3(a) that it intends to prepay such Borrowing, such Borrowing shall automatically be converted into a Borrowing of Domestic Rate Loans, subject to Section 8.2 hereof. In the event the Borrower fails to give notice pursuant to Section 1.4(a) above of the continuation of any outstanding principal amount of a Borrowing of Eurocurrency Loans denominated in an Alternative Currency before the last day of its then current Interest Period within the period required by Section 1.4(a) and has not notified the Agent within the period required by Section 3.3(a) that it intends to prepay such Borrowing, such Borrowing shall automatically be continued as a Borrowing of Eurocurrency Loans in the same Alternative Currency with an Interest Period of one month, subject to Section 8.2 hereof, including the restrictions contained in the definition of Interest Period. (d) Disbursement of Loans. Not later than 11:00 a.m. (Chicago time) on the date of any requested advance of a new Borrowing of Eurocurrency Loans, and not later than 12:00 noon (Chicago time) on the date of any requested advance of a new Borrowing of Domestic Rate Loans, subject to Section 8 hereof, each Bank (or, in the case of a Swing Line Loan, the Bank or Banks making such Swing Line Loan) shall make available its Loan comprising part of such Borrowing in funds immediately available at the principal office of the Agent in Chicago, Illinois, except that if such Borrowing is denominated in an Alternative Currency each Bank (or each Bank participating in any such Borrowing of Swing Line Loans) shall make available its Loan comprising part of such Borrowing at such office as the Agent has previously notified to each Bank, in such funds then customary for the settlement of international transactions in such currency and no later than such local time as is necessary for such funds to be received and transferred to the Borrower for same day value on the date of the Borrowing. The Agent shall make available to the Borrower Loans denominated in U.S. Dollars at the Agent s principal office in Chicago, Illinois and Loans denominated in Alternative Currencies at such office as the Agent has previously notified the Borrower, in each case in the type of funds received by the Agent from the Banks. SECTION 2. THE SWING LINE LOANS. Section 2.1. The Swing Line Loans. The Borrower may request any Bank to make uncommitted loans denominated in currencies other than U.S. Dollars (each a "Swing Line Loan" and collectively the "Swing Line Loans") in amounts -5- such that the Original Dollar Amount of (i) all Swing Line Loans outstanding hereunder shall not exceed U.S. $20,000,000 and (ii) all Committed Loans and Swing Line Loans at any time outstanding hereunder shall not exceed the Commitments of the Banks then in effect. Each Bank may, but shall have no obligation to, make Swing Line Loans; provided that the aggregate Original Dollar Amount of Swing Line Loans outstanding from any Bank, when added to the aggregate Original Dollar Amount of Committed Loans outstanding from such Bank, does not exceed such Bank s Commitment. Each Swing Line Loan shall be a Eurocurrency Loan subject to Section 1.2(b) hereof and the other terms and provisions hereof applicable to Eurocurrency Loans other than the provisions of Section 1.1 applicable only to Committed Loans and the provisions of Section 1.4(a) and (c). Section 2.2. Notices. No later than 9:00 a.m. (Chicago time) on the date three (3) Business Days prior to any Borrowing of Swing Line Loans, the Borrower shall give telephonic or telecopy notice to the Agent (which notice, if by telephone, shall be promptly confirmed by telecopy or other written notice) of the Bank making each Swing Line Loan, the currency and principal amount of such Swing Line Loan, and the Interest Period of such Swing Line Loan. Section 2.3. The Participating Interests. Upon the occurrence of an Event of Default and the acceleration of the maturity of the Notes pursuant to Section 10.2 or 10.3 hereof, if any Swing Line Loans are then outstanding, each Bank shall purchase a pro rata interest, (based on the Commitment of each Bank hereunder (whether used or unused, and if then terminated pursuant to Section 10, as in effect immediately before such termination)) in the Swing Line Loans of each other Bank, in the currency of such Swing Line Loan so that, after giving effect to such adjustment, the outstanding principal amount of Loans of all the Banks, calculated using quotations of the U.S. Dollar Equivalent of such Swing Line Loans received on the date of acceleration, shall be pro rata based on the Banks' Commitments. Such purchase price shall be paid in the respective currencies of such Swing Line Loans. The several obligations of the Banks under this Section 2.3 shall be absolute, irrevocable and unconditional under any and all circumstances whatsoever and shall not be subject to any set-off, counterclaim or defense to payment which any Bank may have or have had against the Borrower, any other Bank or any other Person whatever. Without limiting the generality of the foregoing, such obligations shall not be affected by any Default or Event of Default or by any reduction or termination of the Commitments of any Bank, and each payment made by a Bank under this Section 2.3 shall be made without any offset, abatement, withholding or reduction whatsoever. SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS; REDUCTION OF COMMITMENTS. Section 3.1. Interest Periods. As provided in Section 1.4 hereof, in the case of Committed Loans, and Section 2.2 hereof, in the case of Swing Line Loans, at the time of each request to advance, continue, or create through conversion a Borrowing of Eurocurrency Loans, the Borrower shall select an Interest Period applicable to such Loans from among the available options. The term "Interest Period" means the period commencing on the date a -6- Borrowing is made, continued, or created through conversion and ending: (a) in the case of Domestic Rate Loans, on the last day of the calendar quarter in which such Borrowing is advanced, continued, or created by conversion (i.e. the first to occur thereafter of March 31, June 30, September 30, and December 31); (b) in the case of Eurocurrency Loans which are Committed Loans, 1, 2, 3, 6, or, if available from all the Banks, 9 months thereafter, as the Borrower may select; and (c) in the case of Eurocurrency Loans which are Swing Line Loans, the date, 1, 2, or 3 months thereafter as the Borrower may select; provided, however, that: (a) any Interest Period for a Borrowing of Domestic Rate Loans commencing less than 90 days before the Termination Date shall end on the Termination Date; (b) with respect to any Borrowing of Eurocurrency Loans, the Borrower may not select an Interest Period that extends beyond the Termination Date; (c) whenever the last day of any Interest Period would otherwise be a day that is not a Business Day, the last day of such Interest Period shall be extended to the next succeeding Business Day, provided that, if such extension would cause the last day of an Interest Period for a Borrowing of Eurocurrency Loans to occur in the following calendar month, the last day of such Interest Period shall be the immediately preceding Business Day; and (d) for purposes of determining an Interest Period for a Borrowing of Eurocurrency Loans, a month means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month; provided, however, that if there is no numerically corresponding day in the month in which such an Interest Period is to end or if such an Interest Period begins on the last Business Day of a calendar month, then such Interest Period shall end on the last Business Day of the calendar month in which such Interest Period is to end. Section 3.2. Maturity of Loans. Each Committed Loan shall mature and become due and payable by the Borrower on the Termination Date. Each Swing Line Loan shall mature and become due and payable by the Borrower on the last day of the Interest Period applicable thereto. Section 3.3. Prepayments. (a) Loans. The Borrower shall have the privilege of prepaying without premium or penalty and in whole or in part (but, if in part, then: (i) if such Borrowing is denominated in U.S. Dollars, in an amount not less than U.S. $10,000,000 and in integral multiples of U.S. $1,000,000, (ii) if such Borrowing is denominated in an Alternative Currency, an amount for which the U.S. Dollar Equivalent is not less than U.S. $10,000,000 and (iii) in an amount such that the minimum amount required for a Borrowing pursuant to -7- Section 1.3 hereof remains outstanding) any Borrowing of Loans at any time upon three Business Days', in the case of Eurocurrency Loans, or one Business Day's, in the case of Domestic Rate Loans, prior notice to the Agent (which shall advise each Bank thereof promptly thereafter), such prepayment to be made by the payment of the principal amount to be prepaid and accrued interest thereon to the date fixed for prepayment and, in the case of Eurocurrency Loans, any compensation required by Section 3.7 hereof. (b) Reborrowings. Any amount paid or prepaid before the Termination Date may, subject to the terms and conditions of this Agreement, be borrowed, repaid and borrowed again. Section 3.4. Default Rate. If any payment of principal on any Loan is not made when due (whether by acceleration or otherwise), such Loan shall bear interest (computed on the basis of a year of 360 days and actual days elapsed) from the date such payment was due until paid in full, payable on demand, at a rate per annum equal to: (a) with respect to any Domestic Rate Loan, the sum of two percent(2%) plus the Domestic Rate from time to time in effect; and (b) with respect to any Eurocurrency Loan, the sum of two percent (2%) plus the rate of interest in effect thereon at the time of such default until the end of the Interest Period applicable thereto and, thereafter, if such Loan is denominated in U.S. Dollars, at a rate per annum equal to the sum of two percent (2%) plus the Domestic Rate from time to time in effect or, if such Loan is denominated in an Alternative Currency, at a rate per annum equal to the sum of the Eurocurrency Margin, plus two (2%) plus the rate of interest per annum as determined by the Agent (rounded upwards, if necessary, to the nearest whole multiple of one-sixteenth of one percent (1/16%) at which overnight or weekend deposits of the appropriate currency (or, if such amount due remains unpaid more than three Business Days, then for such other period of time not longer than six months as the Agent may elect in its absolute discretion) for delivery in immediately available and freely transferable funds would be offered by the Agent to major banks in the interbank market upon request of such major banks for the applicable period as determined above and in an amount comparable to the unpaid principal amount of any such Eurocurrency Loan (or, if the Agent is not placing deposits in such currency in the interbank market, then the Agent's cost of funds in such currency for such period). Section 3.5. The Notes. (a) Each Loan made to the Borrower by a Bank shall be evidenced by a single promissory note of the Borrower issued to such Bank in the form of Exhibit A hereto. Each such promissory note is hereinafter referred to as a "Note" and collectively such promissory notes are referred to as the "Notes." (b) Each Bank shall record on its books and records or on a schedule to its Note the amount of each Loan advanced, continued, or converted by it, all payments of principal and interest and the principal balance from time to time outstanding thereon, the type of such Loan, and, in respect of any -8- Eurocurrency Loan, the Interest Period, the currency in which such Loan is denominated, and the interest rate applicable thereto; provided that prior to the transfer of any Note all such amounts shall be recorded on a schedule to such Note. The record thereof, whether shown on such books and records of a Bank or on a schedule to any Note, shall be prima facie evidence as to all such matters; provided, however, that the failure of any Bank to record any of the foregoing or any error in any such record shall not limit or otherwise affect the obligation of the Borrower to repay all Loans made to it hereunder together with accrued interest thereon. At the request of any Bank and upon such Bank tendering to the Borrower the Note to be replaced, the Borrower shall furnish a new Note to such Bank to replace any outstanding Note, and at such time the first notation appearing on a schedule on the reverse side of, or attached to, such Note shall set forth the aggregate unpaid principal amount of all Loans, if any, then outstanding thereon. Section 3.6.Commitment Terminations. The Borrower shall have the right at any time and from time to time, upon five (5) Business Days' prior written notice to the Agent, to terminate the Commitments, in whole or in part, without premium or penalty, any partial termination to be in an amount not less than U.S. $10,000,000 or any larger amount that is an integral multiple of U.S. $1,000,000, and to reduce ratably the Commitments of the Banks; provided that the Commitments may not be reduced to an amount less than the Original Dollar Amount of Loans then outstanding. Any termination of Commitments pursuant to this Section 3.6 may not be reinstated. Section 3.7.Funding Indemnity. In the event any Bank shall incur any loss, cost or expense (including, without limitation, any loss of profit, and any loss, cost or expense incurred by reason of the liquidation or re-employment of deposits or other funds acquired by such Bank to fund or maintain any Eurocurrency Loan or the relending or reinvesting of such deposits or amounts paid or prepaid to such Bank) as a result of: (a) any payment, prepayment or conversion of a Eurocurrency Loan on a date other than the last day of its Interest Period, (b) any failure (because of a failure to meet the conditions of Section 8 or otherwise) by the Borrower to borrow or continue a Eurocurrency Loan, or to convert a Domestic Rate Loan into a Eurocurrency Loan, on the date specified in a notice given pursuant to Section 1.4 or 2.2 hereof, (c) any failure by the Borrower to make any payment of principal on any Eurocurrency Loan when due (whether by acceleration or otherwise), or (d) any acceleration of the maturity of a Eurocurrency Loan as a result of the occurrence of any Event of Default hereunder, then, upon the demand of such Bank, the Borrower shall pay to such Bank such amount as will reimburse such Bank for such loss, cost or expense. If any Bank makes such a claim for compensation, it shall provide to the Borrower, with a copy to the Agent, a certificate executed by an officer of such Bank setting forth the amount of such loss, cost or expense in reasonable detail -9- (including an explanation of the basis for and the computation of such loss, cost or expense) and the amounts shown on such certificate if reasonably calculated shall be conclusive. SECTION 4. FEES. Section 4.1. Facility Fee. The Borrower shall pay to the Agent for the ratable account of the Banks a facility fee (computed on the basis of a year of 365 or 366 days, as the case may be, and the actual number of days elapsed) on the average daily amount of the Commitments hereunder (whether used or unused) at a rate of (i) 0.20% per annum for each day Level I Status exists, (ii) 0.25% per annum for each day Level II Status or Level III Status exists, (iii) 0.35% per annum for each day Level IV Status exists, and (iv) 0.50% per annum for each day Level V Status exists. Such fee shall be payable in arrears on the last day of each calendar quarter, commencing September 30, 1993, and on the Termination Date, unless the Commitments are terminated in whole on an earlier date, in which event the facility fees for the period to the date of such termination in whole shall be paid on the date of such termination. If any Bank fails to fund a Loan at a time when, pursuant to Section 8 hereof, it is obligated to fund such Loan, it shall not accrue a facility fee hereunder until it cures such default by funding such Loan. The Borrower shall not be obligated to pay such Bank's portion of the facility fee otherwise payable under this Section 4.1 if it notifies the Agent of such Bank's default and of the amount of the facility fee thereby not earned by such defaulting Bank. If the Agent receives any payment of the facility fee hereunder from which an amount has been so deducted as provided above, the Agent shall be entitled to not remit to any Bank identified by the Borrower as such a defaulting Bank its pro rata share of the portion of the facility fee not earned by such Bank as notified by the Borrower as provided above. Section 4.2. Closing Fee. On the date hereof, the Borrower shall pay to the Agent for the account of the Banks signatory hereto a closing fee equal to (i) for each Bank with a Commitment of U.S. $16,666,667 or less, 0.10% of such Bank's Commitment and (ii) for each Bank with a Commitment greater than U.S. $16,666,667, 0.12% of such Bank's Commitment. Section 4.3. Agent Fees. The Borrower shall pay to the Agent and Co-Agent the fees agreed to between the Agent and the Borrower. SECTION 5. PLACE AND APPLICATION OF PAYMENTS. Section 5.1. Place and Application of Payments. All payments of principal of and interest on the Loans and all payments of facility fees and all other amounts payable under this Agreement shall be made to the Agent by no later than 12:00 noon (Chicago time) at the principal office of the Agent in Chicago, Illinois (or such other location in the State of Illinois as the Agent may designate to the Borrower) or, if such payment is to be made in an Alternative Currency, no later than 12:00 noon local time at the place of payment to such office as the Agent has previously notified the Borrower for the benefit of the Person or Persons entitled thereto. Any payments received -10- after such time shall be deemed to have been received by the Agent on the next Business Day. All such payments shall be made (i) in lawful money of the United States of America, in immediately available funds at the place of payment, or (ii) in the case of amounts payable hereunder in an Alternative Currency, in such Alternative Currency in such funds then customary for the settlement of international transactions in such currency, in each case without setoff or counterclaim. The Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest on Committed Loans or fees ratably to the Banks and like funds relating to the payment of any other amount payable to any Bank to such Bank, in each case to be applied in accordance with the terms of this Agreement. SECTION 6. DEFINITIONS; INTERPRETATION. Section 6.1.Definitions. The following terms when used herein have the following meanings: "Adjusted LIBOR" is defined in Section 1.2(b) hereof. "Agent" means Bank of Montreal, acting through its Chicago Branch, and any successor pursuant to Section 12.8 hereof. "Alternative Currency" means Pounds Sterling, Deutsche Marks, French Francs, Australian Dollars, Canadian Dollars, Italian Lire and any other currency requested by the Borrower as an "Alternative Currency" hereunder which is available to each Bank as confirmed by the Agent to the Borrower after consultation with the Banks. "Authorized Officer" means each Authorized Representative and in any case shall include the Chief Financial Officer, Treasurer, and any Assistant Treasurer, or, in each case, any other officer performing comparable duties however designated. "Authorized Representative" means any of Jerry A. Schiller, Executive Vice President and Chief Financial Officer, Thomas C. Ringgenberg, Vice President and Treasurer, and Mark S. Ayers, Assistant Treasurer, as shown on the list of officers provided by the Borrower pursuant to Section 8.1(c) hereof, or any other person shown on any updated list provided by the Borrower to the Agent, or any further or different officer(s) or employee(s) of the Borrower so named by any Authorized Representative of the Borrower in a written notice to the Agent. "Bank" means each bank signatory hereto or that becomes a Bank hereunder pursuant to Section 13.12 hereof. "Borrower" means Maytag Corporation, a Delaware corporation. "Borrowing" means the total of Loans of a single type advanced, continued for an additional Interest Period, or converted from a different type into such type by one or more Banks on a single date and for a single Interest Period. Borrowings of Committed Loans are made and maintained -11- ratably from each of the Banks according to their Commitments. Borrowings of Swing Line Loans are made from a Bank or Banks in accordance with Section 2 hereof. A Borrowing is "advanced" on the day Banks advance funds comprising such Borrowing to the Borrower, is "continued" on the date a new Interest Period for the same type of Loans commences for such Borrowing, and is "converted" when such Borrowing is changed from one type of Loans to the other, all as requested by the Borrower pursuant to Section 1.4(a) or, in the case of the "advance" of Swing Line Loans, as agreed between the Borrower and the relevant Bank or Banks pursuant to Section 2.1. "Business Day" means any day other than a Saturday or Sunday on which Banks are not authorized or required to close in Chicago, Illinois or New York, New York and, if the applicable Business Day relates to the borrowing or payment of a Eurocurrency Loan, on which banks are dealing in U.S. Dollar deposits or the relevant Alternative Currency in the interbank market in London, England and, if the applicable Business Day relates to the borrowing or payment of a Eurocurrency Loan denominated in an Alternative Currency, on which banks and foreign exchange markets are open for business in the city where disbursements of or payments on such Loans are to be made. "Capital Lease" means at any date any lease of Property which in accordance with GAAP at the time in effect would be required to be capitalized on the balance sheet of the lessee. "Capital Lease Obligations" of a Person means the amount of the obligations of such Person under Capital Leases which would be shown as a liability on a balance sheet of such Person prepared in accordance with GAAP. "Change of Control" is defined in Section 10.1(h) hereof. "Co-Agent" means Royal Bank of Canada. "Code" means the Internal Revenue Code of 1986, as amended. "Commitment" is defined in Section 1.1 hereof. "Committed Loan" is defined in Section 1.1 hereof. "Consolidated Income Before Interest and Taxes" means, for any fiscal quarter, determined on a consolidated basis for the Borrower and its Subsidiaries in accordance with GAAP, (i) earnings (not including any gains or losses from discontinued operations) before income taxes for such fiscal quarter, plus (ii) Consolidated Interest Expense for such fiscal quarter. "Consolidated Indebtedness" means all Indebtedness of the Borrower and its Subsidiaries of the types described in clauses (i), (ii), (iii) and (v) of the definition of "Indebtedness," determined (without duplication) on a consolidated basis in accordance with GAAP. -12- "Consolidated Interest Expense" means, for any fiscal quarter of the Borrower and its Subsidiaries, an amount equal to interest expense on Consolidated Indebtedness, as determined in accordance with GAAP. "Consolidated Net Income" means, for any period, the consolidated net income of the Borrower and Consolidated Subsidiaries for such period determined in accordance with GAAP. "Consolidated Net Worth" means the aggregate amount of the Borrower's and its Subsidiaries' shareholders' equity as determined from the consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP; provided, however, that Consolidated Net Worth shall not be increased or reduced on account of foreign currency translations. "Consolidated Subsidiary" means any Subsidiary or other entity whose accounts are required to be consolidated with those of the Borrower in accordance with GAAP. "Consolidated Tangible Net Worth" means the aggregate amount of the Borrower's and its Subsidiaries' shareholders' equity as determined from the consolidated balance sheet of the Borrower and its Subsidiaries prepared in accordance with GAAP, less the net book value of all assets of the Borrower and its Subsidiaries which would be treated as intangibles under GAAP, including, without limitation, deferred charges, leasehold conversion costs, franchise rights, non-compete agreements, goodwill, unamortized debt discounts, patents, patent applications, trademarks, trade names, copyrights, licenses and premiums on purchased assets; provided, however, that Consolidated Tangible Net Worth shall not be increased or reduced on account of foreign currency translations. "Controlled Group" has the same meaning as in Section 414(b) of the Code. "Default" means any event or condition the occurrence of which would, with the passage of time or the giving of notice, or both, constitute an Event of Default. "Domestic Rate" is defined in Section 1.2(a) hereof. "Domestic Rate Loan" means a Loan denominated in U.S. Dollars bearing interest before maturity at the rate specified in Section 1.2(a) hereof. "ERISA" is defined in Section 7.12 hereof. "Eurocurrency Loan" means either a Committed Loan or a Swing Line Loan bearing interest before maturity at the rate specified in Section 1.2(b) hereof. "Eurocurrency Margin" is defined in Section 1.2(b) hereof. "Eurocurrency Reserve Percentage" is defined in Section 1.2(b) hereof. -13- "Event of Default" means any of the events or circumstances specified in Section 10.1 hereof. "GAAP" means generally accepted accounting principles, from time to time in effect, consistently applied. "Guaranty" of a Person means any agreement by which such Person assumes, guarantees, endorses, contingently agrees to purchase or provide funds for the payment of, or otherwise becomes liable upon, the obligation of any other Person, or agrees to maintain the net worth or working capital or other financial condition of any other Person or otherwise assures any creditor of such other Person against loss, including, without limitation, any comfort letter, operating agreement, take-or-pay contract or letter of credit. "Indebtedness" means for any Person all (i) obligations of such Person for borrowed money, (ii) obligations of such Person representing the deferred purchase price of property or services other than accounts payable for property or other accrued expenses for services, in each case arising in the ordinary course of business on terms customary in the trade, (iii) obligations of such Person evidenced by notes, acceptances, or other instruments of such Person, (iv) obligations, whether or not assumed, secured by Liens on, or payable out of the proceeds or production from, Property now or hereafter owned or acquired by such Person, (v) Capital Lease Obligations of such Person and (vi) obligations for which such Person is obligated pursuant to a Guaranty. "Interest Period" is defined in Section 3.1 hereof. "Lending Office" is defined in Section 11.4 hereof. "Level I Status" means the S&P Rating is greater than BBB+ and the Moody's Rating is greater than Baa1. "Level II Status" means Level I Status does not exist, but the S&P Rating is BBB+ or higher and the Moody's Rating is Baa1 or higher. "Level III Status" means neither Level I Status nor Level II Status exists, but the S&P Rating is BBB or higher and the Moody's Rating is Baa2 or higher. "Level IV Status" means none of Level I Status, Level II Status, or Level III Status exists, but the S&P Rating is BBB- or higher and the Moody's Rating is Baa3 or higher. "Level V Status" means the S&P Rating is less than BBB- or the Moody's Rating is less than Baa3 or either such rating is suspended, withdrawn or otherwise not provided. "LIBOR" is defined in Section 1.2(b) hereof. "Lien" means any interest in Property securing an obligation owed to, or a claim by, a Person other than the owner of the Property, whether such interest is based on the common law, statute or contract, including, but not -14- limited to, the security interest lien arising from a mortgage, encumbrance, pledge, conditional sale, security agreement or trust receipt, or a lease, consignment or bailment for security purposes. The term "Lien" shall also include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting Property. For the purposes of this definition, a Person shall be deemed to be the owner of any Property which it has acquired or holds subject to a conditional sale agreement, Capital Lease or other arrangement pursuant to which title to the Property has been retained by or vested in some other Person for security purposes, and such retention of title shall constitute a "Lien." "Loan" means and includes Committed Loans and Swing Line Loans, and each of them singly, and the term "type" of Loan refers to its status as a Committed Loan or Swing Line Loan, or, if a Committed Loan, to its status as a Domestic Rate Loan or Eurocurrency Loan. "Margin Stock" means "margin stock" as defined in Regulation U of the Board of Governors of the Federal Reserve System. "Material Plan" is defined in Section 10.1(f) hereof. "Material Subsidiary" means any Subsidiary of the Borrower except a Subsidiary that (i) is incorporated outside the United States, and (ii) has neither (a) assets with a book value in excess of U.S. $5,000,000 nor (b) annual revenues for the most recently completed calendar year in excess of U.S. $5,000,000. "Moody's Rating" means the rating assigned by Moody's Investors Service, Inc. to the outstanding senior unsecured non-credit enhanced long-term indebtedness of the Borrower. Any reference in this Agreement to any specific rating is a reference to such rating as currently defined by Moody's Investors Service, Inc. and shall be deemed to refer to the equivalent rating if such rating system changes. "Note" is defined in Section 3.5(a) hereof. "Original Dollar Amount" means the amount of any Loan denominated in U.S. Dollars and, in relation to any Loan denominated in an Alternative Currency, the U.S. Dollar Equivalent of such Loan on the day it is advanced or continued for an Interest Period. "PBGC" is defined in Section 7.12 hereof. "Person" means an individual, partnership, corporation, association, trust, unincorporated organization or any other entity or organization, including a government or agency or political subdivision thereof. "Plan" means with respect to the Borrower and each Subsidiary at any time an employee pension benefit plan which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 of the Code and either (i) is maintained by a member of the Controlled Group for employees of -15- a member of the Controlled Group of which the Borrower or such Subsidiary is a part, (ii) is maintained pursuant to a collective bargaining agreement or any other arrangement under which more than one employer makes contributions and to which a member of the Controlled Group of which the Borrower or such Subsidiary is a part is then making or accruing an obligation to make contributions or has within the preceding five plan years made contributions, or (iii) under which a member of the Controlled Group of which the Borrower or such Subsidiary is a part has any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years or by reason of being deemed a contributing sponsor under Section 4069 of ERISA. "Property" means any interest in any kind of property or asset, whether real, personal or mixed, or tangible or intangible, whether now owned or hereafter acquired. "Reference Banks" means Bank of Montreal and Royal Bank of Canada. "Required Banks" means as of the date of determination thereof, Banks holding at least 66-2/3% of the Commitments or, in the event that no Commitments are outstanding hereunder, Banks holding at least 66-2/3% in aggregate principal amount of the Loans outstanding hereunder. "Security" has the same meaning as in Section 2(l) of the Securities Act of 1933, as amended. "SEC" means the Securities and Exchange Commission. "Set-Off" is defined in Section 13.7 hereof. "S&P Rating" means the rating assigned by Standard & Poor's Corporation to the outstanding senior unsecured non-credit enhanced long-term indebtedness of the Borrower. Any reference in this Agreement to any specific rating is a reference to such rating as currently defined by Standard & Poor's Corporation and shall be deemed to refer to the equivalent rating if such rating system changes. "Subsidiary" means any corporation or other entity of which more than fifty percent (50%) of the outstanding Voting Stock, in the case of a corporation, or comparable equity interests having ordinary voting power for the election of the governing body of such non-corporate entity is at the time directly or indirectly owned by the Borrower, by one or more of its Subsidiaries, or by the Borrower and one or more of its Subsidiaries. "Swing Line Loan" is defined in Section 2.1 hereof. "Termination Date" means June 25, 1996. "Unfunded Vested Liabilities" means, with respect to any Plan at any time, the amount (if any) by which (i) the present value of all vested nonforfeitable accrued benefits under such Plan exceeds (ii) the fair market -16- value of all Plan assets allocable to such benefits, all determined as of the then most recent ongoing actuarial valuation date for such Plan. "Unused Commitment" means as to each Bank, the difference between such Bank's Commitment and the Original Dollar Amount of all outstanding Loans of such Bank. "U.S. Dollars" and the sign "U.S.$" means the lawful currency of the United States of America. "U.S. Dollar Equivalent" means the amount of U.S. Dollars which would be realized by converting an Alternative Currency into U.S. Dollars in the spot market at the exchange rate quoted by the Agent, at approximately 11:00 a.m. (London time) two Business Days prior to the date on which a computation thereof is required to be made, to major banks in the interbank foreign exchange market for the purchase of U.S. Dollars for such Alternative Currency. "U.S. Taxes is defined in Section 13.1(c) hereof. "Voting Stock" of any Person means capital stock of any class or classes (however designated) having ordinary voting power for the election of directors of such Person, other than stock having such power only by reason of the happening of a contingency. "Welfare Plan" means a "welfare plan," as said term is defined in Section 3(1) of ERISA. "Wholly-Owned" when used in connection with any Subsidiary of the Borrower means a Subsidiary of which all of the issued and outstanding shares of stock (other than directors' qualifying shares as required by law) are owned by the Borrower and/or one or more of its Wholly-Owned Subsidiaries. Section 6.2. Interpretation. The foregoing definitions shall be equally applicable to both the singular and plural forms of the terms defined. All references to times of day herein shall be references to Chicago, Illinois time unless otherwise specifically provided. Where the character or amount of any asset or liability or item of income or expense is required to be determined or any consolidation or other accounting computation is required to be made for the purposes of this Agreement, the same shall be done in accordance with GAAP, to the extent applicable, except where such principles are inconsistent with the specific provisions of this Agreement. SECTION 7. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants to the Banks as follows: Section 7.1. Organization and Qualification. The Borrower is duly organized and validly existing in good standing under the laws of the State of Delaware, has full and adequate corporate power to carry on its business as now conducted, is duly licensed or qualified and in good standing in each -17- jurisdiction in which the nature of the business transacted by it or the nature of the Property owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified and in good standing would not have a material adverse effect on the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. Section 7.2. Subsidiaries. As of the date hereof, the only Subsidiaries of the Borrower are designated in Exhibit B hereto; each Subsidiary is a corporation duly organized and validly existing in good standing under the laws of the jurisdiction in which it was incorporated, has full and adequate corporate power to carry on its business as now conducted, and is duly licensed or qualified and in good standing in each jurisdiction in which the nature of the business transacted by it or the nature of the Property owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified and in good standing would not have a material adverse effect on the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. Exhibit B hereto, as from time to time updated pursuant to Section 9.5(e), correctly sets forth, as to each Subsidiary required to be listed thereon, whether or not it is a Consolidated Subsidiary, the jurisdiction of its incorporation, the percentage of issued and outstanding shares of each class of its capital stock owned by the Borrower and the Subsidiaries and, if such percentage is not 100% (excluding directors' qualifying shares as required by law or nominal ownership by other shareholders required by local law for a non-U.S. Subsidiary), a description of each class of its authorized capital stock and the number of shares of each class issued and outstanding. All of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and outstanding and fully paid and nonassessable and all such shares indicated in Exhibit B as owned by the Borrower or a Subsidiary are owned, beneficially and of record, by the Borrower or such Subsidiary, free of any Lien. Section 7.3. Corporate Authority and Validity of Obligations. The Borrower has full right and authority to enter into this Agreement, to make the borrowings herein provided for, to issue its Notes in evidence thereof and to perform all of its obligations hereunder and under the Notes; this Agreement and each Note delivered by the Borrower have been duly authorized, executed and delivered by the Borrower and constitute valid and binding obligations of the Borrower enforceable in accordance with their terms, except insofar as enforceability may be limited by bankruptcy, insolvency or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and this Agreement and the Notes do not, nor does the performance or observance by the Borrower or any Subsidiary of any of the matters or things therein provided for, contravene any provision of law or any charter or by-law provision of the Borrower or any Subsidiary or any material covenant, indenture or agreement of or affecting the Borrower or any Subsidiary or a substantial portion of their respective Properties. Section 7.4. Not an Investment Company. The Borrower is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended. -18- Section 7.5. Margin Stock. Neither the Borrower nor any of its Subsidiaries is engaged principally, or as one of its primary activities, in the business of extending credit for the purpose of purchasing or carrying Margin Stock, and neither the Borrower nor any of its Subsidiaries will use the proceeds of any Loan in a manner that violates any provision of Regulation U, G or X of the Board of Governors of the Federal Reserve System. Section 7.6. Financial Reports. The consolidated statement of financial condition of the Borrower and the Consolidated Subsidiaries as at December 31, 1992 and the related statements of consolidated income and consolidated cash flows of the Borrower and the Consolidated Subsidiaries for the year then ended and accompanying notes thereto, which financial statements are accompanied by the report of Ernst & Young, independent public accountants, and the unaudited condensed statement of consolidated financial condition of the Borrower and the Consolidated Subsidiaries as at March 31, 1993 and the related condensed statements of consolidated income and consolidated cash flows of the Borrower and the Consolidated Subsidiaries for the three months then ended and accompanying notes, heretofore furnished to the Banks, fairly present the consolidated financial conditions of the Borrower and the Consolidated Subsidiaries as at such dates and the consolidated results of their operations and their consolidated cash flows for the periods then ended in conformity with GAAP. Section 7.7. No Material Adverse Change. Since March 31, 1993 to the date hereof, there has been no material adverse change in the condition, financial or otherwise, or business prospects of the Borrower and the Consolidated Subsidiaries taken as a whole. Section 7.8. Litigation. There is no litigation or governmental proceeding pending, nor to the knowledge of the Borrower threatened, against the Borrower or any Consolidated Subsidiary which if adversely determined would (a) in any material way impair the validity or enforceability of, or materially impair the ability of the Borrower to perform its obligations under, this Agreement or the Notes or (b) other than as previously disclosed in writing to the Banks, result in any material adverse change in the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. Section 7.9. Tax Returns.; The consolidated United States federal income tax returns of the Borrower for the taxable year ended December 31, 1986 and for all taxable years ended prior to said date have been examined by the Internal Revenue Service and have been approved as filed, and any additional assessments in connection with any of such years have been paid or the applicable statute of limitations therefor has expired. There are no assessments in respect of the consolidated United States federal income tax returns of the Borrower and the Consolidated Subsidiaries of a material nature for any taxable year ended after December 31, 1986 pending, nor to the knowledge of the Borrower is any such assessment threatened, other than for those which are provided for by adequate reserves. Section 7.10. Approvals. No authorization, consent, license, exemption or filing or registration with any court or governmental department, agency or instrumentality, or any approval or consent of the stockholders of the Borrower or from any other Person, is necessary to the -19- valid execution, delivery or performance by the Borrower of this Agreement or the Notes. Section 7.11. Liens. There are no Liens on any of the Property of the Borrower or any Subsidiary, except those which are permitted by Section 9.13 hereof. Section 7.12. ERISA. The Borrower and each Subsidiary are in compliance in all material respects with the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), to the extent applicable to them and have received no notice to the contrary from the Pension Benefit Guaranty Corporation ("PBGC") or any other governmental entity or agency. As of December 31, 1992 there were no Unfunded Vested Liabilities of Plans maintained by the Borrower and its Subsidiaries. No condition exists or event or transaction has occurred with respect to any Plan which could reasonably be expected to result in the incurrence by the Borrower or any Subsidiary of any material liability, fine or penalty. Except as disclosed to the Agent in writing, neither the Borrower nor any Subsidiary has any contingent liability with respect to any post-retirement benefits under a Welfare Plan, other than liability for continuation coverage described in Part 6 of Title I of ERISA. Section 7.13. Compliance with Environmental Laws. (a) The business and operation of the Borrower and its Subsidiaries comply in all respects with all applicable federal, state, regional, county and local laws, statutes, rules, regulations and ordinances relating to public health, safety or the environment, including, without limitation, relating to releases, discharges, emissions or disposals to air, water, land or groundwater, to the withdrawal or use of groundwater, to the use, handling or disposal of polychlorinated biphenyls (PCB s), asbestos or urea formaldehyde, to the treatment, storage, disposal or management of hazardous substances (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons), to exposure to toxic, hazardous, or other controlled, prohibited or regulated substances, to the transportation, storage, disposal, management or release of gaseous or liquid substances, and any regulation, order, injunction, judgment, declaration, notice or demand issued thereunder, except to the extent that such noncompliance in the aggregate would not (i) impair the validity or enforceability of, or materially impair the ability of the Borrower to perform its obligations under, this Agreement or the Notes or (ii) result in any material adverse change in the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole. (b) The Borrower has not given, nor is it obligated to give, nor has it received, any notice, letter, citation, order, warning, complaint, inquiry, claim or demand that: (i) the Borrower has violated, or is about to violate, any federal, state, regional, county or local environmental, health or safety statute, law, rule, regulation, ordinance, judgment or order; (ii) there has been a release, or there is a threat of release (other than, in either case, a federally permitted release), of hazardous substances (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons) from the Borrower's property, facilities, equipment or vehicles (whether now or heretofore owned); (iii) the Borrower may be or is liable, in whole or in part, for the costs of cleaning up, remediating or -20- responding to a release of hazardous substances (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons); or (iv) any of the Borrower's property or assets are subject to a Lien in favor of any governmental entity for any liability, costs or damages, under any federal, state, regional, county or local environmental law, rule or regulation arising from, or costs incurred by such governmental entity in response to, a release of a hazardous substance (including, without limitation, petroleum, its by-products or derivatives, or other hydrocarbons), except to the extent that such violation, release, liability or Lien could not (A) impair the validity or enforceability of, or materially impair the ability of the Borrower to perform its obligations under, this Agreement or the Notes or (B) result in any material adverse change in the financial condition or Property, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole, and provided that, in the case of a Lien, such Lien does not violate Section 9.13 hereof. SECTION 8. CONDITIONS PRECEDENT. The obligation of each Bank to advance, continue, or convert any Loan hereunder shall be subject to the following conditions precedent: Section 8.1. Initial Borrowing. Prior to the advance of the initial Borrowing hereunder: (a) The Agent shall have received for each Bank the favorable written opinion of Sidley & Austin, counsel to the Borrower, in substantially the form of Exhibit C hereto, and of Edward H. Graham, Vice President and General Counsel of the Borrower, in substantially the form of Exhibit D hereto, and otherwise in form and substance satisfactory to the Required Banks; (b) The Agent shall have received for each Bank certified copies of resolutions of the Board of Directors of the Borrower and of a Special Committee thereof, together authorizing the execution and delivery of this Agreement and the Notes, indicating the authorized signers of this Agreement and the Notes and all other documents relating thereto and the specimen signatures of such signers; and (c) The Agent shall have received from the Borrower a list of its Authorized Representatives and the closing fee required by Section 4.2 hereof. Section 8.2. All Loans. As of the time of the advance, continuation, or conversion of each Borrowing hereunder (including the initial Borrowing): (a) The Agent shall have received for each Bank the Notes of the Borrower and the notice required by Section 1.4 or 2.2 hereof; -21- (b) Each of the representations and warranties of the Borrower set forth in Section 7 hereof shall be true and correct as of said time, except that any such representation or warranty that expressly relates solely to an earlier date need only be true and correct as of such date; (c) The Borrower shall be in full compliance with all of the terms and conditions hereof, and no Default or Event of Default shall have occurred and be continuing or would occur as a result of the advance, continuation, or conversion of such Borrowing; (d) After giving effect to the advance, continuation, or conversion of such Borrowing the aggregate amount of all indebtedness for borrowed money of the Borrower and its Subsidiaries will not exceed any limit on such indebtedness then established by the Board of Directors of the Borrower; and (e) After giving effect to the advance, continuation or conversion of such Borrowing (i) the Original Dollar Amount of all Loans outstanding hereunder shall not exceed the Commitments then in effect and (ii) the Original Dollar Amount of all Loans outstanding from each Bank shall not exceed such Bank s Commitment; and (f) Such Borrowing shall not violate any order, judgment or decree of any court or other authority or any provision of law or regulation applicable to any Bank (including, without limitation, Regulation U of the Board of Governors of the Federal Reserve System) as then in effect, provided that if any such circumstances affect fewer than all the Banks then the unaffected Banks shall not be relieved of their obligations to continue or convert their Loans that form part of such Borrowing. Each request for a Borrowing hereunder shall be deemed to be a representation and warranty by the Borrower on the date of such Borrowing as to the facts specified in paragraphs (b), (c) and (d) of this Section 8.2. If any conditions contained in this Section 8.2 are not fulfilled for a Borrowing on the last day of its Interest Period, notwithstanding Section 3.2 hereof, such Borrowing shall be due and payable on the last day of its Interest Period. SECTION 9. COVENANTS. The Borrower agrees that, so long as any Note is outstanding hereunder or any credit is available to or in use by the Borrower hereunder except to the extent compliance in any case or cases is waived in writing by the Required Banks: Section 9.1. Corporate Existence. The Borrower shall, and shall cause each Subsidiary to, preserve and maintain its corporate existence, subject to the provisions of Section 9.9 hereof. -22- Section 9.2. Maintenance. The Borrower will maintain, preserve and keep its plants, properties and equipment necessary to the proper conduct of its business in reasonably good repair, working order and condition and will from time to time make all reasonably necessary repairs, renewals, replacements, additions and betterments thereto so that at all times such plants, properties and equipment shall be reasonably preserved and maintained, and will cause each Subsidiary so to do in respect of Property owned or used by it; provided, however, that nothing in this Section shall prevent the Borrower or a Subsidiary from discontinuing the operation or maintenance of any such properties if such discontinuance is, in the judgment of the Borrower, desirable in the conduct of its business or the business of the Subsidiary and not disadvantageous in any material respect to the Banks or the holders of the Notes. Section 9.3. Taxes. The Borrower will duly pay and discharge, and will cause each Subsidiary to pay and discharge, all taxes, rates, assessments, fees and governmental charges upon or against the Borrower or such Subsidiary or against their respective Properties, in each case before the same becomes delinquent and before penalties accrue thereon, unless and to the extent that the same is being contested in good faith and by appropriate proceedings and adequate reserves are provided therefor. Section 9.4. Insurance. The Borrower will insure, and keep insured, and will cause each Subsidiary to insure, and keep insured, with good and responsible insurance companies, all insurable Property owned by it which is of a character usually insured by companies similarly situated and operating like Property; and to the extent usually insured (subject to self-insured retentions) by companies similarly situated and conducting similar businesses, the Borrower will also insure, and cause each Subsidiary to insure, employers and public and product liability risks with good and responsible insurance companies. The Borrower will upon request of the Agent furnish a summary setting forth the nature and extent of the insurance maintained pursuant to this Section 9.4. Section 9.5. Financial Reports and Other Information. The Borrower will, and will cause each Consolidated Subsidiary to, maintain a standard system of accounting in accordance with GAAP and will furnish to the Banks and their respective duly authorized representatives such information respecting the business and financial condition of the Borrower and the Subsidiaries as may be reasonably requested; and without any request will furnish to each Bank: (a) within 50 days after the end of each of the first three quarterly fiscal periods of the Borrower, a copy of the Borrower's Form 10-Q Report filed with the SEC; (b) within 120 days after the end of each fiscal year of the Borrower, a copy of the Borrower's Form 10-K Report filed with the SEC, including a copy of the annual report of the Borrower and the Consolidated Subsidiaries for such year with accompanying financial statements, prepared by the Borrower and certified by Ernst & Young or any other independent public accountants of recognized national standing selected by the -23- selected by the Borrower, in accordance with GAAP; (c) promptly after the sending or filing thereof, copies of all proxy statements, financial statements and reports which the Borrower sends to its shareholders, and copies of all other regular, periodic and special reports and all registration statements which the Borrower files with the SEC or any successor thereto, or with any national securities exchange; and (d) as promptly as possible, and in any event within one Business Day after an Authorized Officer has knowledge thereof, notice of (i) any change in the S&P Rating or the Moody's Rating and (ii) any Default or Event of Default; and (e) an updated Exhibit B along with the financial statements delivered under subsection (a) or (b) above, as applicable, for any calendar quarter during which there is a change in any of the facts specified in Exhibit B hereto, as then most recently updated. (f) the Borrower will permit each Bank to visit and inspect, under the Borrower's guidance, any of the Properties of such Borrower or any Subsidiary, to examine all their books of account and records, to make copies and abstracts therefrom, and to discuss the Borrower's and its Subsidiaries' respective affairs, finances and accounts with such officers or employees as the Borrower may designate for such purpose, all at such reasonable times as may be reasonably requested; provided that unless a Default or an Event of Default exists, all such inspections shall be at the expense of the Bank or Banks making such inspections. Each of the financial statements furnished to the Banks pursuant to subsections (a) and (b) of this Section 9.5 shall be accompanied by a written certificate signed by the chief financial officer of the Borrower to the effect that (i) to the best of the knowledge and belief of the signer thereof no Default or Event of Default has occurred during the period covered by such statements or, if any such Default or Event of Default has occurred during such period, setting forth a description of such Default or Event of Default and specifying the action, if any, taken by the Borrower to remedy the same, (ii) the representations and warranties contained in Section 7 hereof are true and correct as though made on the date of such certificate, except as otherwise described, (iii) the Borrower is in compliance with all covenants contained in Section 9 hereof, and (iv) a compliance certificate in the form of Exhibit E hereto showing the calculations necessary to determine compliance with Sections 9.6 through 9.8 hereof. In the event the Borrower is no longer required to file Form 10Q and 10K Reports with the SEC, the Borrower will nevertheless furnish to the Banks at the time hereinabove set forth all the financial and other information that would have comprised such filings. Section 9.6. Consolidated Tangible Net Worth. The Borrower will at all times maintain Consolidated Tangible Net Worth in an amount not less than: -24- (i) U.S. $260,000,000 from the date hereof to and including September 29, 1993, (ii) U.S. $270,000,000 from September 30, 1993 to and including December 30, 1993, (iii) U.S. $275,000,000 from December 31, 1993 to and including March 30, 1994, and (iv) thereafter U.S. $275,000,000 plus, on a cumulative basis for each fiscal quarter: (A) from the last day of each fiscal quarter during the Borrower's 1994 fiscal year, 33.33% of Consolidated Net Income, if positive, earned during the fiscal quarter ending on such date, and (B) from the last day of each fiscal quarter thereafter, 50% of Consolidated Net Income, if positive, earned during the fiscal quarter ending on such date. Section 9.7. Leverage Ratio. The Borrower will, as of the last day of each fiscal quarter of the Borrower, maintain a ratio of Consolidated Indebtedness to the sum of Consolidated Indebtedness plus Consolidated Net Worth of not more than: (i) 0.635 to 1.00 as of the last day of each fiscal quarter of the Borrower during the Borrower's 1993 fiscal year, (ii) 0.600 to 1.00 as of the last day of each fiscal quarter of the Borrower during the Borrower's 1994 fiscal year, and (iii) 0.550 to 1.00 as of the last day of each fiscal quarter thereafter. Section 9.8. Interest Coverage Ratio. The Borrower will, as of the last day of each fiscal quarter of the Borrower, maintain the ratio of Consolidated Income Before Interest and Taxes to Consolidated Interest Expense of not less than: (i) 1.50 to 1.00 for the fiscal quarter of the Borrower ending June 30, 1993, (ii) 1.50 to 1.00 for the two most recently completed fiscal quarters of the Borrower ending September 30, 1993, (iii) 1.75 to 1.00 for the three most recently completed fiscal quarters of the Borrower ending December 31, 1993, (iv) 1.75 to 1.00 for the four most recently completed fiscal quarters of the Borrower ending March 31, 1994, -25- (v) thereafter through December 31, 1994, 2.00 to 1.00 for the four most recently completed fiscal quarters of the Borrower ending on the last day of each such fiscal quarter, (vi) thereafter through June 30, 1995, 2.25 to 1.00 for the four most recently completed fiscal quarters of the Borrower ending on the last day of each such fiscal quarter, and (vii) thereafter, 2.50 to 1.00 for the four most recently completed fiscal quarters of the Borrower ending on the last day of each such fiscal quarter. Section 9.9. Mergers, Consolidations, Leases, and Sales. The Borrower: (a) will not be a party to any merger or consolidation unless the Borrower is the surviving corporation; (b) except as permitted in Subsection (c) hereof, will not permit any Consolidated Subsidiary to be a party to any merger or consolidation unless the Consolidated Subsidiary is the surviving corporation and remains a Consolidated Subsidiary after the merger or consolidation, except any Consolidated Subsidiary may merge into the Borrower or a Wholly-Owned Consolidated Subsidiary and except that this subsection (b) shall not prohibit any merger where the Consolidated Subsidiary is not the surviving corporation if, after giving effect to such merger, the surviving corporation is a Wholly-Owned Consolidated Subsidiary; and (c) will not, and will not permit any Consolidated Subsidiary to, sell, assign, lease or otherwise transfer to any Person other than the Borrower or one or more Consolidated Subsidiaries any Properties (including, without limitation, any capital stock of any Consolidated Subsidiary) other than in the ordinary course of its business as conducted on the date hereof, unless such sale, assignment, lease or transfer is for a consideration not less than the fair market value thereof and unless, after giving effect to such sale, assignment, lease or transfer, the aggregate proceeds to the Borrower and the Consolidated Subsidiaries of all such sales, assignments, leases and transfers (other than in the ordinary course of its business as conducted on the date hereof) shall not exceed 10% of the Borrower's consolidated assets as shown on the Borrower's December 31, 1992 financial statements described in Section 7.6 hereof. Section 9.10. Change of Control. If a Change of Control shall occur, the Borrower will, within 1 Business Day after the Borrower becomes aware of the occurrence thereof, give the Agent notice thereof and describe in reasonable detail the facts and circumstances giving rise thereto. Section 9.11. ERISA. The Borrower will promptly pay and discharge all obligations and liabilities arising under ERISA of a character which if unpaid or unperformed might result in the imposition of a Lien against any of its properties or assets and will promptly notify the Agent of (i) the occurrence of any reportable event (as defined in ERISA) with respect to -26- Plan, other than any such event of which the PBGC has waived notice by regulation, (ii) receipt of any notice from PBGC of its intention to seek termination of any Plan or appointment of a trustee therefor, (iii) its or any Subsidiary's intention to terminate or withdraw from any Plan, and (iv) the occurrence of any event with respect to any Plan which could result in the incurrence by the Borrower or any Subsidiary of any material liability, fine or penalty, or any material increase in the contingent liability of the Borrower or any Subsidiary with respect to any post-retirement Welfare Plan benefit. Section 9.12. Conduct of Business. The Borrower will not engage in any business if, as a result, the general nature of the business which would then be engaged in by the Borrower would be substantially changed from the general nature of the business engaged in by the Borrower on the date of this Agreement. Section 9.13. Liens. The Borrower will not nor will it permit any Subsidiary to create, incur, permit to exist or to be incurred any Lien of any kind on any Property owned by the Borrower or any Subsidiary; provided, however, that this Section 9.13 shall not apply to nor operate to prevent: (a) Liens existing as of the date of this Agreement (which in the aggregate secure less than U.S. $10,000,000 in indebtedness and other liabilities and which in the aggregate apply to Property constituting less than 5% of the Borrower's consolidated assets); (b) Liens in connection with worker's compensation, unemployment insurance, old age benefits, social security obligations, taxes, assessments, statutory obligations or other similar charges, good faith deposits in connection with tenders, contracts or leases to which the Borrower or any Subsidiary is a party (other than contracts for borrowed money), or other deposits required to be made in the ordinary course of business; provided that in each case the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate proceedings and adequate reserves have been established therefor; (c) mechanics', workmen's, materialmen's, landlords', carriers' or other similar Liens arising in the ordinary course of business with respect to obligations which are not due or which are being contested in good faith by appropriate proceedings and adequate reserves have been established therefor; (d) Liens arising out of judgments or awards against the Borrower or any Subsidiary with respect to which the Borrower or such Subsidiary shall be prosecuting an appeal or proceeding for review and with respect to which it shall have obtained a stay of execution pending such appeal or proceeding for review; provided that the aggregate amount of liabilities (including interest and penalties, if any) of the Borrower and the Subsidiaries secured by such Liens shall not exceed U.S.$25,000,000 at any one time outstanding; -27- (e) Liens for property taxes not yet subject to penalties for nonpayment, or survey exceptions, encumbrances, mineral or royalty reservations, easements or reservations of, or rights of others for, rights of way, sewers, electric lines, pipe lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of its properties, which exceptions, encumbrances, easements, reservations, rights and restrictions do not in the aggregate materially detract from the value of such properties or materially impair their use in the operation of the business of the Borrower and its Subsidiaries; (f) Liens upon any Property acquired by the Borrower or any Subsidiary after the date hereof (A) to secure the payment of all or any part of the purchase price of such Property upon the acquisition thereof by the Borrower or such Subsidiary, or (B) to secure any indebtedness issued, assumed or guaranteed by the Borrower or any Subsidiary prior to, at the time of, or within 270 days after the acquisition of such Property, which indebtedness is issued, assumed or guaranteed for the purpose of financing all or any part of the purchase price of such Property, provided that in the case of any such acquisition the Lien shall not apply to any Property other than the Property so acquired or purchased; (g) Liens of or upon any Property existing at the time of acquisition thereof by the Borrower or any Subsidiary and not created in contemplation of such acquisition; (h) Liens of or upon any Property of a corporation existing at the time such corporation is merged with or into or consolidated with the Borrower or any Subsidiary or existing at the time of a sale or transfer of the properties of a corporation (or division thereof) as an entirety or substantially as an entirety to the Borrower or any Subsidiary and not created in contemplation of such transaction; (i) Liens to secure indebtedness of any Subsidiary to the Borrower or to another Subsidiary; (j) Liens in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, or in favor of any other country or political subdivision, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred or guaranteed for the purpose of financing or refinancing all or any part of the purchase price of the Property subject to such Liens, or the cost of constructing or improving the Property subject to such mortgages (including, without limitation, mortgages incurred in connection with pollution control, industrial revenue or similar financings); or (k) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part of any Lien referred to in the foregoing paragraphs (a) through (j), inclusive, provided, however, that the principal amount of indebtedness secured thereby shall not exceed the principal amount of indebtedness so secured -28- at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to the Property which was subject to the Lien so extended, renewed or replaced. Section 9.14. Use of Proceeds; Margin Stock. (a) The Borrower shall only use the proceeds of the Loans for general corporate purposes. (b) The Borrower shall not directly or indirectly use the proceeds of any of the Loans to purchase or carry any Margin Stock, and at no time will Margin Stock constitute 25% or more of the assets of the Borrower or of the consolidated assets of the Borrower and the Subsidiaries. Section 9.15. Compliance with Laws. Without limiting any of the other covenants of the Borrower in this Section 9, the Borrower will, and will cause each of its Subsidiaries to, conduct its business, and otherwise be, in compliance with all applicable laws, regulations, ordinances and orders of any governmental or judicial authorities, non-compliance with which would (a) in any material way impair the validity or enforceability or the ability of the Borrower to perform its obligations under this Agreement or the Notes or (b) result in any material adverse change in the financial condition or properties, business or operations of the Borrower and the Consolidated Subsidiaries taken as a whole; provided, however, that the Borrower or any Subsidiary shall not be required to comply with any such law, regulation, ordinance or order if it shall be contesting such law, regulation, ordinance or order in good faith by appropriate proceedings and adequate reserves, if appropriate, shall have been established therefor. SECTION 10. EVENTS OF DEFAULT AND REMEDIES. Section 10.1. Events of Default. Any one or more of the following shall constitute an Event of Default: (a) (i) default in the payment when due of any principal on any Note or any Loan evidenced thereby, whether at the stated maturity thereof or at any other time provided in this Agreement; or (ii) default for a period of five days in the payment when due of interest on any Note or any Loan evidenced thereby or of any other sums required to be paid pursuant to this Agreement; (b) default by the Borrower in the observance or performance of any covenant set forth in Sections 9.6, 9.7, 9.8, 9.9, 9.10, 9.12 or 9.14 hereof; (c) default by the Borrower in the observance or performance of any other provision hereof not mentioned in (a) or (b) above, which is not remedied within 30 days after notice thereof to the Borrower by the Agent or any Bank; (d) any representation or warranty made herein by the Borrower, or in any statement or certificate furnished pursuant hereto by the -29- Borrower, or in connection with any Loan advanced hereunder, proves untrue in any material respect as of the date of the issuance or making thereof; (e) the Borrower or any Subsidiary shall fail within thirty (30) days to pay, bond or otherwise discharge any judgment or order for the payment of money in excess of U.S. $25,000,000, which is not stayed on appeal or otherwise being appropriately contested in good faith in a manner that stays enforcement thereof; (f) the Borrower or any other member of its Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of U.S. $10,000,000 which it shall have become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans having aggregate Unfunded Vested Liabilities in excess of U.S. $10,000,000 (collectively, a "Material Plan") shall be filed under Title IV of ERISA by the Borrower or any other member of its Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate or to cause a trustee to be appointed to administer any Material Plan or a proceeding shall be instituted by a fiduciary of any Material Plan against the Borrower or any member of its Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall not have been dismissed within thirty (30) days thereafter; or a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that any Material Plan must be terminated; (g) (A) default shall occur in the payment when due of any indebtedness for borrowed money issued or assumed by the Borrower or any Subsidiary aggregating in excess of U.S. $10,000,000 or the Borrower or any Subsidiary shall default in the payment of any guaranty of indebtedness in such an amount, or (B) default shall occur under any indenture, agreement or other instrument under which any indebtedness for borrowed money of the Borrower or any Subsidiary may be issued, assumed or guaranteed, and such default shall continue for a period of time sufficient to permit the acceleration of the maturity of any such indebtedness for borrowed money of the Borrower or any Subsidiary aggregating in excess of U.S. $10,000,000 (whether or not such maturity is in fact accelerated); (h) any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under said Act) of 20% or more in voting power of the outstanding Voting Stock of the Borrower (a "Change of Control"); (i) the Borrower or any Material Subsidiary shall (i) have entered against it an order for relief under the United States Bankruptcy Code, as amended, (ii) not pay, or admit in writing its inability to pay, its debts generally as they become due, (iii) make an -30- assignment for the benefit of creditors, (iv) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, custodian, trustee, examiner, liquidator or similar official for it or any substantial part of its property, (v) institute any proceeding seeking to have entered against it an order for relief under the United States Bankruptcy Code, as amended, to adjudicate it insolvent, or seeking dissolution, winding up, liquidation, reorganization, arrangement, adjustment or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, or (vi) fail to contest in good faith any appointment or proceeding described in Section 10.1(j) hereof; or (j) a custodian, receiver, trustee, examiner, liquidator or similar official shall be appointed for the Borrower or any Material Subsidiary or any substantial part of any of their Property, or a proceeding described in Section 10.1(i)(v) shall be instituted against the Borrower, and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of sixty (60) days. Section 10.2. Non-Bankruptcy Defaults. When any Event of Default other than those described in Sections 10.1(i) or (j) has occurred and is continuing, the Agent shall, by notice to the Borrower, (a) if so directed by the Required Banks, terminate the remaining Commitments of the Banks hereunder on the date stated in such notice (which may be the date thereof); and (b) if so directed by the Banks holding Notes evidencing more than 66-2/3% of the aggregate principal amount of all Loans then outstanding, declare the principal of and the accrued interest on all outstanding Notes of the Borrower to be forthwith due and payable and thereupon all of said Notes, including both principal and interest, shall be and become immediately due and payable together with all other amounts payable under this Agreement without further demand, presentment, protest or notice of any kind. The Agent, after giving notice to the Borrower pursuant to Section 10.1 or this Section 10.2, shall also promptly send a copy of such notice to the other Banks, but the failure to do so shall not impair or annul the effect of such notice. Section 10.3. Bankruptcy Defaults. When any Event of Default described in subsections (i) or (j) of Section 10.1 hereof has occurred and is continuing, then all outstanding Notes shall immediately become due and payable together with all other amounts payable under this Agreement without presentment, demand, protest or notice of any kind, and the obligation of the Banks to extend further credit pursuant to any of the terms hereof shall immediately terminate. Section 10.4. Expenses. The Borrower agrees to pay to the Agent and each Bank, or any other holder of any Note outstanding hereunder, all reasonable costs and expenses incurred or paid by the Agent and such Bank or any such holder, including reasonable attorneys' fees and court costs, in connection with any Default or Event of Default by the Borrower hereunder or in connection with the enforcement of any of the terms hereof or of the Notes. -31- SECTION 11. CHANGE IN CIRCUMSTANCES. Section 11.1. Change of Law. Notwithstanding any other provisions of this Agreement or any Note, if at any time after the date hereof any change in applicable law or regulation or in the interpretation thereof makes it unlawful for any Bank to make or continue to maintain Eurocurrency Loans in any currency or to give effect to its obligations as contemplated hereby, such Bank shall promptly give notice thereof to the Borrower, with a copy to the Agent, and such Bank's obligations to make or maintain Eurocurrency Loans in such currency under this Agreement shall terminate until it is no longer unlawful for such Bank to make or maintain Eurocurrency Loans in such currency. The Borrower shall prepay on demand the outstanding principal amount of any such affected Eurocurrency Loans, together with all interest accrued thereon and all other amounts then due and payable to such Bank under this Agreement; provided, however, subject to all of the terms and conditions of this Agreement, the Borrower may instead elect to convert the principal amount of the affected Eurocurrency Loan if denominated in U.S. Dollars into a Domestic Rate Loan from such Bank that shall not be maintained through conversion ratably by the Banks but only by such affected Bank. Section 11.2. Unavailability of Deposits or Inability to Ascertain, or Inadequacy of, LIBOR. If on or prior to the first day of any Interest Period for any Borrowing of Eurocurrency Loans: (a) the Agent is advised by the Reference Banks that deposits in U.S. Dollars or the applicable Alternative Currency (in the applicable amounts) are not being offered to the Reference Banks in the eurocurrency interbank market for such Interest Period, or that by reason of circumstances affecting the interbank eurocurrency market adequate and reasonable means do not exist for ascertaining the applicable LIBOR, or (b) Banks having 25% or more of the aggregate amount of the Commitments advise (or, in the case of a Swing Line Loan, a Bank scheduled to make such a Loan advises) the Agent that (i) LIBOR as determined by the Agent will not adequately and fairly reflect the cost to such Banks or Bank of or its funding their Eurocurrency Loans or Loan for such Interest Period or (ii) that the making or funding of Eurocurrency Loans in the relevant currency has become impracticable as a result of an event occurring after the date of the Agreement which in the opinion of such Banks or Bank materially affects such Loans, then the Agent shall forthwith give notice thereof to the Borrower and the Banks, whereupon until the Agent notifies the Borrower that the circumstances giving rise to such suspension no longer exist, the obligations of the Banks or of the relevant Bank to make Eurocurrency Loans in the currency so affected shall be suspended. Section 11.3. Increased Cost and Reduced Return. (a) If on or after the date hereof, the adoption of any applicable law, rule or regulation, or any change therein, or any change in the interpretation or administration -32- thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency: (i) shall subject any Bank (or its Lending Office) to any tax, duty or other charge with respect to its Eurocurrency Loans, its Notes or its obligation to make Eurocurrency Loans, or shall change the basis of taxation of payments to any Bank (or its Lending Office) of the principal of or interest on its Eurocurrency Loans or any other amounts due under this Agreement in respect of its Eurocurrency Loans or its obligation to make Eurocurrency Loans (except for taxes imposed on or measured by the overall net income of such Bank or its Lending Office imposed by the jurisdiction in which such Bank's principal executive office or Lending Office is located); or (ii) shall impose, modify or deem applicable any reserve, special deposit or similar requirement (including, without limitation, any such requirement imposed by the Board of Governors of the Federal Reserve System, but excluding with respect to any Eurocurrency Loans any such requirement included in an applicable Eurocurrency Reserve Percentage) against assets of, deposits with or for the account of, or credit extended by, any Bank (or its Lending Office) or shall impose on any Bank (or its Lending Office) or on the interbank market any other condition affecting its Eurocurrency Loans, its Notes or its obligation to make Eurocurrency Loans; and the result of any of the foregoing is to increase the cost to such Bank (or its Lending Office) of making or maintaining any Eurocurrency Loan, or to reduce the amount of any sum received or receivable by such Bank (or its Lending Office) under this Agreement or under its Notes with respect thereto, by an amount deemed by such Bank to be material, then, within fifteen (15) days after demand by such Bank (with a copy to the Agent), the Borrower shall be obligated to pay to such Bank such additional amount or amounts as will compensate such Bank for such increased cost or reduction. (b) If after the date hereof, any Bank shall have determined that the adoption of any applicable law, rule or regulation regarding capital adequacy, or any change therein (including, without limitation, the adoption of any risk-based capital guidelines, or any revisions thereof, currently proposed by banking regulators), or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Bank (or its Lending Office) with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Bank's capital, or on the capital of any corporation controlling such Bank, as a consequence of its obligations hereunder to a level below that which such Bank could have achieved but for such adoption, change or compliance (taking into consideration such Bank's policies with respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to time, within -33- fifteen (15) days after demand by such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such additional amount or amounts as will compensate such Bank for such reduction. (c) Each Bank that suspends its obligation to advance or maintain Eurocurrency Loans under Section 11.1 hereof, determines to seek compensation under this Section 11.3, or becomes entitled to receive additional amounts under Section 13.1(c) hereof shall notify the Borrower and the Agent of the circumstances that entitle the Bank to such right pursuant to any of such Sections and will designate a different Lending Office if such designation will avoid such situation or, in the case of Sections 11.3 and 13.1, reduce the amount of compensation payable thereunder, and will not, in the judgment of such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank claiming compensation under this Section 11.3 and setting forth the additional amount or amounts to be paid to it hereunder shall be conclusive if reasonably determined. In determining such amount, such Bank may use any reasonable averaging and attribution methods. Section 11.4. Lending Offices. Each Bank may, at its option, elect to make its Loans hereunder at the branch, office or affiliate specified on the appropriate signature page hereof (each a "Lending Office") for each type of Loan available hereunder or at such other of its branches, offices or affiliates or an international banking facility created by such Bank to make such Loan as it may from time to time elect and designate in a notice to the Borrower and the Agent; provided, however, that in such event such Loan shall be deemed to have been made by such Bank from its relevant Lending Office for such Loans, and the obligation of the Borrower to repay such Loan shall nevertheless be to such Bank and shall be deemed to be held by such Bank, to the extent of such Loan, for the account of such branch, office, affiliate or international banking facility. Section 11.5. Discretion of Bank as to Manner of Funding. Notwithstanding any other provision of this Agreement, each Bank shall be entitled to fund and maintain its funding of all or any part of its Loans in any manner it sees fit, it being understood, however, that for the purposes of this Agreement all determinations hereunder shall be made as if each Bank had actually funded and maintained each Eurocurrency Loan through the purchase of deposits in the eurocurrency interbank market having a maturity corresponding to such Loan's Interest Period and bearing an interest rate equal to LIBOR for such Interest Period. Section 11.6. Substitution of Bank. If (a) any Bank has demanded compensation or given notice of its intention to demand compensation under Section 11.3 or (b) the Borrower is required to pay any additional amount to any Bank pursuant to Section 13.1, and in any such case the Required Banks are not in the same situation, the Borrower shall have the right, with the assistance of the Agent if desired, to seek a substitute bank or banks reasonably satisfactory to the Agent (which may be one or more of the Banks) to replace such Bank under this Agreement. The Bank to be so replaced shall cooperate with the Borrower and substitute bank to accomplish such substitution on the terms of Section 13.12 hereof, provided that such Bank s entire Commitment is replaced, and the U.S. $2,500 fee payable under -34- Section 13.12 shall not be payable in connection with any such assignment required under this Section 11.6. SECTION 12. THE AGENT. Section 12.1. Appointment and Authorization. Each Bank hereby irrevocably appoints Bank of Montreal its Agent under this Agreement and hereby authorizes the Agent to take such action as Agent on its behalf and to exercise such powers under this Agreement as are delegated to the Agent by the terms hereof, together with such powers as are reasonably incidental thereto. Section 12.2. Agent and Affiliates. The Agent shall have the same rights and powers under this Agreement as any other Bank and may exercise or refrain from exercising the same as though it were not the Agent, and each Agent and its affiliates may accept deposits from, lend money to, and generally engage in any kind of business with the Borrower or any Subsidiary or affiliate of the Borrower as if it were not the Agent hereunder. The term Bank as used herein, unless the context otherwise clearly requires, includes the Agent in its individual capacity as a Bank. References in Section 1 hereof to the Agent's Loans, or to the amount owing to the Agent for which an interest rate is being determined, refer to the Agent in its individual capacity as a Bank. Section 12.3. Action by Agent. Except for action expressly required of the Agent hereunder, the Agent shall in all cases be fully justified in failing or refusing to act hereunder unless the Agent shall be indemnified to its reasonable satisfaction by the Banks against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. In all cases in which this Agreement does not require the Agent to take certain actions, the Agent shall be fully justified in using their discretion in failing to take or in taking any action hereunder. Without limiting the generality of the foregoing, the Agent shall not be required to take any action with respect to any Event of Default, except as expressly provided in Section 10.2. The Agent shall not be deemed to have knowledge of any Default or Event of Default until it receives written notice thereof from the Borrower or a Bank specifically identified as a "notice of default." The Agent shall be acting as an independent contractor hereunder and nothing herein shall be deemed to impose on the Agent any fiduciary obligations to the Banks or the Borrower. Section 12.4. Consultation with Experts. The Agent may consult with legal counsel, independent public accountants and other experts selected by it and shall not be liable for any action taken or omitted to be taken by it in good faith in accordance with the advice of such counsel, accountants or experts. Section 12.5. Liability of Agent. Neither the Agent nor any of its directors, officers, agents or employees shall be liable for any action taken or not taken by it in connection herewith (i) with the consent or at the request of the Required Banks or (ii) in the absence of its own gross negligence or willful misconduct. Neither the Agent nor any of its directors, officers, agents or employees shall be responsible for or have any duty to ascertain, inquire into or verify (i) any statement, warranty or representation made in connection with this Agreement or any borrowing -35- hereunder; (ii) the performance or observance of any of the covenants or agreements of the Borrower; (iii) the satisfaction of any condition specified in Section 8, except receipt of items required to be delivered to the Agent; or (iv) the validity, effectiveness or genuineness of this Agreement, the Notes or any other instrument or writing furnished in connection herewith. The Agent shall not incur any liability by acting in reliance upon any notice, consent, certificate, request or statement, (whether written or oral) or other documents believed by it to be genuine or to be signed by the proper party or parties and, in the case of legal matters, in relying on the advice of counsel (including counsel for the Borrower). The Agent may treat the Banks that are named herein as the holders of the Notes and the indebtedness contemplated herein unless and until the Agent receive notice of the assignment of the Note and the indebtedness held by a Bank hereunder pursuant to an assignment contemplated by Section 13.12 hereof. Section 12.6. Indemnification. Each Bank shall, ratably in accordance with its Commitments (or, if the Commitments have been terminated in whole, ratably in accordance with its outstanding Loans), indemnify the Agent, its directors, officers, and employees (to the extent not reimbursed by the Borrower) against any cost, expense (including counsels' fees and disbursements), claim, demand, action, loss, obligation, damages, penalties, judgments, suits or liability (except such as result from the Agent's gross negligence or willful misconduct) that any of them may suffer or incur in connection with this Agreement or any action taken or omitted by any of them hereunder. Section 12.7. Credit Decision. Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement. Section 12.8. Resignation of Agent and Successor Agent. Subject to the appointment and acceptance of a successor Agent as provided below, the Agent may resign at any time by giving written notice thereof to the Banks and the Borrower, and the Required Banks may remove the Agent, with the consent of the Borrower, at any time. Upon any such resignation or removal of the Agent, the Required Banks shall have the right to appoint, with the consent of the Borrower, a successor Agent. If no successor Agent shall have been so appointed by the Required Banks, and shall have accepted such appointment, within thirty (30) days after the retiring Agent s giving of notice of resignation or receiving notice of its removal, then the retiring Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a commercial bank organized under the laws of the United States of America or of any State thereof and having a combined capital and surplus of at least U.S. $200,000,000. Upon the acceptance of its appointment as Agent hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested with all the rights and duties of the retiring Agent, and the retiring Agent shall be discharged from its duties and obligations hereunder. After any retiring Agent's resignation or removal hereunder as Agent, the -36- provisions of this Section 12 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was Agent. Section 12.9. Payments. Unless the Agent shall have been notified by a Bank prior to the date on which such Bank is scheduled to make payment to the Agent of the proceeds of a Loan (which notice shall be effective upon receipt) that such Bank does not intend to make such payment, the Agent may assume that such Bank has made such payment when due and the Agent may in reliance upon such assumption (but shall not be required to) make available to the Borrower the proceeds of the Loan to be made by such Bank and, if any Bank has not in fact made such payment to the Agent, such Bank shall, on demand, pay to the Agent the amount made available to the Borrower attributable to such Bank together with interest thereon in respect of each day during the period commencing on the date such amount was made available to the Borrower and ending on (but excluding) the date such Bank pays such amount to the Agent at a rate per annum equal to the Federal Funds Rate. If such amount is not received from such Bank by the Agent immediately upon demand, the Borrower will, on demand, repay to the Agent the proceeds of the Loan attributable to such Bank with interest thereon at a rate per annum equal to the interest rate applicable to the relevant Loan, but without such payment being considered a payment or prepayment of a Loan, so that the Borrower will have no liability under Section 3.7 hereof with respect to such payment. "Federal Funds Rate" shall mean the rate described in Section 1.2(a)(ii) hereof. Section 12.10. Co-Agent. Nothing in this Agreement shall impose any obligation on Royal Bank of Canada in its capacity as Co-Agent hereunder. SECTION 13. MISCELLANEOUS. Section 13.1. Withholding Taxes. (a) U.S. Withholding Tax Exemptions. Each Bank that is not a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower and the Agent on or before the date the initial Borrowing is made hereunder, two duly completed and signed copies of either Form 1001 (relating to such Bank and entitling it to a complete exemption from withholding on all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans) or Form 4224 (relating to all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans) of the United States Internal Revenue Service. Thereafter and from time to time, each such Bank shall submit to the Borrower and the Agent such additional duly completed and signed copies of one or the other of such Forms (or such successor forms as shall be adopted from time to time by the relevant United States taxing authorities) as may be (i) notified by the Borrower or Agent to such Bank and (ii) required under then-current United States law or regulations to avoid or reduce United States withholding taxes on payments in respect of all amounts to be received by such Bank, including fees, pursuant to this Agreement or the Loans. Upon the request of the Borrower or Agent, each Bank that is a United States person (as such term is defined in Section 7701(a)(30) of the Code) shall submit to the Borrower a certificate to the effect that it is such a United States person. -37- (b) Inability of Bank to Submit Forms. If any Bank determines, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof, that it is unable to submit to the Borrower any form or certificate that such Bank is obligated to submit pursuant to subsection (a) of this Section 13.1, or that such Bank is required to withdraw or cancel any such form or certificate previously submitted or any such form or certificate otherwise become ineffective or inaccurate, such Bank shall promptly notify the Borrower and Agent of such fact and the Bank shall to that extent not be obligated to provide any such form or certificate and will be entitled to withdraw or cancel any affected form or certificate, as applicable. (c) Payment of Additional Amounts. If, as a result of any change in applicable law, regulation or treaty, or in any official application or interpretation thereof, the Borrower is required by law or regulation to make any deduction, withholding or backup withholding of any taxes, levies, imposts, duties, fees, liabilities or similar charges of the United States of America, any possession or territory of the United States of America (including the Commonwealth of Puerto Rico) or any area subject to the jurisdiction of the United States of America ("U.S. Taxes") from any payments to a Bank in respect of Loans then or thereafter outstanding, or other amounts owing hereunder, the amount payable by the Borrower will be increased to the amount which, after deduction from such increased amount of all U.S. Taxes required to be withheld or deducted therefrom, will yield the amount required under this Agreement to be payable with respect thereto; provided that the Borrower shall not be required to pay any additional amount pursuant to this subsection (c) to any Bank that (i) is not, on the date this Agreement is executed by such Bank, either (x) entitled to submit Form 1001 relating to such Bank and entitling it to a complete or partial exemption from withholding on all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans (and in the case of a Bank that on such date is only entitled to present a Form 1001 entitling it to a partial exemption from such withholding the Borrower shall in no event be required to make any such additional payment beyond the value of the partial exemption to which such Bank was originally entitled) or Form 4224 relating to all amounts to be received by such Bank, including fees, pursuant to this Agreement and the Loans or (y) a U.S. person (as such term is defined in Section 7701(a)(30) of the Code), or (ii) has failed to submit any form or certificate that it was required to file pursuant to subsection (a) of this Section 13.1 and entitled to file under applicable law, or (iii) is no longer entitled to submit Form 1001 or Form 4224 as a result of any change in circumstances other than a change in applicable law, regulation or treaty or in any official application or interpretation thereof. Within 30 days after the Borrower s payment of any such U.S. Taxes, the Borrower shall deliver to the Agent, for the account of the relevant Bank(s), originals or certified copies of official tax receipts evidencing such payment. The obligations of the Borrower under this subsection (c) shall survive the payment in full of the Loans and the termination of the Commitments. Section 13.2. No Waiver of Rights. No delay or failure on the part of any Bank or on the part of the holder or holders of any Note in the exercise of any power or right shall operate as a waiver thereof, nor as an acquiescence in any default, nor shall any single or partial exercise thereof preclude any other or further exercise of any other power or right, and the rights and remedies hereunder of the Banks and of the holder or holders of -38- any Notes are cumulative to, and not exclusive of, any rights or remedies which any of them would otherwise have. Section 13.3. Non-Business Day. If any payment of principal or interest on any Loan or of any fee hereunder shall fall due on a day which is not a Business Day, interest at the rate such Loan bears for the period prior to maturity or at the rate such fee accrues shall continue to accrue from the stated due date thereof to and including the next succeeding Business Day, on which the same shall be payable. Section 13.4. Documentary Taxes. The Borrower agrees that it will pay any documentary, stamp or similar taxes payable in respect to this Agreement or any Note, including interest and penalties, in the event any such taxes are assessed irrespective of when such assessment is made and whether or not any credit is then in use or available hereunder. Section 13.5. Survival of Representations. All representations and warranties made herein or in certificates given pursuant hereto shall survive the execution and delivery of this Agreement and of the Notes, and shall continue in full force and effect with respect to the date as of which they were made as long as any credit is in use or available hereunder. Section 13.6. Survival of Indemnities. All indemnities and all other provisions relative to reimbursement to the Banks of amounts sufficient to protect the yield of the Banks with respect to the Loans, including, but not limited to, Section 3.7 and Section 11.3 hereof, shall survive the termination of this Agreement and the payment of the Loans and the Notes. Section 13.7. Sharing of Set-Off. Each Bank agrees with each other Bank a party hereto that if on or after the date of the occurrence of an Event of Default and the acceleration of the maturity of the Notes pursuant to Section 10.2 or 10.3 hereof such Bank shall receive and retain any payment, whether by set-off or application of deposit balances or otherwise ("Set-off"), on any of its Loans outstanding under this Agreement in excess of its ratable share of payments on all Loans then outstanding to the Banks, then such Bank shall purchase for cash at face value, but without recourse, ratably from each of the other Banks such amount of the Loans held by each such other Bank (or interest therein) as shall be necessary to cause such Bank to share such excess payment ratably with all the other Banks; provided, however, that if any such purchase is made by any Bank, and if such excess payment or part thereof is thereafter recovered from such purchasing Bank, the related purchases from the other Banks shall be rescinded ratably and the purchase price restored as to the portion of such excess payment so recovered, but without interest. Each Bank's ratable share of any such Set-off shall be determined by the proportion that the aggregate amount of Loans then due and payable to such Bank bears to the total aggregate amount of the Loans then due and payable to all the Banks. Section 13.8. Notices. Except as otherwise specified herein, all notices hereunder shall be in writing (including cable, telecopy or telex) and shall be given to the relevant party at its address, telecopier number or telex number set forth below, in the case of the Borrower, or on the appropriate signature page hereof, in the case of the Banks and the Agent, or -39- such other address, telecopier number or telex number as such party may hereafter specify by notice to the Agent and the Borrower, given by United States certified or registered mail, by telecopy or by other telecommunication device capable of creating a written record of such notice and its receipt. Notices hereunder to the Borrower shall be addressed to: Maytag Corporation 403 West 4th Street, North Newton, Iowa 50208 Attention: Thomas C. Ringgenberg Vice President and Treasurer Telephone: (515) 791-8955 Telecopy: (515) 791-8115 Each such notice, request or other communication shall be effective (i) if given by telecopier, when such telecopy is transmitted to the telecopier number specified in this Section and a confirmation of such telecopy has been received by the sender, (ii) if given by telex, when such telex is transmitted to the telex number specified in this Section and the answerback is received by sender, (iii) if given by mail, five (5) days after such communication is deposited in the mail, certified or registered with return receipt requested, addressed as aforesaid or (iv) if given by any other means, when delivered at the addresses specified in this Section; provided that any notice given pursuant to Section 1 or Section 2 hereof shall be effective only upon receipt. Section 13.9. Counterparts. This Agreement may be executed in any number of counterparts, and by the different parties on different counterparts, each of which when executed shall be deemed an original but all such counterparts taken together shall constitute one and the same instrument. Section 13.10. Successors and Assigns. This Agreement shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of each of the Banks and the benefit of their respective successors and assigns, including any subsequent holder of any Note. The Borrower may not assign any of its rights or obligations hereunder without the written consent of all of the Banks. Section 13.11. Participants and Note Assignees. Each Bank shall have the right at its own cost to grant participations (to be evidenced by one or more agreements or certificates of participation) in the Loans made, and/or Commitments held, by such Bank at any time and from time to time, and to assign its rights under such Loans or the Notes evidencing such Loans to one or more other financial institutions; provided that no such participation or assignment shall relieve any Bank of any of its obligations under this Agreement, and provided further that no such assignee or participant shall have any rights under this Agreement except as provided in this Section 13.11, and the Agent shall have no obligation or responsibility to such participant or assignee, except that nothing herein provided is intended to affect the rights of an assignee of a Note to enforce the Note assigned. Any party to which such a participation or assignment has been granted shall have the benefits of Section 3.7 and Section 11.3 hereof but shall not be -40- entitled to receive any greater payment under either such Section than the Bank granting such participation or assignment would have been entitled to receive with respect to the rights transferred. Any agreement pursuant to which any Bank may grant such a participating interest shall provide that such Bank shall retain the sole right and responsibility to enforce the obligations of the Borrower hereunder including, without limitation, the right to approve any amendment, modification or wavier of any provision of this Agreement; provided that such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of this Agreement that would (A) increase any Commitment of such Bank if such increase would also increase the participant s obligations, (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or of any fee payable hereunder in which such participant has an interest or (C) reduce the stated rate at which interest or fees accrue or other amounts payable hereunder in which such participant has an interest. Section 13.12. Assignment of Commitments by Banks. Each Bank shall have the right at any time, with the prior consent of the Borrower and Agent, to sell, assign, transfer or negotiate all or any part of its Commitment to one or more commercial banks or other financial institutions. Upon any such assignment, its notification to the Agent, and the payment of a U.S. $2,500 recordation and administration fee to the Agent (which fee shall in no event be the obligation of the Borrower), the assignee shall become a Bank hereunder, all Loans and the Commitment it thereby holds shall be governed by all the terms and conditions hereof, and the Bank granting such assignment shall have its Commitment and its obligations and rights in connection therewith, reduced by the amount of such assignment. Section 13.13. Amendments. Any provision of this Agreement or the Notes may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by (a) the Borrower, (b) the Required Banks, and (c) if the rights or duties of the Agent are affected thereby, the Agent; provided that: (i) no amendment or waiver pursuant to this Section shall (A) increase any Commitment of any Bank without the consent of such Bank or (B) forgive any amount of or postpone the date for payment of any principal of or interest on any Loan or of any fee payable hereunder or reduce the stated rate at which interest or fees accrue hereunder without the consent of the Bank to which such payment is owing or which has committed to make such Loan hereunder; and (ii) no amendment or waiver pursuant to this Section shall, unless signed by each Bank, change the provisions of this Section, the definition of Required Banks or Termination Date, or any condition precedent set forth in Section 8 hereof or the provisions of Sections 10.1.(i), 10.1.(j) or 10.3, or affect the number of Banks required to take any action hereunder. Section 13.14. Legal Fees and Indemnification. The Borrower agrees to pay the reasonable fees and disbursements of Chapman and Cutler, counsel to the Agent, in connection with the preparation and execution of this Agreement, and any amendment, waiver or consent related hereto, whether or not the transactions contemplated herein are consummated. The Borrower further agrees to indemnify each Bank, its directors, officers and employees -41- against all losses, claims, damages, penalties, judgments, liabilities and expenses (including, without limitations, all expenses of litigation or preparation therefor whether or not any Bank is a party thereto) which any of them may pay or incur arising out of or relating to this Agreement, any Note, the transactions contemplated hereby or the direct or indirect application or proposed application of the proceeds of any Loan hereunder, other than (i) those which arise from the gross negligence or willful misconduct of the party claiming indemnification or (ii) those covered by another explicit provision hereof or required to be paid by a Bank or Banks hereunder. The obligations of the Borrower under this Section shall survive the termination of this Agreement. Section 13.15. Currency. Each reference in this Agreement to U.S. Dollars or to an Alternative Currency (the "relevant currency") is of the essence. To the fullest extent permitted by law, the obligation of the Borrower in respect of any amount due in the relevant currency under this Agreement shall, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the Bank entitled to receive such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment. If the amount in the relevant currency that may be so purchased for any reason falls short of the amount originally due, the Borrower shall pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall. Any obligations of the Borrower not discharged by such payment shall, to the fullest extent permitted by applicable law, be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect. Section 13.16. Currency Equivalence. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrower hereunder or under the Notes in the currency expressed to be payable herein or under the Notes (the "specified currency") into another currency, the parties agree that the rate of exchange used shall be that at which in accordance with normal banking procedures the Agent could purchase the specified currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of the Borrower in respect of any such sum due to any Bank or the Agent hereunder or under any Note shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by such Bank or the Agent, as applicable, may in accordance with normal banking procedures purchase the specified currency with such other currency. If the amount of the specified currency so purchased is less than the sum originally due to such Bank or the Agent in the specified currency, the Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify such Bank and the Agent against such loss, and if the amount of the specified currency so purchased exceeds the sum of (a) the amount originally due to the applicable Bank or the Agent in the specified currency plus (b) any amounts shared with other Banks as a result of allocations of such excess as a disproportionate payment to such Bank under Section 13.7 hereof, such Bank or the Agent, as the case may be, agrees to remit such excess to the Borrower. -42- Section 13.17. Governing Law. This Agreement and the Notes, and the rights and duties of the parties hereto, shall be construed and determined in accordance with the laws of the State of Illinois, without regard to conflicts of law doctrine. Section 13.18. Termination of Existing Credit Agreement. The Borrower and each of the Banks hereunder that is a party to the Credit Agreement dated as of November 22, 1989 (the "Existing Foreign Credit Agreement") among Maytag Corporation, the Banks party thereto, and Deutsche Bank AG, Chicago Branch, as Agent, consents to the termination of the "Commitments" thereunder effective on the date the conditions set forth in Section 8.1 hereof are fulfilled, notwithstanding the notice requirements for such termination set forth in Section 2.3 of the Existing Foreign Credit Agreement. Subject to further consents to such termination from sufficient additional "Banks" under the Existing Foreign Credit Agreement to constitute the "Required Banks" thereunder, the Existing Foreign Credit Agreement shall terminate and all amounts payable thereunder, including accrued and unpaid commitment fees payable under Section 2.4 thereof, shall be payable, and the facility fee payable under Section 4.1 hereof shall begin to accrue, on the date this Agreement has been executed by all the parties hereto and the conditions set forth in Section 8.1 hereof have been fulfilled. Section 13.19. Headings. Section headings used in this Agreement are for reference only and shall not affect the construction of this Agreement. Section 13.20. Entire Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and any prior or contemporaneous agreements, whether written or oral, with respect thereto are superseded hereby. -43- Upon your acceptance hereof in the manner hereinafter set forth, this Agreement shall be a contract between us for the purposes hereinabove set forth. Dated as of June 25, 1993. MAYTAG CORPORATION By /s/ J. A. Schiller Its Executive Vice President and Chief Financial Officer -44- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 115 S. LaSalle Street BANK OF MONTREAL, CHICAGO BRANCH, Chicago, Illinois 60603 in its individual capacity as a Bank and as Telecopy: (312) 750-4314 Agent Telephone: (312) 750-3742 Commitment: $59,999,999 By /s/ Robert K. Strong, Jr. Its Managing Director Lending Offices: Domestic Rate Loans: 115 South LaSalle Street Chicago, Illinois 60603 Eurocurrency Loans: 115 South LaSalle Street Chicago, Illinois 60603 -45- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: Pierrepont Plaza ROYAL BANK OF CANADA, in its 300 Cadman Plaza West individual capacity as a Bank and as Brooklyn, New York 11201-2701 Co-Agent Telecopy: (718) 522-6292 Telephone: (718) 858-7176 with copy to: By /s/ Patricia J. Herbig Its Manager Corporate Banking 33 N. Dearborn Suite 2300 Chicago, Illinois 60602 Telecopy: (312) 782-3429 Telephone: (312) 372-4404 Commitment: $33,333,333 Lending Offices: Domestic Rate Loans: Royal Bank of Canada, New York Branch Financial Square New York, New York 10005-3531 Eurocurrency Loans: Royal Bank of Canada, New York Branch Financial Square New York, New York 10005-3531 -46- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 611 Woodward Avenue NBD BANK, N.A. Detroit, Michigan 48226 Telecopy: (313) 225-2649 Telephone: (313) 225-2557 Commitment: $23,333,333 By /s/ Jack J. Csernits Its Vice President Lending Offices: Domestic Rate Loans: 611 Woodward Avenue Detroit, Michigan 48226 Eurocurrency Loans: 611 Woodward Avenue Detroit, Michigan 48226 -47- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: One First National Plaza THE FIRST NATIONAL BANK Suite 0088, 14th Floor OF CHICAGO Chicago, Illinois 60670 Telecopy: (312) 732-2715 Telephone: (312) 732-4244 Commitment: $16,666,667 By /s/ Susan L. Comstock Its Vice President Lending Offices: Domestic Rate Loans: One First National Plaza Suite 0088, 14th Floor Chicago, Illinois 60670 Eurocurrency Loans: One First National Plaza Suite 0088, 14th Floor Chicago, Illinois 60670 -48- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 225 West Wacker Drive THE FUJI BANK, LIMITED Chicago, Illinois 60606 Telecopy: (312) 621-0539 Telephone: (312) 621-0500 Commitment: $16,666,667 By /s/ Peter L. Chinnici Its Joint General Manager Lending Offices: Domestic Rate Loans: 225 West Wacker Drive Chicago, Illinois 60606 Eurocurrency Loans: 225 West Wacker Drive Chicago, Illinois 60606 -49- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 33 North Dearborn NATIONAL WESTMINSTER BANK PLC Chicago, Illinois 60602 Telecopy: (312) 621-1564 Telephone: (312) 621-1500 Commitment: $16,666,667 By /s/ David H. Hannah Its Vice President Lending Offices: Domestic Rate Loans: National Westminster Bank PLC, Chicago Branch c/o National Westminster Bank PLC 175 Water Street New York, New York 10038 Eurocurrency Loans: National Westminster Bank PLC, Nassau Branch c/o National Westminster Bank PLC 175 Water Street New York, New York 10038 -50- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 127 Public Square SOCIETY NATIONAL BANK Cleveland, Ohio 44114-1306 Telecopy: (216) 689-4981 Telephone: (216) 689-3176 Commitment: $16,666,667 By /s/ Janice M. Cook Its Vice President Lending Offices: Domestic Rate Loans: 127 Public Square Cleveland, Ohio 44114-1306 Eurocurrency Loans: 127 Public Square Cleveland, Ohio 44114-1306 -51- Accepted and Agreed to as of the day and year last above written. Address and Amount of Commitment: 233 South Wacker Drive THE SUMITONO BANK, LIMITED, Suite 4800 CHICAGO BRANCH Chicago, Illinois 60606 Telecopy: (312) 876-6436 Telephone: (312) 876-6406 Commitment: $16,666,667 By /s/ Katsuyasu Iwasawa Its Joint General Manager Lending Offices: Domestic Rate Loans: 233 South Wacker Drive Suite 4800 Chicago, Illinois 60606 Eurocurrency Loans: 233 South Wacker Drive Suite 4800 Chicago, Illinois 60606 -52- EXHIBIT A NOTE ________________, 19___ FOR VALUE RECEIVED, the undersigned, Maytag Corporation, a Delaware corporation (the "Borrower"), promises to pay to the order of ________________________________ (the "Bank") on the Termination Date of the hereinafter defined Credit Agreement, at the principal office of Bank of Montreal, Chicago Branch, in Chicago, Illinois, (or in the case of Eurocurrency Loans denominated in an Alternative Currency, at such office as the Agent has previously notified the Borrower) in the currency of such Loan in accordance with Section 5.1 of the Credit Agreement, the aggregate unpaid principal amount of all Loans made by the Bank to the Borrower pursuant to the Credit Agreement, together with interest on the principal amount of each Loan from time to time outstanding hereunder at the rates, and payable in the manner and on the dates, specified in the Credit Agreement. The Bank shall record on its books or records or on a schedule attached to this Note, which is a part hereof, each Loan made by it pursuant to the Credit Agreement, together with all payments of principal and interest and the principal balances from time to time outstanding hereon, whether the Loan is a Domestic Rate Loan or a Eurocurrency Loan, the currency thereof and the interest rate and Interest Period applicable thereto, provided that prior to the transfer of this Note all such amounts shall be recorded on a schedule attached to this Note. The record thereof, whether shown on such books or records or on a schedule to this Note, shall be prima facie evidence of the same, provided, however, that the failure of the Bank to record any of the foregoing or any error in any such record shall not limit or otherwise affect the obligation of the Borrower to repay all Loans made to it pursuant to the Credit Agreement together with accrued interest thereon. This Note is one of the Notes referred to in the Credit Agreement dated as of ________________________, 1993, among the Borrower, Bank of Montreal, as Agent, and others (the "Credit Agreement"), and this Note and the holder hereof are entitled to all the benefits provided for thereby or referred to therein, to which Credit Agreement reference is hereby made for a statement thereof. All defined terms used in this Note, except terms otherwise defined herein, shall have the same meaning as in the Credit Agreement. This Note shall be governed by and construed in accordance with the internal laws of the State of Illinois. Prepayments may be made hereon and this Note may be declared due prior to the expressed maturity hereof, all in the events, on the terms and in the manner as provided for in the Credit Agreement. The Borrower hereby waives demand, presentment, protest or notice of any kind hereunder. MAYTAG CORPORATION By ______________________ Its____________________ -2- EXHIBIT B SUBSIDIARIES OF MAYTAG CORPORATION AS OF JUNE 25, 1993 JURISDICTION OF PERCENTAGE OF NAME INCORPORATION OWNERSHIP M.H. Canadian Holdings Ltd. Ontario 100% Maytag Financial Services Corp. Delaware 100% Dixie Narco Inc. West Virginia 100% Master Care Inc. Illinois 100% Holland Distributors Inc. Delaware 100% Maytag International Inc. Delaware 100% Admiral International Corp. Delaware 100% Crosley International Corp. Delaware 100% Maytag Foreign Sales Corp. Virgin Islands 100% Lineset PLC England 100% S.A. Hoover France 100% Hoover GmbH Federal Republic of Germany 100% Hoover Pty. Limited Australia 100% Hoover Appliances Ltd. Australia 100% Maytag Group Sourcing Company Delaware 100% The Hoover Company Delaware 100% Hoover Holdings Inc. Delaware 100% Phase IV Products, Inc. Delaware 100% Clayton Victoria Holdings Pty, Ltd. Australia 100% De Hoover Handelmaatschappig B.V.* The Netherlands 100% Hoover Italiana S.P.A. Italy 100% Hoover Mexicana S.A. de C.V. Mexico 100% Juver Industrial S.A. de C.V. Mexico 100% Hoover N.Z. Limited New Zealand 100% Hoover Electrica Portuguesa, LDA Portugal 100% Hoover Espanola S.A.* Spain 100% Hoover Apparate A.G. Switzerland 100% Readylink Limited United Kingdom 100% Meadowbank Properties Pty. Ltd. Australia 100% Hoover Austria G.E.S. M.B.H. Austria 100% Hoover Benelux SA/NV Belgium 100% Hoover Commercial Limitada* Brazil 100% Hoover OY Finland 100% Hoover Pacific Holdings Pty. Ltd. Australia 100% Hoover European Holdings Delaware 100% Domicor Holdings N.V. The Netherlands 100% JURISDICTION OF PERCENTAGE OF Name INCORPORATION OWNERSHIP Hoover Limited England 100% Maharashtra Investment Ltd. Delaware 100% Maytag International Ltd.* England 100% All Subsidiaries are Consolidated Subsidiaries. All Subsidiaries other than those with an asterisk next to their name are Material Subsidiaries as of June 25, 1993. -B2- EXHIBIT C June ___, 1993 To each of the Banks parties to the "Credit Agreement" (as defined below), and to Bank of Montreal, as Agent Re: Loans to Maytag Corporation Ladies and Gentlemen: We have acted as counsel to Maytag Corporation, a Delaware corporation (the "Borrower"), in connection with the $200,000,000 Credit Agreement of even date herewith (the "Credit Agreement") among the Borrower, the financial institutions parties thereto (the "Banks") and Bank of Montreal, as Agent, and the transactions contemplated thereby. This opinion is furnished to you at the request of the Borrower pursuant to Section 8.1(a) of the Credit Agreement. Capitalized terms used herein and not otherwise defined are used as defined in the Credit Agreement. In connection with this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Credit Agreement and the promissory notes delivered on the date hereof to the Banks signatory to the Credit Agreement (the "Notes"). In rendering the opinions set forth herein, we have also examined originals or copies, certified to our satisfaction, of such (i) certificates of public officials, (ii) certificates of officers and representatives of the Borrower, and (iii) other documents and records, and we have made such inquiries of officers and representatives of the Borrower, as we have deemed relevant or necessary as the basis for such opinions. We have relied as to factual matters upon, and assumed the accuracy of, such certificates, the representations and warranties of the Borrower, made in the Credit Agreement, and other statements, documents and records supplied to us by the Borrower and we have assumed the genuineness of all signatures (other than signatures of officers of the Borrower) and the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified or photostatic copies. In rendering the opinions set forth herein, we have assumed that: (i) all the parties to the Credit Agreement, other than the Borrower, are duly organized, validly existing, and in good standing under the laws of their respective jurisdictions of organization and have the requisite corporate power to enter into the Credit Agreement; and (ii) the execution and delivery of the Credit Agreement have been duly authorized by all necessary corporate action and proceedings on the part of all parties thereto other than the Borrower; the Credit Agreement has been duly executed and delivered by all parties thereto other than the Borrower and constitutes the valid and binding obligation of such parties, enforceable against such parties in accordance with its terms; the terms and provisions of the Credit Agreement do not, and the execution, delivery and performance thereof by each of the parties thereto other than the Borrower will not, violate or conflict with the certificate of incorporation or bylaws of any such party, any contract or indenture to which it is a party or by which it is created or bound, or any law, order or decree of any court, administrative agency or other governmental authority applicable to any such party. Based upon the foregoing and subject to the qualifications stated herein, we are of the opinion that, as of the date hereof: 1. The Borrower has been duly organized and is validly existing and in good standing under the laws of the State of Delaware. The Borrower has the requisite corporate power and authority to conduct its business as currently conducted. 2. The Borrower has the requisite corporate power and authority to execute, deliver and perform its obligations under the Credit Agreement and the Notes. Such execution, delivery and performance: (a) have been duly authorized by all necessary and proper corporate action of the Borrower, (b) do not violate any provision of the certificate of incorporation or by-laws of the Borrower or require any approval of the Borrower s stockholders, and (c) will not violate any law or regulation of the State of Illinois (including, without limitation, any usury laws) or of the United States of America applicable to the Borrower. 3. The Credit Agreement and the Notes have been duly executed and delivered by a duly authorized officer of the Borrower, and constitute the valid and binding obligations of the Borrower, enforceable in accordance with their respective terms. 4. The Borrower is not an "investment company" registered or required to be registered under the Investment Company Act of 1940, as amended, or, to our knowledge, controlled by such a company. 5. No approval, consent or authorization of, or filing or registration with, any governmental department, agency or instrumentality is necessary for the Borrower s execution or delivery of the Credit Agreement or the Notes or for the Borrower s performance of any of the terms thereof. -2- Our opinions above are subject to the following qualifications: (a) Our opinions relating to validity, binding effect and enforceability in Paragraph 3 above are subject to limitations imposed by any applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and similar laws affecting creditors' rights generally. In addition, our opinions relating to enforceability in Paragraph 3 above are subject to (i) the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law) and (ii) limitations imposed by public policy under certain circumstances on the enforceability of provisions indemnifying a party against liability for its own wrongful or negligent acts. In applying principles of equity referred to in clause (i) above, a court, among other things, might not allow a creditor to accelerate maturity of a debt upon the occurrence of a default deemed immaterial. Such principles applied by a court might include a requirement that a creditor act reasonably and in good faith. (b) Certain remedial provisions of the Credit Agreement may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Credit Agreement; however, the unenforceability of such provisions may result in delays in the enforcement of the Agent's and the Banks' rights and remedies under the Credit Agreement (and we express no opinion as to the economic consequences, if any, of such delays). (c) We express no opinion as to the effect of the compliance or noncompliance of the Agent or any of the Banks with any state or federal laws or regulations applicable to the Agent or any of the Banks because of the Agent s or any of the Banks' legal or regulatory status or the nature of the business of the Agent or any of the Banks. The foregoing opinions are limited to the laws of the United States and the State of Illinois and the General Corporation Law of the State of Delaware, and we express no opinion with respect to the laws of any other state or jurisdiction. Whenever in this opinion reference is made to our knowledge, such reference is to the conscious awareness of Dennis V. Osimitz and Jeffrey S. Rothstein of information regarding factual matters. With respect to such matters, such persons have not, with your express permission and consent, undertaken any investigation or inquiry either of other lawyers, files maintained by the firm, or officers or employees of the Borrower or any of its Subsidiaries. The reference to "conscious awareness" as used in this paragraph has the meaning given that phrase in the Third-Party Legal Opinion Report, Including the Legal Opinion Accord, of the Section of Business Law, American Bar Association, 47 Bus. Law. 167, 192 (1991). The opinions expressed herein are being delivered to you as of the date hereof and are solely for your benefit in connection with the transactions contemplated in the Credit Agreement and may not be relied on in any manner or for any purpose by any other person, nor any copies published, -3- communicated or otherwise made available in whole or in part to any other person or entity without our express prior written consent, except that you may furnish copies thereof to any party that becomes a Bank after the date hereof pursuant to the Credit Agreement. We do not express any opinion, either implicitly or otherwise, on any issue not expressly addressed in numbered Paragraphs 1 through 5. The opinions expressed above are based solely on laws and regulations in effect on the date hereof, and we assume no obligation to revise or supplement this opinion should such laws or regulations be changed by legislative or regulatory action, judicial decision or otherwise. Very truly yours, -4- EXHIBIT D June ___, 1993 To each of the Banks parties to the "Credit Agreement" (as defined below), and to Bank of Montreal, as Agent Re: Loans to Maytag Corporation Ladies and Gentlemen: I am Vice President and General Counsel of Maytag Corporation, a Delaware corporation (the "Borrower"). I am familiar with the $200,000,000 Credit Agreement of even date herewith (the "Credit Agreement") among the Borrower, the financial institutions parties thereto (the "Banks") and Bank of Montreal, as Agent, and the transactions contemplated thereby. This opinion is furnished to you at the request of the Borrower pursuant to Section 8.1(a) of the Credit Agreement. Capitalized terms used herein and not otherwise defined are used as defined in the Credit Agreement. In connection with this opinion, I have examined originals or copies, certified or otherwise identified to my satisfaction, of the Credit Agreement and the promissory notes delivered on the date hereof to the Banks signatory to the Credit Agreement (the "Notes"). In rendering the opinions set forth herein, I have also examined originals or copies, certified to my satisfaction, of such (i) certificates of public officials, (ii) certificates of officers and representatives of the Borrower, and (iii) other documents and records, and I have made such inquiries of officers and representatives of the Borrower, as I have deemed relevant or necessary as the basis for such opinions. I have relied as to factual matters upon, and assumed the accuracy of, such certificates and other statements, documents and records supplied to me by the Borrower and I have assumed the genuineness of all signatures (other than signatures of officers of the Borrower) and the authenticity of all documents submitted to me as originals and the conformity to original documents of all documents submitted to me as certified or photostatic copies. Based upon the foregoing and subject to the qualifications stated herein, I am of the opinion that, as of the date hereof: 1. The Borrower has the requisite corporate power and authority to execute, deliver and perform its obligations under the Credit Agreement and the Notes. Such execution, delivery and performance: (a) have been duly authorized by all necessary and proper corporate action of the Borrower, (b) do not violate any provision of the certificate of incorporation or by-laws of the Borrower or require any approval of the Borrower s stockholders, and (c) to my knowledge, do not violate any material indenture or agreement to which the Borrower is a party or by which it is bound or any provision of any judgment or decree applicable to the Borrower. 2. There is no litigation or governmental proceeding pending or, to my knowledge, threatened, against the Borrower or any Subsidiary which could reasonably be expected to (i) materially adversely affect the business and properties of the Borrower and its Subsidiaries on a consolidated basis or (ii) impair the validity or enforceability of the Credit Agreement or the Notes or materially impair the ability of the Borrower to perform its obligations under the Credit Agreement or the Notes. The foregoing opinions are limited to the laws of the United States and the State of Iowa, and the General Corporation Law of the State of Delaware, and I express no opinion with respect to the laws of any other state or jurisdiction. The opinions expressed herein are being delivered to you as of the date hereof and are solely for your benefit in connection with the transactions contemplated in the Credit Agreement and may not be relied on in any manner or for any purpose by any other person, nor any copies published, communicated or otherwise made available in whole or in part to any other person or entity without my express prior written consent, except that you may furnish copies thereof to any party that becomes a Bank after the date hereof pursuant to the Credit Agreement. I do not express any opinion, either implicitly or otherwise, on any issue not expressly addressed in numbered Paragraphs 1 and 2. The opinions expressed above are based solely on laws and regulations in effect on the date hereof, and I assume no obligation to revise or supplement this opinion should such laws or regulations be changed by legislative or regulatory action, judicial decision or otherwise. Very truly yours, -2- EXHIBIT E COMPLIANCE CERTIFICATE This Compliance Certificate is furnished to Bank of Montreal as Agent pursuant to that certain Credit Agreement dated as of ______________, 1993 by and among Maytag Corporation (the "Borrower"), the Banks party thereto, and Bank of Montreal, as Agent (the "Credit Agreement"). Unless otherwise defined herein, the terms used in this Compliance Certificate have the meanings ascribed thereto in the Credit Agreement. THE UNDERSIGNED ON BEHALF OF THE BORROWER HEREBY CERTIFIES THAT: 1. I am the duly elected chief financial officer of the Borrower; 2. I have reviewed or caused to be reviewed the terms of the Credit Agreement and I have made or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower during the accounting period covered by the attached financial statements; 3. The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or the occurrence of any event which constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth below; 4. The representations and warranties contained in Section 7 of the Credit Agreement are true and correct as though made on the date hereof, except as set forth below; 5. The Borrower is in compliance with all covenants contained in Section 9 of the Credit Agreement, except as set forth below. 6. The Attachment hereto sets forth financial data and computations evidencing the Borrower's compliance with certain covenants of the Credit Agreement, all of which data and computations are, to the best of my knowledge, true, complete and correct and have been made in accordance with the relevant Sections of the Credit Agreement. Described below are the exceptions, if any, to paragraphs 3, 4 and 5 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action the Borrower has taken, is taking, or proposes to take with respect to each such condition or event: ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ ______________________________________________________________________ The foregoing certifications, together with the computations set forth in the Attachment hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered this _________ day of __________________ 19___. MAYTAG CORPORATION By________________________ Its Chief Financial Officer -2- Maytag Corporation Attachment To Compliance Certificate Compliance Calculations for Credit Agreement Dated as of June 30, 1993 Calculations as of July 22, 1993 ___________________________________________________________________________ A. Consolidated Tangible Net Worth (Section 9.6) 1. Consolidated Net Worth of the Borrower $ 639,383,000 2. Consolidated net book value of assets of the Borrower which would be treated as intangibles under GAAP $ (324,318,000) 3. Subtract Line 2 from Line 1 $ 315,065,000 (Line 3 must be equal to or greater than $260,000,000) ============ B. Leverage Ratio (Section 9.7) 1. Consolidated Indebtedness $ 987,338,000 2. Consolidated Net Worth of the Borrower $ 639,383,000 3. Sum of Lines 1 and 2 $1,626,721,000 ============= 4. Ratio of Line 1 to 3 (Line 4 Ratio must be equal to or less than .635:1.00) .607 ============= C. Interest Coverage Ratio (Section 9.8) 1. Consolidated Income Before Interest and Taxes $ 55,551,000 2. Consolidated Interest Expense $ 19,097,000 3. Ratio of Line 1 to 2 (Line 3 Ratio must be equal to or greater than 1.5 to 1.00) 2.909 MAYTAG CORPORATION Exhibit 4(h) First Amendment, Dated as of March 4, 1994 to the U.S. $100,000,000 Credit Agreement, Dated as of June 25, 1993 among Registrant, the Banks party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada as Co-Agent. FIRST AMENDMENT TO CREDIT AGREEMENT This First Amendment to Credit Agreement (the "Amendment") dated as of March 4, 1994 by and among Maytag Corporation (the "Borrower"), the Banks listed below, Bank of Montreal, as Agent, and Royal Bank of Canada, as Co-Agent; W I T H E S S E T H: WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent have heretofore executed and delivered a Credit Agreement dated as of June 25, 1993 (the "Credit Agreement") with a June 24, 1994 Termination Date; and WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent desire to amend the Credit Agreement to change the maximum permitted leverage ratio; NOW THEREFORE, for good and valuable consideration the receipt of which is hereby acknowledged, the Borrower, the Banks, the Agent and the Co-Agent hereby agree as follows: 1. Section 9.7 of the Credit Agreement is hereby amended in its entirety to read as follows: Section 9.7. Leverage Ratio. The Borrower will, as of the last day of each fiscal quarter of the Borrower, maintain a ratio of Consolidated Indebtedness to the sum of Consolidated Indebtedness plus Consolidated Net Worth of not more than 0.635 to 1.00. 2. The Borrower represents and warrants to each Bank that (a) each of the representations and warranties set forth in Section 7 of the Credit Agreement, as amended hereby, is true and correct on and as of the date of this Amendment (except that any such representation or warranty that expressly relates solely to an earlier date need only be true and correct as of such date) as if made on and as of the date of this Amendment and as if each reference therein to the Credit Agreement referred to the Credit Agreement as amended hereby, (b) no Default or Event of Default has occurred and is continuing and (c) without limiting the effect of the foregoing, the Borrower's execution, delivery and performance of this Amendment has been duly authorized, and this Amendment has been executed and delivered by a duly authorized officer of the Borrower. 3. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed shall be an original but all of which shall constitute one and the same instrument. Except as specifically amended and modified hereby, all of the terms and conditions of the Credit Agreement shall stand and remain unchanged and in full force and effect. No reference to this Amendment need be made in any note, instrument or other document making reference to the Credit Agreement, any such reference to the Credit Agreement (including any such reference herein, unless the context otherwise requires) to be deemed to be a reference to the Credit Agreement as amended hereby. All capitalized terms used herein without definition shall have the same meanings herein as they have in the Credit Agreement. This instrument shall be construed and governed by and in accordance with the laws of the State of Illinois, without regard to conflicts of law doctrine. Dated as of the date first above written. MAYTAG CORPORATION By /s/ T. C. Ringgenberg Its Vice President & Treasurer BANK OF MONTREAL, Chicago Branch, in its individual capacity as a Bank and as Agent By /s/ Robert K. Strong, Jr. Its Managing Director ROYAL BANK OF CANADA, in its individual capacity as a Bank and as Co-Agent By /s/ G. David Cole Its Senior Manager, Corporate Banking NBD BANK, N.A. By /s/ Curtis A. Price Its Vice President THE FIRST NATIONAL BANK OF CHICAGO By /s/ Susan L. Comstock Its Vice President -2- THE FUJI BANK, LIMITED By /s/ Peter L. Chinnici Its Joint General Manager NATIONAL WESTMINSTER BANK PLC By /s/ Karen N. Grafe Its Vice President SOCIETY NATIONAL BANK By /s/ Janice M. Cook Its Vice President THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH By /s/ Katsuyasu Iwasawa Its Joint General Manager TORONTO DOMINION (TEXAS), INC. By /s/ Warren Finlay Its Vice President PNC BANK, NATIONAL ASSOCIATION By /s/ Jon C. Otterberg Its Commercial Banking Officer -3- MAYTAG CORPORATION Exhibit 4(i) First Amendment, Dated as of March 4, 1994 to the U.S. $200,000,000 Credit Agreement, dated June 25, 1993 among Registrant, the banks Party Hereto and Bank of Montreal, Chicago Branch as Agent and Royal Bank of Canada as Co-Agent. FIRST AMENDMENT TO CREDIT AGREEMENT This First Amendment to Credit Agreement (the "Amendment") dated as of March 4, 1994 by and among Maytag Corporation (the "Borrower"), the Banks listed below, Bank of Montreal, as Agent, and Royal Bank of Canada, as Co-Agent; W I T N E S S E T H: WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent have heretofore executed and delivered a Credit Agreement dated as of June 25, 1993 (the "Credit Agreement") with a June 25, 1996 Termination Date; and WHEREAS, the Borrower, the Banks, the Agent and the Co-Agent desire to amend the Credit Agreement to change the maximum permitted leverage ratio; NOW THEREFORE, for good and valuable consideration the receipt of which is hereby acknowledged, the Borrower, the Banks, the Agent and the Co-Agent hereby agree as follows: 1. Section 9.7 of the Credit Agreement is hereby revised by deleting in subsection (i) the words "during the Borrower's 1993 fiscal year" and inserting in their place the words "through the Borrower's fiscal quarter ending March 31, 1994" and by deleting subsections (ii) and (iii) and inserting in their place the following subsections: (ii) 0.625 to 1.00 as of the last day of the Borrower's fiscal quarter ending June 30, 1994, (iii) 0.615 to 1.00 as of the last day of the Borrower's fiscal quarter ending September 30, 1994, (iv) 0.600 to 1.00 as of the last day of the Borrower's fiscal quarter ending December 31, 1994, (v) 0.590 to 1.00 as of the last day of the Borrower's fiscal quarter ending March 31, 1995, (vi) 0.580 to 1.00 as of the last day of the Borrower's fiscal quarter ending June 30, 1995, (vii) 0.560 to 1.00 as of the last day of the Borrower's fiscal quarter ending September 30, 1995, and (viii) 0.550 to 1.00 as of the last day of each fiscal quarter of the Borrower thereafter. 2. The Borrower represents and warrants to each Bank that (a) each of the representations and warranties set forth in Section 7 of the Credit Agreement, as amended hereby, is true and correct on and as of the date of this Amendment (except that any such representation or warranty that expressly relates solely to an earlier date need only be true and correct as of such date) as if made on and as of the date of this Amendment and as if each reference therein to the Credit Agreement referred to the Credit Agreement as amended hereby, (b) no Default or Event of Default has occurred and is continuing and (c) without limiting the effect of the foregoing, the Borrower's execution, delivery and performance of this Amendment has been duly authorized, and this Amendment has been executed and delivered by a duly authorized officer of the Borrower. 3. This Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed shall be an original but all of which shall constitute one and the same instrument. Except as specifically amended and modified hereby, all of the terms and conditions of the Credit Agreement shall stand and remain unchanged and in full force and effect. No reference to this Amendment need be made in any note, instrument or other document making reference to the Credit Agreement, any such reference to the Credit Agreement (including any such reference herein, unless the context otherwise requires) to be deemed to be a reference to the Credit Agreement as amended hereby. All capitalized terms used herein without definition shall have the same meanings herein as they have in the Credit Agreement. This instrument shall be construed and governed by and in accordance with the laws of the State of Illinois, without regard to conflicts of law doctrine. Dated as of the date first above written. MAYTAG CORPORATION By /s/ T. C. Ringgenberg Its Vice President BANK OF MONTREAL, Chicago Branch, in its individual capacity as a Bank and as Agent By /s/ Robert K. Strong, Jr. Its Managing Director -2- ROYAL BANK OF CANADA, in its individual capacity as a Bank and as Co-Agent By /s/ G. David Cole Its Senior Manager, Corporate Banking NBD BANK, N.A. By /s/ Curtis A. Price Its Vice President THE FIRST NATIONAL BANK OF CHICAGO By /s/ Susan L. Comstock Its Vice President THE FUJI BANK, LIMITED By /s/ Peter L. Chinnici Its Joint General Manager NATIONAL WESTMINSTER BANK PLC By /s/ Karen N. Grafe Its Vice President SOCIETY NATIONAL BANK By /s/ Janice M. Cook Its Vice President -3- THE SUMITOMO BANK, LIMITED, CHICAGO BRANCH By /s/ Katsuyasu Iwasawa Its Joint General Manager TORONTO DOMINION (TEXAS), INC. By /s/ Warren Finlay Its Vice President PNC BANK, NATIONAL ASSOCIATION By /s/ Jon C. Otterberg Its Commercial Banking Officer -4- EX-10 4 EXHIBIT 10(B) EXECUTIVE SEVERANCE AGREEMENTS MAYTAG CORPORATION Exhibit 10(b) Executive Severance Agreements. The following executives are covered under this severance agreement: 1. Robert L. Chaplin 2. John P. Cunningham 3. Robert W. Downing 4. Joseph F. Fogliano 5. Mark A. Garth 6. Brian A. Girdlestone 7. Edward H. Graham 8. Leonard A. Hadley 9. Richard J. Haines 10. Gerald J. Kamman 11. Donald M. Lorton 12. Carl R. Moe 13. Jon O. Nicholas 14. Jerry K. Rinehart 15. Jerry A. Schiller 16. Carlton F. Zacheis EXECUTIVE SEVERANCE AGREEMENT THIS AGREEMENT is made the __th day of ________________, 19__, by and between Maytag Corporation, a Delaware corporation (the "Company"), and ______________________ (the "Executive"). RECITALS A. The Board of Directors of the Company has approved the Company en- tering into severance agreements with such executives of the Company and its subsidiaries as is determined by the Chairman and Chief Executive Officer. B. Pursuant to such agreement, the Company has heretofore entered into an Executive Severance Agreement with the Executive dated _________________. C. Should the Company receive or learn of any proposal by a third per- son about a possible business combination with the Company or the acquisition of its equity securities, the Board considers it imperative that the Company be able to rely upon the Executive to continue in his or her position. This to the end that the Company be able to receive and rely upon the Executive's advice concerning the best interests of the Company and its stockholders, without concern that person might be distracted by the personal uncertainties and risks created by such a proposal. D. Should the Company receive any such proposals, in addition to the Executive's regular duties, he or she may be called upon to assist in the assessment of such proposals, advise management and the Board as to whether such proposals would be in the best interests of the Company and its stock- holders, and to take such other actions as the Board might determine to be appropriate. AGREEMENT NOW, THEREFORE, to assure the Company that it will have the continued dedication of the Executive and the availability of that person's advice and counsel notwithstanding the possibility, threat or occurrence of a bid to take over control of the Company, and to induce the Executive to remain in the employ of the Company, and for other good and valuable consideration, the Company and the Executive agree that the Executive Severance Agreement described above be amended and restated in its entirety as follows: A. Should a third person, in order to effect a change of control (as defined), begin a tender or exchange offer, circulate a proxy to stockholders or take other steps, the Executive agrees that he or she will not voluntarily leave the employ of the Company, and will render the services contemplated in the recitals to this agreement, until the third person has abandoned or terminated his efforts to effect a change of control or until a change of control has occurred. - 2 - B. Should the Executive's employment with the Company or its subsidiaries terminate for any reason (either voluntary or involuntary, other than because of death, disability or normal retirement) within three (3) years after a change of control of the Company the following will be provided: 1. Lump Sum Cash Payment. On or before the Executive's last day of employment with the Company or its subsidiaries, or as soon thereafter as possible, the Company will pay to the Executive as compensation for services rendered, a lump sum cash amount (subject to the usual withholding taxes) equal to (A) three times the sum of (1) the Executive's annual salary at the rate in effect immediately prior to the change of control and (2) the maximum annual incentive bonus opportunity provided by the Plan and any discretionary bonus declared for the year in which the change of control occurred, or the preceding year if not established plus (B) an amount equal to the compensation (at the Executive's rate of pay in effect immediately prior to the change of control) payable for any period for which the Executive could have, immediately prior to the date of his termination of employment, been on vacation and received such compensation, for unused and accrued vacation benefits determined under the Company's vacation pay plan or program covering the Executive immediately prior to the change of control. If the time from the Executive's last day of employment with the Company or its subsidiaries to the Executive's 65th birthday is less than 36 months, there shall be a proportionate reduction of the payment computed under clause (A) of the preceding sentence. 2. Salaried and Supplemental Executive Retirement Plans. The Execu- tive shall be paid a monthly retirement benefit, in addition to any benefits received under the Salaried Retirement Plans maintained by the Company or its subsidiaries, including The Maytag Corporation Salaried Retirement Plan and any Supplemental Executive Retirement Plan, such benefit to commence on the first to occur of (a) the commencement of payment of benefits under the Maytag Corporation Salaried Retirement Plan or (b) attainment of age 65, but not prior to three (3) years following the date of termination of employment or age 65, whichever first occurs, such benefit to be an amount equal to the excess of (i) the aggregate benefits under such Salaried Retirement Plans to which the Executive would be entitled if he or she remained employed by the Company or its subsidiaries, for an additional period of three (3) years or until his or her 65th birthday, whichever is earlier, at the rate of annual compensation specified herein; over (ii) the benefits to which the Executive is actually entitled under such Salaried Retirement Plans. 3. Life, Dental, Vision, Health and Long Term Disability Coverage. The Executive's participation in, and entitlement to, benefits under: (i) the life insurance plan of the Company; (ii) all the health insurance plan or plans of the Company or its subsidiaries, including but not limited to those providing major medical and hospitalization benefits, dental benefits and vision benefits; and (iii) the Company's long-term disability plan or plans; as all such plans existed immediately prior to the change of control shall continue as though he or she remained employed by the Corporation or its subsidiaries for an additional period of three (3) years or until the obtainment of such coverages with another employer, whichever is earlier. To the extent such participation or entitlement is not possible for any reason whatsoever, equivalent benefits shall be provided. - 3 - 4. Participation in Employee Benefit Plans. After termination of em- ployment, the Executive shall continue to participate in the Salaried Retirement Plans as contemplated above. The Executive's participation in any other savings, capital accumulation, retirement, incentive compensation, profit sharing, stock option, and/or stock appreciation rights plans of the Company or any of its subsidiaries shall continue only through the last day of his or her employment. Any terminating distributions and/or vested rights under such plans shall be governed by the terms of those respective plans. Furthermore, the Executive's participation in any insurance plans of the Company and rights to any other fringe benefits shall, except as otherwise specifically provided in such plans or Company policy, terminate as of the close of the Executive's last day of employment, except to the extent specifically provided to the contrary in this agreement. 5. Incentive Plans. In addition to the payments required by paragraph 1 of this Section, the Company shall pay to the Executive as compensation for services rendered cash in an amount equal to the maximum amount which could be payable to the Executive under any and all incentive compensation plans in which the Executive is a participant or under which the Executive holds any outstanding award as of the day prior to the change of control. To the extent that any such award is represented by restricted shares of stock of the Company, the Executive's such cash payment shall include an amount equal to the aggregate value of such shares determined as of the day of the change of control. Any payment due pursuant to this paragraph 5 shall be paid at the same time as the amount payable pursuant to paragraph 1 of this Section. 6. Reimbursement for Loss on Sale of Principal Residence. If on the date of the change of control the Executive shall own a private residence within Jasper County, Iowa (the "Executive's residence"), the Executive shall be paid an amount equal to the excess, if any, of the amount by which the greater of (i) the "aggregate purchase price" (as defined below) of the Executive's residence and (ii) the "change of control market value" (as defined below) of the Executive's residence, over the amount realized by the Executive upon the sale of such residence. Any amount payable to the Executive under this agreement shall be paid to the Executive on the date on which the Executive's residence is sold in a bona fide transaction with an unrelated party. Notwithstanding the foregoing, if the Executive's residence shall not be sold within 6 months after the date on which the Executive's residence is first offered for sale, the Company shall purchase the Executive's residence from the Executive for a cash amount equal to the "change of control market value" of the Executive's residence. For purposes of this paragraph, the "aggregate purchase price" of the Executive's residence shall be the sum of the amount paid therefor plus the cost of any significant repairs such as the cost of siding, or roof repair or maintenance, incurred within the 5 year period ending on the date on which a change of control occurs, plus the cost of any improvements to such residence made by the Executive, the "amount realized" upon the sale of such residence shall be the net amount, after deduction for brokers' fees, title charges, transfer taxes and similar items, realized by the Executive upon the sale of the Executive residence and "change of control market value" shall mean the value of the Executive's residence on the date on which the - 4 - change of control occurred, as determined by an independent appraiser selected by the Executive. The fees and expenses of such appraiser shall be paid by the Company. 7. Excise Tax-Additional Payment. (a) Notwithstanding anything in this agreement or any written or unwritten policy of the Company or its subsidiaries to the contrary, (i) if it shall be determined that any payment or distribution by the Company or its subsidiaries to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this agreement, any other agreement between the Company or its subsidiaries and the Executive or otherwise (a "Payment"), would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended, (the "Code") or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), or (ii) if the Executive shall otherwise become obligated to pay the Excise Tax in respect of a Payment, then the Company shall pay to the Executive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment. (b) All determinations and computations required to be made under this paragraph B5, including whether a Gross-Up Payment is required under clause (ii) of paragraph B7(a) above, and the amount of any Gross-Up Payment, shall be made by the Company's regularly engaged independent certified public ac- countants (the "Accounting Firm"). The Company shall cause the Accounting Firm to provide detailed supporting calculations both to the Company and the Executive within 15 business days after such determination or computation is requested by the Executive. Any initial Gross-Up Payment determined pursuant to this paragraph B7 shall be paid by the Company or the subsidiary to the Executive within 5 days of the receipt of the Accounting Firm's determination. A determination that no Excise Tax is payable by the Executive shall not be valid or binding unless accompanied by a written opinion of the Accounting Firm to the Executive that the Executive has substantial authority not to report any Excise Tax on his federal income tax return. Any determination by the Accounting Firm shall be binding upon the Company, its subsidiaries and the Executive, except to the extent the Executive becomes obligated to pay an Excise Tax in respect of a Payment. In the event that the Company or the subsidiary exhausts or waives its remedies pursuant to subparagraph 7B(c) and the Executive thereafter shall become obligated to make a payment of any Excise Tax, and if the amount thereof shall exceed the amount, if any, of any Excise Tax computed by the Accounting Firm pursuant to this subparagraph (b) in respect to which an initial Gross-Up Payment was made to the Executive, the Accounting Firm shall within 15 days after Notice thereof determine the amount of such excess Excise Tax and the amount of the additional Gross-Up Payment to the Executive. All expenses and fees of the Accounting Firm incurred by reason of this paragraph B7 shall be paid by the Company. - 5 - (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested relating to such claim, (ii) take such action in connection with con- testing such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subparagraph B7(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company or the subsidiary shall determine; provided, however, that if the Company or the subsidiary directs the Executive to pay such claim and sue for a refund, the Company or the subsidiary shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided, that any extension of the statue of limitations relating to - 6 - payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, control of the contest by the Company or the subsidiary shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company or the subsidiary pursuant to subparagraph B7(c), the Executive be- comes entitled to receive any refund with respect to such claim, the Executive shall (subject to compliance with the requirements of paragraph B7 by the Company or the subsidiary) promptly pay to the Company or the subsidiary the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company or the subsidiary pursuant to subparagraph B7(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall off-set, to the extent thereof, the amount of Gross-Up Payment required to be paid. C. Definitions. 1. Change of Control. For purposes of this Agreement, a "change of control" shall occur when (i) any person, either individually or together with such persons' affiliates or associates (other than any employee benefit plan of the Company or any subsidiary of the Company, or any entity holding shares of the Company stock, for or pursuant to the terms of any such plan), shall have become the beneficial owner, directly or indirectly, of shares of the Company having 20% or more of the total number of votes that may be cast for the election of directors of the Company and there shall have been a public announcement of such occurrence by the Company or such persons or (ii) individuals who shall qualify as continuing directors (as defined below) shall have ceased for any reason to constitute at least a majority of the Board of Directors of the Company. "Continuing director" shall mean any member of the Board of Directors of the Company, while such person is a member of such Board of Directors, who is not an affiliate or associate of an acquiring person (as defined below) or of any such acquiring person's affiliate or associate and was a member of such Board of Directors prior to the time when such acquiring person shall have become an acquiring person, and any successor of a continuing director, while such successor is a member of such Board of Directors, who is not an acquiring person or a representative or nominee of an acquiring person or of any affiliate or associate of such acquiring person and is recommended or elected to succeed the continuing director by a majority of the continuing directors. "Acquiring person" shall mean any person or group of affiliates or associates (as such terms are defined on February 1, 1987 in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, other than any employee benefit plan of the Company or any subsidiary of the Company, or any entity holding shares of Company stock for - 7 - or pursuant to the terms of any such plan), who is or becomes the beneficial owner, directly or indirectly, of 20% or more of the shares of the Company, having 20% or more of the total number of votes that may be cast for the election of directors of the Company. 2. Subsidiary. For purposes of this agreement, a "Subsidiary" shall mean any domestic or foreign corporation at least 20% of whose shares normally entitled to vote in electing directors is owned directly or indirectly by the Company or by other subsidiaries. D. General Provisions. 1. No Guaranty of Employment. Nothing in this agreement shall be deemed to entitle the Executive to continued employment with the Company or its subsidiaries, and the rights of the Company to terminate the employment of the Executive shall continue as fully as if this agreement were not in effect, provided that any such termination of employment within three (3) years following a change of control shall entitle the Executive to the benefits herein provided. 2. Confidentiality. The Executive shall retain in confidence any confidential information known to him concerning the Company and its business so long as such information is not publicly disclosed. 3. Payment Obligation Absolute. The Company's obligation to pay the Executive the compensation and to make the arrangements provided herein shall be absolute and unconditional and shall not be affected by any circumstances, including without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against him, her or anyone else. All amounts payable by the Company hereunder shall be paid without notice or demand. The Company waives all rights which it may now have or may hereafter have conferred upon it, by statute or otherwise, to terminate, cancel or rescind this agreement in whole or in part. Each and every payment made hereunder by the Company shall be final and the Company shall not seek to recover all or any part of such payment from the Executive or from whoever may be entitled thereto, for any reason whatsoever. 4. Indemnification. If litigation shall be brought to enforce or interpret any provision contained herein, the Company hereby indemnifies the Executive for his or her reasonable attorney's fees and disbursements incurred in such litigation, and hereby agrees to pay prejudgment interest on any money judgment obtained by the Executive calculated by using the prevailing prime interest rate on the date that payment(s) to him or her should have been made under this agreement. - 8 - 5. Successors. This agreement shall be binding upon and inure to the benefit of the Executive and his or her estate, and the Company and any suc- cessor of the Company, but neither this agreement nor any rights arising hereunder may be assigned or pledged by the Executive. 6. Severability. Any provision in this agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating or affecting the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 7. Controlling Law. This agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of Delaware. IN WITNESS WHEREOF, the parties have executed this agreement on the date set out above. MAYTAG CORPORATION By ___________________________ _______________________________ Executive The following executives are covered under this severance agreement: 1. Robert F. Dunkerley 2. Nelson E. Wooldridge EXECUTIVE SEVERANCE AGREEMENT THIS AGREEMENT is made the ___ day of ________, 1994, by and between Maytag Corporation, a Delaware corporation (the "Company"), and ____________________ (the "Executive"). RECITALS A. The Board of Directors of the Company has approved the Company en- tering into severance agreements with such executives of the Company and its subsidiaries as is determined by the Chairman and Chief Executive Officer. B. Should the Company receive or learn of any proposal by a third person about a possible business combination with the Company or the acquisition of its equity securities, the Board considers it imperative that the Company be able to rely upon the Executive to continue in his or her position. This to the end that the Company be able to receive and rely upon the Executive's advice concerning the best interests of the Company and its stockholders, without concern that person might be distracted by the personal uncertainties and risks created by such a proposal. C. Should the Company receive any such proposals, in addition to the Executive's regular duties, he or she may be called upon to assist in the assessment of such proposals, advise management and the Board as to whether such proposals would be in the best interests of the Company and its stock- holders, and to take such other actions as the Board might determine to be appropriate. AGREEMENT NOW, THEREFORE, to assure the Company that it will have the continued dedication of the Executive and the availability of that person's advice and counsel notwithstanding the possibility, threat or occurrence of a bid to take over control of the Company, and to induce the Executive to remain in the employ of the Company, and for other good and valuable consideration, the Company and the Executive agree that the Executive Severance Agreement de- scribed above be amended and restated in its entirety as follows: A. Should a third person, in order to effect a change of control (as defined), begin a tender or exchange offer, circulate a proxy to stockholders or take other steps, the Executive agrees that he or she will not voluntarily leave the employ of the Company, and will render the services contemplated in the recitals to this agreement, until the third person has abandoned or terminated his efforts to effect a change of control or until a change of control has occurred. B. Should the Executive's employment with the Company or its subsidiaries terminate for any reason (either voluntary or involuntary, other than - 2- because of death, disability or normal retirement) within three (3) years after a change of control of the Company the following will be provided: 1. Lump Sum Cash Payment. On or before the Executive's last day of employment with the Company or its subsidiaries, or as soon thereafter as possible, the Company will pay to the Executive as compensation for services rendered, a lump sum cash amount (subject to the usual withholding taxes) equal to (A) two times the sum of (1) the Executive's annual salary at the rate in effect immediately prior to the change of control and (2) the maximum annual incentive bonus opportunity provided by the Plan and any discretionary bonus declared for the year in which the change of control occurred, or the preceding year if not established plus (B) an amount equal to the compensation (at the Executive's rate of pay in effect immediately prior to the change of control) payable for any period for which the Executive could have, immediately prior to the date of his termination of employment, been on vacation and received such compensation, for unused and accrued vacation benefits determined under the Company's vacation pay plan or program covering the Executive immediately prior to the change of control. If the time from the Executive's last day of employment with the Company or its subsidiaries to the Executive's 65th birthday is less than 36 months, there shall be a proportionate reduction of the payment computed under clause (A) of the preceding sentence. 2. Salaried and Supplemental Executive Retirement Plans. The Executive shall be paid a monthly retirement benefit, in addition to any benefits received under the Salaried Retirement Plans maintained by the Company or its subsidiaries, including The Maytag Corporation Salaried Retirement Plan and any Supplemental Executive Retirement Plan, such benefit to commence on the first to occur of (a) the commencement of payment of benefits under the Maytag Corporation Salaried Retirement Plan or (b) attainment of age 65, but not prior to three (3) years following the date of termination of employment or age 65, whichever first occurs, such benefit to be an amount equal to the excess of (i) the aggregate benefits under such Salaried Retirement Plans to which the Executive would be entitled if he or she remained employed by the Company or its subsidiaries, for an additional period of three (3) years or until his or her 65th birthday, whichever is earlier, at the rate of annual compensation specified herein; over (ii) the benefits to which the Executive is actually entitled under such Salaried Retirement Plans. 3. Life, Dental, Vision, Health and Long Term Disability Coverage. The Executive's participation in, and entitlement to, benefits under: (i) the life insurance plan of the Company; (ii) all the health insurance plan or plans of the Company or its subsidiaries, including but not limited to those providing major medical and hospitalization benefits, dental benefits and vision benefits; and (iii) the Company's long-term disability plan or plans; as all such plans existed immediately prior to the change of control shall continue as though he or she remained employed by the Corporation or its subsidiaries for an additional period of three (3) years or until the obtainment of such coverages with another employer, whichever is earlier. To the extent such participation or entitlement is not possible for any reason whatsoever, equivalent benefits shall be provided. - 3 - 4. Participation in Employee Benefit Plans. After termination of em- ployment, the Executive shall continue to participate in the Salaried Retire- ment Plans as contemplated above. The Executive's participation in any other savings, capital accumulation, retirement, incentive compensation, profit sharing, stock option, and/or stock appreciation rights plans of the Company or any of its subsidiaries shall continue only through the last day of his or her employment. Any terminating distributions and/or vested rights under such plans shall be governed by the terms of those respective plans. Furthermore, the Executive's participation in any insurance plans of the Company and rights to any other fringe benefits shall, except as otherwise specifically provided in such plans or Company policy, terminate as of the close of the Executive's last day of employment, except to the extent specifically provided to the contrary in this agreement. 5. Incentive Plans. In addition to the payments required by paragraph 1 of this Section, the Company shall pay to the Executive as compensation for services rendered cash in an amount equal to the maximum amount which could be payable to the Executive under any and all incentive compensation plans in which the Executive is a participant or under which the Executive holds any outstanding award as of the day prior to the change of control. To the extent that any such award is represented by restricted shares of stock of the Company, the Executive's such cash payment shall include an amount equal to the aggregate value of such shares determined as of the day of the change of control. Any payment due pursuant to this paragraph 5 shall be paid at the same time as the amount payable pursuant to paragraph 1 of this Section. 6. Reimbursement for Loss on Sale of Principal Residence. If on the date of the change of control the Executive shall own a private residence within Jasper County, Iowa (the "Executive's residence"), the Executive shall be paid an amount equal to the excess, if any, of the amount by which the greater of (i) the "aggregate purchase price" (as defined below) of the Executive's residence and (ii) the "change of control market value" (as defined below) of the Executive's residence, over the amount realized by the Executive upon the sale of such residence. Any amount payable to the Executive under this agreement shall be paid to the Executive on the date on which the Executive's residence is sold in a bona fide transaction with an unrelated party. Notwithstanding the foregoing, if the Executive's residence shall not be sold within 6 months after the date on which the Executive's residence is first offered for sale, the Company shall purchase the Executive's residence from the Executive for a cash amount equal to the "change of control market value" of the Executive's residence. For purposes of this paragraph, the "aggregate purchase price" of the Executive's residence shall be the sum of the amount paid therefor plus the cost of any significant repairs such as the cost of siding, or roof repair or maintenance, incurred within the 5 year period ending on the date on which a change of control occurs, plus the cost of any improvements to such residence made by the Executive, the "amount realized" upon the sale of such residence shall be the net amount, after deduction for brokers' fees, title charges, transfer taxes and similar items, realized by the Executive upon the sale of the Executive residence and "change of control market value" shall mean the value of the Executive's residence on the date on which the change of control - 4 - occurred, as determined by an independent appraiser selected by the Executive. The fees and expenses of such appraiser shall be paid by the Company. 7. Excise Tax-Additional Payment. (a) Notwithstanding anything in this agreement or any written or unwritten policy of the Company or its subsidiar- ies to the contrary, (i) if it shall be determined that any payment or distribution by the Company or its subsidiaries to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this agreement, any other agreement between the Company or its subsidiaries and the Executive or otherwise (a "Payment"), would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended, (the "Code") or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), or (ii) if the Executive shall otherwise become obligated to pay the Excise Tax in respect of a Payment, then the Company shall pay to the Executive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment. (b) All determinations and computations required to be made under this paragraph B5, including whether a Gross-Up Payment is required under clause (ii) of paragraph B7(a) above, and the amount of any Gross-Up Payment, shall be made by the Company's regularly engaged independent certified public ac- countants (the "Accounting Firm"). The Company shall cause the Accounting Firm to provide detailed supporting calculations both to the Company and the Executive within 15 business days after such determination or computation is requested by the Executive. Any initial Gross-Up Payment determined pursuant to this paragraph B7 shall be paid by the Company or the subsidiary to the Executive within 5 days of the receipt of the Accounting Firm's deter- mination. A determination that no Excise Tax is payable by the Executive shall not be valid or binding unless accompanied by a written opinion of the Accounting Firm to the Executive that the Executive has substantial authority not to report any Excise Tax on his federal income tax return. Any deter- mination by the Accounting Firm shall be binding upon the Company, its subsidiaries and the Executive, except to the extent the Executive becomes obligated to pay an Excise Tax in respect of a Payment. In the event that the Company or the subsidiary exhausts or waives its remedies pursuant to subparagraph 7B(c) and the Executive thereafter shall become obligated to make a payment of any Excise Tax, and if the amount thereof shall exceed the amount, if any, of any Excise Tax computed by the Accounting Firm pursuant to this subparagraph (b) in respect to which an initial Gross-Up Payment was made to the Executive, the Accounting Firm shall within 15 days after Notice thereof determine the amount of such excess Excise Tax and the amount of the additional Gross-Up Payment to the Executive. All expenses and fees of the Accounting Firm incurred by reason of this paragraph B7 shall be paid by the Company. - 5 - (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expira- tion of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subparagraph B7(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company or the subsidiary shall determine; provided, however, that if the Company or the subsidiary directs the Executive to pay such claim and sue for a refund, the Company or the subsidiary shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided, that any extension of the statue of limitations relating to payment -6- of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, control of the contest by the Company or the subsidiary shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company or the subsidiary pursuant to subparagraph B7(c), the Executive be- comes entitled to receive any refund with respect to such claim, the Executive shall (subject to compliance with the requirements of paragraph B7 by the Company or the subsidiary) promptly pay to the Company or the subsidiary the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company or the subsidiary pursuant to subparagraph B7(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall off-set, to the extent thereof, the amount of Gross-Up Payment required to be paid. C. Definitions. 1. Change of Control. For purposes of this Agreement, a "change of control" shall occur when (i) any person, either individually or together with such persons' affiliates or associates (other than any employee benefit plan of the Company or any subsidiary of the Company, or any entity holding shares of the Company stock, for or pursuant to the terms of any such plan), shall have become the beneficial owner, directly or indirectly, of shares of the Company having 20% or more of the total number of votes that may be cast for the election of directors of the Company and there shall have been a public announcement of such occurrence by the Company or such persons or (ii) individuals who shall qualify as continuing directors (as defined below) shall have ceased for any reason to constitute at least a majority of the Board of Directors of the Company. "Continuing director" shall mean any member of the Board of Directors of the Company, while such person is a member of such Board of Directors, who is not an affiliate or associate of an acquiring person (as defined below) or of any such acquiring person's affiliate or associate and was a member of such Board of Directors prior to the time when such acquiring person shall have become an acquiring person, and any successor of a continuing director, while such successor is a member of such Board of Directors, who is not an acquiring person or a representative or nominee of an acquiring person or of any affiliate or associate of such acquiring person and is recommended or elected to succeed the continuing director by a majority of the continuing directors. "Acquiring person" shall mean any person or group of affiliates or associates (as such terms are defined on February 1, 1987 in Rule 12b-2 of the General Rules and Regulations under the Securities Exchange Act of 1934, as amended, other than any employee benefit plan of the Company or any subsidiary of the Company, or any entity holding shares of Company stock for or pursuant to the terms of any such plan), who is or becomes the beneficial owner, directly or indirectly, of 20% or more of the shares of the Company, having 20% or more of the total number of votes that may be cast for the election of directors of the Company. 2. Subsidiary. For purposes of this agreement, a "Subsidiary" shall mean any domestic or foreign corporation at least 20% of whose shares normally entitled to vote in electing directors is owned directly or indirectly by the Company or by other subsidiaries. D. General Provisions. 1. No Guaranty of Employment. Nothing in this agreement shall be deemed to entitle the Executive to continued employment with the Company or its sub- sidiaries, and the rights of the Company to terminate the employment of the Executive shall continue as fully as if this agreement were not in effect, provided that any such termination of employment within three (3) years fol- lowing a change of control shall entitle the Executive to the benefits herein provided. 2. Confidentiality. The Executive shall retain in confidence any confi- dential information known to him concerning the Company and its business so long as such information is not publicly disclosed. 3. Payment Obligation Absolute. The Company's obligation to pay the Executive the compensation and to make the arrangements provided herein shall be absolute and unconditional and shall not be affected by any circumstances, including without limitation, any set-off, counterclaim, recoupment, defense or other right which the Company may have against him, her or anyone else. All amounts payable by the Company hereunder shall be paid without notice or demand. The Company waives all rights which it may now have or may hereafter have conferred upon it, by statute or otherwise, to terminate, cancel or re- scind this agreement in whole or in part. Each and every payment made hereunder by the Company shall be final and the Company shall not seek to recover all or any part of such payment from the Executive or from whoever may be entitled thereto, for any reason whatsoever. 4. Indemnification. If litigation shall be brought to enforce or inter- pret any provision contained herein, the Company hereby indemnifies the Executive for his or her reasonable attorney's fees and disbursements incurred in such litigation, and hereby agrees to pay prejudgment interest on any money judgment obtained by the Executive calculated by using the prevailing prime interest rate on the date that payment(s) to him or her should have been made under this agreement. - 8 - 5. Successors. This agreement shall be binding upon and inure to the benefit of the Executive and his or her estate, and the Company and any suc- cessor of the Company, but neither this agreement nor any rights arising hereunder may be assigned or pledged by the Executive. 6. Severability. Any provision in this agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffec- tive only to the extent of such prohibition or unenforceability without invalidating or affecting the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. 7. Controlling Law. This agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of Delaware. IN WITNESS WHEREOF, the parties have executed this agreement on the date set out above. MAYTAG CORPORATION By ___________________________ XXXXXXXXXXXXXXXX , CEO ___________________________ XXXXXXXXXXXXXX, Executive October 27, 1993 CONFIDENTIAL HAND DELIVERED Mr. J. A. Schiller Dear Jerry: Maytag's letter to you dated July 20, 1993, as supplemented by my letter of August 3, 1993, documented the future employment arrangement between you and Maytag Corporation, the terms of which you have accepted. Since that time, it has been determined that there will be greater demand on your services than was contemplated on July 20, 1993. In recognition of this changed condition and because that greater performance by you will delay your hip replacement until Spring 1994, it has been agreed that the letter of July 20, 1993 will be revised and restated as follows: 1. You will continue in your present position until October 31, 1993 at your current base salary and benefits. 2. You will resign your position as Director and Executive Vice President/Chief Financial Officer (CFO) of Maytag Corporation and all other director, trustee, and officer positions you presently hold in subsidiary and associated companies, effective November 1, 1993, except you will continue to serve as Maytag's representative on the Maytag Corporation Foundation Board through March 31, 1994, and on the AMAC and Amerivend boards through December 31, 1994, unless you are relieved of these assignments earlier at the election of Maytag's CEO. You may be asked to continue Board Committee involvement until a new Chief Financial Officer is employed. 3. Effective November 1, 1993, you will be employed by Maytag Corporation as a salaried consultant, working under the supervision and direction of the Chief Executive Officer, Maytag Corporation, until May 31, 1995, at which time you will retire from the Corporation. We anticipate that your services as a consultant and acting CFO will be required on an approximately full-time basis until no later than March 31, 1994, and thereafter on a part-time basis until no later than May 31, 1995. After March 31, 1994, reasonable notice will be given before consulting assignments so as not to conflict with plans you may have already made. Thirty days' notice will be given for extensive assignments, such as trips overseas. Maytag will provide you with appropriate office and secretarial support reasonably required to perform your duties. Page 2 October 27, 1993 4. In your position as consultant, you will receive your present base salary through December 31, 1993. Effective January 1, 1994, your base salary will increase to $334,500 per annum, payable monthly, through May 31, 1995. Should you die prior to June 1, 1995, your base salary will cease as of the date of death. During the period in which you are employed as a consultant, your salary and benefits will not be reduced should you be unable to perform your duties due to disability. Your accrued but unused vacation entitlement as of October 31, 1993 will be paid to you within ten days following that date. No vacation will accrue during the consulting period. Bonus for 1993, computed and payable under the terms of the Corporation's 1993 Annual Management Incentive Plan, using your current base salary and an individual performance rating of 100%, will be paid at the time of the normal bonus payout (subject to applicable withholdings). You will not participate in the Corporation's 1994 or 1995 Annual Management Incentive Plans; however, you will be entitled to receive a bonus for 1994 computed and paid as if it were under the terms of the 1994 Plan, using $334,500 as your base salary and an individual performance rating of 100% pro-rated through June 30, 1994 and payable at the time of the normal bonus payout (subject to applicable withholdings). You will not participate in the Corporation's 1993 and 1994 Stock Incentive Award Plans; however, you will be paid a cash amount equal to the amount you would have received had you participated in such Plans, pro-rated through June 30, 1994. These payments, including dividend equivalents, will be made at the normal payout dates according to the plans subject to normal withholding. 5. You will receive the Corporation's normal benefits package through May 31, 1995, subject to normal employee contributions. Effective June 1, 1995, you will be provided with post-retirement medical coverage as outlined in the "Medical Coverage for 'Grandfathered' Retirees" furnished to you on July 20, 1993. Page 3 October 27, 1993 6. Your retirement benefits, effective June 1, 1995, will not be reduced due to your age but will be calculated as though you were then 65 and will be based on the average of the highest three years of qualified earnings from the four years, 1991, 1992, 1993, and 1994, including consulting compensation from October 31 through December 31, 1994. Benefits normally accrued under the Pension Plan will be paid monthly from the Plan. The difference between the amount paid from the Pension Plan Trust Fund and benefits provided by this paragraph will be paid by Maytag Corporation. 7. If there is a stock option granted by Maytag Corporation in 1993 to executive officers of Maytag Corporation, you will be included under the terms of such grant. You will have until the time specified in the option agreements for retirees to exercise those stock options currently granted to you, but in no event can such options be exercised after the expiration date of the option and rights specified in the applicable option agreement. 8. The Corporation will also: a. pay for the services of a retirement consultant of your choosing up to $5,000, b. pay for the service of an outplacement firm of your choice to assist you in search for director and/or consultant positions, at a cost of up to $25,000, c. provide, at its expense, its standard individual, foundations and trusts tax returns preparation by Ernst & Young for you for the tax years 1993, 1994, and 1995. d. allow you to replace your appliances under the Executive Appliance Test Program, subject to applicable tax withholdings, at anytime prior to May 31, 1995, and make no payment to the Corporation for such appliances when you retire. e. maintain the current Executive Severance Agreement using 1993 as a base year, between you and the Corporation until December 31, 1994, at which time it will terminate if it has not been activated as a result of a "change in control." For the purposes of this paragraph "using 1993 as a base year" means that all of your salary and benefits in place on January 1, 1994 will be included on an annual basis as though you had not changed employment status on October 31, 1993; i.e., full annual consideration. Page 4 October 27, 1993 f. at your request, recommend to the Compensation Committee that you be authorized to receive a lump-sum payment of your balance in the Capital Accumulation Plan anytime after May 31, 1995. If the foregoing accurately reflects your understanding and agreement, and after consulting with your attorney, please ratify and confirm the Agreement which accompanied my letter of July 20, 1993, which you previously executed and delivered, by signing and returning a copy of this letter to me. Sincerely, JON/jb Agreed ______________________, 1993 ___________________________________ Jerry A. Schiller EX-11 5 EXHIBIT 11 - COMPUTATION OF PER SHARE EARNINGS MAYTAG CORPORATION Exhibit 11 Computation of Per Share Earnings (Amounts in thousands except per share data) Year Ended December 31 1993 1992 1991 PRIMARY Average shares outstanding 106,123 105,924 105,448 Net effect of dilutive stock options-- based on the treasury stock method using average market price 107 154 77 Employee stock ownership plans 22 236 TOTAL 106,252 106,078 105,761 Income (loss) before cumulative effect of accounting changes $ 51,270 $ (8,354) $ 79,017 Per average share $ .48 $ (.08) $ .75 Cumulative effect of accounting changes $(307,000) Per average share $ (2.89) Net income (loss) $ 51,270 $(315,354) $ 79,017 Per average share $ .48 $ (2.97) $ .75 FULLY DILUTED Average shares outstanding 106,123 105,924 105,448 Net effect of dilutive stock options-- based on the treasury stock method using greater of average or ending market price 159 172 95 Employee stock ownership plans 22 236 Assumed conversion of 6 1/2% convertible debentures 411 TOTAL 106,715 106,096 105,779 Income (loss) before cumulative effect of accounting changes $ 51,270 $ (8,354) $ 79,017 Per average share $ .48 $ (.08) $ .75 Cumulative effect of accounting changes $(307,000) Per average share $ (2.89) Net income (loss) $ 51,270 $(315,354) $ 79,017 Per average share $ .48 $ (2.97) $ .75 EX-12 6 EXHIBIT 12-RATIO OF EARNINGS TO FIXED CHGS MAYTAG CORPORATION Exhibit 12 Computation of Ratio of Earnings to Fixed Charges (Amounts in thousands of dollars except ratios) Year Ended December 31 1993 1992 1991 1990 1989 Consolidated pretax income from continuing operations before cumulative effect of accounting changes $ 89,870 $ 7,546 $123,417 $159,405 $206,972 Interest expense 75,364 75,004 75,159 81,966 83,398 Depreciation of capitalized interest 1,546 933 348 57 Interest portion of rental expense 10,480 11,264 11,177 9,183 7,107 Earnings $177,260 $ 94,747 $210,101 $250,611 $297,477 Interest expense $ 75,364 $ 75,004 $ 75,159 $ 81,966 $ 83,398 Interest capitalized 1,484 3,886 6,329 5,348 Interest portion of rental expense 10,480 11,264 11,177 9,183 7,107 Fixed charges $ 87,328 $ 90,154 $ 92,665 $ 96,497 $ 90,505 Ratio of earnings to fixed charges $ 2.03 $ 1.05 $ 2.27 $ 2.60 $ 3.29 EX-21 7 EXHIBIT 21-SUBSIDIARIES MAYTAG CORPORATION Exhibit 21 List of Subsidiaries of the Registrant. The following schedule lists the subsidiaries of Maytag Corporation, a Delaware corporation, as of December 31, 1993. State or Country Corporate Name of Organization Dixie-Narco Inc. West Virginia Maytag Financial Services Corporation Delaware Maytag Foreign Sales Corporation Virgin Islands The Hoover Company Delaware D.N. Holdings, Inc. Delaware Maytag Group Sourcing Co. (95%) Delaware Maytag International Inc. Delaware Maharashtra Investment, Inc. Delaware Hoover Holdings Inc. (95%) Delaware Hoover Mexicana S.A. de C.V. Mexico Juver Industrial S.A. de C.V. Mexico Hoover (N.Z.) Limited New Zealand Hoover Limited United Kingdom Maytag International Limited United Kingdom Meadowbank Properties Pty. Limited Australia Hoover Oy Finland Hoover European Holdings Inc. Delaware Hoover Holdings Inc. (5%) Delaware MH Canadian Holdings Ltd. (94.16%) Canada Domicor Holdings B.V. (8.67%) The Netherlands Hoover Pacific Holdings (Australia) Pty. Ltd. Australia Hoover (Australia) Pty. Limited Australia Hoover Appliances Limited Australia Clayton Victoria Holdings Pty. Limited Australia Domicor Holdings B.V. (91.33%) The Netherlands Hoover Gmbh Germany Hoover srl (99%) Italy Hoover Electrica Portuguesa, Limitada Portugal Hoover Benelux S.A.\N.V. Belgium S.A. Hoover France Hoover Apparate A.G. Switzerland Hoover Austria Ges Mbh Austria Hoover Italiana S.P.A. Italy Hoover srl (1%) Italy Maytag Group Sourcing Co. (5%) Delaware MH Canadian Holdings Ltd. (5.84%) Canada NOTE: Ownership in subsidiaries is 100% unless otherwise indicated. Other subsidiaries in the aggregate would not constitute a significant subsidiary. EX-23 8 EXHIBIT 23 - E & Y CONSENTS MAYTAG CORPORATION Exhibit 23 Consent of Ernst & Young Consent of Independent Auditors Shareowners and Board of Directors Maytag Corporation We consent to the incorporation by reference in Registration Statement Number 33-8249, Registration Statement Number 33-8248, Registration Statement Number 33-6378, Registration Statement Number 33-22228, and Registration Statement Number 33-26620 on Forms S-8; and Registration Statement Number 33-35219 on Form S-3 of Maytag Corporation and in the related Prospectuses of our report dated February 1, 1994, with respect to the financial statements and schedules of Maytag Corporation included in this Annual Report (Form 10-K) for the year ended December 31, 1993. Ernst & Young Chicago, Illinois March 28, 1994 Consent of Independent Auditors Shareowners and Board of Directors Maytag Corporation We consent to the incorporation by reference in Registration Statement Number 33-8249, Registration Statement Number 33-8248, Registration Statement Number 33-6378, Registration Statement Number 33-22228, and Registration Statement Number 33-26620 on Forms S-8; and Registration Statement Number 33-35219 on Form S-3 of Maytag Corporation Salary Savings Plan of our report dated March 14, 1994, with respect to the financial statements and schedules of Maytag Corporation Salary Savings Plan included in this Annual Report (Form 11-K) for the year ended December 27, 1993. Ernst & Young Chicago, Illinois March 28, 1994 Consent of Independent Auditors Shareowners and Board of Directors Maytag Corporation We consent to the incorporation by reference in Registration Statement Number 33-8249, Registration Statement Number 33-8248, Registration Statement Number 33-6378, Registration Statement Number 33-22228, and Registration Statement Number 33-26620 on Forms S-8; and Registration Statement Number 33-35219 on Form S-3 pertaining to The Hoover Company Retirement Savings Plan for Hourly-Rated Employees of Maytag Corporation of our report dated March 14, 1994, with respect to the financial statements and schedules of The Hoover Company Retirement Savings Plan for Hourly-Rated Employees included in this Annual Report (Form 11-K) for the year ended December 27, 1993. Ernst & Young Chicago, Illinois March 28, 1994 -----END PRIVACY-ENHANCED MESSAGE-----