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FORM 10-K
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED DECEMBER 31, 1996
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
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Commission File number 0-21828
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GREENFIELD INDUSTRIES, INC.
[EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER]
DELAWARE 04-2917072
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
2743 PERIMETER PARKWAY
BUILDING 100, SUITE 100
AUGUSTA, GEORGIA 30909
(Address of Principal Executive Offices) (Zip Code)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE (706) 863-7708
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SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
NAME OF EACH EXCHANGE
TITLE OF EACH CLASS ON WHICH REGISTERED
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None
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
COMMON STOCK
SERIES A PREFERRED STOCK
PREFERRED STOCK PURCHASE RIGHTS
(TITLE OF EACH CLASS)
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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. [ ]
As of March 21, 1997, the aggregate market value of the voting stock held
by non-affiliates (16,047,476 shares) of the registrant was $365,080,079 (based
on the closing price, on such date, of $22.75 per share).
As of March 21, 1997 there were 16,398,257 shares of common stock, $0.01
par value, outstanding.
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DOCUMENTS INCORPORATED BY REFERENCE
Annual Report to Stockholders for the Year Ended December 31, 1996 (portion)
(Parts I, II and IV). Proxy Statement dated March 27, 1997 (portion) (Part III).
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GREENFIELD INDUSTRIES, INC.
INDEX TO FORM 10-K
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PAGE
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Part I
Item 1 Business........................................................................ 3
Item 2 Properties...................................................................... 10
Item 3 Legal Proceedings............................................................... 10
Item 4 Submission of Matters to a Vote of Security Holders............................. 10
Part II
Item 5 Market for Registrant's Common Stock and Related Stockholder Matters............ 11
Item 6 Selected Data................................................................... 11
Item 7 Management's Discussion and Analysis of Financial Condition and Results of
Operations.................................................................... 11
Item 8 Financial Statements and Supplementary Data..................................... 11
Item 9 Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure.................................................................... 11
Part III
Item 10 Directors and Executive Officers of the Registrant.............................. 12
Item 11 Executive Compensation.......................................................... 12
Item 12 Security Ownership of Certain Beneficial Owners and Management.................. 12
Item 13 Certain Relationships and Related Transactions.................................. 12
Part IV
Item 14 Exhibits, Financial Statement Schedules, and Reports on Form 8-K................ 13
</TABLE>
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PART I
ITEM 1. BUSINESS
GENERAL
Greenfield Industries, Inc. ("Greenfield" or the "Company") is one of the
four largest manufacturers of expendable cutting tools and related products used
primarily in industrial applications and the largest North American producer of
expendable rotary cutting tools, which constituted the majority of the Company's
1996 sales. Rotary cutting tools are consumable cylindrical fluted tools used to
cut, bore, shape, mill and thread industrial materials. Greenfield's products
are consumed during use and are replaced by purchasers on a periodic basis.
Based on internal estimates, the Company believes that it maintains one of the
two largest market shares in each of the principal product lines in which it is
described herein as a leading manufacturer.
Greenfield's products are sold in six principal markets: industrial,
electronics, energy and construction, engineered products, consumer and marine.
The Company produces industrial products used by manufacturers in a broad
cross-section of industries to cut metal and other industrial materials. The
Company is also a leading manufacturer of small diameter drills and routers used
in the manufacture of circuit boards; carbide products used in energy and
construction and engineered products applications; and consumer drill bits
marketed under private label and proprietary brands, including Sears' line of
Craftsman(R) drill bits, which the Company has supplied for more than 65 years.
The Company's presence in the consumer market was substantially expanded in
January 1996 as a result of the acquisition of Rule Industries, Inc. ("Rule"), a
manufacturer of consumer saws and other hardware products. The Company's
consumer products are sold primarily to consumers and tradesmen through major
do-it-yourself hardware suppliers, such as Home Depot, retail chains and buying
cooperatives, among whom the Company has not historically had significant market
penetration. The Company offers products made from high-speed steel and tungsten
carbide materials; each accounts for approximately half of the Company's
revenues. In addition, the Company manufactures and markets a line of marine
products. Sales and operational data by geographic area, including export sales,
can be found in Note 15 to the Consolidated Financial Statements included in the
Company's Annual Report to Stockholders for the year ended December 31, 1996
(the "Annual Report"), which is incorporated herein by reference thereto.
Greenfield has grown through complementary acquisitions and has benefited
from operating efficiencies achieved through consolidations of operations and
rationalizations of excess capacity. The Company is the successor to a group of
complementary cutting tool businesses acquired since 1986. Greenfield was
organized in 1986 in connection with the acquisition of the Cutting Tools
Division of TRW, Inc. ("TRW"). Concurrently, Rogers Tool Works, Inc. ("RTW") was
organized for the purpose of acquiring TRW's Carbide Division. These acquired
businesses had net sales of approximately $89 million for the twelve months
ended May 31, 1987. The Company has grown to 1996 consolidated net sales of
approximately $510.1 million. Since 1986, more than 20 additional complementary
businesses have been acquired by the Company. The following acquisitions have
been made in the last three years:
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TOTAL
ASSETS
AT
ACQUISITION
DATE ACQUISITION PRODUCTS DATE
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(DOLLARS IN
MILLIONS)
<C> <S> <C> <C>
1994 Threads, Inc................................. Gages 3.0
1994 Hendersonville Industrial Tool Co., Inc...... Gages 2.7
1994 The Cleveland Twist Drill Company............ Drills, reamers, end mills, taps and
dies, counterbores and countersinks 84.4
1994 Carbidie Corporation......................... Wear parts 27.3
1995 American Mine Tool, a Division
of Valenite, Inc........................... Mining and wear parts 15.1
1995 Van Keuren, Inc.............................. Gages 2.5
1995 Cleveland Europe Limited..................... Industrial drills 12.1
1996 Rule Industries, Inc......................... Industrial and consumer saws and
related products; marine products 111.6
1996 Boride Products, Inc......................... Ceramic and tungsten carbide based
wear parts 9.1
1996 Arkansas Cutting Tools, a Division of
Production Carbide & Steel Company......... High speed drills 5.8
1996 Bassett Rotary Tool Company.................. Carbide rotary cutting tools 14.5
</TABLE>
Greenfield's principal executive offices are located at 2743 Perimeter
Parkway, Building 100, Suite 100, Augusta, Georgia 30909, and its telephone
number is (706) 863-7708.
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BUSINESS STRATEGY
General. Greenfield's business strategies include obtaining and maintaining
leading market positions and broadening its product lines; reducing operating
costs and improving productivity through capital investment and reorganization
of production processes; and emphasizing quality and customer service. The
Company seeks to implement its strategies through additional complementary
acquisitions and rationalizing and integrating acquired operations.
Market Position and Product Lines. The Company seeks to obtain and maintain
leading market positions in each of its markets. Most of the markets in which
the Company operates are fragmented and are undergoing consolidation, which is
expected to benefit larger, more efficient producers such as the Company.
Accordingly, the Company seeks to broaden its product lines through
acquisitions. Management believes that the expansion of its product lines will
enable the Company to reduce the effects of cyclicality on its business.
Reducing Operating Costs and Improving Productivity. Operating costs have
been lowered through an active program of capital investment, rationalizations
and plant consolidations intended to streamline operations, improve productivity
and reduce costs. For example, during 1994, Greenfield consolidated its
electronic circuit board drill operations in Switzerland into its German
operations. The consolidation resulted in increased production and lower
employment levels. Similarly, the Company, in connection with the acquisition of
The Cleveland Twist Drill Company ("CTD"), restructured and consolidated certain
of the CTD facilities with other Company facilities. As part of this 18-month
plan, the Company rationalized operations at thirteen of its North American
manufacturing facilities, resulting in streamlined operations, improved
productivity and reduced costs. Similarly, in connection with the acquisition of
Rule, the Company closed Rule's corporate office and eliminated certain
corporate functions with the remaining functions relocated to existing
facilities. As part of a two-year plan for Rule, the Company is reorganizing
operations at the South Deerfield, Massachusetts facility. This plan is expected
to result in streamlined operations, improved productivity and reduced costs.
Quality and Customer Service. Greenfield seeks to provide high levels of
product quality and customer service in its markets, particularly in technically
demanding applications where the cost of product failure is high, for example in
the case of drilling compacts produced by the Company. The Company has earned
numerous quality awards from its major customers, including Ford, Sears,
Caterpillar, Chrysler and Navistar and has received ISO 9000 certification or
equivalent for approximately one-half of its facilities. The remaining
facilities are expected to receive certification during 1997.
Acquisitions. Greenfield seeks to implement its strategies principally
through acquisitions. The Company has increased its market position in existing
product lines and broadened its product lines through acquisitions. Greenfield
has a history of successfully combining acquired companies with its own
operations and since 1986, it has consolidated or restructured operations at
more than 20 plants. The Company has also reduced operating costs and improved
productivity in connection with its acquisitions through improved raw material
pricing, automation of manual operations, reduction of factory overhead through
plant rationalizations and consolidations and improved management systems.
Although the Company continually evaluates acquisition opportunities, no
material acquisitions are pending or contemplated.
MARKETS AND PRODUCTS
General. Greenfield manufactures and markets expendable cutting tools and
carbide products to the industrial, electronics, energy and construction,
engineered products, and consumer markets. The Company also manufactures and
markets a line of marine products. Although the products sold in these markets
are similar and overlap to some degree, the markets generally are affected by
different economic forces, resulting in different demand cycles.
The Company manufactures a wide variety of cutting tools. High-speed steel
is the predominant material for rotary cutting tools, offering high performance
in a broad range of applications. Tungsten carbide materials are costlier and
more durable and are preferred in certain applications.
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Greenfield's brand names enjoy a high degree of recognition in their
respective markets. The Company differentiates its brands primarily on the basis
of products, channels of distribution, geography and service. The Company also
continually seeks to improve its products through research into additional
carbide grades and coatings which will prolong tool life. In addition to the
Company's branded products, the Company also supplies a number of industrial and
consumer private label customers with its products, including Sears' line of
Craftsman(R) drill bits.
For information about Greenfield's backlog at December 31, 1996,
reference is hereby made to the discussion of backlog under the caption
"Management's Discussion and Analysis -- Liquidity and Capital Resources" of the
Company's Annual Report, which is incorporated herein by reference thereto.
Industrial Market. Greenfield is the largest producer in North America of
rotary cutting tools for industrial applications. Customers in the industrial
market use expendable cutting tools in their manufacturing operations. Demand in
the industrial market tracks industrial production, and in 1996 the Company
suffered from what it believed to be a relatively weak economy and inventory
de-stocking at many of its customers. In 1996, the industrial market accounted
for approximately 51% of consolidated net sales.
Products sold in the industrial market include rotary cutting tools and
related products. Rotary cutting tools are consumable cylindrical fluted tools
used to cut, bore, shape, mill and thread industrial materials. Rotary cutting
tools manufactured by the Company include drills, reamers, taps, end mills,
burrs, routers, counterbores and countersinks. Drills bore holes in steel and
other materials. Reamers make hole diameters precise within given tolerances.
Taps machine internal screw threads in drilled or reamed holes. End mills are
used in milling machines to shape industrial materials. Burrs remove excess
material. Routers are used to profile materials. Counterbores and countersinks
shape recesses for fastener heads and other uses. Related products include
toolholders and inserts used in turning and milling operations; dies, dieheads
and chasers used in industrial thread fastening applications; and certain
industrial carbide wear parts used in applications where a high degree of wear
resistance is desirable. As a result of the Rule acquisition, the Company also
manufactures and markets an extensive line of hardware products, primarily
stationary and portable power tool accessories for use in the industrial and
consumer markets. Power tool accessories consist of a broad line of bandsaws,
holesaws, circular saws and reciprocating blades used in power tool
applications, including products which have tungsten-carbide grit cutting edges.
The industrial market's rate of growth generally reflects the growth of the
manufacturing economy. The industrial market has been cyclical, experiencing
higher growth rates during periods of economic expansion. While demand for steel
and carbide cutting tools has continued to grow, certain segments of the market
have experienced some erosion in the past ten years. In particular, improvements
in production processes, such as more precise casting and alternate materials
technology, have reduced the overall amount of machining required in some
applications. Also, materials such as diamond and ceramic products have offered
alternatives to carbide inserts, and, to a lesser degree, rotary cutting tools.
Electronics Market. Greenfield manufactures and markets circuit board
drills for the electronics market. Circuit board drills are extremely small
carbide drills which make small diameter holes in printed circuit boards. The
Company serves customers globally out of its plants located in the United
States, Germany and the United Kingdom. The Company believes that it is one of
the largest worldwide manufacturers of circuit board drills and routers. As
printed circuit boards are becoming increasingly complex and costly to
manufacture, quality and, therefore, drilling demands are increasing.
Multi-layer circuit board construction requires very accurate drills to
establish inter-layer connections. Growth in the use of surface mount technology
to affix components to printed circuit boards has increased demand for smaller,
more precise holes which establish connections between layers in printed circuit
boards. In 1996, the electronics market accounted for approximately 12% of
consolidated net sales.
As the only vertically-integrated producer in the United States of carbide
blanks and circuit board drills, the Company is in a position to ensure control
over a greater number of variables which affect the quality of the product. The
Company supports this capability with a metallurgical and applications
laboratory and has expanded its technical selling capability. To maintain its
competitive position, the Company complements its internal development by
assisting in the development of new metallurgical and coating techniques,
primarily through a consortium of universities, which may allow for even
smaller circuit board drill bits.
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Demand for these products is related to growth in demand for electronic
components and electronically-controlled equipment. The circuit board drill
market is generally cyclical, but with a long-term growth rate higher than the
Company's other markets, as electronic components and controls continue to
proliferate in manufactured goods, including cellular telephones, appliances,
telecommunications equipment, computers and automobiles. Both domestic and
international markets remained relatively constant in 1996 over 1995, except for
the German markets which experienced declines beginning in the second quarter of
1996.
Energy and Construction Market. Greenfield believes that it is the largest
independent supplier of oilfield compacts in the world. Compacts are the cutting
edges of oil well drilling bits, which are commonly referred to as "rock bits."
Oilfield equipment products must be very high in quality because the cost of
product failure can be substantial, particularly when defective products require
rock bits to be replaced in wells which are sometimes miles underground. The
Company's compacts are used both for oil and natural gas drilling. Natural gas
reserves tend to be found deeper than oil, thereby increasing the utilization of
rock bits. In 1994, the Company enhanced its position as the leading provider of
oilfield compacts when it acquired the assets of Progressive Carbide from
Dresser Industries, Inc. In connection with the acquisition, the Company
expanded its supply of compacts to Dresser Industries, Inc. Previously,
Progressive Carbide manufactured a certain portion of its oilfield compacts
while purchasing the rest from the Company.
The Company is a significant producer of tungsten carbide-tipped mining
bits for the United States coal mining industry. It also manufactures mining bit
accessories and carbide-tipped bits used in highway road resurfacing. The
Company's standard line of mining and road resurfacing tools is designed to meet
a wide variety of customer applications. It relies on the high quality of its
products and excellent customer service along with a well-trained salesforce and
network of distribution centers near its customers to support its customer base.
In February 1996, the Company acquired the Kentucky Carbide Division of Osram
Sylvania, Inc., the manufacturer of the carbide inserts which are used
exclusively by the Company in the production of its products. In 1996, the
energy and construction market accounted for approximately 12% of consolidated
net sales.
Demand for oilfield compacts and related products has been cyclical,
tracking domestic and international drilling rig and oilfield production
activities. Demand for coal mining and road resurfacing bits has also been
cyclical.
Engineered Products Market. The Company is an on-demand producer of
custom-made tungsten carbide preform wear parts for use in the tool and die
industry. Its product line encompasses a wide range of die and wear components,
including stamping dies, powder metal tooling, container and impact tooling,
seal rings, extruded rods, wear parts and steel processing parts. The Company's
customers are toolmakers, diemakers and finishers who produce high precision
wear parts and tools. Wear parts are made of tungsten carbide and are often used
as replacement parts for other materials, such as stainless steel, which are
consumed during use and replaced. The tungsten carbide preforms made by the
Company must meet extreme strength, abrasion and wear requirements. The carbide
materials are particularly well suited for such applications, lasting
substantially longer than hardened steel. The Company expects carbide products
to become increasingly important as manufacturing and production companies
continue to look for higher wear life and lower production costs. In June 1996,
the Company acquired Boride Products, Inc., a manufacturer of ceramic and
tungsten carbide-based wear parts.
The Company also manufactures carbide balls and seats which are components
in the check valves used in oil producing pumps. Balls and seats made from
carbide are more durable than those made from competing materials such as cobalt
alloy or stainless steel, and result in less oil well downtime. The Company
expects carbide products to become increasingly important as the population of
domestic oil wells continues to age and operators of oil wells emphasize the use
of recovery techniques which cause greater wear on balls and seats. The Company
also supplies tungsten carbide trim parts used in high pressure oil field
chokes, which are part of the blowout prevention system on oil and gas drilling
rigs, and mechanical face seals, which are used in rotating equipment such as
pumps and mixers. In 1996, the engineered products market accounted for
approximately 13% of consolidated net sales.
Consumer Market. Greenfield is an active supplier of consumer drill bits,
saws, hand tools and other products to the do-it-yourself market, which includes
Sears, Home Depot and other major retailers. These products are sold under
private label brands such as the Sears Craftsman(R) drill line, which the
Company has supplied for more than
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65 years, and are marketed under other brand names such as the Disston(R) line.
The Company expects its sales in the consumer market to continue to increase as
a result of the Rule acquisition, completed in January 1996. Rule manufactures
consumer and industrial cutting tools, including a broad line of bandsaws,
holesaws, circular saws and reciprocating blades used in power tool
applications. The product line also includes hand saws and hand tools, certain
lawn and garden products, wood-boring bits, drills, counterbores, wire brushes,
grinding wheels and stones and other accessory items. Rule's major product
lines, including Disston(R), are sold primarily to consumers and tradesmen
through major do-it-yourself hardware suppliers, such as Home Depot, retail
chains and buying cooperatives, among whom the Company has not historically had
significant market penetration. In 1996, the consumer market accounted for
approximately 7% of consolidated net sales.
Marine Market. With the January 1996 acquisition of Rule, Greenfield also
acquired a line of marine products. The Company's marine products include
submersible pumps, activating switches, magnetic compasses, DC-powered winches
and various electronic instruments and gauges. In 1996, the marine market
accounted for approximately 5% of consolidated net sales.
MARKETING AND DISTRIBUTION
Greenfield's cutting tool products are sold primarily through selected
distributors by the Company's technical sales personnel. Products are also sold
directly to private label, catalog, large industrial and other customers having
special technical or other requirements. Generally, the Company's major brands
are represented by distinct sales forces. The Company's sales force numbers
approximately 150 and sells to over 2,500 independent distributors in North
America and worldwide.
Industrial Market. Greenfield's high-speed steel and carbide rotary cutting
tool brands are sold in the industrial market throughout North America to a
network of selected independent distributors and through Greenfield's
subsidiary, Cleveland Europe Limited, into the United Kingdom, Western Europe
and certain other parts of the world. In addition, the Company has agents to
promote its products in Latin America and Asia. In November 1996, the Company
combined its premium rotary tool brands through a new marketing program, The
Power of One. A single internal sales force sells the Company's full-line brands
to these selected distributors who are also offered customer technical support,
marketing, advertising and educational programs to increase market awareness. An
external sales force sells the VTD, Rule and Bassett brands to a broader group
of distributors who are offered less intensive sales and technical support.
Certain of the industrial drills, taps and dies, end mills, reamers, bandsaws
and certain other products are also available through selected national catalog
distributors and independent stocking agents.
A separate internal sales force sells the Company's indexable tooling
products -- tungsten carbide inserts, tool holders and selected carbide rotary
tool products -- to selected independent industrial distributors and directly to
a few large end-users. In the case of tungsten carbide tools and specialized
drilling, reaming and counterboring tools, the Company's technical sales
personnel directly assist the end-users with product selection and application
of products purchased through distributors.
The Company believes that it has improved its competitive position through
marketing programs designed to increase sales to distributors. Marketing
programs are generally focused on the customer by offering products which result
in productivity improvements and lower total costs for the customers. Other
marketing/customer service programs include product information seminars,
technical support sessions and week-long training classes and meetings with
applications specialists at plant locations across the country.
Electronics Market. Greenfield sells its circuit board drill and router
brands through a worldwide network of distributors and the Company's technical
sales force. The Company markets its products under multiple brand names through
sales forces based in the United States, Germany, the United Kingdom and Asia.
The majority of sales are made through distributors; the balance is direct.
Approximately 80% of the Company's sales of circuit board drills and routers are
made to customers outside North America. The Company supplies circuit board
drills to Asian markets through distributors and agents. The Company believes
that it is a leading supplier of these drills in Hong Kong and other Asian
markets, including the People's Republic of China, Taiwan, Korea and Singapore.
The Company's technical sales force includes applications experts who assist
customers on-site by evaluating drill room applications and suggesting
improvements. The Company also utilizes a dedicated drilling test lab at the
Company's Rogers, Arkansas facility to improve customers' drilling results.
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Energy and Construction Market. Greenfield's sales to the energy and
construction market are made directly to oilfield equipment manufacturers and
other customers. The products are used by large multinational corporations
throughout the world as well as small independently-owned oilfield maintenance
companies.
Engineered Products Market. Greenfields' sales to the engineered products
market are made both directly and through manufacturers' representatives. The
Company's customer base is both large and diverse, covering approximately 1,500
customers in any given year. The Company's sales are primarily in North America
with some international exposure. The Company's sales force and independent
representative network are supported through an internal technical staff, direct
marketing programs, participation in industry trade shows and exhibitions and
advertising in tool and die industry trade journals.
Consumer Market. Sales of products for the consumer market, including
Sears' line of Craftsman(R) drill bits, are made directly by Greenfield to
purchasers of its private label tools. Sales of products for its Disston(R)
brand are primarily sold to major do-it-yourself hardware suppliers, retail
chains and buying cooperatives. The Company assists its customers through
merchandising, packaging and advertising.
Marine Market. Marine products are sold to boat manufacturers and
distributors throughout the United States and the world by independent
manufacturers' representatives and direct sales personnel.
MANUFACTURING
Greenfield's principal raw materials are high-speed steel and tungsten
carbide. High-speed steel is purchased in wire and rod form from multiple
sources. Although the Company purchases most of its high-speed steel
requirements from a single supplier, the Company believes that alternative
sources are available. Tungsten carbide materials are purchased in powder form
from multiple sources, for which alternative suppliers also exist and are
currently adequate. Historically, raw material prices have not been volatile. In
1995, however, tungsten carbide materials were in short supply throughout the
world as China, which produces a majority of the world's tungsten carbide
materials, limited sales, resulting in higher prices. To date, Greenfield has
been able to obtain adequate supplies and price increases experienced generally
have been passed on to customers.
Tungsten carbide powders are mixed, pressed and sintered in the Company's
Rogers, Arkansas, Irwin, Pennsylvania and Placentia, California facilities.
Finished products are precision ground from steel or carbide blanks in various
of the Company's manufacturing facilities. The Company also maintains coating
capabilities in its Augusta, Georgia, Lyndonville, Vermont and Rogers, Arkansas
operations; assembly capabilities for dieheads, rachet tap wrenches and solid
tap and die wrenches in its Augusta, Georgia operation; and brazing capabilities
for carbide tipping at its Bentonville, Arkansas, Solon, Ohio and Rockford,
Illinois facilities. The Company maintains metallurgy laboratories and drilling
rooms in its Augusta, Georgia and Rogers, Arkansas facilities for quality
control, product development and customer applications testing purposes. The
majority of the Company's bandsaws, handsaws and related hardware products are
manufactured in its South Deerfield, Massachusetts facility. The Company's
marine products are manufactured in its Gloucester, Massachusetts facility.
Since 1986, Greenfield has invested over $127 million in capital equipment,
including capital investments of $29.2 million, $26.8 million and $13.1 million
in 1996, 1995, and 1994, respectively. The Company expects that capital
expenditures for 1997 will be approximately $28 million to $32 million for
ongoing capital development projects. This investment in capital equipment has
been a significant element of the Company's cost reduction efforts. The Company
has extensive process engineering capabilities, and has designed and
manufactured a significant amount of its capital equipment. The Company believes
that its production facilities and equipment are in good condition and, together
with planned equipment spending, sufficient to meet planned increases in volume
over the next five years.
COMPETITION
The markets for Greenfield's products are highly competitive. The principal
competitive factors in the cutting tool industry are product quality, timely
delivery, technical service and price.
Generally, the cutting tool market is fragmented with a large number of
competitors and is characterized by
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excess capacity. The Company's competitors vary in size and resources; some are
larger than the Company and others are smaller, and none competes with the
Company in all product lines in the same geographic markets. The Company's
larger competitors have significantly greater financial, marketing and technical
resources. There can be no assurance that competitors will not take actions,
including introducing new products, which could adversely affect the Company's
sales and operating results.
In North America, the market for high-speed steel rotary cutting tools is
fragmented and the Company's competitors consist of smaller privately held
companies and smaller divisions of larger companies. The Company's competitors
in the North American market for tungsten carbide cutting tools, primarily
inserts and toolholders, are Kennametal, Inc., the Valenite division of
Cincinnati Milacron, and Sandvik AB, a Swedish company.
Outside the United States, the largest cutting tool company worldwide is
Sandvik AB. Sandvik AB produces a full range of carbide products and is the
market leader in Europe for rotary cutting tools.
TRADEMARKS AND PATENTS
Greenfield owns and maintains U.S. trademark registrations for all of its
principal trademarks. Registrations for these trademarks are owned and
maintained in other countries where a significant volume of its products are
sold and registration is considered necessary to protect the Company's
proprietary rights.
Greenfield applies for and maintains patents in the United States and other
countries where it believes such patents are necessary to maintain its interest
in its inventions. The Company does not believe that any single patent is
material to its business, nor does it believe that the expiration of any one or
a group of its patents would have a material adverse effect upon its business or
ability to compete.
ENVIRONMENTAL AND SAFETY REGULATION
Greenfield is subject to federal, state, local and foreign environmental
laws and regulations that impose limitations on the discharge of pollutants into
the environment and establish standards for the treatment, storage and disposal
of toxic and hazardous wastes. The Company is also subject to the federal
Occupational Safety and Health Act and similar state statutes. The Company
believes it is in material compliance with all applicable environmental laws and
regulations. The Company does not expect any material impact on future recurring
operating costs of compliance with currently enacted environmental regulations.
Under federal, state and local laws, including the federal Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA"), a current
owner or operator of real property may be held liable for the costs of cleaning
up certain hazardous materials on the property. Similarly, persons who have
arranged for the disposal of hazardous materials on properties owned by third
parties may be held liable for cleanup costs for such properties. In each case,
liability may be imposed without regard to whether the person knew of or took
reasonable acts to prevent the contamination. Liability under such laws is often
joint and several, that is, any single liable person may be required to bear the
entire costs of the environmental cleanup. That person, however, may usually
seek contribution from other responsible persons, if there are any; and it is
typical for groups of responsible parties to apportion liability among
themselves.
The Company has been named a potentially responsible party ("PRP") with
respect to several sites designated or expected to be designated by the
Environmental Protection Agency for cleanup under CERCLA or analogous state
laws. In addition, PRP notices have been issued to certain acquired companies
which relate to off-site disposal of wastes prior to their acquisition by the
Company. In connection with the purchase of these facilities, the Company has
been indemnified for any liability for such matters. The Company does not
believe that costs relating to these sites will be material.
At the Company's Lyndonville, Vermont facility, the present owner of the
facility is studying the extent of soil and groundwater contamination relating
to activities prior to the acquisition of the business by the Company. Upon
completion of the State-approved cleanup, the Company will exercise its option
to purchase this property for $50,000. The Company has been indemnified by the
present owner for any liability related to this cleanup effort.
9
<PAGE> 10
In connection with the acquisition of CTD, the Company recorded a liability
of $2.6 million in purchase accounting for certain estimated environmental
clean-up costs to be incurred relative to acquired CTD facilities. This
estimated potential liability has not been reduced for any expected proceeds
from other potentially responsible third parties. At December 31, 1996, the
liability balance was approximately $2.2 million.
The Company regularly conducts an environmental assessment consistent with
recognized standards of due diligence on properties and businesses which it
acquires. To date, these assessments have not identified contamination, which
would result in material expenses, in respect of acquired properties that would
be reasonably likely to result in a material adverse effect on the Company's
business, results of operations or financial condition. As a general rule, the
Company intends to use such assessments as part of the evaluation of proposed
acquisitions. However, there can be no assurance that environmental assessments
have identified, or will in the future identify, all potential liabilities
relating to the Company's properties and businesses, that any indemnification
agreements that can be negotiated will cover all potential liabilities, or that
changes in cleanup requirements or subsequent events at the Company's properties
or at off-site locations will not result in significant costs to the Company.
EMPLOYEES
At December 31, 1996, Greenfield had approximately 5,000 employees
worldwide. Approximately 1,000 employees at eight of the Company's facilities
are covered under collective bargaining agreements which expire from September
1997 through June 2002. The Company has not experienced any work stoppages in
the last five years and considers its relations with employees to be good.
ITEM 2. PROPERTIES
Greenfield's headquarters are located in Augusta, Georgia. The Company owns
significant manufacturing facilities in Arkansas, Georgia, Indiana,
Massachusetts, Michigan, North Carolina, Ohio, Pennsylvania, South Carolina and
Virginia, and leases significant facilities in Illinois, Massachusetts,
Missouri, Vermont and Wisconsin. The Company also maintains, through ownership
or leases, smaller manufacturing, office, warehouse and research facilities, as
well as property held for sale, in eight other states and six other countries.
In the event of a cancellation or termination of a lease relating to any of the
Company's leased properties, the Company anticipates no difficulty in connection
with leasing alternate space at reasonable rates.
ITEM 3. LEGAL PROCEEDINGS
From time to time, Greenfield is the subject of legal proceedings,
including proceedings involving alleged defects in the manufacture and/or design
of the Company's products, patent infringement, business practices, employee
matters and similar claims. There are no proceedings currently pending which the
Company believes to be material. The Company maintains comprehensive general
liability insurance which it believes to be adequate for the continued operation
of its business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
10
<PAGE> 11
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The information required by this item is set forth under the caption
"Common Stock Information" appearing on the inside back cover of the Company's
Annual Report, which information is incorporated herein by reference thereto.
As of February 28, 1997, there were 128 record owners of the Company's
common stock.
ITEM 6. SELECTED FINANCIAL DATA
The information required by this item is set forth under the captions
"Statement of Operations Data" and "Balance Sheet Data" on page 19 of the
Company's Annual Report, which information is incorporated herein by reference
thereto.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
The information required by this item is set forth under the caption
"Management's Discussion and Analysis" on pages 20 through 23 of the Company's
Annual Report, which information is incorporated herein by reference thereto.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements and supplementary data required by this item are
presented under Item 14 and are incorporated herein by reference thereto.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
11
<PAGE> 12
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
A definitive proxy statement is being filed with the Securities and
Exchange Commission on March 27, 1997. The information required by this item is
set forth under the caption "Election of Directors" on pages 1 through 3, under
the caption "Executive Officers" on pages 7 and 8 and under the caption "Section
16(a) Beneficial Ownership Reporting Compliance" on page 17 of the definitive
proxy statement, which information is incorporated herein by reference thereto.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is set forth under the caption
"Executive Compensation" on pages 8 through 15 of the definitive proxy
statement, which information is incorporated herein by reference thereto.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this item is set forth under the caption
"Security Ownership of Certain Beneficial Owners and Management" on pages 4
through 6 of the definitive proxy statement, which information is incorporated
herein by reference thereto.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is set forth under the caption
"Certain Transactions" on pages 17 through 19 of the definitive proxy statement,
which information is incorporated herein by reference thereto.
12
<PAGE> 13
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
1. FINANCIAL STATEMENTS
The following consolidated financial statements of the Company and its
subsidiaries, included on pages 25 to 42 in the Annual Report and the report of
independent accountants on page 24 of such report are incorporated herein by
reference:
Consolidated Balance Sheet--December 31, 1996 and 1995
Consolidated Statement of Operations--Years ended December 31, 1996, 1995
and 1994
Consolidated Statement of Cash Flows--Years ended December 31 1996, 1995
and 1994
Consolidated Statement of Changes in Stockholders' Equity--Years ended
December 31, 1996, 1995 and 1994
Notes to Consolidated Financial Statements
Report of Independent Accountants dated January 30, 1997
2. FINANCIAL STATEMENT SCHEDULE
Report of Independent Accountants on Financial Statement Schedule S-1
Schedule VIII -- Valuation and Qualifying Accounts and Reserves for
the Years Ended December 31, 1996, 1995 and 1994 S-2
All other schedules are omitted because they are not applicable or the
required information is shown in the financial statements or notes thereto.
3. EXHIBITS
The exhibits listed on the accompanying Index to Exhibits are filed as part
of this Report.
4. REPORTS ON FORM 8-K
None.
13
<PAGE> 14
INDEX TO EXHIBITS
EXHIBIT NO.
2.1 Stock Purchase Agreement, dated January 27, 1995, between Valenite,
Inc. and Greenfield Industries, Inc. (filed as Exhibit 2.4 to the
Company's 1994 Annual Report on Form 10-K, filed with the Commission
on March 30, 1995 (the "1994 10-K") and incorporated herein by reference
thereto)
2.2 Agreement and Plan of Merger dated August 11, 1995 by and among
Greenfield Industries, Inc., Rule Acquisition Corporation and Rule
Industries, Inc. (filed as Exhibit 7(e) to the Company's Amendment No. 1
to Schedule 13D, filed with the Commission on August 18, 1995 (the
"Schedule 13D") and incorporated herein by reference thereto)
2.3 Stock Option Agreement dated August 11, 1995 by and between
Rule Industries, Inc. and Greenfield Industries, Inc. (filed as Exhibit
7(f) to the Schedule 13D and incorporated herein by reference thereto)
2.4 Amendment No. 1 dated November 21, 1995 to the Agreement and Plan
of Merger by and among Greenfield Industries, Inc., Rule Acquisition
Corporation and Rule Industries, Inc. (filed as Exhibit 7(l) to the
Company's Amendment No. 3 to Schedule 13D, filed with the Commission on
November 29, 1995 (the "Schedule 13D/A") and incorporated herein by
reference thereto)
3.1 Amended and Restated Certificate of Incorporation of the Registrant
(filed as Exhibit 3.1 to the Company's Registration Statement on Form
S-1 Registration No. 33-63442, filed with the Commission on May 27,
1993, as amended on July 13, 1993 and July 26, 1993 (the "Registration
Statement") and incorporated herein by reference thereto)
3.2 Amended By-laws of the Registrant (filed as Exhibit 3.2 to the
Registration Statement and incorporated herein by reference thereto)
4.1 Certificate of Designations, Preferences and Rights of Series A
Preferred Stock of Greenfield Industries, Inc. dated February 6, 1996
(filed as Exhibit 4.1 to the Company's 1995 Annual Report on Form 10-K,
filed with the Commission on March 28, 1996 (the "1995 10-K") and
incorporated herein by reference thereto)
10.1 $13,520 Promissory Note, dated May 31, 1988, by James C. Janning
to Greenfield Industries, Inc. (filed as Exhibit 10.5 to the
Registration Statement and incorporated herein by reference thereto)
10.2 Interest Letter Agreement, dated May 31, 1988, between James C.
Janning and Greenfield Industries, Inc. (filed as Exhibit 10.6
to the Registration Statement and incorporated herein by reference
thereto)
10.3 Stock Pledge Agreement, dated May 31, 1988, between James C. Janning
and Greenfield Industries, Inc. (filed as Exhibit 10.7 to the
Registration Statement and incorporated herein by reference thereto)
10.4 Amended and Restated Stockholder Agreement and Amendment to Promissory
Notes and Stock Pledge Agreements by and among James C. Janning,
Greenfield Industries, Inc., Rogers Tool Works, Inc., Metal Cutting
Tools Corp., Cirbo Limited and Harbour Group Investments, L.P.,
dated July 12, 1993 (filed as Exhibit 10.8 to the Registration Statement
and incorporated herein by reference thereto)
10.5 $32,967 Promissory Note, dated April 26, 1993, by James C. Janning to
Greenfield Industries, Inc. (filed as Exhibit 10.9 to the Registration
Statement and incorporated herein by reference thereto)
14
<PAGE> 15
INDEX TO EXHIBITS (continued)
EXHIBIT NO.
10.6 Interest Letter Agreement, dated April 26, 1993, between James C.
Janning and Greenfield Industries, Inc. (filed as Exhibit 10.10
to the Registration Statement and incorporated herein by reference
thereto)
10.7 $122,790 Promissory Note, dated December 31, 1989, by Paul W. Jones to
Greenfield Industries, Inc. (filed as Exhibit 10.12 to the Registration
Statement and incorporated herein by reference thereto)
10.8 Interest Letter Agreement, dated December 31, 1989, between Paul W.
Jones and Greenfield Industries, Inc. (filed as Exhibit 10.13 to the
Registration Statement and incorporated herein by reference thereto)
10.9 Stock Pledge Agreement, dated December 31, 1989, between Paul W. Jones
and Greenfield Industries, Inc. (filed as Exhibit 10.14 to the
Registration Statement and incorporated herein by reference thereto)
10.10 Amended and Restated Stockholder Agreement and Amendment to Promissory
Notes and Stock Pledge Agreement by and among Paul W. Jones, Harbour
Group Investments, L.P. and Greenfield Industries, Inc. dated July 12,
1993 (filed as Exhibit 10.15 to the Registration Statement and
incorporated herein by reference thereto)
10.11 $98,901 Promissory Note, dated April 26, 1993, by Paul W. Jones to
Greenfield Industries, Inc. (filed as Exhibit 10.16 to the
Registration Statement and incorporated herein by reference thereto)
10.12 Interest Letter Agreement, dated April 26, 1993, between Paul W. Jones
and Greenfield Industries, Inc. (filed as Exhibit 10.17 to the
Registration Statement and incorporated herein by reference thereto)
10.13 $27,350 Promissory Note, dated May 5, 1992, by Gary L. Weller to
Greenfield Industries, Inc. (filed as Exhibit 10.19 to the
Registration Statement and incorporated herein by reference thereto)
10.14 Interest Letter Agreement, dated May 5, 1992, between Gary L. Weller
and Greenfield Industries, Inc. (filed as Exhibit 10.20 to the
Registration Statement and incorporated herein by reference thereto)
10.15 Stock Pledge Agreement, dated May 5, 1992, between Gary L. Weller and
Greenfield Industries, Inc. (filed as Exhibit 10.21 to the Registration
Statement and incorporated herein by reference thereto)
10.16 Amended and Restated Stockholder Agreement and Amendment to Promissory
Notes and Stock Pledge Agreements by and among Gary L. Weller, Harbour
Group Investments, L.P. and Greenfield Industries, Inc., dated July 12,
1993 (filed as Exhibit 10.22 to the Registration Statement and
incorporated herein by reference thereto)
10.17 $16,484 Promissory Note, dated April 26, 1993, by Gary L. Weller to
Greenfield Industries, Inc. (filed as Exhibit 10.23 to the Registration
Statement and incorporated herein by reference thereto)
10.18 Interest Letter Agreement, dated April 26, 1993, between Gary L.
Weller and Greenfield Industries, Inc. (filed as Exhibit 10.24
to the Registration Statement and incorporated herein by reference
thereto)
10.19 $25,760 Promissory Note, dated May 31, 1988, by James C. Janning to
Rogers Tool Works, Inc. (filed as Exhibit 10.25 to the Registration
Statement and incorporated herein by reference thereto)
10.20 Interest Letter Agreement, dated May 31, 1988 between James C. Janning
and Rogers Tool Works, Inc. (filed as Exhibit 10.27 to the
Registration Statement and incorporated herein by reference thereto)
15
<PAGE> 16
INDEX TO EXHIBITS (continued)
EXHIBIT NO.
10.21 Stock Pledge Agreement, dated May 31, 1988, between James C. Janning
and Rogers Tool Works, Inc. (filed as Exhibit 10.28 to the Registration
Statement and incorporated herein by reference thereto)
10.22 Greenfield Industries, Inc. 1993 Directors Non-Qualified Stock Option
Plan (filed as Exhibit 10.29 to the Registration Statement and
incorporated herein by reference thereto)
10.23 $9,900 Promissory Note, dated May 31, 1988, by James C. Janning to
Metal Cutting Tools Corp. (filed as Exhibit 10.32 to the Registration
Statement and incorporated herein by reference thereto)
10.24 Interest Letter Agreement, dated May 31, 1988 between James C. Janning
and Metal Cutting Tools Corp. (filed as Exhibit 10.34 to the
Registration Statement and incorporated herein by reference thereto)
10.25 Stock Pledge Agreement, dated May 31, 1988, between James C. Janning
and Metal Cutting Tools Corp. (filed as Exhibit 10.35 to the
Registration Statement and incorporated herein by reference thereto)
10.26 Agreement, dated February 20, 1991, between Cirbo Limited and James C.
Janning (filed as Exhibit 10.37 to the Registration Statement and
incorporated herein by reference thereto)
10.27 $24,193 Promissory Note, dated April 15, 1989, by James C. Janning to
International CBD Co. (filed as Exhibit 10.38 to the Registration
Statement and incorporated herein by reference thereto)
10.28 Stock Pledge Agreement, dated April 15, 1989, between James C. Janning
and International CBD Co. (filed as Exhibit 10.39 to the Registration
Statement and incorporated herein by reference thereto)
10.29 Purchase and Stockholder Agreement, dated April 15, 1989, between
James C. Janning and International CBD Co. (filed as Exhibit 10.40 to
the Registration Statement and incorporated herein by reference thereto)
10.30 Interest Letter, dated April 15, 1989, between James C. Janning and
International CBD Co. (filed as Exhibit 10.41 to the Registration
Statement and incorporated herein by reference thereto)
10.31 $19,900 Promissory Note, dated April 15, 1989, by James C. Janning to
Carbide International Corporation (filed as Exhibit 10.42 to the
Registration Statement and incorporated herein by reference thereto)
10.32 Interest Letter, dated April 15, 1989, between James C. Janning and
Carbide International Corporation (filed as Exhibit 10.43 to the
Registration Statement and incorporated herein by reference thereto)
10.33 Stock Pledge Agreement, dated April 15, 1989, between James C. Janning
and Carbide International Corporation (filed as Exhibit 10.44 to the
Registration Statement and incorporated herein by reference thereto)
10.34 Purchase and Stockholder Agreement, dated April 15, 1989, between James
C. Janning and Carbide International Corporation (filed as Exhibit
10.45 to the Registration Statement and incorporated herein by
reference thereto)
10.35 Greenfield Industries, Inc. 1993-1 Executive Stock Option Plan (filed
as Exhibit 10.47 to the Registration Statement and incorporated herein
by reference thereto)
16
<PAGE> 17
INDEX TO EXHIBITS (continued)
EXHIBIT NO.
10.36 Greenfield Industries, Inc. 1993-2 Executive Stock Option Plan (filed
as Exhibit 10.48 to the Registration Statement and incorporated herein
by reference thereto)
10.37 Greenfield Industries, Inc. Employee Stock Option Plan (filed as
Exhibit 10.49 to the Registration Statement and incorporated
herein by reference thereto)
10.38 Industrial Building Lease, dated June 1, 1993, between Greenfield
Industries, Inc. and American Gage and Machine Company (filed
as Exhibit 10.48 to the Company's Registration Statement on Form S-1
Registration No. 33-74196, filed with the Commission on January 18,
1994, as amended on January 28, 1994, February 17, 1994 and March 7,
1994 (the "Secondary Registration Statement") and incorporated herein by
reference thereto)
10.39 Industrial Lease, dated September 20, 1990, between Belston
Developments Inc. and Greenfield Industries, Inc. (filed as Exhibit
10.65 to the Registration Statement and incorporated herein by
reference thereto)
10.40 Lease, dated May 25, 1989, between the City of Malden/Malden Municipal
Airport and Metal Removal Round Tool Corp. (filed as Exhibit 10.66 to
the Registration Statement and incorporated herein by reference thereto)
10.41 Lease, dated March 24, 1992, between First Interstate Bank of
California, as Trustee, and Rogers Tool Works, Inc. (filed as Exhibit
10.67 to the Registration Statement and incorporated herein by
reference thereto)
10.42 Lease Agreement, dated June 1, 1992, between Delmar D. Garman
Revocable Trust, Delmar D. Garman, Co-Trustee, and Rogers Tool Works,
Inc. (filed as Exhibit 10.68 to the Registration Statement and
incorporated herein by reference thereto)
10.43 Lease, dated April 28, 1992, between Debco Investment Company and
Rogers Tool Works, Inc. (filed as Exhibit 10.69 to the Registration
Statement and incorporated herein by reference thereto)
10.44 Lease, dated November 30, 1992, between Great Bank Trust Co., as
Successor Trustee to Evanston Bank, and Rogers Tool Works, Inc. (filed
as Exhibit 10.70 to the Registration Statement and incorporated
herein by reference thereto)
10.45 Lease, dated September 30, 1991, between Vermont American Corporation
and Greenfield Industries, Inc. (filed as Exhibit 10.72 to the
Registration Statement and incorporated herein by reference thereto)
10.46 Sublease, dated September 30, 1991, between Vermont American
Corporation and Greenfield Industries, Inc. (filed as Exhibit 10.73
to the Registration Statement and incorporated herein by reference
thereto)
10.47 Real Estate Purchase and Sale Agreement, dated September 30, 1991,
between Vermont American Corporation and Greenfield Industries, Inc.
(filed as Exhibit 10.74 to the Registration Statement and incorporated
herein by reference thereto)
10.48 Lease with Purchase Right for Rented Premises in GroSSdienbach, dated
January 1, 1986, between Paul Kemmer GmbH & Co. KG and Claus Franke
GmbH & Co. KG (with English translation) (filed as Exhibit 10.80 to the
Registration Statement and incorporated herein by reference thereto)
17
<PAGE> 18
INDEX TO EXHIBITS (continued)
EXHIBIT NO.
10.49 Lease Agreement, dated December 9, 1993, by and between
The Benedikt Family Trust, as Lessor, and A-1 Carbide Corporation, as
Lessee (filed as Exhibit 10.73 to the Secondary Registration Statement
and incorporated herein by reference thereto)
10.50 Lease Agreement regarding Facilities in Kleindeinbach and Apfelbach,
dated March 9, 1992, between Kemmer Hartmetallwerkzeuge
GmbH and Kemmer Grundstucksgesellschaft burgerlichen Rechts (with
English translation) (filed as Exhibit 10.81 to the Registration
Statement and incorporated herein by reference thereto)
10.51 Amendment, dated December 9, 1993, to the Rental Agreement between
Kemmer Hartmetallwerkzeuge GmbH and Kemmer Grundstucksgesellschaft
burgerlichen Rechts (with English translation) (filed as Exhibit 10.76
to the Secondary Registration Statement and incorporated herein by
reference thereto)
10.52 Amended and Restated Credit Facilities Reimbursement Agreement,
dated November 8, 1994, by and among Greenfield Industries,
Inc., as Borrower, NationsBank of Georgia, National Association,
Wachovia Bank of Georgia, National Association, Trust Company Bank,
CommerzBank AG, Atlanta Agency and National City Bank, Kentucky, as
Lenders, and NationsBank of Georgia, National Association, as Agent
(filed as Exhibit 10.81 to the 1994 10-K and incorporated herein by
reference thereto)
10.53 Letter Agreement, dated December 9, 1994, between Harbour Group Trading
Corp. and Greenfield Industries, Inc. (filed as Exhibit 10.84 to the
1994 10-K and incorporated herein by reference thereto)
10.54 L4.5 million and 21 million DM Revolving Credit Agreement, dated
March 15, 1995, between Cirbo Limited and Kemmer Hartmetallwerkzeuge
GmbH, as Borrowers, NationsBank N.A. (Carolinas) London Branch, as
Agent and NationsBank N.A. (Carolinas) London Branch and CommerzBank
Atlanta Agency, as Lenders (filed as Exhibit 10.1 to the Company's
March 31, 1995 Form 10-Q, filed with the Commission on May 11, 1995
(the "March 31, 1995 10-Q") and incorporated herein by reference
thereto)
10.55 South Carolina Jobs-Economic Development Authority Tax-Exempt
Adjustable Mode Economic Development Revenue Bonds (Greenfield
Industries, Inc. Project) Series 1995, dated March 31, 1995 (filed
as Exhibit 10.2 to the March 31, 1995 10-Q and incorporated herein
by reference thereto)
10.56 Amendment No. 1 to Amended and Restated Credit Facilities and
Reimbursement Agreement dated as of February 1, 1995 by and among
Greenfield Industries, Inc. and NationsBank of Georgia, National
Association, as Agent (filed as Exhibit 10.1 to the Company's
September 30, 1995 10-Q, filed with the Commission on October 31, 1995
(the "September 30, 1995 10-Q") and incorporated herein by reference
thereto)
10.57 Loan Agreement dated as of August 1, 1995 by and between the City
of Solon, Ohio and The Cleveland Twist Drill Company (filed as
Exhibit 10.2 to the September 30, 1995 10-Q and incorporated herein by
reference thereto)
10.58 Note Purchase Agreement dated as of October 15, 1995 by and among
Greenfield Industries, Inc. and the several purchasers named in
Schedule A thereto (filed as Exhibit 10.3 to the September 30, 1995
10-Q and incorporated herein by reference thereto)
10.59 Amendment and Consent No. 2 to Amended and Restated Credit Facilities
and Reimbursement Agreement dated October 18, 1995 by and among
Greenfield Industries, Inc. and NationsBank of Georgia, National
Association, as Agent (filed as Exhibit 10.4 to the September 30, 1995
10-Q and incorporated herein by reference thereto)
18
<PAGE> 19
INDEX TO EXHIBITS (continued)
EXHIBIT NO.
10.60 Settlement Agreement dated November 20, 1995 by and among William
Anastos, John A. Geishecker, Jr., Gary Sable, Henry G. Libby, Rule
Industries, Inc. and Greenfield Industries, Inc. (filed as Exhibit
7(g) to the Schedule 13D/A and incorporated herein by reference
thereto)
10.61 Intentionally omitted
10.62 Greenfield Industries, Inc. 1995 Directors Non-Qualified Stock Option
Plan (filed as Exhibit 4.3 to the Company's Form S-8 Registration No.
333-01116, filed with the Commission on February 7, 1996 and
incorporated herein by reference thereto)
10.63 Greenfield Industries, Inc. 1995 Equity Incentive Plan (filed as
Exhibit 4.3 to the Company's Form S-8 Registration No. 333-01118,
filed with the Commission on February 7, 1996 and incorporated herein
by reference thereto)
10.64 Rights Agreement dated February 6, 1996 by and between Greenfield
Industries, Inc. and First Chicago Trust Company of New York,
as Rights Agent (filed as Exhibit 2 to the Company's Current Report on
Form 8-K, filed with the Commission on February 7, 1996 and incorporated
herein by reference thereto)
10.65 Noncompetition Agreement between Peter K. Hunt and Greenfield
Industries, Inc. dated November 21, 1995 (filed as Exhibit 10.68 to
the 1995 10-K and incorporated herein by reference thereto)
10.66 Supplemental Agreement dated December 22, 1995 in respect of a L4.5
million and 21 million DM Revolving Credit Agreement, dated March 15,
1995, between Cirbo Limited and Kemmer Hartmetallwerkzeuge GmbH, as
Borrowers, NationsBank N.A. (Carolinas) London Branch, as Agent and
NationsBank N.A. (Carolinas) London Branch and CommerzBank Atlanta
Agency, as Lenders (filed as Exhibit 10.69 to the 1995 10-K and
incorporated herein by reference thereto)
10.67 Greenfield Industries, Inc. Directors' Deferred Compensation Plan
(filed as Exhibit 10.70 to the 1995 10-K and incorporated herein by
reference thereto)
10.68 Greenfield Industries, Inc. Executive Deferred Compensation Plan
(filed as Exhibit 10.71 to the 1995 10-K and incorporated herein by
reference thereto)
10.69 Lease between RAGS II and Rule Industries, Inc. dated June 15, 1995
(filed as Exhibit 10.72 to the 1995 10-K and incorporated herein by
reference thereto)
10.70 Employment and Noncompetition Agreement, dated January 12, 1996 by
and between Greenfield Industries, Inc. and Henry G. Libby (filed as
Exhibit 10.73 to the 1995 10-K and incorporated herein by reference
thereto)
10.71 $367,000 Demand Note, dated January 24, 1996, by Henry G. Libby
to Rule Industries, Inc. (filed as Exhibit 10.74 to the 1995 10-K and
incorporated herein by reference thereto)
10.72 Amendment and Waiver No. 3 to Amended and Restated Credit Facilities
and Reimbursement Agreement dated January 22, 1996 by and among
Greenfield Industries, Inc. and NationsBank of Georgia, National
Association, as Agent (filed as Exhibit 10.75 to the 1995 10-K
and incorporated herein by reference thereto)
19
<PAGE> 20
INDEX TO EXHIBITS (continued)
EXHIBIT NO.
10.73 Corporate Development Consulting and Advisory Services
Agreement, dated March 20, 1996, between Harbour Group Industries, Inc.
and Greenfield Industries, Inc. (filed as Exhibit 10.76 to the 1995 10-K
and incorporated herein by reference thereto)
10.74 Operations Consulting and Advisory Services Agreement,
dated March 20, 1996, between Harbour Group, Ltd. and Greenfield
Industries, Inc. (filed as Exhibit 10.77 to the 1995 10-K and
incorporated herein by reference thereto)
10.75 Amendment No. 4 to Amended and Restated Credit Facilities and
Reimbursement Agreement, dated April 18, 1996, by and among Greenfield
Industries, Inc. and NationsBank of Georgia, National Association, as
Agent (filed as Exhibit 10.1 to the Company's March 31, 1996 10-Q,
filed with the Commision on May 3, 1996 (the "March 31, 1996 10-Q")
and incorporated herein by reference thereto)
10.76 Consent and Amendment No. 1 to Note Purchase Agreement, dated
April 18, 1996, between Greenfield Industries, Inc. and the
Noteholders (filed as Exhibit 10.2 to the March 31, 1996 10-Q and
incorporated herein by reference thereto)
10.77 Indenture, dated as of April 1, 1996, by Greenfield Industries, Inc.
to the Bank of New York, as Trustee (filed as Exhibit 10.3 to the
March 31, 1996 10-Q and incorporated herein by reference thereto)
10.78 Preferred Securities Guarantee Agreement, dated April 24, 1996,
between Greenfield Industries, Inc. and The Bank of New York, as
Trustee (filed as Exhibit 10.4 to the March 31, 1996 10-Q and
incorporated herein by reference thereto)
10.79 Amended and Restated Declaration of Trust of Greenfield
Capital Trust, dated as of April 1, 1996, by and among the Regular
Trustees of Greenfield Capital Trust, Greenfield Industries, Inc., the
Bank of New York and the Bank of New York (Delaware) (filed as Exhibit
10.5 to the March 31, 1996 10-Q and incorporated herein by reference
thereto)
10.80 Purchase Agreement, dated April 18, 1996, by and among Greenfield
Industries, Inc., Greenfield Capital Trust and CS First Boston, as
Representative of the Several Purchasers listed on Schedule A thereto
(filed as Exhibit 10.6 to the March 31, 1996 10-Q and incorporated
herein by reference thereto)
10.81 Registration Rights Agreement, dated April 24, 1996, by and among
Greenfield Industries, Inc., Greenfield Capital Trust and CS First
Boston Corporation, as Representative of the Several Purchasers
(filed as Exhibit 10.7 to the March 31, 1996 10-Q and incorporated
herein by reference thereto)
10.82 Restated Rights Agreement, dated as of February 6, 1996, by and
between Greenfield Industries, Inc. and First Chicago Trust Company
of New York, as Rights Agent (filed as Exhibit 10.8 to the March
31, 1996 10-Q and incorporated herein by reference thereto)
10.83 Noncompetition Agreement between Ajita G. Rajendra and Greenfield
Industries, Inc. dated July 15, 1996 (filed as Exhibit 10.1 to the
Company's June 30, 1996 10-Q, filed with the Commission on August
12, 1996 and incorporated herein by reference thereto)
20
<PAGE> 21
INDEX TO EXHIBITS (continued)
EXHIBIT NO.
10.84 Credit Facilities and Reimbursement Agreement, dated December 9,
1996, by and among Greenfield Industries, Inc., Cirbo Limited and
Kemmer Hartmetallwerkzeuge, GmbH, as Borrowers, NationsBank,
National Association, Wachovia Bank of Georgia, National Association,
Suntrust Bank, Atlanta, CommerzBank AG, Atlanta Agency, National City
Bank, Kentucky and First Union National Bank of Georgia, as Lenders, and
NationsBank, National Association, as Agent
10.85 Greenfield Industries, Inc. Amended and Restated Employee Stock Option
Plan, as amended
10.86 Greenfield Industries, Inc. Amended and Restated 1995 Restricted
Stock Bonus Plan
11 Computation of Earnings Per Common Share
13 Annual Report to Stockholders
21 Subsidiaries of the Registrant
23 Consents of Price Waterhouse LLP
24 Powers of Attorney
27 Financial Data Schedule (for SEC use only)
21
<PAGE> 22
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.
GREENFIELD INDUSTRIES, INC.
By: /s/ Gary L. Weller
-------------------------------------------
Gary L. Weller
Senior Vice President, Chief Financial Officer,
and Secretary
DATED: March 27, 1997
Pursuant to the requirements 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 indicated on March 27, 1997.
SIGNATURES TITLE
---------- -----
* Chairman of the Board
- ------------------------------
Donald E. Nickelson
* President, Chief Executive Officer and
- ------------------------------ Director (Principal Executive Officer)
Paul W. Jones
/s/ Gary L. Weller Senior Vice President, Chief Financial
- ------------------------------ Officer and Secretary
Gary L. Weller (PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER)
* Director
- ------------------------------
John W. Burge, Jr.
* Director
- ------------------------------
Peter S. Finley
* Director
- ------------------------------
James C. Janning
* Director
- ------------------------------
Robert E. Lefton
* Director
- ------------------------------
Robert W. Pratt, Jr.
* Director
- ------------------------------
Julian M. Seeherman
* Director
- ------------------------------
Dennis W. Sheehan
*BY: /s/ GARY L. WELLER
--------------------------
Gary L. Weller
Attorney-in-Fact
- --------------
*Such signature has been affixed pursuant to the following Power of Attorney.
22
<PAGE> 23
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gary L. Weller and Paul W. Jones, and
each of them, as his true and lawful attorney-in-fact and agent, with full power
of substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
<PAGE> 24
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors of
Greenfield Industries, Inc.
Our audits of the consolidated financial statements referred to in our
report dated January 30, 1997, appearing on page 24 of the Annual Report to
Shareholders of Greenfield Industries, Inc. (which report and consolidated
financial statements are incorporated by reference in this Annual Report on Form
10-K) also included an audit of the Financial Statement Schedule listed in item
14(2) of this Form 10-K. In our opinion, the Financial Statement Schedule
presents fairly, in all material respects, the information set forth therein
when read in conjunction with the related consolidated financial statements.
PRICE WATERHOUSE LLP
St. Louis, Missouri
January 30, 1997
S-1
<PAGE> 25
GREENFIELD INDUSTRIES, INC.
RULE 12-09 VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E COLUMN F
-------- -------- -------- -------- -------- --------
ADDITIONS
---------
CHARGED TO
BALANCE AT CHARGED TO OTHER
BEGINNING OF COSTS AND ACCOUNTS-- DEDUCTIONS-- BALANCE AT
DESCRIPTION PERIOD EXPENSES DESCRIBE DESCRIBE END OF PERIOD
----------- ------ -------- -------- -------- -------------
FOR THE YEAR ENDED DECEMBER 31, 1996
<S> <C> <C> <C> <C> <C>
Reserve for doubtful .......................... $ 2,624 $ 2,160 $ 374 $ (1,395) $ 3,763
and customer rebates
Reserve for restructuring costs ............... $ 4,919 $ 4,000 $ 2,600 $ (8,148) $ 3,371
</TABLE>
Deductions from the reserve for doubtful accounts and customer rebates
represent uncollectible accounts off, net of recoveries, and customer rebates
paid. Changes in the reserve for restructuring costs reflects implementation of
reorganization plans to reorganize the Company into six business groups, and
restructuring reserves established in connection with the acquisition of Rule
Industries, Inc.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1995
<S> <C> <C> <C> <C> <C>
Reserve for doubtful $ 2,089 $ 1,486 $ 188 $ (1,139) $ 2,624
and customer rebates
Reserve for restructuring and $ 6,788 $ -- $ 4,230 $ (6,099) $ 4,919
plant consolidation
</TABLE>
Deductions from the reserve for doubtful accounts and customer rebates
represent uncollectible accounts off, net of recoveries, and customer rebates
paid. Changes in the reserve for restructuring and plant consolidat reflects
implementation of restructuring plans to restructure the Company's high speed
steel operations and addit reserves established in connection with the
acquisition of The Cleveland Twist Drill Company.
<TABLE>
<CAPTION>
FOR THE YEAR ENDED DECEMBER 31, 1994
<S> <C> <C> <C> <C> <C>
Reserve for doubtful $1,207 $ 605 $ 498 $ (221) $ 2,089
and customer rebates
Reserve for restructuring and $1,228 $ 1,300 $ 6,250 $ (1,990) $ 6,788
plant consolidation
</TABLE>
Deductions from the reserve for doubtful accounts and customer rebates
represent uncollectible accounts off, net of recoveries, and customer rebates
paid. Amounts charged to other accounts represent the establishment reserve for
doubtful accounts established in purchase accounting for 1994 acquisitions.
Changes in the reserve f restructuring and plant consolidation costs reflect the
implementation of restructuring plans to consolidate the of the plant in
Switzerland into the German plant, and restructuring reserves established in
connection with the acquisition of The Cleveland Twist Drill Company.
S-2
<PAGE> 1
EXHIBIT 10.84
CREDIT FACILITIES
AND
REIMBURSEMENT AGREEMENT
by and among
GREENFIELD INDUSTRIES, INC.,
CIRBO LIMITED,
and
KEMMER HARTMETALLWERKZEUGE GMBH,
as Borrowers
NATIONSBANK, N.A.
WACHOVIA BANK OF GEORGIA, N.A.,
SUNTRUST BANK, ATLANTA,
COMMERZBANK AG, ATLANTA AGENCY,
NATIONAL CITY BANK, KENTUCKY,
and
FIRST UNION NATIONAL BANK OF GEORGIA,
as Lenders
and
NATIONSBANK, N.A., as Agent
December 9, 1996
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE I
Definitions and Terms
1.01 Definitions.........................................................................2
1.02 Accounting Terms...................................................................27
1.03 Currency Equivalents Generally.....................................................27
ARTICLE II
The Loans
2.01 Commitments........................................................................28
2.02 Competitive Bid Loans..............................................................32
2.03 Payment of Interest................................................................36
2.04 Payment of Principal...............................................................37
2.05 Non-Conforming Payments............................................................37
2.06 Applicable Borrower's Accounts.....................................................38
2.07 Notes ............................................................................38
2.08 Pro Rata Payments..................................................................39
2.09 Reductions.........................................................................39
2.10 Increase and Decrease in Amounts...................................................40
2.11 Conversions and Elections of Subsequent Interest Periods...........................40
2.12 Revolving Credit Unused Fee........................................................40
2.13 Deficiency Advances................................................................41
2.14 Adjustments by Agent...............................................................42
2.15 Use of Proceeds....................................................................42
2.16 Swing Line.........................................................................42
2.17 Extension of Reserve Line Termination Date.........................................44
2.18 Additional Fees....................................................................44
ARTICLE III
Letters of Credit
3.01 Letters of Credit..................................................................46
3.02 Reimbursement......................................................................46
3.03 Letter of Credit Fee...............................................................50
3.04 Administrative Fees................................................................51
ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs...................................................................52
4.02 Suspension of Loans................................................................54
4.03 Illegality.........................................................................54
4.04 Compensation.......................................................................55
4.05 Alternate Loan and Lender..........................................................56
4.06 Taxes ............................................................................56
4.07 Unavailability of Offshore Currency................................................58
4.08 Alternate Lending Installation.....................................................59
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE V
Conditions to Making Loans and Issuing
Letters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of Credit....................60
5.02 Conditions of Loans................................................................61
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties.....................................................64
ARTICLE VII
Affirmative Covenants
7.01 Financial Reports, Etc.............................................................71
7.02 Maintain Properties................................................................72
7.03 Existence, Qualification, Etc......................................................72
7.04 Regulations and Taxes..............................................................73
7.05 Insurance..........................................................................73
7.06 True Books.........................................................................73
7.07 Pay Indebtedness to Lenders and Perform Other Covenants............................73
7.08 Right of Inspection................................................................73
7.09 Observe all Laws...................................................................74
7.10 Covenants Extending to Subsidiaries................................................74
7.11 Officer's Knowledge of Default.....................................................74
7.12 Suits or Other Proceedings.........................................................74
7.13 Notice of Discharge of Hazardous Material or Environmental Complaint...............74
7.14 Environmental Compliance...........................................................74
7.15 Indemnification....................................................................75
7.16 Further Assurances.................................................................75
7.17 Benefit Plans......................................................................75
7.18 Continued Operations...............................................................76
7.19 Use of Proceeds....................................................................76
7.20 New Subsidiaries...................................................................76
ARTICLE VIII
Negative Covenants
8.01 Consolidated Net Worth.............................................................79
8.02 Indebtedness for Money Borrowed to Total Capitalization............................79
8.03 Consolidated Fixed Charge Ratio....................................................79
8.04 Capital Expenditures...............................................................79
8.05 Indebtedness for Money Borrowed to EBITDA..........................................79
8.06 Indebtedness.......................................................................80
8.07 Liens ............................................................................80
8.08 Transfer of Assets.................................................................81
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
8.09 Investments; Acquisitions..........................................................81
8.10 Merger or Consolidation............................................................82
8.11 Transactions with Affiliates.......................................................83
8.12 Benefit Plans......................................................................83
8.13 Fiscal Year........................................................................84
8.14 Dissolution, etc...................................................................84
8.15 Rate Hedging Obligations...........................................................84
ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default..................................................................85
9.02 Agent to Act.......................................................................88
9.03 Cumulative Rights..................................................................88
9.04 No Waiver..........................................................................89
9.05 Default............................................................................89
9.06 Allocation of Proceeds.............................................................89
ARTICLE X
The Agent
10.01 Appointment.......................................................................91
10.02 Attorneys-in-fact.................................................................91
10.03 Limitation on Liability...........................................................91
10.04 Reliance..........................................................................92
10.05 Notice of Default.................................................................92
10.06 No Representations................................................................92
10.07 Indemnification...................................................................93
10.08 Lender............................................................................93
10.09 Resignation.......................................................................93
10.10 Sharing of Payments, etc..........................................................94
10.11 One Lender........................................................................95
ARTICLE XI
Miscellaneous
11.01 Assignments and Participations....................................................96
11.02 Notices...........................................................................98
11.03 Setoff............................................................................99
11.04 Survival..........................................................................99
11.05 Expenses..........................................................................99
11.06 Amendments.......................................................................100
11.07 Counterparts.....................................................................101
11.08 Waivers by the Borrowers.........................................................101
11.09 Termination......................................................................102
11.10 Governing Law; Jurisdiction and Venue............................................102
11.12 Indemnification..................................................................104
11.13 Headings and References..........................................................105
11.14 Severability.....................................................................106
11.15 Entire Agreement.................................................................106
11.16 Agreement Controls...............................................................106
</TABLE>
iii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
11.17 Usury Savings Clause.............................................................106
11.18 Confidentiality..................................................................107
11.19 Currency Indemnity...............................................................107
EXHIBIT A Applicable Commitment Percentages.......................................A-1
EXHIBIT B Form of Assignment and Acceptance.......................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of
Authorized Representative..............................................C-1
EXHIBIT D Form of Borrowing Notice--Loans.........................................D-1
EXHIBIT E Form of Competitive Bid Note............................................E-1
EXHIBIT F Permitted Acquisitions Certificate......................................F-1
EXHIBIT G Form of Reserve Line Notes..............................................G-1
EXHIBIT H-1 Form of Domestic Revolving Credit Notes...............................H-1-1
EXHIBIT H-2 Form of Foreign Revolving Credit Notes................................H-2-1
EXHIBIT I Interest Rate Selection Notice..........................................I-1
EXHIBIT J Form of Competitive Bid Quote Request...................................J-1
EXHIBIT K Form of Competitive Bid Quote...........................................K-1
EXHIBIT L-1 Form of Opinion of United States Counsel to
each Borrower, Domestic Subsidiaries.................................L-1-1
EXHIBIT L-2 Form of Opinion of British Counsel to ................................L-2-1
EXHIBIT L-3 Form of Opinion of German Counsel to Kemmer H.........................L-3-1
EXHIBIT L-4 Form of Opinion of Foreign Counsel to Foreign
Subsidiaries.........................................................L-4-1
EXHIBIT M Compliance Certificate..................................................M-1
EXHIBIT N-1 Form of Cirbo Pledge Agreement........................................N-1-1
EXHIBIT N-2 Form of Kemmer H Pledge Agreement.....................................N-2-1
EXHIBIT N-3 Form of RTW Pledge Agreement..........................................N-3-1
Schedule 6.01(d) Subsidiaries and Investments..................................SCH-6.01(d)
Schedule 6.01(f) Contingent Liabilities........................................SCH-6.01(f)
Schedule 6.01(g) Liens.........................................................SCH-6.01(g)
Schedule 6.01(j) Litigation....................................................SCH-6.01(j)
Schedule 6.01(p) ERISA Matters.................................................SCH-6.01(p)
Schedule 6.01(r) Environmental Issues..........................................SCH-6.01(r)
Schedule 7.05 Existing Insurance...............................................SCH-7.05
Schedule 8.06 Indebtedness.....................................................SCH-8.06
</TABLE>
iv
<PAGE> 6
CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT
THIS CREDIT FACILITIES AND REIMBURSEMENT AGREEMENT, dated as of
December 9, 1996 (the "Agreement"), is made by and among:
GREENFIELD INDUSTRIES, INC., a Delaware corporation having its
principal place of business in Augusta, Georgia ("Greenfield"), CIRBO LIMITED,
an English corporation having its principal place of business in London, England
("Cirbo"), and KEMMER HARTMETALLWERKZEUGE GMBH, a German corporation having its
principal place of business in Schwabisch Gmund, Germany ("Kemmer H");
(hereinafter Greenfield, Cirbo and Kemmer H may be referred to individually as a
"Borrower" or collectively as the "Borrowers"); and
NATIONSBANK, N.A., a national banking association organized and
existing under the laws of the United States of America and having its principal
place of business in Atlanta, Georgia ("NationsBank"), WACHOVIA BANK OF GEORGIA,
N.A., SUNTRUST BANK, ATLANTA, COMMERZBANK AG, ATLANTA AGENCY ("Commerzbank"),
NATIONAL CITY BANK, KENTUCKY, FIRST UNION NATIONAL BANK OF GEORGIA, and each
other lender which may hereafter execute and deliver an instrument of assignment
with respect to this Agreement pursuant to Section 11.01 (hereinafter
NationsBank, Commerzbank and such other lenders may be referred to individually
as a "Lender" or collectively as the "Lenders"); and
NATIONSBANK, N.A., in its capacity as agent for the Lenders
(in such capacity, the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrowers desire that the Lenders make available to the
Borrowers a multi-currency revolving credit facility of $130,000,000, and a
Dollar-denominated reserve line of credit facility of $50,000,000 (collectively,
the "Facilities"), the proceeds of which will be used (a) to repay all
outstanding principal, interest and other amounts under the Existing Credit
Facility and the Existing FC Facility (as each such term is defined herein), and
(b) for general corporate purposes, as set forth herein; and
WHEREAS, the Lenders are willing to provide the Facilities subject to
the terms and conditions set forth herein;
NOW, THEREFORE, the Borrowers, the Lenders and the Agent hereby agree
as follows:
<PAGE> 7
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Absolute Rate" has the meaning assigned to such term in
Section 2.02(c)(ii)(C) hereof;
"Advance" means a borrowing under (i) the Revolving Credit
Facility or the Reserve Line Facility, consisting of the aggregate
principal amount of a Base Rate Loan or a Eurodollar Loan, as the case
may be or (ii) the Swing Line consisting of Base Rate Loans or (iii)
the Competitive Bid Facility consisting of Competitive Bid Loans;
"Advance Date Exchange Rate" means, with respect to a
specified Advance, Loan or Letter of Credit, the Spot Rate of Exchange
as of the date two (2) Business Days preceding the date such Advance or
Loan is originally made or such Letter of Credit is issued, provided
that, if such Advance or Loan is continued for a subsequent Interest
Period or converted pursuant to Section 2.11, the Advance Date Exchange
Rate with respect to such Advance or Loan shall be the Spot Rate of
Exchange two Business Days preceding the effective date of the latest
continuation or conversion of such Advance or Loan, and the Dollar
Value of such Advance or Loan shall be adjusted as set forth in Section
2.01; provided, further, that in the case of a drawing under a Letter
of Credit, the Spot Rate of Exchange shall be as of the date of such
drawing;
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with Greenfield; (ii) which beneficially owns or
holds 5% or more of any class of the outstanding voting stock (or in
the case of a Person which is not a corporation, 5% or more of the
equity interest) of Greenfield; or (iii) 5% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 5% or more of the equity interest) of which is
beneficially owned or held by Greenfield. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through
ownership of voting stock, by contract or otherwise;
"Applicable Borrower's Account" means, with respect to a
specified Borrower, a demand deposit account with the Agent, which may
be maintained at one or more offices of the Agent or an agent of the
Agent, and which is identified by an Authorized Representative (in a
written notice to the Agent)
2
<PAGE> 8
as the Applicable Borrower's Account for receipt of proceeds of Loans
to such Borrower in Dollars;
"Applicable Commitment Percentage" means, for each Lender with
respect to each of the Revolving Credit Facility (including its
Participations and its obligations hereunder to NationsBank to acquire
Participations) or the Reserve Line Facility, as the case may be (each
a type of "credit exposure"), a fraction (expressed as a percentage),
(A) the numerator of which shall be the then amount of such Lender's
Revolving Credit Commitment or Reserve Line Commitment, as applicable
(which Revolving Credit Commitment and Reserve Line Commitment for each
Lender as of the Effective Date is as set forth in Exhibit A attached
hereto and incorporated herein by this reference), and (B) the
denominator of which shall be, respectively, the Total Revolving Credit
Commitment or Total Reserve Line Commitment, as applicable; provided
that each Applicable Commitment Percentage of each Lender shall be
increased or decreased to reflect any assignments to or by such Lender
effected in accordance with Section 11.01 hereof and any voluntary or
mandatory reductions in such committed amounts;
"Applicable Currency" means, as to any particular Loan,
Advance or Letter of Credit, Dollars or the Offshore Currency in which
it is denominated and payable, as designated (in the case of Loans and
Advances) in the respective Borrowing Notice;
"Applicable Eurodollar Rate" means with respect to any
Eurodollar Loan, the Eurodollar Revolver Rate or the Eurodollar Reserve
Line Rate, as applicable to such Eurodollar Loan;
"Applicable Funding Bank" means, with respect to an Offshore
Currency, a banking institution approved by the Agent located within a
country for which such Offshore Currency is the official national
currency;
"Applicable Interest Addition" means for each Eurodollar Loan
the interest on which is computed by reference to the Eurodollar
Revolver Rate or Eurodollar Reserve Line Rate, as the case may be, that
percent per annum set forth below, which shall be (i) determined as of
each Determination Date and furnished to the Agent not later than the
time set forth in Section 7.01(a) and (b) hereof (the "Compliance
Date") and (ii) applicable to all Loans existing on the first day of
the fiscal quarter next following the Compliance Date, based upon the
ratio of (X) Consolidated Indebtedness for Money Borrowed as at the
Determination Date to (Y) Consolidated EBITDA for the Four-Quarter
Period of Borrower ended at the Determination Date, as specified below:
3
<PAGE> 9
<TABLE>
<CAPTION>
Consolidated
------------
Indebtedness for Money Applicable Interest Addition
---------------------- ----------------------------
Borrowed/Consolidated Eurodollar Revolver Eurodollar Reserve
--------------------- ------------------- ------------------
EBITDA Ratio Rate Rate
------------ ---- ----
<S> <C> <C>
a) Greater than 3.00 to 1.00 1.125% 1.250%
b) Equal to or Less than
3.00 to 1.00 but Greater
than 2.00 to 1.00 0.875% 1.000%
c) Equal to or Less than
2.00 to 1.00 but Greater
than 1.00 to 1.00 0.625% 0.750%
d) Equal to or Less than
1.00 to 1.00 0.375% 0.500%
</TABLE>
"Applicable Offshore Currency Commitment" shall mean, as
applicable, the Total Deutsche Mark Commitment or the Total Pounds
Sterling Commitment.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Domestic Letters of
Credit executed by Greenfield and for Foreign Letters of Credit
executed by the Borrowers from time to time, and in each case delivered
to NationsBank to support the issuance of Letters of Credit;
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 11.01;
"Authorized Representative" means, with respect to each
Borrower, any of the Chairman, Vice Chairmen, President, Executive Vice
Presidents or Vice Presidents of Greenfield and, with respect to
financial matters, the Treasurer, chief financial officer or any
Assistant Treasurer of Greenfield or any other person expressly
designated by the Board of Directors (or, in the case of Kemmer H, a
Geschaftsfuhrer) of each of the Borrowers (or the appropriate committee
thereof) as an Authorized Representative of the Borrowers, as set forth
from time to time in a certificate in the form attached hereto as
Exhibit C;
"Base Rate" means the greater of (i) the Prime Rate or (ii)
the Federal Funds Effective Rate plus one-half of one percent (1/2%),
each change in such Base Rate to be effective as of the effective date
of any change in the Prime Rate or the Federal Funds Effective Rate
giving rise thereto;
4
<PAGE> 10
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate; provided that no Offshore
Currency Loan shall bear interest at the Base Rate;
"Base Rate Refunding Loan" means a Base Rate Loan made either
to (i) satisfy Reimbursement Obligations arising from a drawing under a
Letter of Credit or (ii) pay NationsBank in respect of all Swing Line
Outstandings;
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body);
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or the Reserve Line Facility, in the form attached hereto as
Exhibit D;
"Business Day" means (i) with respect to any Base Rate Loan or
any Competitive Bid Loan (other than a Eurodollar Loan) any day which
is not a Saturday, Sunday or a day on which banks in the States of New
York and North Carolina are authorized or obligated by law, executive
order or governmental decree to be closed and (ii) with respect to any
Eurodollar Loan, any day which is a Business Day, as described above,
and on which the relevant international financial markets are open for
the transaction of the business contemplated by this Agreement in
London, England and New York, New York;
"Capital Expenditures" means for any period the sum of
(without duplication) (i) all expenditures (whether paid in cash or
accrued as liabilities) by Greenfield or any Subsidiary during that
period that are for items that would be classified as "property, plant
or equipment" or comparable items on the consolidated balance sheet of
Greenfield, plus (ii) with respect to any Capital Lease entered into by
Greenfield or its Subsidiaries during such period, the present value of
the lease payments due under such Capital Lease over the term of such
Capital Lease applying a discount rate equal to the interest rate
provided in such lease (or in the absence of a stated interest rate
that rate used in the preparation of the financial statements described
in Section 7.01(a) hereof), excluding, however, the amount of any
Capital Expenditures paid for with proceeds of casualty insurance;
"Capital Leases" means all leases which have been or should be
capitalized in accordance with Generally Accepted Accounting Principles
as in effect from time to time including Statement No. 13 of the
Financial Accounting Standards Board and any successor thereof;
5
<PAGE> 11
"Cirbo Pledge Agreement" means that certain Stock Pledge
Agreement in substantially the form of Exhibit N-1 hereto, dated as of
the date hereof, duly executed and delivered by Greenfield, pledging
sixty-five percent (65%) of the issued and outstanding shares of the
capital stock of Cirbo in favor of the Agent, on behalf of the Lenders,
as the same be amended, supplemented or otherwise modified from time to
time.
"Closing Date" means the date as of which this Agreement is
executed by the Borrowers, the Lenders and the Agent;
"Code" means the Internal Revenue Code of 1986, as amended,
any successor provision or provisions and any regulations promulgated
thereunder;
"Competitive Bid Borrowing" has the meaning assigned to such
term in Section 2.02 hereof;
"Competitive Bid Facility" means the facility described in
Section 2.02 hereof providing for Competitive Bid Loans to Greenfield;
"Competitive Bid Loan Commitment" means the amount which a
Lender has offered to loan to Greenfield pursuant to a Competitive Bid
Quote by such Lender not to exceed in the aggregate the Total Revolving
Credit Commitment;
"Competitive Bid Loans" means the Loans bearing interest at an
Absolute Rate provided for in Section 2.02 hereof;
"Competitive Bid Notes" means, collectively, the promissory
notes of Greenfield with respect to Competitive Bid Loans provided for
by Section 2.02 hereof executed and delivered to the Lenders as
provided in Section 2.07(c) substantially in the form attached hereto
as Exhibit E and incorporated herein by reference, with appropriate
insertions as to dates and names of Lenders, and all promissory notes
delivered in substitution or exchange therefor, in each case as the
same shall be amended, modified or supplemented and in effect from time
to time;
"Competitive Bid Quote" means an offer in accordance with
Section 2.02 hereof by a Lender to make a Competitive Bid Loan with one
single specified interest rate;
"Competitive Bid Quote Request" has the meaning assigned to
such term in Section 2.02 hereof;
"Consistent Basis" in reference to the application of
Generally Accepted Accounting Principles means the accounting
principles observed in the period referred to are comparable in all
material respects to those applied in the preparation
6
<PAGE> 12
of the audited financial statements of Greenfield referred to in
Section 6.01(f)(i) hereof;
"Consolidated EBITDA" means, with respect to Greenfield and
its Subsidiaries for any period of computation thereof during such
period, the sum of, without duplication, (i) Consolidated Net Income,
plus (ii) Consolidated Interest Expense during such period, plus (iii)
taxes on income during such period, plus (iv) amortization during such
period, plus (v) depreciation during such period, all determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis; provided, however, that with
respect to any Permitted Acquisition which is accounted for as a
"purchase", for the Four-Quarter Period following such acquisition, the
Consolidated EBITDA shall include the results of operations of the
Person or assets so acquired which amounts shall be determined on a Pro
Forma Basis;
"Consolidated Fixed Charge Ratio" means, with respect to
Greenfield and its Subsidiaries for the Four-Quarter Period ending on
the date of computation thereof, the ratio of (a) Consolidated EBITDA
plus, to the extent deducted in arriving at Consolidated EBITDA, lease
or rental payments in respect of Capital Leases and operating leases to
(b) Consolidated Fixed Charges;
"Consolidated Fixed Charges" means, with respect to Greenfield
and its Subsidiaries, for the periods indicated, the sum of, without
duplication, (i) Consolidated Interest Expense, plus (ii) to the extent
deducted in arriving at Consolidated EBITDA, lease or rental payments
in respect of Capital Leases and operating leases, plus (iii) current
maturities of Indebtedness for Money Borrowed (excluding Indebtedness
for Money Borrowed under the Reserve Line Facility), plus (iv)
dividends paid or accrued on any convertible preferred or preferred
stock issued by Greenfield or any of its Subsidiaries;
"Consolidated Indebtedness for Money Borrowed" means
Indebtedness for Money Borrowed of Greenfield and its Subsidiaries,
determined on a consolidated basis;
"Consolidated Indebtedness" means all Indebtedness of
Greenfield and its Subsidiaries, all determined on a consolidated
basis;
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of Greenfield
and its Subsidiaries, including without limitation (i) the amortization
of debt discounts, (ii) the amortization of all fees (including,
without limitation, fees payable in respect of a Swap Agreement)
payable in connection
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<PAGE> 13
with the incurrence of Indebtedness to the extent included in interest
expense and (iii) the portion of any liabilities incurred in connection
with Capital Leases allocable to interest expense, all determined on a
consolidated basis in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis;
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of Greenfield and its
Subsidiaries, less all operating and non-operating expenses of
Greenfield and its Subsidiaries including taxes on income, all
determined on a consolidated basis in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis; but
excluding as income: (i) net gains on the sale, conversion or other
disposition of capital assets, (ii) net gains on the acquisition,
retirement, sale or other disposition of capital stock and other
securities of Greenfield or its Subsidiaries, (iii) net gains on the
collection of proceeds of life insurance policies, (iv) any write-up of
any asset, and (v) any other net gain or credit of an extraordinary
nature, all as determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
"Consolidated Net Worth" means, as of any date on which the
amount thereof is to be determined, the sum of the following in respect
of Greenfield and its Subsidiaries (determined on a consolidated basis
and excluding intercompany items among Greenfield and its Subsidiaries
and any upward adjustment after the Effective Date due to revaluation
of assets): (i) the amount of issued and outstanding share capital,
plus (ii) without duplication, the amount of outstanding convertible
preferred or preferred stock issued by Greenfield or any of its
Subsidiaries, plus (iii) the amount of additional paid-in capital and
retained income (or, in the case of a deficit, minus the amount of such
deficit), minus (iv) the amount of any foreign currency translation
adjustment which is included in the equity section of the consolidated
balance sheet (whether positive or negative) to the extent such amount
exceeds $10,000,000 minus (v) the absolute value of any treasury stock
and the absolute value of any stock subscription receivables, as
determined in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis;
"Consolidated Total Capitalization" means the sum of
Consolidated Indebtedness for Money Borrowed plus Consolidated Net
Worth;
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the consolidated financial
statements (including footnotes) of
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<PAGE> 14
such Person in accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis, including Statement No. 5 of the
Financial Accounting Standards Board, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including obligations of such
Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof;
with respect to Contingent Obligations (such as litigation, guarantees
and pension plan liabilities), such liabilities shall be computed at
the amount which, in light of all the facts and circumstances existing
at the time, represent the present value of the amount which can
reasonably be expected to become an actual or matured liability;
"Cost of Acquisition" means, as at the date of entering into
any agreement to acquire any Person, the sum of the following: (i) the
value of the capital stock or warrants or options to acquire capital
stock of any Borrower or any other Subsidiary to be transferred in
connection therewith, (ii) any cash or other property (excluding
property described in clause (i)) or the face amount of any debt
instrument given as consideration, and (iii) any Indebtedness assumed
by any Borrower or any other Subsidiary in connection with such
acquisition; but "Cost of Acquisition" shall not include out of pocket
transaction costs for the services and expenses of attorneys,
accountants and consultants incurred in effecting
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<PAGE> 15
an acquisition, and other similar transaction costs so incurred;
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder;
"Determination Date" means the last day of each fiscal
quarterly period of Greenfield;
"Deutsche Marks" and the symbol "DM" means the official
currency of Germany;
"Dollar Equivalent Amount" means (a) the amount denominated in
Dollars, and (b) as to any amount denominated in an Offshore Currency,
the equivalent amount in Dollars based on the applicable Advance Date
Exchange Rate as determined by the Agent (or, in the case of
Reimbursement Obligations or Outstanding Letters of Credit, as
determined by NationsBank);
"Dollar Value" means (a) in the case of a Loan or Advance, the
Dollar Equivalent Amount of the principal amount of such Advance or
Loan, as recorded in the Agent's records pursuant to Section 2.01(c),
(b) in the case of a Reimbursement Obligation, the Dollar Equivalent
Amount of such Reimbursement Obligation, (c) in the case of a Letter of
Credit, the Dollar Equivalent Amount of the face amount of such Letter
of Credit, and (d) in the case of Outstanding Letters of Credit, the
Dollar Equivalent Amount of all undrawn amounts of Letters of Credit
plus the Dollar Equivalent Amount of all Reimbursement Obligations;
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America;
"Domestic LC Account Agreement" means the LC Account Agreement
dated as of the date hereof between Greenfield and the Agent, as
amended, modified, or supplemented from time to time;
"Domestic Letter of Credit" means a standby letter of credit
issued by NationsBank for the account of Greenfield in favor of a
Person advancing credit or securing an obligation on behalf of
Greenfield, including without limitation the existing letters of credit
identified on Exhibit O attached hereto.
"Domestic Revolving Credit Loan" means a Loan made to
Greenfield pursuant to the Revolving Credit Facility;
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<PAGE> 16
"Domestic Revolving Credit Notes" means, collectively, the
promissory notes of Greenfield evidencing Domestic Revolving Credit
Loans executed and delivered to the Lenders as provided in Section
2.07(a) hereof, substantially in the form attached hereto as Exhibit
H-1, with appropriate insertions as to amounts, dates and names of
Lenders;
"Domestic Subsidiaries" means, collectively, (i) Kemmer,
Rogers Tool Works, Inc., Carbidie Corporation, The Cleveland Twist
Drill Company, Rule Manufacturing, Inc., Rule Cutting Tools, Inc., Rule
Industries, Inc., Rule Paint & Chemical, Inc., GFI Aviation, Inc.,
RemGrit Abrasive Tools, Inc., and (ii) any other Subsidiary organized
with the consent of the Required Lenders under the laws of a state of
the United States of America and which has complied with Section 7.20
hereof;
"Effective Date" means the latter of December 9, 1996 or the
date all of the conditions set forth in Section 5.01 have been
satisfied;
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Required
Lenders:
(a) Government Securities;
(b) the following debt securities of the following
agencies or instrumentalities of the United States of America
if at all times the full faith and credit of the United States
of America is pledged to the full and timely payment of all
interest and principal thereof:
(i) all direct or fully guaranteed
obligations of the United States Treasury; and
(ii) mortgage-backed securities and
participation certificates guaranteed by the
Government National Mortgage Association;
(c) the following obligations of the following
agencies or instrumentalities of the United States of America:
(i) participation certificates and debt
obligations of the Federal Home Loan Mortgage
Corporation;
(ii) consolidated debt obligations, and
obligations secured by a letter of credit, of the
Federal Home Loan Banks; and
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<PAGE> 17
(iii) debt obligations and mortgage-backed
securities of the Federal National Mortgage
Association which have not had the interest portion
thereof severed therefrom;
(d) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and Moody's;
(e) interest bearing demand or time deposits issued
by NationsBank or certificates of deposit maturing within one
year from the date of acquisition issued by a bank or trust
company organized under the laws of the United States or of
any state thereof having capital surplus and undivided profits
aggregating at least $400,000,000 and being rated A-3 or
better by S&P or A or better by Moody's;
(f) Repurchase Agreements;
(g) Pre-Refunded Municipal Obligations;
(h) shares of mutual funds which invest in
obligations described in paragraphs (a) through (g) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by Moody's.
Obligations listed in paragraphs (a), (b) and (c) above which
are in book-entry form must be held in a trust account with the Federal
Reserve Bank or with a clearing corporation or chain of clearing
corporations which has an account with the Federal Reserve Bank;
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act, as
amended, any other "Superfund" or "Superlien" law or any other
applicable statute, law, ordinance, code, rule, regulation, order or
decree, of the United States or any foreign nation or any province,
territory, state, protectorate or other political subdivision thereof,
regulating, relating to, or imposing liability or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or
material;
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<PAGE> 18
"ERISA" means, at any date, the Employee Retirement Income
Security Act of 1974, as amended, and the regulations thereunder, all
as the same shall be in effect at such date;
"Eurodollar Loan" means a Loan for which the rate of interest
is determined by reference to an Applicable Eurodollar Rate;
"Eurodollar Rate" means:
(a) for any Eurodollar Loan denominated in Dollars, for any
Interest Period therefor, the rate per annum appearing on Telerate Page
3750 (or any successor page) as the London interbank offered rate for
deposits in Dollars at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of such Interest Period for a term
comparable to such Interest Period. If for any reason such rate is not
available, the term "Eurodollar Rate" shall mean, for any Eurodollar
Loan denominated in Dollars, for any Interest Period therefor, the rate
per annum appearing on Reuters Screen LIBO Page as the London interbank
offered rate for deposits in Dollars at approximately 11:00 a.m.
(London time) two (2) Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period;
provided, however, if more than one such rate is specified on Reuters
Screen LIBO Page, the applicable rate shall be the arithmetic mean of
all such rates; and
(b) for any Eurodollar Loan denominated in an Offshore
Currency, for any Interest Period therefor, the rate per annum
appearing on British Banking Association Interest Settlement Rate, Page
FRBD (or any successor page) as the London interbank offered rate for
deposits in the Applicable Currency at approximately 11:00 a.m. (London
time) two (2) Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period;
"Eurodollar Reserve Line Rate" means, for the Interest Period
for any Eurodollar Loan that is a Reserve Line Loan, the rate of
interest per annum determined pursuant to the following formula:
Eurodollar Reserve Eurodollar Rate Applicable
Line Rate = --------------------- + Interest
1-Reserve Requirement Addition
"Eurodollar Revolver Rate" means, for the Interest Period for
any Eurodollar Loan that is a Revolving Credit Loan, the rate of
interest per annum determined pursuant to the following formula:
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<PAGE> 19
Eurodollar Eurodollar Rate Applicable
Revolver = --------------------- + Interest
Rate 1-Reserve Requirement Addition
"Event of Default" means any of the occurrences set forth as
such in Section 9.01 hereof;
"Existing Credit Facility" means the $110,000,000 revolving
credit facility and the $20,000,000 reserve line facility made
available to Greenfield pursuant to the Existing Loan Documents;
"Existing FC Facility" means the foreign currency revolving
credit facility (denominated in up to DM 21,000,000 and (pound)
9,500,000) made available to Kemmer H and Cirbo pursuant to the
Existing FC Loan Documents;
"Existing FC Loan Documents" means, collectively, (i) the
Revolving Credit Agreement dated March 15, 1995, among Cirbo, Kemmer H
and NationsBank, N.A. (Carolinas), as agent and bank and the other
banks party thereto (as amended, the "Existing FC Credit Agreement"),
and (ii) all instruments, documents and agreements (including without
limitation guaranties of Greenfield, any Domestic Subsidiaries and
Foreign Subsidiaries), executed and delivered or issued pursuant to or
in connection with the Existing FC Credit Agreement, as any of such
documents have been amended, modified or supplemented;
"Existing Loan Documents" means, collectively (i) the Amended
and Restated Credit Facilities and Reimbursement Agreement dated
November 9, 1994, among Greenfield, NationsBank of Georgia, National
Association, as agent and lender and the other lenders party thereto
(as amended, the "Existing Credit Agreement"), and (ii) all
instruments, documents and agreements (including without limitation
guaranties of any Domestic Subsidiaries and Foreign Subsidiaries),
executed and delivered or issued pursuant to or in connection with the
Existing Credit Agreement, as any of such documents have been amended,
modified or supplemented;
"Federal Funds Effective Rate" for any day, as used herein,
means the rate per annum (rounded upward to the nearest 1/100 of 1%)
announced by the Federal Reserve Bank of New York (or any successor) on
such day as being the weighted average of the rates on overnight
Federal funds transactions arranged by Federal funds brokers on the
previous trading day, as computed and announced by such Federal Reserve
Bank (or any successor) in substantially the same manner as such
Federal Reserve Bank computes and announces the weighted average it
refers to as the "Federal Funds Effective Rate" as of the date of this
Agreement; provided, if such Federal Reserve Bank (or its successor)
does not announce such rate on any day, the "Federal Funds Effective
Rate" for such day shall be the
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<PAGE> 20
Federal Funds Effective Rate for the last day on which such rate was
announced;
"Fiscal Year" means the 52 or 53 week period of Greenfield
ending on the last Friday in December of each calendar year and
commencing on the calendar day next following the last day of the
preceding 52 or 53 week fiscal period;
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
national or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any pension, retirement,
healthcare, death, disability or other employee benefit plan;
"Foreign LC Account Agreement" means the LC Account Agreement
dated as of the date hereof between the Borrowers and the Agent, as
amended or modified from time to time;
"Foreign Letter of Credit" means a standby letter of credit
issued by NationsBank for the account of either Kemmer H or Cirbo in
favor of a Person advancing credit or securing an obligation on behalf
of either Kemmer H or Cirbo;
"Foreign Obligations" means the obligations, liabilities and
Indebtedness of Kemmer H, Cirbo or Greenfield with respect to (i) the
principal and interest on the Foreign Revolving Credit Loans as
evidenced by the Foreign Revolving Credit Notes, (ii) the Reimbursement
Obligations with respect to Foreign Letters of Credit, (iii) the
payment and performance of all other obligations, liabilities and
Indebtedness of either Kemmer H or Cirbo to the Lenders or the Agent
hereunder and (iv) the payment and performance of all other
obligations, liabilities, and indebtedness of any Borrower under any
Foreign Revolving Credit Note or with respect to the Foreign Revolving
Credit Loans or the Foreign Letters of Credit;
"Foreign Revolving Credit Loan" means a Loan made to Kemmer H
or Cirbo pursuant to the Revolving Credit Facility;
"Foreign Revolving Credit Notes" means, collectively, the
promissory notes of the Borrowers evidencing Foreign Revolving Credit
Loans executed and delivered to the Lenders as provided in Section
2.07(b) hereof, substantially in the form attached hereto as Exhibit
H-2, with appropriate insertions as to amounts, dates and names of
Lenders;
"Foreign Subsidiaries" means, collectively, Cirbo, the Kemmer
Subsidiaries, Cleveland Twist Drill Canada Ltd., CTD de Mexico, S.A. de
C.V., Herramientas Cleveland S.A. de C.V., RTW Limited, Disston Canada,
Inc., and any other Subsidiary, other
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<PAGE> 21
than a Domestic Subsidiary, which has been organized with the consent
of the Required Lenders and which has complied with Section 7.20
hereof;
"Four-Quarter Period" means a period of four full consecutive
quarterly periods, taken together as one accounting period;
"Generally Accepted Accounting Principles" means those
principles of accounting set forth in pronouncements of the Financial
Accounting Standards Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report, as such
principles are from time to time supplemented and amended;
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America;
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, agency or instrumentality or political subdivision
thereof or any entity or officer exercising executive, legislative or
judicial, regulatory or administrative functions of or pertaining to
any government or any court, in each case whether a state of the United
States, the United States or foreign nation, state, province or other
governmental instrumentality;
"Guarantors" means, collectively, (i) the Domestic
Subsidiaries and the Foreign Subsidiaries (other than Kemmer H and
Cirbo) and (ii) any other Person who shall become a Subsidiary after
the Closing Date and shall execute and deliver to the Agent a Guaranty
as provided in Section 7.20 hereof;
"Guaranty" means each Guaranty and Suretyship Agreement of a
Guarantor (whether delivered individually or jointly and severally with
other Guarantors) in favor of the Agent guaranteeing in whole or in
part the payment of Obligations, as the same may be amended, modified
or supplemented from time to time;
"Hazardous Material" means and includes any hazardous, toxic
or dangerous waste, substance or material, the generation, handling,
storage, disposal, treatment or emission of which is subject to any
Environmental Law;
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property,
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<PAGE> 22
all indebtedness secured by any Lien on the property of such Person
whether or not such indebtedness is assumed, all liability of such
Person by way of endorsements (other than for collection or deposit in
the ordinary course of business), all Contingent Obligations and other
items which in accordance with Generally Accepted Accounting Principles
are classified as a liability on a balance sheet; but excluding all
accounts payable and accruals, in each case in the ordinary course of
business and only so long as payment therefor is due within one year;
provided that in no event shall the term Indebtedness include partners'
capital, surplus and retained earnings, minority interest in
Subsidiaries, lease obligations (other than pursuant to Capital
Leases), reserves for deferred income taxes and investment credits,
other deferred credits and reserves, and deferred compensation
obligations;
"Indebtedness for Money Borrowed" means all indebtedness in
respect of money borrowed, including without limitation all Capital
Leases and the deferred purchase price of any property or asset,
evidenced by a promissory note, bond or similar written obligation for
the payment of money (including, but not limited to, conditional sales
or similar title retention agreements);
"Interest Period" (a) for each Eurodollar Loan means a period
commencing on the date such Eurodollar Loan is made or converted and
each subsequent period commencing on the last day of the immediately
preceding Interest Period for such Eurodollar Loan, and ending, at the
Borrowers' option, on the date one, two, three or six months
thereafter, in each case as notified to the Agent by the Authorized
Representative three (3) Business Days prior to the beginning of such
Interest Period; provided, that,
(i) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period for a
Dollar-denominated Loan three (3) Business Days prior to the
first day of such Interest Period, then such Loan shall be
deemed to be a Base Rate Loan bearing interest at the Base
Rate, as of the first day thereof;
(ii) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period for an Offshore
Currency Loan three (3) Business Days prior to the first day
of such Interest Period, then such Loan shall be deemed to
have an Interest Period of one month;
(iii) if an Interest Period for a Eurodollar Loan
would end on a day which is not a Business Day such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day); and
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<PAGE> 23
(iv) on any day, with respect to all Revolving Credit
Loans and Reserve Line Loans for all Borrowers, there shall
not be more Interest Periods in effect on any day than as
specified below:
Type of Loan Maximum Interest Periods
------------ ------------------------
Revolving Credit 10
Reserve Line 3;
(b) for each Competitive Bid Loan means the period commencing
on the date of such Loan and ending on such date as may be mutually
agreed upon by Greenfield and the Lender or Lenders making the
Competitive Bid Loan or Loans, as the case may be, comprising such
Competitive Bid Loan; provided that no Interest Period for a
Competitive Bid Loan shall be for a period greater than 90 days;
"Kemmer" means Kemmer International, Inc., a Subsidiary of
Greenfield, and its permitted successors;
"Kemmer Pledge Agreement" means that certain Stock Pledge
Agreement in substantially the form of Exhibit N-2 hereto, dated as of
the date hereof, duly executed and delivered by Kemmer International,
Inc., pledging sixty-five percent (65%) of the issued and outstanding
shares of the capital stock of Kemmer H in favor of the Agent, on
behalf of the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time;
"Kemmer Subsidiaries" means, collectively, Kemmer H and Kemmer
Prazision GmbH, all Subsidiaries of Kemmer as of the Closing Date;
"LC Account Agreements" means, collectively, the Domestic LC
Account Agreement and the Foreign LC Account Agreement;
"Lending Office" means, as to each Lender, the Lending Office
(or, in the case of Offshore Currency Loans, the Offshore Currency
Lending Office) of such Lender designated on the signature pages hereof
or in an Assignment and Acceptance or such other office of such Lender
(or of an affiliate of such Lender) as such Lender may from time to
time specify to the Authorized Representative and the Agent as the
office by which its Loans are to be made and maintained;
"Letter of Credit" means either a Domestic Letter of Credit or
a Foreign Letter of Credit;
"Letter of Credit Commitment" means with respect to each
Lender, the obligation of such Lender to acquire Participations in
Letters of Credit, up to an aggregate stated amount of Participations
at any one time outstanding having a Dollar Value equal to such
Lender's Applicable Commitment
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<PAGE> 24
Percentage of the Total Letter of Credit Commitment as the same may be
increased or decreased from time to time pursuant to this Agreement;
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by NationsBank of
Domestic Letters of Credit (for the account of Greenfield) and Foreign
Letters of Credit (for the account of Cirbo or Kemmer H) in an
aggregate stated amount at any time outstanding having a Dollar Value
not exceeding the Total Letter of Credit Commitment;
"Lien" means any interest in property securing any 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,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, Greenfield and its
Subsidiaries shall be deemed to be the owners of any property which
either of them have acquired or hold subject to a conditional sale
agreement, financing lease, or other arrangement pursuant to which
title to the property has been retained by or vested in some other
Person for security purposes;
"Loan" or "Loans" means any of the Domestic Revolving Credit
Loans, Foreign Revolving Credit Loans, Reserve Line Loans, Swing Line
Loans or Competitive Bid Loans;
"Loan Documents" means this Agreement, the Notes, the
Guaranties, the Pledge Agreements, Applications and Agreements for
Letters of Credit, the Letters of Credit, the LC Account Agreements and
all other instruments and documents heretofore or hereafter executed or
delivered to and in favor of any Lender or the Agent in connection with
the Loans or the Letters of Credit made, issued or created under this
Agreement as the same may be amended, modified or supplemented from
time to time;
"Material Adverse Effect" has the meaning assigned to such
term in Section 6.01(t) hereof;
"Moody's" means Moody's Investors Service, Inc., a Delaware
corporation;
"Multi-employer Plan" means an employee pension benefit plan
covered by Title IV of ERISA and in respect of which Greenfield or any
Subsidiary is an "employer" as described in Section 4001(b) of ERISA,
which is also a multi-employer plan as defined in Section 4001(a)(3) of
ERISA;
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<PAGE> 25
"Notes" means, collectively, the Domestic Revolving Credit
Notes, the Foreign Revolving Credit Notes, the Reserve Line Notes, the
Swing Line Note and the Competitive Bid Notes;
"Obligations" means the obligations, liabilities and
Indebtedness of any Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations, (iii) all liabilities of Greenfield to any Lender which
arise under a Swap Agreement, and (iv) the payment and performance of
all other obligations, liabilities and Indebtedness of any Borrower to
the Lenders or the Agent hereunder, under any one or more of the other
Loan Documents or with respect to the Loans;
"Offshore Currency" means (a) Deutsche Marks and Pounds
Sterling and (b) any other currency requested by the Borrowers that is
approved in writing by all of the Lenders;
"Offshore Currency Lending Office" means the office of a
Lender from which Offshore Currency Loans are to be made, as set forth
on the signature pages hereof or in an Assignment and Acceptance or
such other office of such Lender (or an affiliate of such Lender) as
such Lender may from time to time specify to the Authorized
Representative and the Agent as the office by which its Offshore
Currency Loans are to be made;
"Offshore Currency Loan" means any Loan denominated in an
Offshore Currency;
"Outstanding Credit Obligations" means the sum of (i) the
Revolving Credit Outstandings, (ii) Outstanding Letters of Credit,
(iii) Swing Line Outstanding and (iv) outstanding Competitive Bid
Loans, all as at the date of determination;
"Outstanding Domestic Letters of Credit" means all undrawn
amounts of Domestic Letters of Credit plus Reimbursement Obligations
with respect to Domestic Letters of Credit;
"Outstanding Foreign Letters of Credit" means all undrawn
amounts of Foreign Letters of Credit plus Reimbursement Obligations
with respect to Foreign Letters of Credit;
"Outstanding Letters of Credit" means all Outstanding Domestic
Letters of Credit and Outstanding Foreign Letters of Credit;
"Participation" means, with respect to any Lender (other than
NationsBank), the extension of credit (and right to be repaid or
reimbursed by Greenfield or the Borrowers, as applicable) represented
by the participation of such Lender hereunder in the liability of
NationsBank in respect of a
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Swing Line Loan made or Letter of Credit issued by NationsBank in
accordance with the terms hereof;
"Permitted Acquisition" means an acquisition of a Person or
the assets of a Person effected with the consent and approval of the
Board of Directors or other applicable governing body of such Person
and the duly obtained approval of such shareholders or other holders of
equity interests in such Person as may be required to be obtained under
applicable law, the charter documents of or any shareholder agreements
or similar agreements pertaining to such Person, which Person is
engaged in the same or complementary line of business of the Greenfield
or its Subsidiaries, provided that if the Cost of Acquisition shall
exceed $15,000,000 Greenfield shall have furnished to the Agent and the
Lenders a certificate in the form of Exhibit F attached hereto
containing information required therein for both Greenfield and the
Person or assets to be acquired on a Pro Forma Basis as at the most
recent date for which a certificate has been delivered to the Agent
under Section 7.01 hereof, demonstrating that after giving effect to
such acquisition no Default or Event of Default exists hereunder;
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof;
"Pledge Agreements" means collectively, the Cirbo Pledge
Agreement, the Kemmer Pledge Agreement, the RTW Pledge Agreement, and
any other pledge agreement pledging sixty-five percent (65%) of the
issued and outstanding shares of capital stock of Cirbo, Kemmer H or
RTW Limited, or 65% or such lesser percentage of the outstanding shares
of capital stock of other Foreign Subsidiaries described in Section
7.20(a)(i)(C), in each case, in favor of the Agent, on behalf of the
Lenders, as each such agreement may be amended, supplemented or
otherwise modified from time to time.
"Pounds Sterling" and the symbol "(pound)" means the official
currency of the United Kingdom;
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest
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as shall be sufficient to pay in full all principal of, interest, and
premium, if any, on such obligations as the same becomes due as
verified by a nationally recognized firm of certified public
accountants;
"Prime Rate" means the rate of interest per annum announced
publicly by the Agent as its prime rate from time to time. The Prime
Rate is not necessarily the best or the lowest rate of interest offered
by the Agent;
"Principal Office" means the office of the Agent at
Independence Center, 15th Floor, Charlotte, North Carolina 28255,
Attention: Agency Services, or such other office and address as the
Agent may from time to time designate;
"Pro Forma Basis" means, with respect to any acquired company,
a pro forma basis, reflecting the historical four-quarter results of
such acquired company giving four-quarter effect to changes in the
operating costs and non-operating costs of such acquired company to the
extent such changes were in effect for the previous four quarters and
are reasonably expected to continue for the following four quarters;
"Rate Hedging Obligations" means any and all obligations of
any Borrower, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and substitutions
therefor), under (a) any and all agreements, devices or arrangements
designed to protect at least one of the parties thereto from the
fluctuations of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; and (b) any
and all cancellations, buybacks, reversals, terminations or assignments
of any of the foregoing;
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time;
"Regulatory Change" means any change effective after the
Effective Date in United States federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign
laws or regulations or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks,
which includes any of the Lenders, under any United States federal or
state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with
the interpretation or administration thereof or
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compliance by any Lender with any request or directive regarding
capital adequacy, including with respect to "highly leveraged
transactions," whether or not having the force of law, whether or not
failure to comply therewith would be unlawful (but if not unlawful,
noncompliance with which would have the effect in the good faith
judgment of the affected Lender of imposing additional administrative
or regulatory burdens or consequences, costs or other adverse effects
on such Lenders) and, to the knowledge of the affected Lender, not
published or proposed prior to the date hereof;
"Reimbursement Obligation" shall mean at any time, the
obligation of Greenfield with respect to any Domestic Letter of Credit,
and the obligation of the Borrowers with respect to any Foreign Letter
of Credit, to reimburse NationsBank and the Lenders to the extent of
their respective Participations (including by the receipt by
NationsBank of proceeds of Loans pursuant to Section 3.02) for amounts
theretofore paid by NationsBank pursuant to a drawing under such Letter
of Credit; provided that the Reimbursement Obligation for any such
drawing shall be an amount equal to the Dollar Equivalent Amount of
such drawing;
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's;
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating at least 66-2/3%
of the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to its
Revolving Credit Commitment and Reserve Line Commitment, and (b)
following the occurrence and during the continuance of an Event of
Default, to the aggregate Dollar Value of (i) the Revolving Credit
Loans and Reserve Line Loans owing to such Lender, plus (ii) (so long
as the commitments of the Lenders to make additional Revolving Credit
Loans or Reserve Line Loans have not been terminated) the aggregate
unutilized amounts of such Lender's Revolving Credit Commitment and
Reserve Line Commitment, plus (iii) the amount of such Lender's
Applicable Commitment Percentage of the Dollar Value of Swing Line
Loans and Outstanding Letters of Credit and of the Reimbursement
Obligations; provided that, if any Lender shall have failed to pay to
NationsBank its Applicable Commitment Percentage of any Swing Line Loan
or drawing under any Letter of Credit resulting in an outstanding
Reimbursement Obligation, such Lender's Credit Exposure attributable to
Swing Line Loans, Letters of Credit, Reimbursement Obligations
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and the Letter of Credit Commitment shall be deemed to be held by
NationsBank for purposes of this definition;
"Reserve Line Advance" means an Advance under the Reserve
Line Facility;
"Reserve Line Commitment" means with respect to each Lender,
the obligation of such Lender to make Reserve Line Loans to Greenfield
up to an aggregate principal amount at any one time outstanding equal
to such Lender's percentage as set forth on Exhibit A attached hereto
of the Total Reserve Line Commitment as the same may be increased or
decreased from time to time pursuant to this Agreement;
"Reserve Line Facility" means the facility described in
Section 2.01(b) providing for Loans to Greenfield by the Lenders in the
aggregate principal amount of up to the Total Reserve Line Commitment;
"Reserve Line Loan" means a Loan made pursuant to the Reserve
Line Facility;
"Reserve Line Notes" means, collectively, the promissory notes
of Greenfield evidencing Loans executed and delivered to the Lenders as
provided in Section 2.07(c) hereof substantially in the form attached
hereto as Exhibit G, with appropriate insertions as to amounts, dates
and names of Lenders;
"Reserve Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Reserve Line Loans
then outstanding;
"Reserve Line Termination Date" means (i) December 9, 1997 or
(ii) such earlier date of termination of Lenders' obligations pursuant
to Section 9.01 upon the occurrence of an Event of Default, or (iii)
such date as Greenfield may voluntarily permanently terminate the
Reserve Line Facility by payment in full of all Obligations arising
under the Reserve Line Facility, or (iv) such later date as Greenfield
and the Lenders shall agree in writing pursuant to Section 2.17 hereof;
"Reserve Requirement" means, for any Eurodollar Loan with
respect thereto, the maximum aggregate rate at which reserves or
special deposits (including, without limitation, any marginal,
supplemental or emergency reserves) are required to be maintained with
respect thereto (a) under Regulation D by the member banks of the
Federal Reserve System with respect to Eurocurrency liabilities as that
term is defined in Regulation D, or (b) by financial institutions
(including such member banks) under any other applicable requirements
of the Federal Reserve Board, the Bank of England, the German
Bundesbank or
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any other monetary authority. Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any reserves required
to be maintained by such member banks and other financial institutions
by reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate for a Eurodollar Loan is to be determined or (ii) any
category of extensions of credit or other assets which include
Eurodollar Loans;
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Revolving Credit Loans to
the Borrowers up to an aggregate Dollar Value at any one time
outstanding equal to such Lender's percentage as set forth on Exhibit A
hereto of the Total Revolving Credit Commitment as the same may be
increased or decreased from time to time pursuant to this Agreement;
"Revolving Credit Advance" means an Advance under the
Revolving Credit Facility;
"Revolving Credit Facility" means the facility described in
Section 2.01(a) hereof providing for Domestic Revolving Credit Loans
(to Greenfield) and Foreign Revolving Credit Loans (to Cirbo and Kemmer
H) by the Lenders in the aggregate Dollar Value of the Total Revolving
Credit Commitment less the aggregate amount of Swing Line Outstanding
and Outstanding Letters of Credit and outstanding Competitive Bid
Loans;
"Revolving Credit Loan" means a Domestic Revolving Credit Loan
or a Foreign Revolving Credit Loan made pursuant to the Revolving
Credit Facility;
"Revolving Credit Notes" means, collectively, the Domestic
Revolving Credit Notes and the Foreign Revolving Credit Notes;
"Revolving Credit Outstandings" means, as of any date of
determination, collectively and in the Applicable Currencies, the
outstanding principal amount of all Revolving Credit Loans then
outstanding;
"Revolving Credit Commitment" means with respect to each
Lender, the obligation of such Lender to make Loans to the Borrowers up
to an aggregate Dollar Value at any one time outstanding equal to such
Lender's percentage as set forth on Exhibit A attached hereto of the
Total Revolving Credit Commitment as the same may be increased or
decreased from time to time pursuant to this Agreement;
"Revolving Credit Termination Date" means (i) December 9, 2001
or (ii) such earlier date of termination of Lenders' obligations
pursuant to Section 9.01 upon the occurrence of an
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Event of Default, or (iii) such date as Greenfield may voluntarily
permanently terminate the Revolving Credit Facility and the Competitive
Bid Facility by payment in full of all Obligations (including the
discharge of all Obligations of NationsBank and the Lenders with
respect to Letters of Credit and Participations and Competitive Bid
Loans);
"S&P" means Standard & Poor's Corporation, a division of
The McGraw-Hill Companies;
"RTW Pledge Agreement" means that certain Stock Pledge
Agreement in substantially the form of Exhibit N-3 hereto, dated as of
the date hereof, duly executed and delivered by Rogers Tool Works,
Inc., pledging sixty-five percent (65%) of the issued and outstanding
shares of the capital stock of RTW Limited in favor of the Agent, on
behalf of the Lenders, as the same may be amended, supplemented or
otherwise modified form time to time;
"Single Employer Plan" means any employee pension benefit plan
covered by Title IV of ERISA and in respect of which any Borrower or
any Subsidiary is an "employer" as described in Section 4001(b) of
ERISA, which is not a Multi-employer Plan;
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(i) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including, without limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to pay
its debts as they mature; and
(iii) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Spot Rate of Exchange" means, in determining the Dollar
Equivalent Amount of a specified Offshore Currency amount as of any
date, the spot exchange rate determined by the Agent in accordance with
its usual procedures for the purchase by the Agent of Dollars with such
Offshore Currency at approximately 10:00 A.M., Charlotte Time on the
Business Day that is two (2) Business Days prior to such date;
"Subsidiary" means any corporation or other entity (i) in
which more than 50% of its outstanding voting stock or more than 50% of
all equity interests is owned directly or indirectly by Greenfield
and/or by one or more of Greenfield's Subsidiaries and (ii) which at
the time of determination has assets having an aggregate book value of
$150,000 or more;
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"Swap Agreement" means one or more agreements with respect to
Indebtedness evidenced by the Notes between Greenfield and another
Person, on terms mutually acceptable to Greenfield and such Person,
which agreements create Rate Hedging Obligations;
"Swing Line" means the revolving line of credit established by
NationsBank in favor of Greenfield pursuant to Section 2.16;
"Swing Line Loans" means Loans made by NationsBank to
Greenfield pursuant to Section 2.16;
"Swing Line Note" means the promissory note of Greenfield
evidencing Swing Line Loans executed and delivered to NationsBank as
provided in Section 2.07(e) hereof as the same shall be amended,
modified or supplemented and in effect from time to time;
"Swing Line Outstanding" means, as of any date of
determination, the aggregate principal Indebtedness of Greenfield on
all Swing Line Loans then outstanding;
"Total Deutsche Mark Commitment" means DM 30,000,000;
"Total Letter of Credit Commitment" means an amount not to
exceed $10,000,000;
"Total Pounds Sterling Commitment" means (pound) 15,000,000;
"Total Reserve Line Commitment" means an amount equal to
$50,000,000, as reduced from time to time in accordance with Section
2.09;
"Total Revolving Credit Commitment" means an amount equal to
$130,000,000, as reduced from time to time in accordance with Section
2.09;
1.02 Accounting Terms. All accounting terms not specifically defined
herein shall have the meanings assigned to such terms and shall be interpreted
in accordance with Generally Accepted Accounting Principles applied on a
Consistent Basis.
1.03 Currency Equivalents Generally. For all purposes of this Agreement
(but not for purposes of the preparation of any financial statements delivered
pursuant hereto), the equivalent in any Offshore Currency or other currency of
an amount in Dollars, and the equivalent in Dollars of an amount in any Offshore
Currency or other currency, shall be determined as set forth in the definition
of Dollar Equivalent Amount.
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ARTICLE II
The Loans
2.01 Commitments
(a) Revolving Credit Commitment. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make Advances in Dollars or an
Offshore Currency to Greenfield (in the case of Domestic Revolving Credit Loans)
or to Kemmer H or Cirbo (in the case of Foreign Revolving Credit Loans), as the
case may be, in each case to the Borrower requesting such Advance (as specified
in the respective Borrowing Notice), from time to time from the Effective Date
until the Revolving Credit Termination Date on a pro rata basis as to the total
borrowing requested by such Borrower under the Revolving Credit Facility on any
day determined by its Applicable Commitment Percentage of the Total Revolving
Credit Commitment up to but not exceeding a Dollar Value equal to the Revolving
Credit Commitment of such Lender, provided, however, that the Lenders will not
be required and shall have no obligation to make any Advance (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if the
Agent has accelerated the maturity of the Revolving Credit Notes as a result of
an Event of Default; provided further, however, that immediately after giving
effect to each such Advance, (A) the Dollar Value of Outstanding Credit
Obligations shall not exceed the Total Revolving Credit Commitment and (B) if
such Advance is denominated in an Offshore Currency, the principal amount of
Outstanding Credit Obligations denominated in such Applicable Currency shall not
exceed the Applicable Offshore Currency Commitment. Within such limits, the
Borrowers may borrow, repay and reborrow hereunder, on a Business Day, from the
Effective Date until, but (as to borrowings and reborrowings) not including, the
Revolving Credit Termination Date; provided, however, that (x) no Eurodollar
Loan that is a Revolving Credit Loan shall be made which has an Interest Period
that extends beyond the Revolving Credit Termination Date, (y) each Eurodollar
Loan may, subject to the provisions of Section 2.11, be repaid only on the last
day of the Interest Period with respect thereto, and (z) no Offshore Currency
Loan may bear interest at the Base Rate.
(b) Reserve Line Commitment. Subject to the terms and conditions of
this Agreement, each Lender severally agrees to make Advances in Dollars to
Greenfield, from time to time from the Effective Date until the Reserve Line
Termination Date on a pro rata basis as to the total borrowing requested by
Greenfield under the Reserve Line Facility on any day determined by its
Applicable Commitment Percentage of the Total Reserve Line Commitment up to but
not exceeding the Reserve Line Commitment of such Lender, provided, however,
that the Lenders will not be required and shall have no obligation to make any
Advance (i) so long as a Default or an Event of Default has occurred and is
continuing or (ii) if the Agent has accelerated the maturity of the Reserve Line
Notes as a
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result of an Event of Default; provided further, however, that immediately after
giving effect to each such Advance, the aggregate principal amount of
outstanding Reserve Line Loans shall not exceed the Total Reserve Line
Commitment. Within such limits, Greenfield may borrow, repay and reborrow
hereunder, on a Business Day from the Closing Date until, but (as to borrowings
and reborrowings) not including, the Reserve Line Termination Date; provided,
however, that (x) no Eurodollar Loan that is a Reserve Line Loan shall be made
which has an Interest Period that extends beyond the Reserve Line Termination
Date and (y) each Eurodollar Loan may, subject to the provisions of Section
2.11, be repaid only on the last day of the Interest Period with respect
thereto.
(c) Amounts. (i) A Loan denominated in any currency may not be
converted into a different currency. If a Eurodollar Loan is continued or
converted to a different interest rate, the Dollar Value of such Loan shall be
adjusted based on the Advance Date Exchange Rate as of two (2) Business Days
before the effective date of such conversion or continuation. In the event that
such adjustment with respect to a continued or converted Loan would cause (A)
the total Dollar Value of Outstanding Credit Obligations to exceed the Total
Revolving Credit Commitment or (B) the total principal amount of Outstanding
Credit Obligations denominated in the Applicable Currency to exceed the
Applicable Offshore Currency Commitment, then the Borrowers shall, within five
(5) Business Days of the effective date of such continuation or conversion,
repay (a "Rate Adjustment Payment") the portion of such converted Loan (applying
the new Advance Date Exchange Rate) necessary to ensure that the total Dollar
Value of all Outstanding Credit Obligations does not exceed the Total Revolving
Credit Commitment, and the total principal amount of Outstanding Credit
Obligations in the Applicable Currency does not exceed the Applicable Offshore
Currency Commitment. The Agent shall maintain records sufficient to identify at
any time, the outstanding principal amount, Dollar Value and Advance Date
Exchange Rate with respect to each Advance.
(ii) Except as otherwise permitted by the Lenders from time to time,
the aggregate Dollar Value of (i) the Outstanding Credit Obligations shall not
exceed at any time an amount equal to the Total Revolving Credit Commitment, and
(ii) the Reserve Line Loans shall not exceed at any time an amount equal to the
Total Reserve Line Commitment. Each Loan under the Revolving Credit Facility
(other than Base Rate Refunding Loans and except as provided in Section 2.16
hereof as to Swing Line Loans) or the Reserve Line Facility and each conversion
(under any of the Revolving Credit Facility or Reserve Line Facility) under
Section 2.11 shall have a Dollar Value of $500,000, or such greater amount which
(in the case of Dollar-denominated Loans) is an integral multiple of $50,000.
(d) Advances and Rate Selection. (i) An Authorized Representative shall
give the Agent (1) at least three (3) Business Days' irrevocable telephonic
notice of each Eurodollar Loan (whether representing an additional borrowing
hereunder or the
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conversion of borrowing hereunder from Base Rate Loans or other Eurodollar Loans
to Eurodollar Loans) prior to 10:30 A.M., Charlotte, North Carolina time; and
(2) irrevocable telephonic notice of each Base Rate Loan representing an
additional borrowing hereunder prior to 10:30 A.M. Charlotte, North Carolina
time on the day of such proposed Base Rate Loan (other than Base Rate Refunding
Loans to the extent the same are effected without notice pursuant to Section
2.01(d)(v)). Each such Borrowing Notice, which shall be effective upon receipt
by the Agent, shall specify the respective Borrower, the Applicable Currency,
the amount of the borrowing, the Facility (Revolving Credit or Reserve Line) to
which the Advance is to be debited, the type (Base or Eurodollar) of Loan, the
date of borrowing and, if a Eurodollar Loan, the Interest Period to be used in
the computation of interest. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice on the same day by
telefacsimile transmission in the form of a Borrowing Notice, for additional
Advances, or in the form attached hereto as Exhibit I as to selection or
conversion of interest rates as to outstanding Loans, in each case with
appropriate insertions, but failure to provide such confirmation shall not
affect the validity of such telephonic notice. The duration of the initial
Interest Period for each Loan that is a Eurodollar Loan shall be as specified in
the initial Borrowing Notice. The applicable Borrower shall have the option to
elect the duration of subsequent Interest Periods and to convert the Loans
(other than Swing Line Loans) in accordance with Section 2.11 hereof. If the
Agent does not receive a notice of election of duration of an Interest Period or
to convert by the time prescribed hereby and by Section 2.11 hereof, the
applicable Borrower shall be deemed to have elected (a) as to any
Dollar-denominated Revolving Credit Loan or any Reserve Line Loan, to convert
such Loan to (or continue such Loan as) a Base Rate Loan bearing interest at the
Base Rate, and (B) as to any Offshore Currency-denominated Revolving Credit
Loan, to convert such Loan to (or continue such Loan as) a Eurodollar Loan with
an Interest Period of one month, in each case until the applicable Borrower
notifies the Agent in accordance with this Section and Section 2.11.
(ii) Notice of receipt of each Borrowing Notice shall be provided by
the Agent to each Lender by telefacsimile transmission with reasonable
promptness, but not later than 1:00 P.M., Charlotte, North Carolina time on the
same day as Agent's receipt of such notice.
(iii) In the case of a Revolving Credit Advance or a Reserve Line
Advance denominated in Dollars, not later than 3:00 P.M., Charlotte, North
Carolina time on the date specified for such Advance, each Lender shall,
pursuant to the terms and subject to the conditions of this Agreement, make the
amount of the Loan or Loans denominated in Dollars to be made by it on such day
available to the Agent, by depositing or transferring the proceeds thereof in
immediately available funds in Dollars at the Principal Office. The amount so
received by the Agent shall, subject to the terms and
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<PAGE> 36
conditions of this Agreement, be made available to the applicable Borrower by
delivery of the proceeds thereof to the Applicable Borrower's Account or
otherwise as shall be directed in the applicable Borrowing Notice by the
Authorized Representative.
(iv) In the case of a Revolving Credit Advance denominated in an
Offshore Currency, not later than 9:00 A.M., Charlotte, North Carolina time on
the date specified for such Advance, each Lender shall, pursuant to the terms
and subject to the conditions of this Agreement, make the amount of the Loan or
Loans in the Applicable Currency to be made by it on such day available to the
Applicable Funding Bank by depositing or transferring the proceeds thereof in
immediately available funds in the Applicable Currency to the account of the
Agent with the Applicable Funding Bank. The amount so received by the Applicable
Funding Bank shall, subject to the terms and conditions of this Agreement and
upon instruction from the Agent to the Applicable Funding Bank on or before the
date specified for such Advance but no later than 9:00 A.M., Charlotte, North
Carolina time on such date, be made available to the applicable Borrower by
delivery of the proceeds thereof to such Borrower's account with the Applicable
Funding Bank or otherwise as shall be directed in the applicable Borrowing
Notice by the Authorized Representative.
(v) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit (whether denominated in Dollars or an Offshore Currency) prior
to the Revolving Credit Termination Date, the drawing shall be paid by
NationsBank in the Applicable Currency from immediately available funds.
Simultaneously with NationsBank's payment of such drawing, the Agent shall
reimburse NationsBank for such drawing, without the requirement of notice from
the Borrowers, by paying to NationsBank the proceeds of a Swing Line Loan in an
amount equal to the Dollar Equivalent Amount of such drawing (provided that such
a Swing Line Loan shall then be available). If (A) a drawing is made under any
Letter of Credit in accordance with the terms thereof and (B) Greenfield (in the
case of a Domestic Letter of Credit) or Kemmer H, Cirbo and Greenfield (in the
case of a Foreign Letter of Credit) shall not immediately reimburse NationsBank
for the amount of such draw or payment and (C) a Swing Line Loan in an amount
equal to the Dollar Equivalent Amount of such draw shall not be available, then
notice of such drawing or payment shall be provided promptly by NationsBank to
the Agent and the Agent shall provide notice to each Lender by telephone. If
notice to the Lenders of a drawing under any Letter of Credit is given by the
Agent at or before 12:00 noon Charlotte, North Carolina time on any Business
Day, the applicable Borrower shall be deemed to have requested, and each Lender
shall, pursuant to the conditions of this Agreement, either make a Base Rate
Refunding Loan to the applicable Borrower under the Revolving Credit Facility or
fund the purchase of its Participation in an amount equal to such Lender's
Applicable Commitment Percentage of the Dollar Equivalent Amount of such drawing
or payment, and shall pay such amount to the Agent for the account of
NationsBank at the Principal
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Office in Dollars and in immediately available funds before 2:30 P.M. Charlotte,
North Carolina time on the same Business Day. If notice to the Lenders is given
by the Agent after 12:00 noon Charlotte, North Carolina time on any Business
Day, the applicable Borrower shall be deemed to have requested, and each Lender
shall, pursuant to the terms and subject to the conditions of this Agreement,
make a Base Rate Refunding Loan to the applicable Borrower under the Revolving
Credit Facility or fund the purchase of its Participation in an amount equal to
such Lender's Applicable Commitment Percentage of the Dollar Equivalent Amount
of such drawing or payment, and shall pay such amount to the Agent for the
account of NationsBank at the Principal Office in immediately available funds
before 12:00 noon Charlotte, North Carolina time on the next following Business
Day. Such Base Rate Refunding Loan shall continue as a Base Rate Loan unless and
until the applicable Borrower converts such Base Rate Loan in accordance with
the terms of Section 2.11 hereof.
2.02 Competitive Bid Loans.
(a) In addition to Revolving Credit Loans, at any time prior
to the Revolving Credit Termination Date and provided no Default or Event of
Default exists hereunder, Greenfield may, as set forth in this Section 2.02,
request the Lenders to make offers to make Competitive Bid Loans to Greenfield
in Dollars. The Lenders may, but shall have no obligation to, make such offers
and Greenfield may, but shall have no obligation to, accept any such offers in
the manner set forth in this Section 2.02. There may be no more than thirteen
(13) different Interest Periods for both Revolving Credit Loans and Competitive
Bid Loans outstanding at the same time (for which purpose Interest Periods for
each Eurodollar Loan and each Competitive Bid Loan shall be deemed to be
different Interest Periods even if they are coterminous). The aggregate
principal amount of all outstanding Competitive Bid Loans, together with the
Dollar Value of all other Outstanding Credit Obligations, shall not exceed the
Total Revolving Credit Commitment at any time.
(b) When Greenfield wishes to request offers to make
Competitive Bid Loans, it shall give the Agent (which shall promptly notify the
Lenders) notice (a "Competitive Bid Quote Request") to be received no later than
11:00 a.m. Charlotte, North Carolina time on the Business Day next preceding the
date of borrowing proposed therein (or such other time and date as Greenfield
and the Agent, with the consent of the Required Lenders, may agree). Greenfield
may request offers to make Competitive Bid Loans for up to three (3) different
Interest Periods in a single notice; provided that the request for each separate
Interest Period shall be deemed to be a separate Competitive Bid Quote Request
for a separate borrowing (a "Competitive Bid Borrowing") and there shall not be
outstanding at any one time more than four (4) Competitive Bid Borrowings. Each
such Competitive Bid Quote Request shall be substantially in the form of Exhibit
J attached
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hereto and incorporated herein by reference and shall specify as to each
Competitive Bid Borrowing:
(i) the proposed date of such borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing,
which shall be at least $5,000,000 (or in increments of $1,000,000 in
excess thereof) but shall not cause the limits specified in Section
2.02(a) hereof to be violated;
(iii) the duration of the Interest Period or Interest Periods
applicable thereto; and
(iv) the date on which the Competitive Bid Quotes are to be
submitted if it is before the proposed date of borrowing (the date on
which such Competitive Bid Quotes are to be submitted is called the
"Quotation Date").
Except as otherwise provided in this Section 2.02(b), no Competitive Bid Quote
Request shall be given within five (5) Business Days (or such other number of
days as Greenfield and the Agent, with the consent of the Required Lenders, may
agree) of any other Competitive Bid Quote Request.
(c) (i) Each Lender may submit one or more Competitive Bid
Quotes, each containing an offer to make a Competitive Bid Loan in response to
any Competitive Bid Quote Request; provided that, if Greenfield's request under
Section 2.02(b) hereof specified more than one Interest Period, such Lender may
make a single submission containing one or more Competitive Bid Quotes for each
such Interest Period. Each Competitive Bid Quote must be submitted to the Agent
not later than 10:00 a.m. Charlotte, North Carolina time on the Quotation Date
(or such other time and date as Greenfield and the Agent, with the consent of
the Required Lenders, may agree) provided that any Competitive Bid Quote may be
submitted by NationsBank (or its Applicable Lending Office) only if NationsBank
(or such Applicable Lending Office) notifies Greenfield of the terms of the
offer contained therein not later than 9:45 a.m. Charlotte, North Carolina time
on the Quotation Date. Subject to Articles IV, V and IX hereof, any Competitive
Bid Quote so made shall be irrevocable except with the consent of the Agent
given on the instructions of Greenfield.
(ii) Each Competitive Bid Quote shall be substantially in the
form of Exhibit K attached hereto and incorporated herein by reference and
shall specify:
(A) the proposed date of borrowing and the
Interest Period therefor;
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(B) the principal amount of the Competitive
Bid Loan for which each such offer is being made, which
principal amount shall be at least $1,000,000 (or in
increments of $100,000 in excess thereof); provided that the
aggregate principal amount of all Competitive Bid Loans for
which a Lender submits Competitive Bid Quotes may not exceed
the principal amount of the Competitive Bid Borrowing for a
particular Interest Period for which offers were requested;
(C) the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/10,000th of 1%)
offered for each such Competitive Bid Loan (the "Absolute
Rate"); and
(D) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and Greenfield, no Competitive Bid Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Competitive Bid Quote
Request and, in particular, no Competitive Bid Quote may be conditioned upon
acceptance by Greenfield of all (or some specified minimum) of the principal
amount of the Competitive Bid Loan for which such Competitive Bid Quote is being
made. Any subsequent Competitive Bid Quote submitted by a Lender that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Lender with respect to the same Competitive Bid Quote Request
shall be disregarded by the Agent unless such subsequent Competitive Bid Quote
is submitted solely to correct a manifest error in such former Competitive Bid
Quote.
(d) The Agent shall as promptly as practicable after the
Competitive Bid Quote is submitted (but in any event not later than 10:30 a.m.
Charlotte, North Carolina time on the Quotation Date), notify Greenfield of the
terms of any Competitive Bid Quote submitted by a Lender that is in accordance
with Section 2.02(c) hereof. The Agent's notice to Greenfield shall specify (A)
the aggregate principal amount of the Competitive Bid Borrowing for which
Competitive Bid Quotes have been received and (B) the respective principal
amounts and Absolute Rates, so offered by each Lender (identifying the Lender
that made each Competitive Bid Quote).
(e) Not later than 11:00 a.m. Charlotte, North Carolina time
on the Quotation Date (or such other time and date as Greenfield and the Agent,
with the consent of the Required Lenders, may agree), Greenfield shall notify
the Agent of its acceptance or nonacceptance of the Competitive Bid Quotes so
notified to it pursuant to Section 2.02(d) hereof (and the failure of Greenfield
to give such notice by such time shall constitute nonacceptance) and the Agent
shall promptly notify each affected Lender. In the case of acceptance, such
notice shall specify the aggregate
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principal amount of offers for each Interest Period that are accepted.
Greenfield may accept any Competitive Bid Quote in whole or in part (provided
that any Competitive Bid Quote accepted in part shall be at least $1,000,000 or
in increments of $100,000 in excess thereof); provided that:
(i) the aggregate principal amount of each Competitive Bid
Borrowing may not exceed the applicable amount set forth in the related
Competitive Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid
Borrowing shall be at least $5,000,000 (or an increment of $1,000,000
in excess thereof) but shall not cause the limits specified in Section
2.02(a) hereof to be violated;
(iii) except as provided below, acceptance of Competitive Bid
Quotes may be made only in ascending order of Absolute Rates beginning
with the lowest rate so offered; and
(iv) Greenfield may not accept any Competitive Bid Quotes
where the Agent has correctly advised Greenfield that such Competitive
Bid Quote fails to comply with Section 2.02(c)(ii) hereof or otherwise
fails to comply with the requirements of this Agreement (including,
without limitation, Section 2.02(a) hereof).
If Competitive Bid Quotes are made by two or more Lenders with the same
Absolute Rates for a greater aggregate principal amount than the amount in
respect of which Competitive Bid Quotes are accepted for the related Interest
Period after the acceptance of all Competitive Bid Quotes, if any, of all lower
Absolute Rates offered by any Lender for such related Interest Period, the
principal amount of Competitive Bid Loans in respect of which such Competitive
Bid Quotes are accepted shall be allocated by Greenfield among such Lenders as
nearly as possible (in amounts of at least $500,000 or in increments of $100,000
in excess thereof) in proportion to the aggregate principal amount of such
Competitive Bid Quotes. Determinations by Greenfield of the amounts of
Competitive Bid Loans and the lowest bid after adjustment as provided in Section
2.02(e)(iii) shall be conclusive in the absence of manifest error.
(f) Any Lender whose offer to make any Competitive Bid Loan
has been accepted shall, not later than 1:00 p.m. Charlotte, North Carolina time
on the date specified for the making of such Loan, make the amount of such Loan
available to the Agent at the Principal Office in Dollars and in immediately
available funds, for account of Greenfield. The amount so received by the Agent
shall, subject to the terms and conditions of this Agreement, be made available
to Greenfield on such date by depositing the same, in Dollars and in immediately
available funds, in an account of Greenfield maintained at the Principal Office.
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(g) Together with each notice of a request for Competitive Bid
Quotes, Greenfield shall pay to the Agent for the account of the Agent a bid
administration fee of $1,000.00.
2.03 Payment of Interest.
(a) (i) Greenfield shall pay interest to the Agent at the
Principal Office for the account of each Lender on the outstanding and unpaid
principal amount of each Loan made by such Lender for the period commencing on
the date of such Loan until such Loan shall be due (A) in the case of each
Offshore Currency Loan, at the Eurodollar Revolver Rate, as elected or deemed
elected by the respective Borrower or otherwise applicable to such Loan as
herein provided, (B) in the case of each Revolving Credit Loan denominated in
Dollars, at the Eurodollar Revolver Rate or the Base Rate, as elected or deemed
elected by the respective Borrower or otherwise applicable to such Loan as
herein provided, (C) in the case of each Reserve Line Loan, at the Eurodollar
Reserve Line Rate or the Base Rate, as elected or deemed elected by the
respective Borrower or otherwise applicable to such Loan as herein provided, (D)
in the case of each Competitive Bid Loan, at the applicable Absolute Rate, and
(E) in the case of each Swing Line Loan, at the Base Rate, such payments to be
made in the Applicable Currency; provided, however, that if any amount shall not
be paid when due (at maturity, by acceleration or otherwise), all amounts
outstanding hereunder shall bear interest thereafter (I) in the case of a
Eurodollar Loan, at a rate of two percent (2%) above the Applicable Eurodollar
Rate for such Eurodollar Loan, (II) in the case of a Base Rate Loan, at a rate
of interest per annum which shall be two percent (2%) above the Base Rate, and
(III) in the case of a Competitive Bid Loan, at a rate of interest per annum
which shall be two percent (2%) above the Absolute Rate for such Competitive Bid
Loan, or (in each case) the maximum rate permitted by applicable law, whichever
is lower, from the date such amount was due and payable until the date such
amount is paid in full.
(ii) Kemmer H, Cirbo and Greenfield shall pay interest to the
Agent at the Principal Office for the account of each Lender on the outstanding
and unpaid principal amount of each Foreign Revolving Credit Loan made by such
Lender for the period commencing on the date of such Foreign Revolving Credit
Loan until such Foreign Revolving Credit Loan shall be due (A) in the case of
each Offshore Currency Loan, at the Eurodollar Revolver Rate, as elected or
deemed elected by the respective Borrower or otherwise applicable to such
Foreign Revolving Credit Loan as herein provided, and (B) in the case of each
Foreign Revolving Credit Loan denominated in Dollars, at the Eurodollar Revolver
Rate or the Base Rate, as elected or deemed elected by the applicable Borrower
or otherwise applicable to such Foreign Revolving Credit Loan as herein
provided; provided, however, that if any amount shall not be paid when due (at
maturity, by acceleration or otherwise), all amounts outstanding hereunder shall
bear interest thereafter (I) in the case of a Eurodollar Loan, at a rate of two
percent (2%) above the
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Applicable Eurodollar Rate for such Eurodollar Loan, and (II) in the case of a
Base Rate Loan, at a rate of interest per annum which shall be two percent (2%)
above the Base Rate, or (in each case) the maximum rate permitted by applicable
law, whichever is lower, from the date such amount was due and payable until the
date such amount is paid in full.
(b) Interest on the outstanding principal balance of each Loan shall be
computed on the basis of a year of 360 days and calculated for the actual number
of days elapsed. Interest on each Loan shall be paid (i) quarterly in arrears on
the last Business Day of each December, March, June or September, commencing
December 31, 1996, on each Base Rate Loan, (ii) on the last day of the
applicable Interest Period for each Eurodollar Loan and Competitive Bid Loan
and, if the Interest Period extends for more than three months, at intervals of
three months after the first day of the Interest Period, and (iii) upon payment
in full of the principal amount of such Loan.
2.04 Payment of Principal. All Revolving Credit Outstandings and all
Swing Line Outstanding shall be due and payable (in the Applicable Currency of
each such Loan) to the Agent for the benefit of each Lender in full on the
Revolving Credit Termination Date, or earlier as herein expressly provided. All
Reserve Line Outstandings shall be due and payable to the Agent for the benefit
of each Lender in full on the Reserve Line Termination Date, or earlier as
herein expressly provided. The principal amount of all Competitive Bid Loans
shall be due and payable to such Lender making such Competitive Bid Loan in full
on the last day of the Interest Period therefor, or earlier as herein expressly
provided. The principal amount of Eurodollar Loans and Competitive Bid Loans may
only be prepaid at the end of the applicable Interest Period, unless the
Borrowers shall pay to the Agent for the account of the Lenders the amount, if
any, required under Section 4.04. Any Borrower shall furnish the Agent
telephonic notice of its intention to make a principal payment prior to 11:00
A.M. Charlotte, North Carolina time on the date of such payment. All payments of
principal shall be in a Dollar Value of $500,000 or such greater amount which
(in the case of Dollar-denominated Loans) is an integral multiple of $100,000.
2.05 Non-Conforming Payments. (a) Each payment of principal (including
any prepayment) and payment of interest shall be made to the Agent at the
Principal Office, for the account of each Lender's applicable Lending Office, in
the Applicable Currency and in immediately available funds before 12:30 P.M.
Charlotte, North Carolina time on the date such payment is due. The Agent may,
but shall not be obligated to, debit the amount of any such payment which is not
made by such time to any ordinary deposit account, if any, of any Borrower with
the Agent.
(b) The Agent shall deem any payment by or on behalf of any Borrower
hereunder that is not made both (a) in the Applicable
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Currency and in immediately available funds and (b) prior to 12:30 P.M.
Charlotte, North Carolina time on the date payment is due to be a non-conforming
payment. Any such payment shall not be deemed to be received by the Agent until
the time such funds become available funds. Any non-conforming payment may
constitute or become a Default or Event of Default. The Agent shall give prompt
telephonic notice to the Authorized Representative and each of the Lenders
(confirmed in writing) if any payment is non-conforming. Interest shall continue
to accrue on any principal as to which a non-conforming payment is made until
such funds become available funds (but in no event less than the period from the
date of such payment to the next succeeding Business Day) at the respective
rates of interest per annum specified in Section 2.03(a) in respect of late
payments of interest, from the date such amount was due and payable until the
date such amount is paid in full (but in no event less than the period from the
date of such payment to the next succeeding Business Day).
(c) In the event that any payment hereunder or under the Notes becomes
due and payable on a day other than a Business Day, then such due date shall be
extended to the next succeeding Business Day; provided that interest shall
continue to accrue during the period of any such extension.
2.06 Applicable Borrower's Accounts. Greenfield shall continuously
maintain the Applicable Borrower's Accounts for the purposes herein
contemplated.
2.07 Notes. (a) Domestic Revolving Credit Loans made by each Lender,
shall be evidenced by, and be repayable with interest in accordance with the
terms of, the Domestic Revolving Credit Note payable to the order of such Lender
in the amount of its Applicable Commitment Percentage of the Total Domestic
Revolving Credit Commitment, which Domestic Revolving Credit Note shall be dated
the Closing Date or such later date pursuant to an Assignment and Acceptance and
shall be duly completed, executed and delivered by Greenfield.
(b) Foreign Revolving Credit Loans made by each Lender, shall be
evidenced by, and be payable with interest in accordance with the terms of, the
Foreign Revolving Credit Note payable to the order of such Lender in the amount
of its Applicable Commitment Percentage of the Total Revolving Credit
Commitment, which Foreign Revolving Credit Note shall be dated the Closing Date
or such later date pursuant to an Assignment and Acceptance and shall be duly
completed, executed and delivered by the Borrowers.
(c) Reserve Line Loans made by each Lender shall be evidenced by, and
be repayable with interest in accordance with the terms of, the Reserve Line
Note payable to the order of such Lender in the amount of its Applicable
Commitment Percentage of the Total Reserve Line Commitment, which Reserve Line
Note shall be dated the Closing
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Date or such later date pursuant to an Assignment and Acceptance and shall be
duly completed, executed and delivered by Greenfield.
(d) Competitive Bid Loans made by any Lender shall be evidenced by,
and be repayable with interest in accordance with the terms of, the Competitive
Bid Note payable to the order of such Lender in the amount of $130,000,000,
which Note shall be dated the Closing Date or such later date pursuant to an
Assignment and Acceptance and shall be duly completed, executed and delivered by
Greenfield.
(e) Swing Line Loans made by NationsBank shall be evidenced by the
Swing Line Note in the principal amount of $10,000,000, and shall be repayable
with interest in accordance with the terms of the Swing Line Note dated the
Closing Date and duly executed and delivered by Greenfield.
2.08 Pro Rata Payments. Except as otherwise provided herein, (a) each
payment and prepayment on account of the principal of and interest on the Loans
(other than Competitive Bid Loans and Swing Line Loans) and the fees described
in Section 2.12 hereof shall be made to the Agent in the aggregate amount
payable to the Lenders for the account of the Lenders pro rata based on their
Applicable Commitment Percentages, (b) each payment of principal and interest on
the Competitive Bid Loans shall be made to the Agent for the account of the
respective Lender making such Competitive Bid Loan, (c) each payment of
principal and interest on Swing Line Loans shall be made to the Agent for the
account of NationsBank, (d) all payments to be made by the Borrowers for the
account of each of the Lenders on account of principal, interest and fees, shall
be made without set-off or counterclaim, and (e) the Agent will promptly
distribute such payments received to the Lenders as provided for herein.
2.09 Reductions. The Borrowers (or in the case of the Reserve Line,
Greenfield) shall, by notice from an Authorized Representative, have the right
from time to time (but not more frequently than twice during each Fiscal Year as
to each of the Revolving Credit Facility and the Reserve Line Facility), upon
not less than five (5) Business Days written notice to the Agent to reduce the
Total Revolving Credit Commitment or the Total Reserve Line Commitment. The
Agent shall give each Lender, within one (1) Business Day, telephonic notice
(confirmed in writing) of such reduction. Each such reduction shall be in the
aggregate amount of $5,000,000 or such greater amount which is in an integral
multiple of $1,000,000, and shall permanently reduce the Revolving Credit
Commitment or the Reserve Line Commitment, as the case may be, of each Lender
pro rata. No such reduction shall be permitted that results in the payment of
any Eurodollar Loan other than on the last day of the Interest Period of such
Loan unless such prepayment is accompanied by amounts due, if any, under Section
4.04. Each reduction of the Total Revolving Credit Commitment or the Total
Reserve Line Commitment, as the case may be, shall also be
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accompanied by payment of the Revolving Credit Notes or the Reserve Line Notes,
as applicable, to the extent that (a) as to the Revolving Credit Facility, after
giving effect to such reduction, (i) the sum of the Dollar Value of Outstanding
Credit Obligations exceeds the Total Revolving Credit Commitment or (ii) the
aggregate principal amount of Outstanding Credit Obligations denominated in any
Offshore Currency exceeds the reduced Applicable Offshore Currency Commitment,
and (b) as to the Reserve Line Facility, the Reserve Line Outstandings exceed
the Total Reserve Line Commitment, after giving effect to such reduction,
together with accrued and unpaid interest on the amounts prepaid.
2.10 Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrowers shall be
reduced by the aggregate Dollar Value of all Swing Line Outstanding and
Outstanding Letters of Credit and outstanding Competitive Bid Loans.
2.11 Conversions and Elections of Subsequent Interest Periods. Provided
that no Default or Event of Default shall have occurred and be continuing and
subject to the limitations set forth below and in Sections 4.01(b), 4.02 and
4.03 hereof, the applicable Borrower may:
(a) upon notice to the Agent on or before 10:30 A.M. Charlotte, North
Carolina time on any Business Day convert all or a part of Eurodollar Loans
(other than Offshore Currency Loans) that are Revolving Credit Loans or Reserve
Line Loans to Base Rate Loans on the last day of the Interest Period for such
Eurodollar Loans; and
(b) on three (3) Business Days' notice to the Agent on or before 10:30
A.M. Charlotte, North Carolina time:
(i) elect a subsequent Interest Period for all or a portion
of Eurodollar Loans to begin on the last day of the current Interest
Period for such Eurodollar Loans; or
(ii) convert Base Rate Loans (other than Swing Line Loans) to
Eurodollar Loans on any Business Day; and
Notice of any such elections or conversions shall specify the effective
date of such election or conversion and, with respect to Eurodollar Loans, the
Interest Period to be applicable to the Loan as continued or converted. Each
election and conversion pursuant to this Section 2.11 shall be subject to the
limitations on Eurodollar Loans set forth in the definition of "Interest Period"
herein and in Section 2.01 and Article IV hereof. All such continuations or
conversions of Loans shall be effected pro rata based on the Applicable
Commitment Percentages of the Lenders.
2.12 Revolving Credit Unused Fee. For the period beginning on the
Effective Date and ending on the Revolving Credit
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Termination Date (or such earlier date on which the Revolving Credit Facility
has terminated), Greenfield agrees to pay to the Agent, for the pro rata benefit
of the Lenders based on their Applicable Commitment Percentages of the Revolving
Credit Facility, an unused fee equal to (i) one-fourth of one percent (.25%) per
annum during any quarterly period that the ratio of Consolidated Indebtedness
for Money Borrowed as at the last day of the fiscal quarter immediately
preceding such quarter (the "Determination Date") to Consolidated EBITDA for the
Four-Quarter Period ending on the Determination Date is greater than 2.00 to
1.00 and (ii) one fifth of one percent (.20%) per annum during any quarterly
period that such ratio as of the Determination Date is equal to or less than
2.00 to 1.00, on the amount by which the Total Revolving Credit Commitment
exceeds the sum of the average daily Dollar Value of (i) Revolving Credit
Outstandings and (ii) Outstanding Letters of Credit. The Swing Line Outstanding
and Outstanding Competitive Bid Loans shall not be outstanding Loans for
purposes of determining such fee. Notwithstanding the foregoing, so long as any
Lender fails to make available any portion of its Revolving Credit Commitment
when requested, such Lender shall not be entitled to receive payment of its pro
rata share of such fee until such Lender shall make available such portion. Such
fee shall be calculated on the basis of a year of 360 days for the actual number
of days elapsed and shall be payable in Dollars.
2.13 Deficiency Advances. No Lender shall be responsible for any
default of any other Lender in respect to such other Lender's obligation to make
any Loan hereunder nor shall the Revolving Credit Commitment or Reserve Line
Commitment of any Lender hereunder be increased as a result of such default of
any other Lender. Without limiting the generality of the foregoing, in the event
any Lender shall fail to advance funds to any Borrower as herein provided, the
Agent may in its discretion, but shall not be obligated to, advance under the
applicable Note in its favor as a Lender all or any portion of such amount or
amounts (each, a "deficiency advance") and shall thereafter be entitled to
payments of principal of and interest on such deficiency advance in the same
manner and at the same interest rate or rates to which such other Lender would
have been entitled had it made such advance under its applicable Note; provided
that, upon payment to the Agent from such other Lender of the entire outstanding
amount of each such deficiency advance, together with accrued and unpaid
interest thereon, from the most recent date or dates interest was paid to the
Agent by any Borrower on each Loan comprising the deficiency advance at the
interest rate per annum for overnight borrowing by the Agent from the Federal
Reserve Bank, then such payment shall be credited against the applicable Note of
the Agent in full payment of such deficiency advance and the applicable Borrower
shall be deemed to have borrowed the amount of such deficiency advance from
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such other Lender as of the most recent date or dates, as the case may be, upon
which any payments of interest were made by any Borrower thereon.
2.14 Adjustments by Agent. Notwithstanding the construction of "pro
rata" to mean based on the Applicable Commitment Percentages and any provisions
contained herein for the advancement of funds or distribution of payments on a
pro rata basis, the Agent may, in its discretion, but shall not be obligated to,
adjust downward or upward (but not in excess of any applicable Revolving Credit
Commitment or Reserve Line Commitment) the principal amount of any Loan to be
made by any Lender to the nearest amount which is evenly divisible by $100 (or
DM 100 or (pound) 100, as the case may be), and make appropriate related
adjustment in the distribution of payments of principal and interest on the
Loans.
2.15 Use of Proceeds. The proceeds of the Domestic Revolving Credit
Loans, Swing Line Loans and Competitive Bid Loans made pursuant to the Revolving
Credit Facility, the Swing Line and the Competitive Bid Facility hereunder shall
be used by Greenfield and the Domestic Subsidiaries to repay all outstanding
principal, interest, fees and other amounts under the Existing Credit Facility,
to finance Capital Expenditures and Permitted Acquisitions and for other working
capital and general corporate needs of Greenfield and the Domestic Subsidiaries.
The proceeds of the Foreign Revolving Credit Loans made pursuant to the
Revolving Credit Facility shall be used by Kemmer H, Cirbo and the other Foreign
Subsidiaries to repay all outstanding principal, interest, fees and other
amounts under the Existing FC Facility, to finance Capital Expenditures and
Permitted Acquisitions of foreign Persons and for other working capital and
general corporate needs of Kemmer H, Cirbo and the other Foreign Subsidiaries.
The proceeds of the Loans made pursuant to the Reserve Line Facility hereunder
shall be used by Greenfield and the Domestic Subsidiaries for general corporate
purposes including interim financing of Permitted Acquisitions by Greenfield and
the Domestic Subsidiaries.
2.16 Swing Line. Notwithstanding any other provision of this Agreement
to the contrary, in order to administer the Revolving Credit Facility in an
efficient manner and to minimize the transfer of funds between the Agent and the
Lenders, NationsBank shall make available Swing Line Loans in Dollars to
Greenfield prior to the Revolving Credit Termination Date. NationsBank shall not
make any Swing Line Loan pursuant hereto (i) if the Borrowers are not in
compliance with all the conditions to the making of Revolving Credit Loans set
forth in this Agreement, (ii) if after giving effect to such Swing Line Loan,
the Swing Line Outstanding exceeds $10,000,000, or (iii) if after giving effect
to such Swing Line Loan, the Dollar Value of Outstanding Credit Obligations
exceeds the Total Revolving Credit Commitment. Loans made pursuant to this
Section 2.16 shall be limited to Loans bearing interest at the Base Rate unless
NationsBank shall agree otherwise.
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(i) On each Business Day, in the absence of contrary
instructions from Greenfield (by telephone confirmed in writing),
NationsBank shall make a Swing Line Loan by funding the Applicable
Borrower's Account with NationsBank through credits to such account to
the extent necessary based on the balance in the account on such day in
order to fund that day's presentments for payment against the account.
Upon each Advance, Greenfield shall be indebted to NationsBank in the
amount of the Advance, plus interest thereon, in accordance with the
terms and conditions hereof.
(ii) Not later than 3:00 P.M. (Charlotte, North Carolina time)
on each Business Day on which Advances under the Swing Line are to be
made, NationsBank shall inform Greenfield by telephone of the amount of
such Advances.
(iii) All Advances made by NationsBank under the Swing Line
pursuant to this Section 2.16 outstanding on any day shall bear
interest at the Base Rate unless NationsBank shall agree otherwise.
(iv) Greenfield and each Lender which is or may become a party
hereto acknowledge that all Swing Line Loans are to be made solely by
NationsBank to Greenfield but that such Lender shall share the risk of
loss with respect to such Swing Line Loans in an amount equal to such
Lender's Applicable Commitment Percentage of such Swing Line Loan. Upon
demand made by NationsBank, each Lender shall, according to its
Lender's Applicable Commitment Percentage of such Swing Line Loan,
promptly provide to NationsBank its purchase price therefor in an
amount equal to its Participation therein. Any Advance made by a Lender
pursuant to demand of NationsBank of the purchase price of its
Participation shall be deemed (A) provided that the conditions to
making Revolving Credit Loans shall be satisfied, a Base Rate Refunding
Loan ending on the next following Business Day, which shall be extended
automatically until Greenfield converts such Base Rate Loan in
accordance with the terms of Section 2.11 hereof, and (B) in all other
cases, the funding by each Lender of the purchase price of its
Participation in such Swing Line Loan. The obligation of each Lender to
so provide its purchase price to NationsBank shall be absolute and
unconditional and shall not be affected by the occurrence of an Event
of Default or any other occurrence or event.
Greenfield at its option may request an Advance as a Revolving Credit
Loan pursuant to Section 2.01 in an amount sufficient to repay any or all Swing
Line Loans on any date and the Agent shall upon the receipt of such Advance,
provide to NationsBank the amount necessary to repay such Swing Line Loan or
Loans (which NationsBank shall then apply to such repayment) and credit any
balance of the Revolving Credit Loan in immediately available funds to the
Applicable Borrower's Account. The proceeds of such Advances shall
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be paid to NationsBank for application to the Swing Line Outstanding and the
Lenders shall then be deemed to have made Revolving Credit Loans in the amount
of such Advances. The Swing Line shall continue in effect until the earlier of
(i) occurrence of a Default, or (ii) the Revolving Credit Termination Date.
2.17 Extension of Reserve Line Termination Date. At the request of
Greenfield, the Lenders may, in their sole discretion and subject to such
additional fees as Lenders may require, elect to extend the Reserve Line
Termination Date then in effect for one additional period of 364 days.
Greenfield shall notify the Agent of its request for such an extension by
delivering to the Agent notice of such request signed by an Authorized
Representative not more than ninety (90) days nor less than thirty (30) days
prior to Reserve Line Termination Date then in effect. If the Lenders shall
elect to so extend, the Agent shall notify Greenfield in writing within twenty
(20) days of its receipt of such request for extension of the decision of the
Lenders of whether to extend the Reserve Line Termination Date. The Agent shall
notify Greenfield of its receipt of notice from any Lender of its decision not
to extend. However, failure by the Agent to give such notice of extension shall
constitute refusal by the Lenders to extend the Reserve Line Termination Date.
2.18 Additional Fees. In addition to any fees described above, the
Borrowers agree to pay to the Agent and NationsBank such other fees as may be
agreed to in a separate writing or writings.
2.19 One Loan. (a) All Loans and Advances by the Lenders to Cirbo or
Kemmer H shall constitute the joint and several general obligation of each of
the Borrowers, payable in the Applicable Currency of such Loan or Advance. Each
Borrower shall be jointly and severally liable to the Agent and the Lenders for
all Foreign Obligations under this Agreement or any other Loan Document,
regardless of whether such Obligations arise as a result of Advances to such
Borrower, it being stipulated and agreed that Advances hereunder to Cirbo or
Kemmer H inure to the benefit of each of the Borrowers, and that the Lenders are
relying on the joint and several liability of the Borrowers with respect to
Foreign Obligations in extending credit hereunder.
(b) Each Borrower guarantees to the Lenders the payment in full (in the
Applicable Currency of each such Obligation) of all of the Foreign Obligations
of the other Borrowers to the Lenders and further guarantees the due performance
by each of Cirbo or Kemmer H of its respective duties and covenants made in
favor of the Agent and the Lenders hereunder. Each Borrower agrees that the
joint and several liability of the Borrowers with respect to the Foreign
Obligations shall not be impaired or affected by any modification, supplement,
extension or amendment of any contract or agreement to which the parties thereto
may hereafter agree, nor by any modification, release or other alteration of any
of the rights of the Agent and the Lenders with respect to any collateral, nor
by any delay, extension of time, renewal, compromise or other
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indulgence granted by the Agent and the Lenders with respect to any of the
Obligations, nor by any other agreements or arrangements whatever with any other
Borrower, and guarantor or any other Person, each Borrower hereby waiving all
notice of any such delay, extension, release, substitution, renewal, compromise
or other indulgence, and hereby consenting to be bound thereby as fully and
effectually as if it had expressly agreed thereto in advance. The liability of
each Borrower with respect to the Foreign Obligations (and of Greenfield with
respect to any Obligations) hereunder is direct and unconditional as to all of
such Obligations hereunder, and may be enforced without requiring the Agent or
the Lenders first to resort to any other right, remedy or security; no Borrower
shall have any right of subrogation, reimbursement or indemnity whatsoever, nor
any right of recourse to security for any of the Obligations, unless and until
all of said Obligations have been paid in full.
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ARTICLE III
Letters of Credit
3.01 Letters of Credit. NationsBank agrees, subject to the terms and
conditions of this Agreement, (a) upon request and for the account of
Greenfield, to issue from time to time Domestic Letters of Credit denominated in
Dollars or any Offshore Currency and (b) upon request and for the account of
either Kemmer H or Cirbo, to issue from time to time Foreign Letters of Credit,
in each case upon delivery to NationsBank of an Application and Agreement for
Letter of Credit in form and content acceptable to NationsBank; provided, that
the Dollar Value of Outstanding Letters of Credit shall not exceed the Total
Letter of Credit Commitment. No Letter of Credit shall be issued by NationsBank
with an expiry date or payment date occurring subsequent to the earlier of (i)
one year after the date of issuance or (ii) the fifth Business Day preceding the
Revolving Credit Termination Date. NationsBank shall not be required to issue
any Letter of Credit if (A) the Dollar Value of Outstanding Credit Obligations
when added to the Dollar Value of any requested Letter of Credit exceeds the
Total Revolving Credit Commitment, or (B) if the face amount of such Letter of
Credit when added to the principal amount of Outstanding Credit Obligations
denominated in the same Applicable Currency exceeds any Applicable Offshore
Currency Commitment. In addition, if the Agent determines at any time (whether
nor not in connection with the issuance of a Letter of Credit) that (y) the
Dollar Value of Outstanding Credit Obligations exceeds the Total Revolving
Credit Commitment or (z) the aggregate principal amount of Outstanding Credit
Obligations in any Applicable Currency exceed an Applicable Offshore Currency
Commitment, then the Borrowers shall (within five (5) Business Days' after any
Borrower's receipt of notice of such determination) repay such Loans and
Outstanding Credit Obligations as are necessary to eliminate such excess.
3.02 Reimbursement.
(a) Greenfield hereby unconditionally agrees immediately to
pay to NationsBank on demand at the Principal Office and in Dollars the Dollar
Equivalent Amount of all amounts required to pay all drafts drawn or purporting
to be drawn under the Letters of Credit and all reasonable expenses incurred by
NationsBank in connection with the Letters of Credit and in any event and
without demand to place in possession of NationsBank (which shall include
Advances under the Revolving Credit Facility if permitted by Section 2.01
hereof) sufficient funds to pay all debts and liabilities arising under any
Letter of Credit. Each Borrower hereby unconditionally agrees immediately to pay
to NationsBank on demand at the Principal Office and in Dollars the Dollar
Equivalent Amount of all amounts required to pay all drafts drawn or purporting
to be drawn under the Foreign Letters of Credit and all reasonable expenses
incurred by NationsBank in connection with the Foreign Letters of Credit and in
any event and without demand to place in possession of NationsBank (which shall
include Advances
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under the Revolving Credit Facility if permitted by Section 2.01 hereof)
sufficient funds to pay all debts and liabilities arising under any Foreign
Letter of Credit. The Borrowers' obligations to pay NationsBank under this
Section 3.02, and NationsBank's right to receive the same, shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever.
NationsBank agrees to give Greenfield (in the case of a Domestic Letter of
Credit) or the Borrowers (in the case of a Foreign Letter of Credit) prompt
written notice of any request for a draw under a Letter of Credit. NationsBank
may charge any account Greenfield may have with it for any and all amounts
NationsBank pays under any Letter of Credit, and NationsBank may charge any
account any Borrower may have with it for any and all amounts NationsBank pays
under a Foreign Letter of Credit, plus, in each case, charges and reasonable
expenses as from time to time agreed to by NationsBank and the applicable
Borrower; provided that to the extent permitted by Section 2.01(d)(v), such
amounts shall be paid pursuant to Swing Line Loans or Advances under the
Revolving Credit Facility. Each Borrower agrees that NationsBank may, in its
sole discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be signed or
issued by an administrator, executor, trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, liquidator, receiver,
attorney in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other documents. Each
Borrower agrees to pay NationsBank interest on any amounts not paid when due
hereunder at the Base Rate plus two percent (2%), or the maximum rate permitted
by applicable law, if lower.
(b) In accordance with the provisions of Section 2.01 hereof,
NationsBank shall notify the Agent (and shall also notify the applicable
Borrower) of any drawing under any Letter of Credit as promptly as practicable
following the receipt by NationsBank of such drawing.
(c) Each Lender (other than NationsBank) shall automatically
acquire on the date of issuance thereof, a Participation in the liability of
NationsBank in respect of each Letter of Credit in an amount equal to such
Lender's Applicable Commitment Percentage of such liability, and to the extent
that any Borrower is obligated to pay NationsBank under Section 3.02(a), each
Lender (other than NationsBank) thereby shall absolutely, unconditionally and
irrevocably assume, and shall be unconditionally obligated to pay to NationsBank
as hereinafter described, its Applicable Commitment Percentage of the liability
of NationsBank under such Letter of Credit. Prior to the Revolving Credit
Termination Date, each Lender (including NationsBank in its capacity as a
Lender) shall, subject to the terms and conditions of Article II, make a
Revolving Credit Loan denominated in Dollars and bearing interest at the Base
Rate to the applicable Borrower by paying to the Agent for the account of
NationsBank at the Principal Office in immediately available funds, an amount
equal to its Applicable Commitment Percentage of the Dollar Equivalent Amount of
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any drawing under a Letter of Credit, all as described and pursuant to Section
2.01(d)(v). With respect to drawings under any of the Letters of Credit, each
Lender, upon receipt from the Agent of notice of a drawing in the manner
described in Section 2.01(d)(v), shall promptly pay to the Agent for the account
of NationsBank, prior to the applicable time set forth in Section 2.01(d)(v),
its Applicable Commitment Percentage of the Dollar Equivalent Amount of such
drawing. Simultaneously with the making of each such payment by a Lender to
NationsBank, such Lender shall, automatically and without any further action on
the part of NationsBank or such Lender, acquire a Participation in an amount
equal to such payment (excluding the portion thereof constituting interest) in
the related Reimbursement Obligation of Greenfield (in the case of Domestic
Letters of Credit) or the Borrowers (in the case of Foreign Letters of Credit).
The Reimbursement Obligations of Greenfield (or the Borrowers, as the case may
be) shall be immediately due and payable in Dollars whether by Advances made in
accordance with Section 2.01(d)(v) or otherwise. Each Lender's obligation to
make payment to the Agent for the account of NationsBank pursuant to this
Section 3.02(c), and the right of NationsBank to receive the same, shall be
absolute and unconditional, shall not be affected by any circumstance whatsoever
and shall be made without any offset, abatement, withholding or reduction
whatsoever. If any Lender is obligated to pay but does not pay amounts to the
Agent for the account of NationsBank in full upon such request as required by
this Section 3.02(c), such Lender shall, on demand, pay to the Agent for the
account of NationsBank interest on the unpaid amount for each day during the
period commencing on the date of notice given to such Lender pursuant to Section
2.01(c) until such Lender pays such amount to the Agent for the account of
NationsBank in full at the interest rate per annum for overnight borrowing by
NationsBank from the Federal Reserve Bank.
(d) As soon as practical following the issuance of a Letter of
Credit, NationsBank shall notify the Agent, and the Agent shall notify each
Lender, of the date of issuance of such Letter of Credit, the Applicable
Currency, stated amount and expiry date of such Letter of Credit, and such
Lender's Applicable Commitment Percentage. Promptly following the end of each
calendar quarter, NationsBank shall deliver to the Agent, and the Agent shall
deliver to each Lender, a notice describing the aggregate undrawn amount of all
Letters of Credit at the end of such quarter. Upon the request of any Lender
from time to time, NationsBank shall deliver to the Agent, and the Agent shall
deliver to such Lender, any other information reasonably requested by such
Lender with respect to each Outstanding Letter of Credit, including a copy of
such Letter of Credit.
(e) The issuance by NationsBank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Section 5.01 hereof,
be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to NationsBank consistent
with the then
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current practices and procedures of NationsBank with respect to similar letters
of credit, the applicable Borrower and Greenfield shall have executed and
delivered such other instruments and agreements relating to such Letters of
Credit as NationsBank shall have reasonably requested consistent with such
practices and procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits, 1993
revision, International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) Without duplication of Section 10.07 hereof, Greenfield
hereby agrees to defend, indemnify and hold harmless NationsBank, each other
Lender and the Agent from and against any and all claims and damages, losses,
liabilities, reasonable costs and expenses which NationsBank, such other Lender
or the Agent may incur (or which may be claimed against NationsBank, such other
Lender or the Agent) by any Person by reason of or in connection with the
issuance or transfer of or payment or failure to pay under any Letter of Credit;
and each Borrower hereby agrees to defend, indemnify and hold harmless
NationsBank, each other Lender and the Agent from and against any and all claims
and damages, loses, liabilities, reasonable costs and expenses which
NationsBank, such other Lender or the Agent may incur (or which may be claimed
against NationsBank, such other Lender or the Agent) by any Person by reason of
or in connection with the issuance or transfer of or payment or failure to pay
under any Foreign Letter of Credit; provided that the Borrowers shall not be
required to indemnify NationsBank, any other Lender or the Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, (i) caused by the willful misconduct or gross negligence of the party to
be indemnified or (ii) caused by the failure of NationsBank to pay under any
Letter of Credit after the presentation to it of a request strictly complying
with the terms and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree. The provisions of this
Section 3.02(f) shall survive repayment of the Obligations, the occurrence of
the Revolving Credit Termination Date and Reserve Line Termination Date, and
expiration or termination of this Agreement.
(g) Without limiting the Borrowers' rights as set forth in
Section 3.02(f) above, the obligation of the Borrowers to immediately reimburse
NationsBank for drawings made under Letters of Credit shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement and such Letters of Credit and the related
applications for any Letter of Credit, under the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of Credit or any other
agreement or instrument relating thereto (collectively, the "Related
Documents");
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(ii) any amendment or waiver of or any consent to or departure
from all or any of the Related Documents;
(iii) the existence of any claim, setoff, defense (other than
the defense of payment in accordance with the terms of this Agreement) or other
rights which any Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any persons or entities for whom any such
beneficiary or any such transferee may be acting), Agent, Lenders or any other
person or entity, whether in connection with the Loan Documents, the Related
Documents or any unrelated transaction;
(iv) any breach of contract or other dispute between any
Borrower and any beneficiary or any transferee of a Letter of Credit (or any
persons or entities for whom such beneficiary or any such transferee may be
acting), Agent, Lenders or any other Person;
(v) any draft, statement or any other document presented under
the Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect whatsoever;
(vi) any delay, extension of time, renewal, compromise or other
indulgence or modification granted or agreed to by Agent, with or without
notice to or approval by any Borrower in respect of any of a Borrower's
Obligations under this Agreement; or
(vii) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing;
provided, however, that nothing contained herein shall be deemed to release
NationsBank or any other Lender of any liability for actual loss arising as a
result of its gross negligence or willful misconduct or out of the wrongful
dishonor by NationsBank of a proper demand for payment made under and strictly
complying with the terms of any Letter of Credit.
3.03 Letter of Credit Fee. Greenfield agrees to pay (i) to the Agent,
for the pro rata benefit of the Lenders based on their Applicable Commitment
Percentages, a fee on the Dollar Value of the aggregate average daily amount
available to be drawn on each Outstanding Domestic Letter of Credit at a rate
equal to the Applicable Interest Addition to the Eurodollar Revolver Rate as in
effect from time to time and (ii) to NationsBank, as issuer of each Domestic
Letter of Credit, an issuance fee equal to one-eighth of one percent (.125%) of
the Dollar Value of the aggregate amount available to be drawn on each
Outstanding Domestic Letter of Credit. Each Borrower agrees to pay (y) to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the Dollar Value of the aggregate average daily
amount available to be drawn on each Outstanding Foreign Letter of Credit at a
rate equal to the Applicable Interest Addition to the Eurodollar Revolver Rate
as in effect from time to time and (z) to NationsBank, as issuer of each Foreign
Letter of
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Credit, an issuance fee equal to one-eighth of one percent (.125%) of the Dollar
Value of the aggregate amount available to be drawn on each Outstanding Foreign
Letter of Credit. The fees described in clauses (i) and (y) above shall be due
and payable with respect to each Letter of Credit quarterly in arrears on the
last day of each December, March, June and September commencing on the first
such date following the date of issuance of such Letter of Credit. The fees
described in clauses (ii) and (z) above with respect to a Letter of Credit shall
be due and payable in full, and shall be deemed fully earned, on the date of
issuance of such Letter of Credit. All fees described in this Section 3.03 shall
be calculated on the basis of a year of 360 days for the actual number of days
elapsed, and shall be payable in Dollars.
3.04 Administrative Fees. The Borrowers shall pay to NationsBank such
administrative fee and other fees, if any, in connection with the Letters of
Credit in such amounts and at such times as NationsBank and the Borrowers shall
agree from time to time.
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ARTICLE IV
Yield Protection and Illegality
4.01 Additional Costs. (a) Greenfield shall promptly pay to the Agent
for the account of a Lender from time to time, without duplication, such amounts
as such Lender may determine to be necessary to compensate it for any costs
incurred by such Lender which it determines are attributable to its making or
maintaining any Loan (whether in Dollars or any Offshore Currency) or its
obligation to make any Loans, or the issuance or maintenance by NationsBank of
or any other Lender's Participation in any Letter of Credit issued hereunder, or
any reduction in any amount receivable by such Lender under this Agreement, the
Notes or the Letters of Credit in respect of any of such Loans or such
obligation or the Letters of Credit, including reductions in the rate of return
on a Lender's capital (such increases in costs and reductions in amounts
receivable and returns being herein called "Greenfield Additional Costs"), and
each Borrower shall promptly pay to the Agent for the account of a Lender from
time to time, without duplication, such amounts as such Lender may determine to
be necessary to compensate it for any costs incurred by such Lender which it
determines are attributable to its making or maintaining any Foreign Revolving
Credit Loan (whether in Dollars or any Offshore Currency) or its obligation to
make any Foreign Revolving Credit Loans, or the issuance or maintenance by
NationsBank of or any other Lender's Participation in any Foreign Letter of
Credit issued hereunder, or any reduction in any amount receivable by such
Lender under this Agreement, the Foreign Revolving Credit Notes or the Foreign
Letters of Credit in respect of any of such Foreign Revolving Credit Loans or
such obligation or the Foreign Letters of Credit, including reductions in the
rate of return on a Lender's capital (such increases in cost and reductions in
amounts receivable and returns, together with the Greenfield Additional Costs,
being herein called "Additional Costs"), in each case resulting from any
Regulatory Change which: (i) changes the basis of taxation of any amounts
payable to such Lender under this Agreement or the Notes in respect of any of
such Loans or Letters of Credit (other than taxes imposed on or measured by the
income, revenues or assets of any Lender); or (ii) imposes or modifies any
reserve, special deposit, monetary control or similar requirements relating to
any extensions of credit or other assets of, or any deposits with or other
liabilities of, such Lender (other than any such reserve, deposit or requirement
reflected in the Prime Rate, the Federal Funds Effective Rate or the Eurodollar
Rate, in each case computed in accordance with the respective definitions of
such terms set forth in Section 1.01 hereof); or (iii) has or would have the
effect of reducing the rate of return on capital of any such Lender to a level
below that which the Lender could have achieved but for such Regulatory Change
(taking into consideration such Lender's policies with respect to capital
adequacy); or (iv) imposes any other condition adversely affecting the Agent or
the Lenders under this Agreement, the Notes or the issuance or maintenance of,
or any Lender's Participation in, the Letters of Credit (or any of such
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extensions of credit or liabilities). Each Lender will notify the Authorized
Representative and the Agent of any event occurring after the Effective Date
which would entitle it to compensation pursuant to this Section 4.01(a) as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation.
(b) Without limiting the effect of the foregoing provisions of this
Section 4.01, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
the Lender which includes deposits by reference to which the interest rate on
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of any Lender which includes Eurodollar
Loans (by way of illustration only and not limitation, an increase in reserve
requirements on a Lender's eurodollar deposit liabilities above a specified
dollar amount percentage of its capital) or (ii) becomes subject to restrictions
on the amount of such a category of liabilities or assets which it may hold,
then, if the Lender so elects by notice to the other Lenders, the obligation
hereunder of such Lender to make, and to convert Base Rate Loans into,
Eurodollar Loans that are the subject of such restrictions shall be suspended
until the date such Regulatory Change ceases to be in effect and the applicable
Borrowers shall, on the last day(s) of the then current Interest Period(s) for
outstanding Eurodollar Loans (A) convert such Eurodollar Loans that are
denominated in Dollars into Base Rate Loans, and (B) repay such Eurodollar Loans
that are Offshore Currency Loans; provided, however, that the suspension of such
obligation and the conversion of any Eurodollar Loans into Base Rate Loans or
repayment of Eurodollar Loans shall apply only to any Lender who is affected by
such restrictions and who has provided such notice to the other Lenders, and the
obligation of the other Lenders to make, and to convert Base Rate Loans into
Eurodollar Loans shall not be affected by such restrictions. In the event that
the obligation of some, but not all of the Lenders to make, or to convert Base
Rate Loans into Eurodollar Loans is suspended, then any request by the Borrowers
during the pendency of such suspension for a Eurodollar Loan shall be deemed a
request for such Eurodollar Loan from the Lender(s) not subject to such
suspension and for a Base Rate Loan from the Lender(s) who are subject to such
suspension, in each case in the respective amounts based on the Lenders'
respective Revolving Credit Commitments and Reserve Line Commitments, as
applicable.
(c) Determinations by any Lender for purposes of this Section 4.01 of
the effect of any Regulatory Change on its costs of making or maintaining, or
being committed to make, Loans or by NationsBank as issuer of any Letter of
Credit of the effect of any Regulatory Change on its costs in connection with
the issuance or maintenance of, or any other Lender's Participation in, any
Letter of Credit issued hereunder, or on amounts receivable by any Lender in
respect of Loans or Letters of Credit, and of the additional amounts
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required to compensate the Lender in respect of any Additional Costs, shall be
made on a reasonable basis taking into account such Lender's reasonable policies
as to the allocation of capital, costs and other items. The Lender requesting
such compensation shall furnish to the Authorized Representative and the Agent
an explanation of the Regulatory Change and calculations, in reasonable detail,
setting forth such Lender's determination of any such Additional Costs.
4.02 Suspension of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any interest rate for
any Eurodollar Loan for any Interest Period, the Agent determines (which
determination made on a reasonable basis shall be conclusive absent manifest
error) that:
(a) quotations of interest rates for the relevant deposits
referred to in the definition of a Eurodollar Rate in Section 1.01
hereof are not being provided in the relevant amounts or for the
relevant maturities for purposes of determining the rate of interest
for such Eurodollar Loan as provided in this Agreement; or
(b) the relevant rates of interest referred to in the
definition of "Eurodollar Rate" in Section 1.01 hereof upon the basis
of which the Eurodollar Rate for such Interest Period is to be
determined do not adequately reflect the cost to the Lenders of making
or maintaining such Eurodollar Loan for such Interest Period or such
Eurodollar Loan (which determination shall be made on a reasonable
basis by the Agent, and the Person making such determination shall
furnish the Authorized Representative evidence of the facts leading to
such determination);
then the Agent shall give the Authorized Representative prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make Eurodollar Loans that are subject to such condition, or to
convert Loans into Eurodollar Loans, and the applicable Borrowers shall on the
last day(s) of the then current Interest Period(s) for outstanding Eurodollar
Loans, as applicable, (i) convert such Eurodollar Loans into another Eurodollar
Loan which is not subject to the same or similar condition, or (ii) (in the case
of Dollar-denominated Loans) convert such Eurodollar Loans into Base Rate Loans,
or (iii) (in the case of Offshore Currency Loans) repay such Loans. The Agent
shall give the Authorized Representative notice describing in reasonable detail
any event or condition described in this Section 4.02 promptly following the
determination by the Agent that the availability of Eurodollar Loans is, or is
to be, suspended as a result thereof.
4.03 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender to honor its obligation to
make or maintain Eurodollar Loans hereunder, then such Lender shall promptly
notify Greenfield
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thereof (with a copy to the Agent) and such Lender's obligation to make or
continue Eurodollar Loans, or convert Base Rate Loans into Eurodollar Loans,
shall be suspended until such time as such Lender may again make and maintain
Eurodollar Loans, and such Lender's outstanding Eurodollar Loans denominated in
Dollars shall be converted into Base Rate Loans in accordance with Section 2.11
hereof, and the Borrowers shall repay to such Lender all outstanding Offshore
Currency Loans owed to such Lender (together with all accrued interest thereon)
at the end of the respective Interest Period.
4.04 Compensation. Greenfield (with respect to any Loans) and each
Borrower (with respect to any Foreign Revolving Credit Loans) shall promptly pay
to each Lender, upon the request of such Lender, such amount or amounts as shall
be sufficient (in the reasonable determination of Lender) to compensate it for
any loss, cost or expense incurred by it as a result of:
(a) any payment, prepayment or conversion of a Eurodollar Loan
or Competitive Bid Loan on a date other than the last day of the
Interest Period for such Eurodollar Loan or Competitive Bid Loan,
including without limitation any conversion required pursuant to this
Article IV;
(b) any failure by any Borrower to borrow a Eurodollar Loan on
the date for such borrowing specified in the relevant Borrowing Notice
or interest rate selection notice under Article II hereof; or
(c) any failure by Greenfield to borrow a Competitive Bid Loan
on the date for such borrowing specified in the relevant Competitive
Bid Quote (if and to the extent Greenfield has previously accepted such
Competitive Bid Quote in accordance with Article II hereof);
such compensation to include, without limitation, an amount equal to the excess,
if any, of (i) the amount of interest which would have accrued on the principal
amount so paid, prepaid or converted or not borrowed for the period from the
date of such payment, prepayment or conversion or failure to borrow or convert
to the last day of the then current Interest Period for such Loan (or, in the
case of a failure to borrow or convert, the Interest Period for such Loan which
would have commenced on the date scheduled for such borrowing or conversion) at
the applicable rate of interest for such Loan provided for herein over (ii) (A)
in the case of a Eurodollar Loan, the Eurodollar Rate (as reasonably determined
by the Agent) for deposits in the Applicable Currency of amounts comparable to
such principal amount and maturities comparable to such period, or (B) in the
case of a Competitive Bid Loan, the interest rate (as reasonably determined by
such Lender) which the applicable Lender is able to earn by re-lending such
principal amount for a period comparable to such period. A determination of a
Lender as to the amounts payable pursuant to this Section 4.04 shall be
conclusive, provided that such determinations are made on
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a reasonable basis. The Lender requesting compensation under this Section 4.04
shall furnish to the Authorized Representative and the Agent calculations in
reasonable detail setting forth such Lender's determination of the amount of
such compensation.
4.05 Alternate Loan and Lender. In the event any Lender suspends the
making of any Eurodollar Loan pursuant to this Article IV (herein a "Restricted
Lender"), the Restricted Lender's Applicable Commitment Percentage of any
Eurodollar Loan shall bear interest at either the Eurodollar Rate for which the
suspension does not apply or (in the case of Dollar-denominated Loans) the Base
Rate, as selected by the applicable Borrower, until the Restricted Lender once
again makes available the applicable Eurodollar Loan. Notwithstanding the
provisions of Section 2.03(b), interest shall be payable to the Restricted
Lender at the time and manner as paid to those Lenders making available
Eurodollar Loans.
4.06 Taxes. (a) All payments by any Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future excise, stamp
or other taxes, fees, duties, levies, imposts, charges, deductions, withholdings
or other charges of any nature whatsoever imposed by any taxing authority, but
excluding (i) franchise taxes, (ii) any taxes (other than withholding taxes)
that would not be imposed but for a connection between a Lender or the Agent and
the jurisdiction imposing such taxes (other than a connection arising solely by
virtue of the activities of such Lender or the Agent pursuant to or in respect
of this Agreement or any other Loan Document), (iii) any withholding taxes
payable with respect to payments hereunder or under any other Loan Document
under laws (including, without limitation, any statute, treaty, ruling,
determination or regulation) in effect on the Closing Date, provided however
this subsection (iii) shall not include (A) withholding taxes after the date
hereof as a consequence of the change in the applicable tax treaty to eliminate
any applicable exemption contained in such tax treaty as in effect on the date
hereof from the obligation to pay such withholding taxes, or (B) withholding
taxes arising because the applicable taxing authorities do not accept the
exemption or clearance application of any Lender or Agent, except that
indemnification shall not be required under this clause (B) to the extent that
such withholding taxes give rise to offsetting tax benefits for such Lender,
such Agent or the respective Affiliates of such Lender or such Agent, (iv) any
taxes imposed on or measured by any Lender's assets, net income, receipts or
branch profits and (v) any taxes arising after the Closing Date solely as a
result of or attributable to a Lender changing its designated lending office
after the date such Lender becomes a party hereto (such non-excluded items being
collectively called "Taxes"). Each Lender and Agent will use its reasonable best
efforts to cause the applicable taxing authorities to accept its respective
exemption or clearance applications. In the event that any withholding or
deduction from any payment to be made by any Borrower hereunder is required in
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respect of any Taxes pursuant to any applicable law, rule or regulation, then
such Borrower will
(A) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(B) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(C) pay to the Agent for the account of the Lender such
additional amount or amounts as is necessary to ensure that the net
amount actually received by each Lender will equal the full amount such
Lender would have received had no such withholding or deduction been
required; provided, however that such Borrower shall not be required to
pay any such additional amount or amounts with respect to the net
amount received by any Lender that has failed to comply with the
requirements of Section 4.06(b), (c) or (d).
(b) Prior to the date that any Lender or participant organized under
the laws of a jurisdiction outside the United States becomes a party hereto,
such Person shall deliver to each of Greenfield and the Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes. Each Lender which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of Greenfield and the Agent two additional copies
of such form (or a successor form) on or before the date that such form expires
(currently, three successive calendar years for Form 1001 and one calendar year
for Form 4224) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by Greenfield or the Agent, in each case certifying that such Lender
is entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless an
event (including, without limitation, any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises Greenfield and the Agent that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax.
(c) Prior to the date that any Lender or participant organized under
the laws of jurisdiction outside the United Kingdom becomes a party hereto, such
Person shall deliver to each of Greenfield and the Agent such certificates,
documents or other evidence, as required by applicable law, properly completed,
currently effective and duly executed by such Lender or participant
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establishing that such payment is not subject to withholding tax of the United
Kingdom under applicable law.
(d) Prior to the date that any Lender or participant organized under
the laws of jurisdiction outside Germany becomes a party hereto, such Person
shall deliver to each of Greenfield and the Agent such certificates, documents
or other evidence, as required by applicable law, properly completed, currently
effective and duly executed by such Lender or participant establishing that such
payment is not subject to German withholding tax under applicable law.
(e) The Agent shall have no responsibility for ensuring compliance by
any Lender or participant with this Section 4.06. The Lenders and any applicable
participant agree to indemnify the Agent from and against any and all
liabilities, obligations, losses, demands, penalties, actions, judgments, suits,
costs, expenses or disbursements (including without limitation any withholding
taxes or backup withholding taxes) (collectively, "Claims") which may at any
time be imposed on, incurred by or asserted against the Agent, any Lender or any
participant arising out of the failure of any Lender or participant to comply
with Section 4.06(b), (c) or (d). The applicable Lender and any applicable
participant agree to indemnify every other Lender against any and all Claims
(including claims for indemnification by the Agent) pursuant to this paragraph
which may at any time be imposed on, incurred by or assorted against any such
Lender arising out of the failure of the applicable Lender or any of its
participants to comply with Section 4.06(b), (c) or (d).
(f) If the applicable Borrower fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Agent, for the account of
the respective Lender, the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.06, a distribution hereunder by the
Agent or any Lender to or for the account of any Lender shall be deemed a
payment by the Borrowers.
4.07 Unavailability of Offshore Currency.
(a) Suspension of Obligations. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any Lender to honor
its obligation to make Loans (or for NationsBank to issue Letters of Credit) in
any Offshore Currency, or any Lender fails to have access to any Offshore
Currency on terms reasonably acceptable to such Lender, then such Lender shall
promptly notify the Borrowers thereof (with a copy to the Agent) (a "Suspension
Notice") and the obligation of any Lender to make Loans denominated in such
Offshore Currency, and the obligation of NationsBank to issue Letters of Credit
in such Offshore Currency, shall be suspended until such time as each Lender may
again make Loans (and NationsBank may again issue Letters of Credit) in such
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Offshore Currency. Nothing contained in this Section 4.07 shall suspend any
obligations of the Lenders to make Revolving Credit Loans or payments
denominated in Dollars pursuant to Section 3.02(c).
(b) Mandatory Assignment. In the event that any Lender delivers a
Suspension Notice to the Borrowers and the Agent pursuant to clause (a) above,
then, subject to Section 11.01 of this Agreement, and provided that no Default
or Event of Default has occurred and is continuing, the Borrowers may, at their
own expense, require such Lender to assign all or (with such Lender's consent)
part of its rights and obligations under this Agreement (except for rights to be
indemnified for actions taken while a party hereunder) to a replacement bank or
financial institution if the Borrowers can identify a Person who is ready,
willing and able to be such replacement bank or institution with respect thereto
and such replacement bank or institution (which may be another Lender) shall
assume such assigned obligations, provided, however, that (y) subject to Section
11.01 hereof, the Borrowers or such replacement bank or institution, as the case
may be, shall have paid to such Lender in immediately available funds the
principal of and interest accrued to the date of such payment on the Loans made
by it hereunder and all other amounts owed to it hereunder and (z) such
assignment of the rights and obligations of such Lender does not conflict with
any law, rule or regulation or order of any court or Governmental Authority.
4.08 Alternate Lending Installation. If at the time a Lender becomes a
party hereto or any time thereafter, such Lender has, acquires or establishes a
branch or office in Germany or the United Kingdom, such Lender shall designate
such branch or office as its office for making Eurodollar Loans in such country,
if such designation would (a) reduce the liability of the Borrowers to such
Lender under Sections 4.01 or 4.02, or (b) avoid any unavailability of
Eurodollar Loans under Sections 4.02, 4.03 or 4.07, provided that such Lender
shall not be required to make such designation if such designation would be
unlawful or unreasonably burdensome to such Lender, or would impose additional
costs on such Lender.
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ARTICLE V
Conditions to Making Loans and Issuing
Letters of Credit
5.01 Conditions of Initial Advance and Issuance of Letters of Credit.
The obligation of the Lenders to make the initial Advance and of NationsBank to
issue the Letters of Credit is subject to the conditions precedent that the
Agent shall have received on or before the Effective Date, in form and substance
satisfactory to the Agent and Lenders, the following:
(a) executed originals of each of this Agreement, the Notes
and the other Loan Documents (including executed by each Guarantor),
together with all schedules and exhibits thereto;
(b) favorable written opinions of special counsel to the
Borrowers and the Guarantors (other than Guarantors organized under the
laws of Mexico or Canada), dated the Closing Date, addressed to the
Agent and the Lenders and satisfactory to Smith Helms Mulliss & Moore,
L.L.P., special counsel to the Agent, substantially in the forms of
Exhibits L-1, L-2, L-3 and L-4 attached hereto;
(c) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee thereof) of
each of the Borrowers and each of the Guarantors certified by its
secretary or assistant secretary or other appropriate official as of
the Closing Date, appointing (in the case of the Borrower) the
Authorized Representative and approving and adopting the Loan Documents
to be executed by such Person, and authorizing the execution and
delivery thereof;
(d) specimen signatures of officers of each Borrower and each
Guarantor executing the Loan Documents on behalf of such Person,
certified by the secretary or assistant secretary or other appropriate
official of such Borrower or Guarantor, as applicable;
(e) the charter documents or documents of establishment of
each Borrower and each Guarantor certified as of a recent date by the
Secretary of State or other appropriate Governmental Authority of its
jurisdiction of incorporation;
(f) the by-laws of each Borrower and, to the extent the same
exist, each Guarantor certified as of the Closing Date as true and
correct by the secretary or assistant secretary of the Person to whom
such by-laws relate;
(g) certificates issued as of a recent date by the Secretary
of State or other appropriate Governmental Authority of its
jurisdiction of incorporation as to the due existence and good standing
of each Borrower and each Guarantor therein;
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(h) appropriate certificates of qualification to do business,
good standing and, where appropriate, authority to conduct business
under assumed name, issued in respect of each Borrower and each
Guarantor as of a recent date by the Secretary of State or other
appropriate Governmental Authority of each jurisdiction in which the
failure to be qualified to do business or authorized so to conduct
business could materially adversely affect the business, operations or
conditions, financial or otherwise, of any Borrower or any Guarantor;
(i) notice of appointment of the initial Authorized
Representative of the Borrowers in the form of Exhibit C hereto to the
extent any change is requested by Borrower;
(j) certificate of an Authorized Representative dated the
Effective Date demonstrating compliance with the financial covenants
contained in Sections 8.01 through 8.05 as of the immediately preceding
Determination Date, substantially in the form of Exhibit M attached
hereto;
(k) evidence of insurance required by the Loan Documents with
respect to Greenfield and the Domestic Subsidiaries;
(l) Borrowing Notice;
(m) all fees payable by the Borrowers on the Effective Date to
the Agent, NationsBank and the Lenders;
(n) evidence satisfactory to the Agent of the payment in full
and termination of each of the Existing Credit Facility and the
Existing FC Facility;
(o) stock certificates representing 65% of all issued and
outstanding capital stock of Cirbo, Kemmer H and RTW Limited, in each
case with stock powers executed in blank or evidence (satisfactory to
the Agent) of any other filings, registrations or actions as may be
necessary or appropriate to ensure the enforceability, perfection and
first priority of the Lien of the Agent (on behalf of the Lenders) in
such stock (except that, the foregoing notwithstanding, the stock
certificates for Cirbo and RTW Limited may be delivered within 60 days
after the Closing Date, as set forth in Section 5.03(b) below); and
(p) such other documents, instruments, certificates and
opinions as the Agent or any Lender may reasonably request on or prior
to the Effective Date in connection with the consummation of the
transactions contemplated hereby.
5.02 Conditions of Loans. The obligations of the Lenders to make any
Loans, and NationsBank to issue Letters of Credit hereunder on or subsequent to
the Effective Date are subject to the satisfaction of the following conditions:
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(a) the Agent shall have received a notice of such borrowing
or request if required by Article II hereof;
(b) the representations and warranties of each Borrower and
each Guarantor set forth in Article VI hereof and in each of the other
Loan Documents shall be true and correct in all material respects on
and as of the date of such Advance or issuance of such Letters of
Credit, as the case may be, with the same effect as though such
representations and warranties had been made on and as of such date,
except to the extent that such representations and warranties expressly
relate to an earlier date and except that the financial statements
referred to in Section 6.01(f)(i) shall be deemed to be those financial
statements most recently delivered to the Agent and the Lenders
pursuant to Section 7.01 hereof;
(c) in the case of the issuance of a Letter of Credit, the
applicable Borrower shall have executed and delivered to NationsBank an
Application and Agreement for Letter of Credit in form and content
acceptable to NationsBank together with such other instruments and
documents as it shall request;
(d) at the time of each such Advance, Swing Line Loan or
issuance of each Letter of Credit, as the case may be, no Default or
Event of Default specified in Article IX hereof, shall have occurred
and be continuing;
(e) immediately after giving effect to a Swing Line Loan, the
aggregate Swing Line Outstanding shall not exceed $10,000,000;
(f) immediately after giving effect to a Loan or Letter of
Credit:
(i) the aggregate Dollar Value of all outstanding
Revolving Credit Loans for each Lender shall not exceed the
Revolving Credit Commitment of such Lender;
(ii) the aggregate principal amount of outstanding
Reserve Line Loans for each Lender shall not exceed the
Reserve Line Commitment of such Lender;
(iii) the aggregate Dollar Value of Participations
for each Lender with respect to Outstanding Letters of Credit
shall not exceed the Letter of Credit Commitment of such
Lender;
(iv) the Dollar Value of Outstanding Credit
Obligations shall not exceed the Total Revolving Credit
Commitment;
(v) the aggregate principal amount of all outstanding
Reserve Line Loans shall not exceed the Total Reserve Line
Commitment; and
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(vi) the Dollar Value of Outstanding Letters of Credit
shall not exceed the Total Letter of Credit Commitment.
5.03 Additional Post-Closing Conditions.
(a) Within 90 days after the Closing Date, the Borrowers shall
deliver to the Agent and the Lenders, favorable written opinion of
special counsel to the Guarantors organized under the laws of Mexico or
Canada, such opinions to be addressed to the Agent and the Lenders and
in form and substance satisfactory to Smith Helms Mulliss & Moore,
L.L.P., substantially in the form of Exhibit L-4 attached hereto.
(b) Within 60 days after the Closing Date, the Borrower shall
deliver to the Agent, stock certificates representing 65% of all issued
and outstanding capital stock of Cirbo and RTW Limited, in each case
with stock powers executed in blank or evidence (satisfactory to the
Agent) of any other filings, registrations or actions as may be
necessary or appropriate to ensure the enforceability, perfection and
first priority of the Lien of the Agent (on behalf of the Lenders) in
such stock.
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ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties. Each Borrower represents and
warrants with respect to itself and to each of the other Subsidiaries (which
representations and warranties shall survive the delivery of the documents
mentioned herein and the making of Loans and issuance of Letters of Credit),
that:
(a) Organization and Authority.
(i) each Borrower and each other Subsidiary is a
corporation duly organized and validly existing under the laws
of the jurisdiction of its incorporation or creation;
(ii) each Borrower and each other Subsidiary (x) has
the requisite power and authority to own its properties and
assets and to carry on its business as now being conducted and
as contemplated in the Loan Documents, and (y) is qualified to
do business in every jurisdiction in which failure so to
qualify would have a material adverse effect on the business
or operations of any Borrower or any Subsidiary;
(iii) each Borrower has the power and authority to
execute, deliver and perform this Agreement and the Notes, and
to borrow hereunder, and to execute, deliver and perform each
of the other Loan Documents to which it is a party;
(iv) each Guarantor has the power and authority to
execute, deliver and perform the Guaranty and the other Loan
Documents to which it is a party; and
(v) when executed and delivered, each of the Loan
Documents to which any Borrower or any Guarantor is a party
will be the legal, valid and binding obligation or agreement,
as the case may be, of such Borrower or Guarantor, enforceable
against such Borrower or Guarantor in accordance with its
terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity which may
limit the availability of equitable remedies (whether in a
proceeding at law or in equity);
(b) Loan Documents. The execution, delivery and performance by
each Borrower and each Guarantor of each of the Loan Documents to which
a Borrower or a Guarantor is a party:
(i) have been duly authorized by all requisite corporate
action (including any required shareholder approval) of such Borrower
or Guarantor signatory thereto
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required for the lawful execution, delivery and performance
thereof;
(ii) do not violate any provisions of (1) applicable
law, rule or regulation, (2) any order of any court or other
agency of government binding on any Borrower or any Guarantor,
or their respective properties, or (3) the charter documents,
documents of creation or by-laws of any Borrower or any
Guarantor;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default, or an event
which, with notice or lapse of time, or both, would constitute
an event of default, under any indenture, agreement or other
instrument to which any Borrower or any Guarantor is a party,
or by which the properties or assets of any Borrower or any
Guarantor are bound;
(iv) will not result in the creation or imposition of
any Lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of any Borrower, or any
Guarantor except any liens, charges and encumbrances in favor
of the Agent and the Lenders created by the Loan Documents.
(c) Solvency. Each Borrower and each Guarantor are Solvent
after giving effect to the transactions contemplated by this Agreement
and the other Loan Documents.
(d) Subsidiaries and Stockholders. No Borrower has any
Subsidiaries other than those Persons listed as Subsidiaries in
Schedule 6.01(d) hereto; Schedule 6.01(d) to this Agreement states as
of the date hereof the authorized and issued capitalization of each
Subsidiary listed thereon, the number of shares or other equity
interests of each class of capital stock or interest issued and
outstanding of each such Subsidiary and the number and/or percentage of
outstanding shares or other equity interest (including options,
warrants and other rights to acquire any interest) of each such class
of capital stock or equity interest owned by any Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of
each such Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable; and each Borrower and each such
Subsidiary owns beneficially and of record all the shares and other
interests it is listed as owning in Schedule 6.01(d), free and clear of
any Lien, other than Liens in favor of the Agent and the Lenders
pursuant to the Cirbo Pledge Agreement, the Kemmer Pledge Agreement and
the RTW Pledge Agreement.
(e) Ownership Interests. No Borrower owns any interest in any
Person having an aggregate book value of $100,000 or more other than
the Persons listed in Schedule 6.01(d) hereto;
(f) Financial Condition. (i) Greenfield has heretofore
furnished to each Lender an audited consolidated balance sheet
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of Greenfield and its Subsidiaries as at December 31, 1995 and the
notes thereto and the related consolidated statements of operations,
cash flows, and changes in stockholders' equity for the Fiscal Year
then ended as examined and certified by Price Waterhouse L.L.P. and
unaudited interim consolidated financial statements of Greenfield and
its Subsidiaries consisting of consolidated balance sheets and related
consolidated statements of operations, cash flows and changes in
stockholders' equity, in each case without notes, for and as of the end
of the third fiscal quarter of the Fiscal Year beginning January 1,
1996, as certified by an Authorized Representative. Except as set forth
therein, such financial statements (including the notes thereto)
present fairly the financial condition of Greenfield and its
Subsidiaries as of the end of such Fiscal Year and third fiscal quarter
and results of their operations and the changes in their stock holders'
equity for the Fiscal Year and quarter then ended, all in conformity
with Generally Accepted Accounting Prin ciples applied on a Consistent
Basis, subject however, in the case of unaudited interim statements to
year end adjustments;
(ii) since September 30, 1996, there has been no material
adverse change in the condition, financial or otherwise, of Greenfield
and its Subsidiaries or in the businesses, properties and operations of
Greenfield and its Subsidiaries, considered as a whole, nor have such
businesses or properties, taken as a whole, been materially adversely
affected as a result of any fire, explosion, earthquake, accident,
strike, lockout, combination of workers, flood, embargo or act of God;
(iii) except as set forth in the financial statements referred
to in Section 6.01(f)(i) or in Schedule 6.01(f) or Schedule 6.01(j)
attached hereto, neither Greenfield nor any Subsidiary has incurred,
other than in the ordinary course of business, any material
indebtedness, obligations, commitments or other liability contingent or
otherwise which remain outstanding or unsatisfied;
(g) Title to Properties. The Borrowers and the Subsidiaries
have title to all their respective owned real and personal properties,
subject to no transfer restrictions or Liens of any kind, except for
(x) the transfer restrictions and Liens described in Schedule
6.01(g)-Liens attached hereto, and (y) Liens permitted under Section
8.07 hereof;
(h) Taxes. The Borrowers and the Subsidiaries have filed or
caused to be filed all federal, state, local and foreign tax returns
which are required to be filed by them and except for taxes and
assessments being contested in good faith and against which reserves
satisfactory to Greenfield's independent certified public accountants
have been established, have paid or caused to be paid all taxes as
shown on said returns or on any assessment received by them, to the
extent that such taxes have become due;
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(i) Other Agreements. Neither any Borrower nor any other
Subsidiary is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions materially
adversely affecting the business, properties or assets,
operation or condition (financial or otherwise) of any
Borrower or of any other Subsidiary; or
(ii) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which any Borrower
or any other Subsidiary is a party, which default has, or if
not remedied within any applicable grace period could have, a
material adverse effect on the business, operations or
condition, financial or otherwise, of any Borrower or any
other Subsidiary;
(j) Litigation. Except as set forth in Schedule 6.01(j)
attached hereto, there is no action, suit or proceeding at law or in
equity or by or before any governmental instrumentality or agency or
arbitral body pending, or, to the knowledge of any Borrower, threatened
by or against any Borrower or any other Subsidiary or affecting any
Borrower or any other Subsidiary or any properties or rights of any
Borrower or any other Subsidiary, which could reasonably be expected to
materially adversely affect the financial condition, business or
operations of any Borrower or any other Subsidiary;
(k) Margin Stock. Neither any Borrower nor any other
Subsidiary owns any "margin stock" as such term is defined in
Regulation U, as amended (12 C.F.R. Part 221), of the Board. The
proceeds of the borrowings made pursuant to Article II hereof will be
used by the Borrowers and the other Subsidiaries only for the purposes
set forth in Section 2.15 hereof. None of such proceeds will be used,
directly or indirectly, for the purpose of purchasing or carrying any
margin stock or for the purpose of reducing or retiring any
Indebtedness which was originally incurred to purchase or carry margin
stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said
Regulation U or Regulation X (12 C.F.R. Part 224) of the Board. Neither
any Borrower nor any agent acting in its behalf has taken or will take
any action which might cause this Agreement or any of the documents or
instruments delivered pursuant hereto to violate any regulation of the
Board or to violate the Securities Exchange Act of 1934, as amended, or
the Securities Act of 1933, as amended, or any state securities laws,
in each case as in effect on the date hereof;
(l) Investment Company. Neither any Borrower nor any other
Subsidiary is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as
such terms are defined in the
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Investment Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et
seq.). The application of the proceeds of the Loans and repayment
thereof by the Borrowers and the performance by the Borrowers of the
transactions contemplated by this Agreement will not violate any
provision of said Act, or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder, in each case as in
effect on the date hereof;
(m) Patents, Etc. The Borrowers and the other Subsidiaries own
or have the right to use, under valid license agreements or otherwise,
all material patents, licenses, franchises, trademarks, trademark
rights, trade names, trade name rights, trade secrets and copyrights
necessary to the conduct of their businesses as now conducted, without
known conflict with any patent, license, franchise, trademark, trade
secrets and confidential commercial or proprietary information, trade
name, copyright, rights to trade secrets or other proprietary rights of
any other Person;
(n) No Untrue Statement. Neither this Agreement nor any other
Loan Document or certificate or document executed and delivered by or
on behalf of any Borrower or any Guarantor in accordance with or
pursuant to any Loan Document contains any misrepresentation or untrue
statement of material fact or omits to state a material fact necessary,
in light of the circumstance under which it was made, in order to make
any such representation or statement contained therein not misleading
in any material respect;
(o) No Consents, Etc. Neither the respective businesses or
properties of any Borrower or any other Subsidiary, nor any
relationship between any Borrower or any other Subsidiary and any other
Person, nor any circumstance in connection with the execution, delivery
and performance of the Loan Documents and the transactions contemplated
hereby is such as to require a consent, approval or authorization of,
or filing, registration or qualification with, any Governmental
Authority or other authority or any other Person on the part of any
Borrower or any other Subsidiary as a condition to the execution,
delivery and performance of, or consummation of the transactions
contemplated by, this Agreement or the other Loan Documents or if so,
such consent, approval, authorization, filing, registration or
qualification has been obtained or effected, as the case may be;
(p) Benefit Plans.
(i) None of the employee benefit plans maintained at
any time by any Borrower or any other Subsidiary or the trusts created
thereunder has engaged in a prohibited transaction or violated any
Foreign Benefit Law which could subject any such employee benefit plan
or trust to a material tax or penalty on prohibited transactions
imposed under Internal Revenue Code Section 4975 or ERISA or under any
Foreign Benefit Law;
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(ii) None of the employee benefit plans maintained at
any time by any Borrower or any other Subsidiary which are employee
pension benefit plans and which are subject to Title IV of ERISA or any
Foreign Benefit Law or the trusts created thereunder has been
terminated so as to result in a material liability of any Borrower
under ERISA or under any Foreign Benefit Law nor has any such employee
benefit plan of any Borrower or any other Subsidiary incurred any
material liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA or any other Person exercising similar
duties and functions under any Foreign Benefit Law, other than for
required insurance premiums which have been paid or are not yet due and
payable; neither any Borrower nor any other Subsidiary has withdrawn
from or caused a partial withdrawal to occur with respect to any
Multi-employer Plan resulting in any assessed and unpaid withdrawal
liability; the Borrowers and the Subsidiaries have made or provided for
all contributions to all such employee pension benefit plans which they
maintain and which are required as of the end of the most recent fiscal
year under each such plan; neither any Borrower nor any other
Subsidiary has incurred any accumulated funding deficiency with respect
to any such plan, whether or not waived; nor has there been any
reportable event, or other event or condition, which presents a
material risk of termination of any such employee benefit plan by such
Pension Benefit Guaranty Corporation or any other Person exercising
similar duties and functions under any Foreign Benefit Law;
(iii) Except as set forth in Schedule 6.01(p), the
present value of all vested accrued benefits under the employee pension
benefit plans which are subject to Title IV of ERISA or any Foreign
Benefit Law, maintained by any Borrower or any other Subsidiary, did
not, as of the most recent valuation date for each such plan, exceed
the then current value of the assets of such employee benefit plans
allocable to such benefits;
(iv) The consummation of the Loans and the issuance
of the Letters of Credit provided for in Article II and Article III
will not involve any prohibited transaction under ERISA or any Foreign
Benefit Law which is not subject to a statutory or administrative
exemption;
(v) To the best of each Borrower's knowledge, each
employee pension benefit plan subject to Title IV of ERISA or any
Foreign Benefit Law, maintained by any Borrower or any other
Subsidiary, has been administered in accordance with its terms in all
material respects and is in compliance in all material respects with
all applicable requirements of ERISA and other applicable laws,
regulations and rules and any applicable Foreign Benefit Law;
(vi) There has been no material withdrawal liability
incurred and unpaid with respect to any Multi-employer Plan to which
any Borrower or any other Subsidiary is or was a contributor;
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(vii) As used in this Agreement, the terms "employee
benefit plan," "employee pension benefit plan," "accumulated funding
deficiency," "reportable event," and "accrued benefits" shall have the
respective meanings assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in Code Section 4975
and ERISA;
(viii) Except as set forth in Schedule 6.01(p),
neither any Borrower nor any other Subsidiary has any liability not
disclosed on any of the financial statements furnished to the Lenders
pursuant to Section 7.01(f) hereof, contingent or otherwise, under any
plan or program or the equivalent for unfunded post-retirement
benefits, including pension, medical and death benefits, which
liability would have a material adverse effect on the financial
condition of any Borrower or any other Subsidiary.
(q) No Default. As of the date hereof, there does not exist
any Default or Event of Default hereunder;
(r) Hazardous Materials. Except as set forth in Schedule
6.01(r), each Borrower and each other Subsidiary is in compliance with
all applicable Environmental Laws in all material respects and neither
any Borrower nor any other Subsidiary has been notified of any action,
suit, proceeding or investigation which calls into question compliance
by any Borrower or any other Subsidiary with any Environmental Laws or
which seeks to suspend, revoke or terminate any license, permit or
approval necessary for the generation, handling, storage, treatment or
disposal of any Hazardous Material;
(s) RICO. Neither any Borrower nor any other Subsidiary is
engaged in or has engaged in any course of conduct that could subject
any of their respective properties to any Lien, seizure or other
forfeiture under any criminal law, racketeer influenced and corrupt
organizations law, civil or criminal, or other similar laws;
(t) Employment Matters. Except as disclosed on Schedule
6.01(j) hereto, the Borrowers and all other Subsidiaries are in
compliance in all material respects with all applicable laws, rules and
regulations pertaining to labor or employment matters, including
without limitation those pertaining to wages, hours, occupational
safety and taxation the noncompliance with which might have a material
adverse effect on the business, operations or financial condition of
any Borrower or any other Subsidiary (a "Material Adverse Effect") and
there is neither pending nor, to the knowledge of any Borrower,
threatened any litigation, administrative proceeding or investigation,
in respect of such matters, an adverse ruling or determination in which
could have a Material Adverse Effect.
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ARTICLE VII
Affirmative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, each Borrower will and will
cause each other Subsidiary to:
7.01 Financial Reports, Etc. (a) as soon as practical and in any event
within 90 days after the end of each Fiscal Year of Greenfield, deliver or cause
to be delivered to the Agent and each Lender (i) the consolidated balance sheet
of Greenfield and its Subsidiaries, with the notes thereto, the related
consolidated statements of operations, cash flows, and changes in stockholders'
equity and the respective notes thereto for such Fiscal Year, setting forth in
comparative financial statements for the preceding Fiscal Year, all prepared in
accordance with Generally Accepted Accounting Principles applied on a Consistent
Basis and containing opinions of Price Waterhouse L.L.P., or other such
independent certified public accountants selected by Greenfield and approved by
the Agent, which are unqualified as to the scope of the audit performed and as
to the "going concern" status of Greenfield; and (ii) a certificate of an
Authorized Representative as to the existence of any Default or Event of Default
and demonstrating compliance with Sections 8.01, 8.02, 8.03, 8.04 and 8.05 of
this Agreement, which certificate shall be in the form attached hereto as
Exhibit M;
(b) as soon as practical and in any event within 45 days after the end
of each quarterly period (except the last reporting period of the Fiscal Year),
deliver to the Agent and each Lender (i) the consolidated balance sheet of
Greenfield and its Subsidiaries, as of the end of such reporting period, the
related consolidated statements of operations, cash flows, and changes in
stockholders' equity for such reporting period and for the period from the
beginning of the Fiscal Year through the end of such reporting period,
accompanied by a certificate of an Authorized Representative to the effect that
such financial statements present fairly the financial position of Greenfield
and its Subsidiaries as of the end of such reporting period and the results of
their operations and the changes in their financial position for such reporting
period, in conformity with the standards set forth in Section 6.01(f)(i) with
respect to interim financials, and (ii) a certificate of an Authorized
Representative as to the existence of any Default or Event of Default and
containing computations for such quarter comparable to that required pursuant to
Section 7.01(a)(ii);
(c) together with each delivery of the financial statements required by
Section 7.01(a)(i) hereof, deliver to the Agent and each Lender a letter from
Greenfield's accountants specified in Section 7.01(a)(i) hereof stating that in
performing the audit
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necessary to render an opinion on the financial statements delivered under
Section 7.01(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrowers in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date of such
statement remains uncured); and if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) promptly upon their becoming available to any Borrower, each
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Greenfield or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by any Borrower to its shareholders, bondholders or the financial
community in general, and (iii) any management letter or other report submitted
to any Borrower or any of the Subsidiaries by independent accountants in
connection with any annual, interim or special audit of any Borrower or any of
the Subsidiaries; and
(e) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding each Borrower's and
each Subsidiary's operations, business affairs and financial condition as the
Agent or such Lender may reasonably request. The Agent and the Lenders are
hereby authorized to deliver a copy of any such financial information delivered
hereunder to the Lenders (or any affiliate of any Lender) or to the Agent, to
any regulatory authority having jurisdiction over any of the Lenders pursuant to
any written request therefor, or, subject to Section 11.01(e) hereof, to any
other Person who shall acquire or consider the acquisition of a participation
interest in or assignment of any Loan or Letter of Credit permitted by this
Agreement.
7.02 Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition (ordinary wear and tear excepted)
and make all needed repairs, replacements and renewals as are necessary to
conduct its business in accordance with customary business practices.
7.03 Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and all
material rights and franchises, trade names, trademarks and permits, except to
the extent conveyed in connection with a transaction permitted under Section
8.08 or 8.10 hereof, and maintain its license or qualification to do business as
a foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary, except where the failure to maintain such license or
qualification could not reasonably be expected to have a Material Adverse
Effect.
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7.04 Regulations and Taxes. Comply with or contest in good faith all
statutes and governmental regulations and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, might become a Lien against any of its properties except
liabilities being contested in good faith and against which adequate reserves
have been established.
7.05 Insurance. (i) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards as are customarily insured against by similar
businesses owning such properties similarly situated, (ii) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property having such
limits, deductibles, exclusions and co-insurance and other provisions providing
no less coverage than that specified in Schedule 7.05 attached hereto, such
insurance policies to be in form satisfactory to the Agent, and (iii) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes). Each of the policies of insurance described in this
Section 7.05 shall provide that the insurer shall give the Agent not less than
thirty (30) days' prior written notice before any such policy shall be
terminated, lapse or be altered in any material manner.
7.06 True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions in
accordance with customary business practices, and set up on its books such
reserves as may be required by Generally Accepted Accounting Principles with
respect to doubtful accounts and all taxes, assessments, charges, levies and
claims and with respect to its business in general, and include such reserves in
interim as well as year-end financial statements.
7.07 Pay Indebtedness to Lenders and Perform Other Covenants. (a) Make
full and timely payment of the principal of and interest on the Notes and all
other Obligations whether now existing or hereafter arising; and (b) duly comply
with all the terms and covenants contained in all Loan Documents and other
instruments and documents given to the Agent or the Lenders pursuant hereto or
thereto.
7.08 Right of Inspection. Permit any Person designated by any Lender or
the Agent at the Lender's or Agent's expense, as the case may be, to visit and
inspect any of the properties, corporate books and financial reports of the
Borrowers and the other Subsidiaries, and to discuss their respective affairs,
finances and accounts with their principal officers and independent certified
public accountants, all at reasonable times, at reasonable intervals and with
reasonable prior notice.
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7.09 Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
regulatory authority with respect to the conduct of its business the
non-compliance with which might have a Material Adverse Effect.
7.10 Covenants Extending to Subsidiaries. Cause each of the other
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrowers in Sections 7.02 through 7.09, inclusive.
7.11 Officer's Knowledge of Default. Upon the Chairman, any Vice
Chairman, the President, any Vice President, the Treasurer or any Assistant
Treasurer of any Borrower, or any Director of Cirbo or any Geschaftsfuhrer of
Kemmer H obtaining knowledge of any Default or Event of Default hereunder or
under any other obligation of any Borrower or any other Subsidiary, cause such
officer or an Authorized Representative to promptly notify the Agent of the
nature thereof, the period of existence thereof, and what action the Borrowers
propose to take with respect thereto.
7.12 Suits or Other Proceedings. Upon the Chairman, any Vice Chairman,
the President, any Vice President, the Treasurer or any Assistant Treasurer of
any Borrower obtaining knowledge of any litigation or other proceedings being
instituted against any Borrower or any other Subsidiary, or any attachment,
levy, execution or other process being instituted against any assets of any
Borrower or any other Subsidiary, in an aggregate amount greater than $2,000,000
not otherwise covered by insurance, promptly deliver to the Agent written notice
thereof stating the nature and status of such litigation, dispute, proceeding,
levy, execution or other process.
7.13 Notice of Discharge of Hazardous Material or Environmental
Complaint. Promptly provide to the Agent true, accurate and complete copies of
any and all notices, complaints, orders, directives, claims, or citations
received by any Borrower or any other Subsidiary relating to any material (a)
violation or alleged violation by any Borrower or any other Subsidiary of any
applicable Environmental Laws or OSHA; (b) release or threatened release by any
Borrower or any other Subsidiary of any Hazardous Material, except where
occurring legally; or (c) liability or alleged liability of any Borrower or any
other Subsidiary for the costs of cleaning up, removing, remediating or
responding to a release of Hazardous Materials.
7.14 Environmental Compliance. If any Borrower or any other Subsidiary
shall receive notice from any Governmental Authority that any Borrower or any
other Subsidiary has violated any applicable Environmental Laws, the Borrowers
shall promptly (and in any event within the time period permitted by the
applicable Governmental Authority) remove or remedy, or cause the applicable
Subsidiary to remove or remedy, such violation.
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7.15 Indemnification. Each Borrower hereby agrees to defend, indemnify
and hold the Agent and the Lenders, and their respective officers, directors,
employees and agents, harmless from and against any and all claims, losses,
liabilities, damages and expenses (including, without limitation, cleanup costs
and reasonable attorneys' fees) arising directly or indirectly from, out of or
by reason of the handling, storage, treatment, emission or disposal of any
Hazardous Material by or in respect of any Borrower or any other Subsidiary or
property owned or leased or operated by any Borrower or any other Subsidiary.
The provisions of this Section 7.15 shall survive repayment of the Obligations,
occurrence of the Revolving Credit Termination Date and Reserve Line Termination
Date, and expiration or termination of this Agreement.
7.16 Further Assurances. At its cost and expense, upon request of the
Agent, duly execute and deliver or cause to be duly executed and delivered, to
the Agent such further instruments, documents, certificates, agreements,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement and the other Loan Documents.
7.17 Benefit Plans. Comply in all material respects with all
requirements of ERISA and any Foreign Benefit Law applicable to it and furnish
to the Agent as soon as possible and in any event (i) within thirty (30) days
after any Borrower knows or has reason to know that any reportable event or
other event under any Foreign Benefit Law with respect to any employee benefit
plan maintained by any Borrower or any other Subsidiary which could give rise to
termination or the imposition of any material tax or penalty has occurred,
written statement of an Authorized Representative describing in reasonable
detail such reportable event or such other event and any action which the
applicable Borrower or applicable Subsidiary proposes to take with respect
thereto, together with a copy of the notice of such reportable event given to
the Pension Benefit Guaranty Corporation or to any other applicable Person
exercising similar duties and functions under any Foreign Benefit Law or a
statement that said notice will be filed with the annual report of the United
States Department of Labor with respect to such plan if such filing has been
authorized, (ii) promptly after receipt thereof, a copy of any notice that any
Borrower or any other Subsidiary may receive from the Pension Benefit Guaranty
Corporation or from any other Person exercising similar duties and functions
under any Foreign Benefit Law relating to the intention of the Pension Benefit
Guaranty Corporation or any such Person to terminate any employee benefit plan
or plans of any Borrower or any other Subsidiary or to appoint a trustee to
administer any such plan, and (iii) within 10 days after a filing with the
Pension Benefit Guaranty Corporation pursuant to Section 412(n) of the Code or
with any Person pursuant to any Foreign Benefit Law of a notice of failure to
make a required installment or other payment with respect to a plan, a
certificate of an Authorized Representative
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setting forth details as to such failure and the action that the affected
Borrower or Subsidiary, as applicable, proposes to take with respect thereto,
together with a copy of such notice given to the Pension Benefit Guaranty
Corporation or to such Person.
7.18 Continued Operations. Continue at all times (i) to conduct its
business and engage principally in the same or complementary line or lines of
business substantially as heretofore conducted (subject to the right to dispose
of assets in transactions permitted under Section 8.08 hereof), and (ii)
preserve, protect and maintain free from Liens (other than Liens permitted under
Section 8.07 hereof) its material patents, copyrights, licenses, trademarks,
trademark rights, trade names, trade name rights, trade secrets and know-how
necessary or useful in the conduct of its operations.
7.19 Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Section 2.15 hereof.
7.20 New Subsidiaries. (a) Simultaneously with the acquisition or
creation of any Subsidiary, or upon any previously existing Persons becoming a
Subsidiary, cause to be delivered to the Agent for the benefit of the Lenders
each of the following:
(i) (A) if such Subsidiary is a Domestic Subsidiary, a
guarantee agreement executed by such Domestic Subsidiary in the form
delivered to the Agent on the Closing Date by the Guarantors which are
Domestic Subsidiaries, with appropriate insertions of identifying
information and such other changes to which the Agent may consent in
its discretion; (B) if such Subsidiary is a Foreign Subsidiary, a
guarantee executed by such Foreign Subsidiary in the form delivered to
the Agent on the Closing Date by the Guarantors which are Foreign
Subsidiaries, with appropriate insertions of identifying information
and such other changes to which the Agent may consent in its
discretion; and (C) if such Subsidiary is a Foreign Subsidiary owned in
whole or in part directly by Greenfield or by any Domestic Subsidiary,
a Pledge Agreement executed by Greenfield or such Domestic Subsidiary
(as the case may be), pursuant to which Greenfield or such Domestic
Subsidiary pledges to the Agent (for the benefit of itself and the
Lenders) the lesser of (i) all of the issued and outstanding shares of
capital stock of such Foreign Subsidiary owned by it or (ii) sixty-five
percent (65%) of the total number of all issued and outstanding shares
of capital stock of such Foreign Subsidiary, such Agreement to be in
substantially the form of the Pledge Agreements delivered on the
Closing Date, with appropriate changes and insertions to reflect the
respective Subsidiaries and applicable law; and Greenfield or such
Domestic Subsidiary shall also deliver to the Agent such other
certificates and stock powers (executed in blank), effect such
registrations, and take such other actions as the Agent may request to
ensure the enforceability,
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perfection and first priority of the Agent's Lien in such stock;
(ii) subject to subsection (b) hereof, an opinion of counsel
to such Subsidiary dated as of the date of delivery of the guarantee
agreement provided in the foregoing clause (i) and addressed to the
Agent and the Lenders, in form and substance reasonably acceptable to
the Agent (which opinion may include assumptions and qualifications of
similar effect to those contained in the opinions of counsel delivered
pursuant to Section 5.01 hereof), to the effect that:
(A) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
organization, has the requisite power and authority to own its
properties and conduct its business as then owned and then
proposed to be conducted and is duly qualified to transact
business and is in good standing as a foreign corporation in
each other jurisdiction in which the character of the
properties owned or leased, or the business carried on by it,
requires such qualification; and
(B) the execution, delivery and performance of the
guarantee agreement and Pledge Agreement described in clause
(i) of this Section 7.20 have been duly authorized by all
requisite corporate action (including any required shareholder
or partner approval), such agreements have been duly executed
and delivered and constitute valid and binding obligations of
the Subsidiary and the owner(s) of the issued and outstanding
capital stock of the Subsidiary, enforceable against the
Subsidiary and the owner(s) of the issued and outstanding
capital stock of the Subsidiary in accordance with their
terms, subject to the effect of any applicable bankruptcy,
moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity which may
limit the availability of equitable remedies (whether in a
proceeding at law or in equity); and
(C) as to Foreign Subsidiaries only, such additional
opinions with respect to such matters as were furnished by
counsel to the Foreign Subsidiaries as of the Closing Date
(with such variations as shall be acceptable to the Agent);
and
(D) as to Foreign Subsidiaries described in Section
7.20(a)(i)(C) (and their stockholders), additional opinions
acceptable to the Agent confirming the perfection and
enforceability of the Agent's security interest in any stock
subject to a Pledge Agreement; and
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(iii) current copies of the charter documents, including any
bylaws of such Subsidiary, minutes of duly called and conducted
meetings (or duly effected consent actions) of the Board of Directors,
or appropriate committees thereof (and, if required by such charter
documents, bylaws or by applicable laws, of the shareholders or
partners) of such Subsidiary authorizing the actions and the execution
and delivery of documents described in clause (i) of this Section 7.20
and evidence satisfactory to the Agent (confirmation of the receipt of
which will be provided by the Agent to the Lenders) that such
Subsidiary is Solvent as of such date and after giving effect to the
guaranty.
(b) Notwithstanding the provisions of subsection (a) of this
Section 7.20, a Subsidiary shall not be required to comply with
subsection (a)(ii) of this Section 7.20 (an "Exempt Subsidiary"), until
the consolidated book value of assets owned by such Exempt Subsidiary
and its Subsidiaries exceeds $25,000,000; provided, however, if at any
time Greenfield shall have Exempt Subsidiaries who have not complied
with subsection (a)(ii) and the aggregate of the consolidated book
values of assets of such Exempt Subsidiaries (and their respective
Subsidiaries) exceeds $50,000,000, the Borrowers shall immediately
cause one or more of such Exempt Subsidiaries to comply fully with
subsection (a)(ii) of this Section 7.20 in order that the aggregate of
the consolidated book values of assets of all Exempt Subsidiaries (and
their respective Subsidiaries) does not exceed $50,000,000.
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ARTICLE VIII
Negative Covenants
Until the Obligations have been paid and satisfied in full and this
Agreement has been terminated in accordance with the terms hereof, unless the
Required Lenders shall otherwise consent in writing, each Borrower will not, nor
will it permit any other Subsidiary to:
8.01 Consolidated Net Worth. Permit Consolidated Net Worth to be less
than (i) $285,000,000 at the Closing Date through December 30, 1996, and (ii) as
at December 31, 1996 and the last day of each succeeding fiscal quarter of
Greenfield and until (but excluding) the last day of the next following fiscal
quarter of Greenfield, the sum of (A) the amount of Consolidated Net Worth
required to be maintained pursuant to this Section 8.01 as at the end of the
immediately preceding fiscal quarter, plus (B) 100% of the proceeds (reduced
only by actual payments of reasonable, out of pocket issuance expenses) of each
sale of equity interests (or securities other than those constituting
Indebtedness exchangeable, convertible or exercisable into equity interests) in
any Borrower or any Subsidiary, plus (C) 50% of Consolidated Net Income greater
than -0- during the immediately preceding fiscal quarter of Greenfield ending on
such day (including in Consolidated Net Income for purposes of this Section 8.01
only any net gain or credit of an extraordinary nature).
8.02 Indebtedness for Money Borrowed to Total Capitalization. Permit as
at the last day of any fiscal quarter of Greenfield, the ratio of (i)
Consolidated Indebtedness for Money Borrowed to (ii) Consolidated Total
Capitalization to be greater than 0.65 to 1.00.
8.03 Consolidated Fixed Charge Ratio. Permit at any time the
Consolidated Fixed Charge Ratio to be less than 2.50 to 1.00.
8.04 Capital Expenditures. Make or become committed to make in any
Fiscal Year, commencing with the Fiscal Year 1996, any Capital Expenditure
(other than the costs of Permitted Acquisitions effected in accordance with
Section 8.09(ii) hereof) if, after giving effect to such Capital Expenditure,
the sum (without duplication) of all Capital Expenditures in such Fiscal Year
(other than the costs of Permitted Acquisitions effected in accordance with
Section 8.09(ii) hereof) exceeds $50,000,000 (provided that amounts not expended
in any Fiscal Year may not be carried forward for expenditure in any later
Fiscal Year);
8.05 Indebtedness for Money Borrowed to EBITDA. Permit as at the last
day of any Four-Quarter Period of Greenfield (each, a "Determination Date"), the
ratio of (i) Consolidated Indebtedness for Money Borrowed as of the
Determination Date to (ii) Consolidated EBITDA for such Four-Quarter Period of
Greenfield to be greater than 3.50 to 1.00.
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8.06 Indebtedness. Incur, create, assume or permit to exist
any Indebtedness of any Subsidiary (other than Cirbo or Kemmer H),
howsoever evidenced, except
(i) Indebtedness existing as of the date hereof and as set
forth in Schedule 8.06 attached hereto and incorporated herein by
reference;
(ii) Indebtedness owed the Agent or the Lenders in connection
with this Agreement or any Swap Agreement;
(iii) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
and
(iv) Indebtedness, in addition to that described in Section
8.06 (i) through (iii), of an aggregate outstanding amount not to
exceed fifteen percent (15%) of Consolidated Total Capitalization from
time to time.
8.07 Liens. Incur, create or permit to exist any pledge, Lien, charge
or other encumbrance of any nature whatsoever with respect to any property or
assets (including without limitation any common stock or preferred stock) now
owned or hereafter acquired by any Borrower or any other Subsidiary, other than
(i) Liens existing as of the date hereof and as set forth in
Schedule 6.01(g) attached hereto;
(ii) Liens imposed by law for taxes, assessments or charges
of any Governmental Authority for claims not yet due or which are
being contested in good faith by appropriate proceedings diligently
pursued and with respect to which adequate reserves or other
appropriate provisions are being maintained in accordance with
Generally Accepted Accounting Principles;
(iii) Liens in respect of purchase money indebtedness in
connection with the acquisition of tangible property permitted to be
incurred pursuant to Section 8.06(iv) hereof; provided that (a) the
original principal balance of the indebtedness secured by such Lien
constitutes not less than 75% of the purchase price of the property
acquired and (b) such Lien extends only to the property acquired with
the proceeds of the indebtedness so secured;
(iv) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
120 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves or other appropriate provisions
are being
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maintained in accordance with Generally Accepted Accounting Principles;
(v) Liens incurred or deposits made in the ordinary course
of business (including, without limitation, surety bonds and appeal
bonds) in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure
the performance of tenders, bids, leases, contracts (other than for
the repayment of Indebtedness), statutory obligations and other
similar obligations or arising as a result of progress payments under
government contracts;
(vi) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not recorded), which
do not interfere materially with the ordinary conduct of the business
of any Borrower or any other Subsidiary and which do not materially
detract from the value of the property to which they attach or
materially impair the use thereof to any Borrower or any other
Subsidiary; and
(vii) Liens on property having a fair market value not
exceeding fifteen percent (15%) of Consolidated Net Worth.
8.08 Transfer of Assets. Except as otherwise permitted under Sections
8.09 and 8.10 hereof, sell, lease, transfer or otherwise dispose of (i) any
equity interest in any Guarantor, or (ii) any other asset of any Borrower or any
Subsidiary which has a book value or sales price in excess of $5,000,000.
8.09 Investments; Acquisitions. Purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities or all or
substantially all of the assets, or make or permit to exist any interest
whatsoever in any other Person or permit to exist any loans or advances to any
Person; provided, the Borrowers and the other Subsidiaries may maintain
investments or invest in or acquire
(i) Eligible Securities;
(ii) all or substantially all of the stock or other equity
interests, or all or substantially all of the assets of another Person
(or a line of business or division of such other Person) constituting a
Permitted Acquisition provided that: (A) if the Cost of Acquisition
exceeds $15,000,000, not less than fifteen (15) days prior to any such
acquisition an Authorized Representative shall deliver to the Agent and
the Lenders financial statements prepared on a Pro Forma Basis and the
certificate described in the definition of "Permitted Acquisition" in
Section 1.01 hereof demonstrating such acquisition is a Permitted
Acquisition and (B) if a new
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subsidiary is acquired or created in connection therewith, the
Borrowers and such Subsidiary shall comply with the provisions of
Section 7.20 hereof;
(iii) investments existing as of the date hereof and as set
forth in Schedule 6.01(d) attached hereto;
(iv) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss; and
(v) loans and advances to and investments in Domestic
Subsidiaries that are Guarantors; and Cirbo, Kemmer H or any Foreign
Subsidiary that is a Guarantor may maintain investments or invest in or
acquire loans and investments in other Foreign Subsidiaries that are
Guarantors; and
(vi) loans and advances to and investments in Persons other
than Guarantors in an aggregate outstanding amount not exceeding at any
time $5,000,000.
8.10 Merger or Consolidation. Other than as permitted under Section
8.09(ii) hereof (provided that each Borrower shall survive any such transaction)
(a) Consolidate with or merge into any other Person, or (b) permit any other
Person to merge into it, or (c) liquidate, wind-up or dissolve or sell, transfer
or lease or otherwise dispose of all or a substantial part of its assets (other
than sales in the ordinary course of business); provided, however, (i) any
Subsidiary (other than Cirbo or Kemmer H) of Greenfield may merge or transfer
all or substantially all of its assets into or consolidate with any directly or
indirectly wholly-owned Domestic Subsidiary of Greenfield, (ii) any Foreign
Subsidiary (other than Cirbo or Kemmer H) of Greenfield may merge or transfer
all or substantially all of its assets into or consolidate with any directly or
indirectly wholly-owned Foreign Subsidiary of Greenfield, and (iii) any Person
(other than Greenfield or a Subsidiary) may merge with Greenfield or any
Subsidiary if Greenfield or such Subsidiary shall be the survivor thereof and
such merger shall not cause, create or result in the occurrence of any Default
or Event of Default hereunder; provided further that, the foregoing
notwithstanding, (A) no Guarantor may merge or transfer assets into or
consolidate with any Subsidiary that is not then a Guarantor (other than a
Borrower); and (B) if any Foreign Subsidiary merges or consolidates with a
Domestic Subsidiary that is a Guarantor, the Domestic Subsidiary shall be the
survivor of such merger or consolidation; and provided further that if a
Guarantor (the "Transferor") merges or transfers all of its assets into or
consolidates with any Guarantor or Borrower (the "Transferee") and the
Transferee is the survivor of such merger or consolidation and the recipient of
all such assets, then the Guaranty of the Transferor may be terminated, without
the consent of the Required Lenders, so long as the Transferee's Guaranty (or
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the Transferee's Obligations as a Borrower) remain in full force and effect
after the consummation of such merger, transfer or consolidation.
8.11 Transactions with Affiliates. Other than transactions permitted
under Sections 8.08, 8.09 and 8.10 hereof, enter into any transaction after the
date hereof, including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of any Borrower, except (a) that such Persons may render services
to the Borrowers or the other Subsidiaries for compensation at the same rates
generally paid by Persons engaged in the same or similar businesses for the same
or similar services and (b) in the ordinary course of and pursuant to the
reasonable requirements of any Borrower's (or any other Subsidiary's) business
consistent with past practice of the Borrowers and the other Subsidiaries and
upon fair and reasonable terms no less favorable to any Borrower (or any such
Subsidiary) than would be obtained in a comparable arm's-length transaction with
a Person not an Affiliate.
8.12 Benefit Plans. With respect to all employee pension benefit plans
maintained by any Borrower or any other Subsidiary:
(i) terminate any of such employee pension benefit plans so as
to incur any liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA or to any other Person exercising similar
duties and functions under any Foreign Benefit Law, except for any such
liability not exceeding $10,000,000 in the aggregate;
(ii) allow or suffer to exist any prohibited transaction
involving any of such employee pension benefit plans or any trust
created thereunder which would subject any Borrower or any other
Subsidiary to a tax or penalty or other liability (a) on prohibited
transactions imposed under Internal Revenue Code Section 4975 or ERISA
or (b) under any Foreign Benefit Law;
(iii) fail to pay to any such employee pension benefit plan
any contribution which it is obligated to pay under the terms of such
plan;
(iv) except as set forth in Schedule 6.01(p), allow or suffer
to exist any accumulated funding deficiency in violation of ERISA or
any Foreign Benefit Law with respect to any such employee pension
benefit plan;
(v) allow or suffer to exist any occurrence of a reportable
event or any other event or condition, which presents a material risk
of termination by the Pension Benefit Guaranty Corporation, or to any
other Person exercising similar duties and functions under any Foreign
Benefit Law, of any such employee pension benefit plan that is a Single
Employer Plan, which termination could result in any liability
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(a) to the Pension Benefit Guaranty Corporation or (b) under any
Foreign Benefit Law;
(vi) incur any material withdrawal liability with respect to
any Multi-employer Plan; or
(vii) allow, suffer to exist, or seek to cause any trustee to
be appointed under Title IV of ERISA (or fail within a reasonable
period to contest any proceedings to appoint a trustee) to administer
or to terminate, any Single Employer Plan, which appointment or
proceedings is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Single Employer Plan for
purposes of Title IV of ERISA.
8.13 Fiscal Year. Change its Fiscal Year.
8.14 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into Greenfield permitted
pursuant to Section 8.10, and except for the dissolution of Rule Corporation.
8.15 Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except in regard to Indebtedness evidenced by the Notes,
the aggregate notional amount of such outstanding Rate Hedging Obligations in no
event to exceed a notional amount of $100,000,000 in the aggregate.
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ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan or Reimbursement Obligation, when and as
the same shall be due and payable whether pursuant to any provision of
Article II or Article III hereof, at maturity, by acceleration or
otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan or of any fees or other amounts
payable to the Lenders, the Agent or NationsBank under the Loan
Documents on the date on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Sections 7.06, 7.07(a), 7.11 (other than a
default in the performance of Section 7.11 by the Chairman or Vice
Chairman of Greenfield), 7.19 or Article VIII hereof;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or any
Borrower becomes aware of such default, or if a default shall be made
in the performance or observance of, or shall occur under, any
covenant, agreement or provision contained in any of the other Loan
Documents (beyond any applicable grace period, if any, contained
therein) or in any instrument or document evidencing or creating any
obligation, guaranty, or Lien in favor of the Agent or the Lenders or
delivered to the Agent or the Lenders in connection with or pursuant to
this Agreement or any of the Obligations, or if any Loan Document
ceases to be in full force and effect (other than by reason of any
action by the Agent), or if without the written consent of the Agent,
this Agreement or any other Loan Document shall be disaffirmed or shall
terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than in accordance with
its terms in the absence of default or by reason of any action by the
Agent or any Lender); or
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(e) if a default shall occur, which is not waived, (i) in the
payment of any principal, interest, premium or other amounts with
respect to any Indebtedness (other than the Loans) of any Borrower or
of any other Subsidiary in an amount not less than $1,000,000 in the
aggregate outstanding, or (ii) in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness may have
been issued, created, assumed, guaranteed or secured by any Borrower or
any other Subsidiary, and (A) such term or covenant is material and
such default shall continue for more than the period of grace, if any,
therein specified, or (B) such default shall permit the holder of any
such Indebtedness to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained herein or any other Loan Document or in any writing,
certificate, report or statement at any time furnished to the Agent or
any Lender by or on behalf of any Borrower or any Guarantor pursuant to
or in connection with this Agreement or the other Loan Documents, or
otherwise, shall be false or misleading in any material respect when
given or made or deemed given or made; or
(g) if any Borrower or any other Subsidiary shall be unable to
pay its debts generally as they become due; file a petition to take
advantage of any insolvency, reorganization, bankruptcy, receivership
or similar law, domestic or foreign; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute,
federal, state or foreign; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of any Borrower or any other Subsidiary or of
the whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against any Borrower or
any other Subsidiary seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other applicable law or
statute of the United States of America or any state or foreign
country, province or other political subdivision, which petition is not
dismissed within sixty (60) days; or if, under the provisions of any
other law for the relief or aid of debtors, a court of competent
jurisdiction shall assume custody or control of any Borrower or any
other Subsidiary or of the whole or any substantial part of its
properties, which control is not relinquished within sixty (60) days;
or if there is commenced against any Borrower or
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any other Subsidiary any proceeding or petition seeking reorganization,
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state or foreign country, province or other political subdivision which
proceeding or petition remains undismissed for a period of sixty (60)
days; or if any Borrower or any other Subsidiary takes any action to
indicate its consent to or approval of any such proceeding or petition;
or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is
in excess of $1,000,000 is rendered against any Borrower or any other
Subsidiary, or (ii) there is any attachment, injunction or execution
against any of a Borrower's or any other Subsidiary's properties for
any amount in excess of $1,000,000; and such judgment, attachment,
injunction or execution remains unpaid, unstayed, undischarged,
unbonded or undismissed for a period of sixty (60) days; or
(j) if any Borrower or any other Subsidiary shall, other than
as permitted under Section 8.10 hereof or in the ordinary course of
business (as determined by past practices), suspend (other than for a
period not to exceed twenty (20) days by reason of force majeure) all
or any part of its operations material to the conduct of the business
of any Borrower or such Subsidiary, taken as a whole; or if any
Borrower or any other Subsidiary shall change the basic nature of its
business;
(k) if any Borrower or any other Subsidiary shall breach any
of the terms or conditions of any agreement under which any Rate
Hedging Obligation permitted pursuant to Section 8.15 is created and
such breach shall continue beyond any grace period, if any, relating
thereto pursuant to the terms of such Obligation, or any Borrower or
any other Subsidiary shall disaffirm or seek to disaffirm any such
agreement or any of its Obligations thereunder; or
(l) if any Person or group of Persons other than the owners,
if any, of more than 30% of the outstanding voting securities of
Greenfield as of the Closing Date having voting rights in the election
of directors, shall own or control, directly or indirectly, more than
30% of the outstanding securities (on a fully diluted basis and taking
into account any voting securities or contract rights exercisable,
exchangeable or convertible into equity securities) of Greenfield
having voting rights in the election of directors;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
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(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders to make
further Loans or issue Letters of Credit terminated, whereupon
the obligation of each Lender to make further Loans or issue
Letters of Credit, hereunder shall terminate immediately, and
(ii) the Agent shall at the direction of the Required Lenders,
at their option, declare by notice to the Borrowers any or all
of the Obligations to be immediately due and payable, and the
same, including all interest accrued thereon and all other
obligations of the Borrowers to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to lend and issue Letters of Credit
hereunder shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the
necessity of any action by the Agent or the Required Lenders
or notice to the Agent or the Lenders;
(B) The Borrowers shall, upon demand of the Agent or
the Required Lenders, deposit cash (in the Applicable Currency
of each respective Letter of Credit) with the Agent in
accordance with the LC Account Agreements in an amount equal
to the amount of any Letters of Credit remaining undrawn or
unpaid, as collateral security for the repayment of any future
drawings or payments under such Letters of Credit and the
Borrowers shall forthwith deposit and pay such amounts and
such amounts shall be held by the Agent pursuant to the terms
of the applicable Application and Agreement for Letter of
Credit;
(C) the Agent and the Lenders shall have all of the
rights and remedies available under the Loan Documents or
under any applicable law.
9.02 Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
9.03 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan
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Document, and every such right or remedy shall be cumulative and shall be in
addition to every other such right or remedy contained herein and therein or now
or hereafter existing at law or in equity or by statute, or otherwise.
9.04 No Waiver. No course of dealing between any Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
9.05 Default. The Agent and the Lenders shall have no right to
accelerate any of the Loans upon, or to institute any action or proceeding
before any court to realize upon collateral as a result of, the occurrence of
any Default which shall not also constitute an Event of Default; provided,
however, nothing contained in this sentence shall in any respect impair or
adversely affect the right, power and authority of the Agent and the Lenders (i)
to take any action expressly required or permitted to be taken under the Loan
Documents upon the occurrence of any Default (and including any action or
proceeding which the Agent may determine to be necessary or appropriate in
furtherance of any such expressly authorized action) and (ii) to take any action
provided under the Loan Documents or otherwise available by statute, at law or
in equity upon the occurrence of any Default.
9.06 Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
any Borrower hereunder shall be applied by the Agent in the following order:
(i) amounts due to NationsBank and the Lenders pursuant to
Sections 2.12, 2.16, 3.02(f), 3.03, 7.15, 11.05 and 11.11 hereof;
(ii) amounts due to (A) NationsBank pursuant to Section 3.04
hereof, and (B) to NationsBank and/or the Agent pursuant to Section 2.18 hereof;
(iii) payments of interest on Loans, to be applied for the
ratable benefit of the Lenders;
(iv) payments of principal on Loans, to be applied for the
ratable benefit of the Lenders;
(v) payment of cash amounts to the Agent in respect of
Outstanding Letters of Credit pursuant to Section 9.01(B) hereof;
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(vi) payment of Obligations owed a Lender or Lenders
pursuant to Swap Agreements on a pro rata basis according to amounts owed;
(vii) payments of all other amounts due under this Agreement,
if any, to be applied for the ratable benefit of the Lenders; and
(viii) any surplus remaining after application as provided for
herein, to the respective Borrower or otherwise as may be required by applicable
law.
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ARTICLE X
The Agent
10.01 Appointment. Each Lender (including NationsBank in its capacity
as maker of Swing Line Loans and as issuer of the Letters of Credit) hereby
irrevocably designates and appoints NationsBank as the Agent of the Lenders
under this Agreement, and each of the Lenders hereby irrevocably authorizes
NationsBank as the Agent for such Lender, to take such action on its behalf
under the provisions of this Agreement and the other Loan Documents and to
exercise such powers as are expressly delegated to the Agent by the terms of
this Agreement, together with such other powers as are reasonably incidental
thereto. The Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any of the
Lenders, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against the Agent.
10.02 Attorneys-in-fact. The Agent may execute any of its duties under
this Agreement by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The Agent
shall not be responsible to the Lenders for the negligence, gross negligence or
willful misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
10.03 Limitation on Liability. Neither the Agent nor any of its
officers, directors, employees, agents or attorneys-in-fact shall be liable to
the Lenders for any action lawfully taken or omitted to be taken by it or them
under or in connection with this Agreement except for its or their own gross
negligence or willful misconduct. Neither the Agent nor any of its affiliates
shall be responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Borrower or any other
Subsidiary, or any officer or representative thereof contained in this Agreement
or in any of the other Loan Documents, or in any certificate, report, statement
or other document referred to or provided for in or received by the Agent under
or in connection with this Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any of the other
Loan Documents, or for any failure of any Borrower to perform its obligations
thereunder, or for any recitals, statements, representations or warranties made,
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of any collateral. The Agent shall not be under any obligation to
any of the Lenders to ascertain or to inquire as to the observance or
performance of any of the terms, covenants or conditions of this Agreement or
any of the other Loan Documents on the part of any Borrower or to inspect the
properties, books or records of the Borrowers or the other Subsidiaries.
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10.04 Reliance. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice, consent
certificate, affidavit, letter, cablegram, telegram, telecopy or telex message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to any Borrower), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless an Assignment shall have been filed with
and accepted by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall first receive
advice or concurrence of the Lenders or the Required Lenders as provided in this
Agreement or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Required Lenders, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all present and future holders of the Notes.
10.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from a Lender, the Authorized
Representative or a Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice, the Agent shall
promptly give notice thereof to the Lenders. The Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders; provided that, unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Event of
Default as it shall deem advisable in the best interests of the Lenders.
10.06 No Representations. Each Lender expressly acknowledges that
neither the Agent nor any of its affiliates has made any representations or
warranties to it and that no act by the Agent hereafter taken, including any
review of the affairs of any Borrower or any other Subsidiary, shall be deemed
to constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the financial condition, creditworthiness, affairs, status and nature of the
Borrowers and the other Subsidiaries and made its own decision to enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at
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the time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and to make such investigation
as it deems necessary to inform itself as to the status and affairs, financial
or otherwise, of the Borrowers and the other Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the affairs,
financial condition or business of any Borrower or any other Subsidiary which
may come into the possession of the Agent or any of its affiliates.
10.07 Indemnification. The Lenders agree to indemnify the Agent in its
capacity as such (to the extent not reimbursed by the Borrowers and without
limiting any obligations of any Borrower or any other Subsidiary so to do),
including its employees, directors, officers and agents, ratably according to
the respective principal amount of the Notes held by them (or, if no Notes are
outstanding, ratably in accordance with their respective Applicable Commitment
Percentages as then in effect) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may at any time
(including without limitation at any time following the payment of the Notes) be
imposed on, incurred by or asserted against the Agent, including its employees,
directors, officers and agents, in any way relating to or arising out of this
Agreement or any other document contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or willful misconduct.
The agreements in this subsection shall survive the payment of the Obligations
and the termination of this Agreement.
10.08 Lender. The Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Borrowers
and the other Subsidiaries as though it were not the Agent hereunder. With
respect to its Loans made or renewed by it and any Note issued to it, the Agent
shall have the same rights and powers under this Agreement as any Lender and may
exercise the same as though it were not the Agent, and the terms "Lender" and
"Lenders" shall, unless the context otherwise indicates, include the Agent in
its individual capacity.
10.09 Resignation. If the Agent shall resign as Agent under this
Agreement, then the Required Lenders may appoint, with the consent, so long as
there shall not have occurred and be continuing a Default or Event of Default,
of the Borrowers, which consent shall not be unreasonably withheld, a successor
Agent for the Lenders, which successor Agent shall be a commercial bank
organized under the laws of the United States or any state thereof, having a
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combined surplus and capital of not less than $500,000,000, whereupon such
successor Agent shall succeed to the rights, powers and duties of the former
Agent and the obligations of the former Agent shall be terminated and canceled,
without any other or further act or deed on the part of such former Agent or any
of the parties to this Agreement; provided, however, that the former Agent's
resignation shall not become effective until such successor Agent has been
appointed and has succeeded of record to all right, title and interest in any
collateral held by the Agent; provided, further, that if the Required Lenders
and, if applicable, the Borrowers cannot agree as to a successor Agent within
ninety (90) days after such resignation, the Agent shall appoint a successor
Agent which satisfies the criteria set forth above in this Section 10.09 for a
successor Agent and the parties hereto agree to execute whatever documents are
necessary to effect such action under this Agreement or any other document
executed pursuant to this Agreement; provided, however that in such event all
provisions of this Agreement and the Loan Documents, shall remain in full force
and effect. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article X shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
10.10 Sharing of Payments, etc. Each Lender agrees that if it shall,
through the exercise of a right of banker's lien, set-off, counterclaim or
otherwise, obtain payment with respect to its Obligations (other than pursuant
to Article IV) which results in its receiving more than its pro rata share of
the aggregate payments with respect to all of the Obligations (other than any
payment pursuant to Article IV), then (A) such Lender shall be deemed to have
simultaneously purchased from the other Lenders a share in their Obligations so
that the amount of the Obligations held by each of the Lenders shall be pro rata
and (B) such other adjustments shall be made from time to time as shall be
equitable to insure that the Lenders share such payments ratably; provided,
however, that for purposes of this Section 10.10 the term "pro rata" shall be
determined with respect to both the Revolving Credit Commitment and Reserve Line
Commitment of each Lender and to the Total Revolving Credit Commitment and Total
Reserve Line Commitment after subtraction in each case of amounts, if any, by
which any such Lender has not funded its share of the outstanding Revolving
Credit Loans, Reserve Line Loans and Reimbursement Obligations, as the case may
be. If all or any portion of any such excess payment is thereafter recovered
from the Lender which received the same, the purchase provided in this Section
10.10 shall be rescinded to the extent of such recovery, without interest. The
Borrowers expressly consent to the foregoing arrangements and agree that each
Lender so purchasing a portion of the other Lenders' Obligations may exercise
all rights of payment (including, without limitation, all rights of set-off,
banker's lien or counterclaim) with respect to such portion as fully as if such
Lender were the direct holder of such portion.
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10.11 One Lender. Notwithstanding anything to the contrary contained
herein or in any of the Loan Documents, if at any time NationsBank shall be the
sole Lender, all references to and rights, powers and privileges exercisable by
the "Agent" shall be deemed to refer to NationsBank.
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ARTICLE XI
Miscellaneous
11.01 Assignments and Participations.
(a) At any time after the Effective Date each Lender may, with the
prior consent of the Agent and the Borrowers, which consents shall not be
unreasonably withheld (it being understood that consent may be withheld by the
Borrowers if such assignment would subject the Borrowers to the payment of any
additional amounts pursuant to the provisions of Section 4.06 hereof), assign to
one or more banks or financial institutions all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of any Note payable to its order); provided, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations (including Loans and Participations)
under this Agreement, (ii) for each assignment involving the issuance and
transfer of a Note, the assigning Lender shall execute an Assignment and
Acceptance and the Borrowers hereby consent to execute a replacement Note or
Notes to give effect to the assignment, (iii) the minimum Revolving Credit
Commitment which shall be assigned is $5,000,000 (together with which the
assigning Lender's applicable portion of Participations and the Letter of Credit
Commitment and Reserve Line Commitment shall also be assigned), (iv) such
assignee shall have an office located in the United States, (v) an assignment
(other than an assignment of 100% of its interest) by NationsBank shall not
include any portion of the Swing Line or obligation to issue Letters of Credit,
(vi) except with the prior written approval of the Borrowers, there shall not be
more than ten (10) Lenders at any one time, (vii) at the time of such
assignment, such assignee shall be able to make Loans in Dollars and each
Offshore Currency, and (viii) such Assignee shall have complied with Sections
4.06(b), (c) and (d) hereof. Upon such execution, delivery, approval and
acceptance, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder or under such Note have been
assigned or negotiated to it pursuant to such Assignment and Acceptance have the
rights and obligations of a Lender hereunder and a holder of such Notes and (y)
the assignor thereunder shall, to the extent that rights and obligations
hereunder or under such Notes have been assigned or negotiated by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from that
portion of its obligations under this Agreement applicable to the rights so
assigned; provided that such assignor shall not be released from liability to
the Borrowers for any acts or omissions of such assignor prior to such
assignment. Any Lender who makes an assignment shall pay to the Agent a one-time
administrative fee of $2,500.00 which fee shall not be reimbursed by the
Borrowers. No assignee shall have the right to further assign its rights and
obligations pursuant to this Section 11.01, except that NationsBank or any other
Lender may assign all or part of its rights hereunder, without the consent of
any other Person, to any Federal Reserve Bank.
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(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) the assignment made
under such Assignment and Acceptance is made under such Assignment and
Acceptance without recourse; (ii) such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of any Borrower or any other Subsidiary or the performance or
observance by any Borrower or any other Subsidiary of any of its obligations
under any Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the financial statements delivered pursuant
to Section 6.01(f) or Section 7.01, as the case may be, and such other Loan
Documents and other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
Agent, such assigning Lender or any other Lender 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 action under this Agreement; (v) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement, the Notes and the other
Loan Documents as are delegated to the Agent by the terms hereof and thereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Lender and a holder of such Notes.
(c) The Agent shall maintain at its address referred to herein a copy
of each Assignment and Acceptance delivered to and accepted by it.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender, the Agent shall give prompt notice thereof to Borrowers.
(e) Each Lender may sell participations at its expense, subject to the
prior written approval by Borrowers of such participant, which approval shall
not be unreasonably withheld, to one or more banks or other entities as to all
or a portion of its rights and obligations under this Agreement; provided, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any Notes issued to it for the purpose of this Agreement, (iv) such
participations (except participations to an Affiliate of such Lender) shall be
in a minimum amount of $1,000,000 and, in the case of a participation in the
Revolving Credit Facility, shall include an allocable portion of such Lender's
Participation, and (v) the Borrowers, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and with regard to any and
all
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payments to be made under this Agreement; provided, that the participation
agreement between a Lender and its participants may provide that such Lender
will obtain the approval of such participant prior to such Lender's agreeing to
any amendment or waiver of any provisions of this Agreement which would (A)
extend the maturity of any Note, (B) reduce the interest rate hereunder, (C)
increase the Revolving Credit Commitment of the Lender granting the
participation other than as permitted by Section 2.10 or (D) release any
Guarantor, and (vi) the sale of any such participations which require the
Borrowers to file a registration statement with the United States Securities and
Exchange Commission or under the securities regulations or laws of any state, or
an amendment to an existing registration statement, shall not be permitted.
11.02 Notices. All notices shall be in writing, except as to telephonic
notices expressly permitted or required herein, and written notices shall be
delivered by hand delivery, telegram, telex, telefacsimile, overnight courier or
certified or registered mail. Any notice shall be conclusively deemed to have
been received by any party hereto and be effective on the day on which delivered
to such party (against (except as to telephonic or telefacsimile notice) receipt
therefor or, in the case of telex, verification by return) at the address set
forth below or such other address as such party shall specify to the other
parties in writing, or if sent prepaid by certified or registered mail return
receipt requested on the third Business Day after the day on which mailed,
addressed to such party at said address:
(a) if to any Borrower:
to such Borrower
c/o Greenfield Industries, Inc.
2743 Perimeter Parkway, Building 100, Suite 100
Augusta, Georgia 30909
Attention: Gary L. Weller
Telephone: 706/650-4218
Telefacsimile: 706/650-4122
with a copy to:
Dickstein Shapiro Morin & Oshinsky LLP
2101 L Street, N.W.
Washington, D.C. 20037
Attention: Ira H. Polon
Telephone: 202/785-9700
Telefacsimile: 202/887-0689
(b) if to the Agent:
NationsBank, N.A.
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2213
Attention: Corporate Banking Department
Telephone: 404/607-5524
Telefacsimile: 404/607-6467
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(c) if to NationsBank in its capacity as issuer of the
Letters of Credit:
NationsBank, N.A.
NationsBank Midtown Center
715 Peachtree Street, N.E., Second Floor
Atlanta, Georgia 30308-2213
Attention: Letter of Credit Department
Telephone: 404-607-5306
Telefacsimile: 404-607-6425
(d) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
11.03 Setoff. Each Borrower agrees that the Agent and each Lender shall
have a lien for all the Obligations of any Borrower upon all deposits or deposit
accounts, of any kind, or any interest in any deposits or deposit accounts
thereof, now or hereafter pledged, mortgaged, transferred or assigned to the
Agent or such Lender or otherwise in the possession or control of the Agent or
such Lender (other than for safekeeping) for any purpose for the account or
benefit of such Borrower and including any balance of any deposit account or of
any credit of such Borrower with the Agent or such Lender, whether now existing
or hereafter established, hereby authorizing the Agent and each Lender at any
time or times with or without prior notice to apply such balances or any part
thereof to such of the Obligations of such Borrower to the Lenders then past due
and in such amounts as they may elect, and whether or not the collateral or the
responsibility of other Persons primarily, secondarily or otherwise liable may
be deemed adequate. For the purposes of this paragraph, all remittances and
property shall be deemed to be in the possession of the Agent or such Lender as
soon as the same may be put in transit to it by mail or carrier or by other
bailee.
11.04 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the expiration of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of the Obligations remain outstanding or any Lender has
any commitment hereunder. Whenever in this Agreement, any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of any Borrower which are contained in this Agreement, the Notes
and the other Loan Documents shall inure to the benefit of the successors and
permitted assigns of the Lenders or any of them.
11.05 Expenses. Each Borrower agrees (a) to pay or reimburse the Agent
for all its reasonable and customary out-of-pocket costs and expenses incurred
in connection with the preparation,
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negotiation and execution of, and any amendment, supplement or modification to,
this Agreement or any of the other Loan Documents (including travel expenses
relating to closing), and the consummation of the transactions contemplated
hereby and thereby, including, without limitation, the reasonable and customary
fees and disbursements of counsel to the Agent, (b) to pay or reimburse the
Agent and the Lenders for all their reasonable costs and expenses incurred in
connection with the enforcement (only from and after the occurrence of a Default
or Event of Default) or preservation of any rights under this Agreement and the
other Loan Documents, including without limitation, the reasonable fees and
disbursements of their counsel and any payments in indemnification or otherwise
payable by the Lenders to the Agent pursuant to the Loan Documents, (c) to pay,
indemnify and hold the Agent and the Lenders harmless from any and all recording
and filing fees and any and all liabilities with respect to, or resulting from
any failure to pay or delay in paying, documentary, stamp, excise and other
similar taxes, if any, which may be payable or determined to be payable in
connection with the execution and delivery of this Agreement or any other Loan
Documents, or consummation of any amendment, supplement or modification of, or
any waiver or consent under or in respect of, this Agreement or any other Loan
Documents, and (d) to pay, indemnify, and hold the Agent and the Lenders
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement and the other Loan
Documents or in any respect relating to the transactions contemplated hereby or
thereby, (all the foregoing, collectively, the "Indemnified Liabilities");
provided, however, that no Borrower shall have any obligation hereunder with
respect to Indemnified Liabilities arising from (i) the willful misconduct or
gross negligence of or the willful breach of the Loan Documents by the party
seeking indemnification, (ii) legal proceedings commenced against the Agent or
any Lender by any security holder or creditor thereof arising out of and based
upon rights afforded any such security holder or creditor solely in its capacity
as such, (iii) any taxes imposed upon the Agent or any Lender other than the
documentary, stamp, excise and similar taxes described in clause (c) above or
any tax resulting from any Regulatory Change, which tax would be payable to
Lenders by the Borrowers pursuant to Article IV hereof, (iv) any tax imposed
upon the Agent or any Lender as a consequence of its failure to comply with
Section 4.06(b), (c) or (d), or (v) taxes imposed and costs and expenses
incurred as a result of a transfer or assignment of any Note, participation or
assignment of a portion of its rights. The agreements in this subsection shall
survive repayment of the Notes and all other Obligations hereunder.
11.06 Amendments. No amendment, modification or waiver of any provision
of this Agreement or any of the Loan Documents and no consent by the Lenders to
any departure therefrom by any Borrower shall be effective unless such
amendment, modification or waiver shall be in writing and signed by the
Borrowers and the Agent, but only upon having received the written consent of
the Required Lenders, and the same shall then be effective only for the period
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and on the conditions and for the specific instances and purposes specified in
such writing; provided, however, that, no such amendment, modification or waiver
(i) which changes, extends or waives any provision of Section
10.10 or this Section 11.06, the amount of or the due date of any
scheduled installment of or the rate of interest payable on any
Obligation, changes the definition of Required Lenders, which permits
an assignment by any Borrower of its Obligations hereunder, which
reduces the required consent of Lenders provided hereunder (other than
as provided in Section 4.05 hereof), which increases, decreases or
extends the Revolving Credit Termination Date or the Revolving Credit
Commitment or Reserve Line Commitment of any Lender, or which increases
or extends the Letter of Credit Facility or any Applicable Offshore
Currency Commitment, or which creates a commitment with respect to any
currency other than Dollars, Pounds Sterling or Deutsche Marks, or
which waives any condition to the making of any Loan shall be effective
unless in writing and signed by each of the Lenders; provided, however,
the Required Lenders may in their sole discretion waive any Default or
Event of Default (other than any Event of Default under Section
9.01(a), (b), (g) or (h) which shall require the agreement of each
Lender);
(ii) which releases a Guarantor, or releases any pledged stock
or other collateral securing the Obligations, shall be effective unless
with the written consent of each of the Lenders; or
(iii) which affects the rights, privileges, immunities or
indemnities of the Agent shall be effective unless in writing and
signed by the Agent.
Notwithstanding any provision of the other Loan Documents to the contrary, as
between the Agent and the Lenders, execution by the Agent shall not be deemed
conclusive evidence that the Agent has obtained the written consent of the
Required Lenders. No notice to or demand on any Borrower in any case shall
entitle any Borrower to any other or further notice or demand in similar or
other circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
11.07 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.08 Waivers by the Borrowers. In any litigation in any court with
respect to, in connection with, or arising out of this Agreement, the Loans, any
of the Notes, any of the other Loan Documents, the Obligations, or any
instrument or document delivered
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pursuant to this Agreement or the other Loan Documents, or the validity,
protection, interpretation, collection or enforcement thereof, or any other
claim or dispute howsoever arising between any Borrower and the Lenders or the
Agent, each Borrower and each Lender and the Agent hereby waive, to the extent
permitted by applicable law, trial by jury in connection with any such
litigation.
11.09 Termination. The termination of this Agreement shall not affect
any rights of the Borrowers, the Lenders or the Agent or any obligation of the
Borrowers, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders hereunder and under the other Loan Documents shall continue in full
force and effect, notwithstanding the termination of this Agreement, until all
of the Obligations have been paid in full after the termination hereof (other
than Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable) or the Borrowers have
furnished the Lenders and the Agent with an indemnification satisfactory to the
Agent and each Lender with respect thereto. All representations, warranties,
covenants, waivers and agreements contained herein shall survive termination
hereof until payment in full of the Obligations unless otherwise provided
herein. Notwithstanding the foregoing, if after receipt of any payment pursuant
to the Loan Documents of all or any part of the Obligations, any Lender is for
any reason compelled to surrender such payment to any Person because such
payment is determined to be void or voidable as a preference, impermissible
setoff, a diversion of trust funds or for any other reason, this Agreement shall
continue in full force and the Borrowers shall be liable to, and shall indemnify
and hold such Lender harmless for, the amount of such payment surrendered until
such Lender shall have been finally and irrevocably paid in full. The provisions
of the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Lenders' rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
11.10 Governing Law; Jurisdiction and Venue. ALL DOCUMENTS EXECUTED
PURSUANT TO THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING, WITHOUT LIMITATION,
THIS AGREEMENT AND EACH OF THE LOAN DOCUMENTS SHALL BE DEEMED TO BE CONTRACTS
MADE UNDER, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS AND JUDICIAL DECISIONS OF THE STATE OF GEORGIA. EACH BORROWER
HEREBY SUBMITS TO THE JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS OF
GEORGIA FOR THE PURPOSES OF RESOLVING DISPUTES HEREUNDER OR FOR THE PURPOSES OF
COLLECTION.
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Pursuant to the above submission to jurisdiction, each of CIRBO and
Kemmer H (collectively, the "Offshore Borrowers") agrees that service of all
pleadings, complaints, writs, process or summonses in any such suit, action or
proceeding brought in such forum may be made upon Gary Weller ("Weller") at the
address provided for notices to Greenfield under this Agreement (the "Process
Agent"), and each Offshore Borrower hereby irrevocably appoints the Process
Agent its agent and true and lawful attorney-in-fact in its name, place and
stead to accept and acknowledge on its behalf such service brought in any such
court. Each Offshore Borrower agrees and consents that any such service upon
each Offshore Borrower shall be taken and held to be valid personal service upon
such Offshore Borrower whether such Offshore Borrower shall then be doing, or
any time shall have done, business within the State of Georgia, that the failure
of the Process Agent to actually give notice of any such service to such
Offshore Borrower shall not impair or affect the validity of such service or of
any judgment based thereon, and such Offshore Borrower waives all claim of error
by reason of any such service. Any notice, process, pleadings or other papers
served upon the Process Agent for any Offshore Borrower shall, at the same time,
be sent by an authorized method described above for the giving of notice
hereunder to such Offshore Borrower. Each Offshore Borrower hereby further
irrevocably consents to the service of process in any suit, action or proceeding
in said courts by the mailing thereof by any Lender by registered or certified
mail, postage prepaid, to each Offshore Borrower at the address for such
Offshore Borrower specified in Section 11.02 hereof, such service to be
effective upon receipt. Each Offshore Borrower acknowledges that, in appointing
said agent, it is its intention that such service shall be deemed to satisfy the
requirements of all laws and rules of each country in which such Offshore
Borrower is organized and in which it maintains its chief executive office
governing service of process, whether now or hereafter in effect. Each Offshore
Borrower further agrees that in the event Weller is no longer an officer of
Greenfield then CT Corporation, Atlanta, Georgia shall be deemed the Process
Agent for all purposes of this Guaranty.
Each Borrower agrees (i) that, in addition to the method of service
mandated herein, any party to any such suit, action or proceeding may make
service upon such Offshore Borrower in any other manner now or hereafter
permitted by law, provided that no such additional service made upon such
Offshore Borrower shall affect in any way the validity of service made upon such
Offshore Borrower in accordance herewith and (ii) that, to the extent permitted
by law, final judgment against it in any action with respect to this Agreement
or any other Loan Document shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States of America by suit on such
judgment, a certified or exemplified copy of which shall be conclusive evidence
of the fact and the amount of its indebtedness.
Each Borrower hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any other Loan Document brought
in the state or federal courts
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of Georgia, and hereby further irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an
inconvenient forum.
11.12 Indemnification. (a) In consideration of the execution and
delivery of this Agreement by the Agent and each Lender and the extension of the
Letter of Credit Commitments, Reserve Line Commitments the Swing Line and
Revolving Credit Commitments, each Borrower hereby indemnifies, exonerates and
holds the Agent and each Lender and each of their respective officers,
directors, employees and agents (collectively, the "Indemnified Parties") free
and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified Liabilities"),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan or supported by any
Letter of Credit, except for any such Indemnified Liabilities arising for the
account of a particular Indemnified Party by reason of the bad faith, gross
negligence or willful misconduct of such Indemnified Party or an officer,
director, employee or agent of such Indemnified Party, and if and to the extent
that the foregoing undertaking may be unenforceable for any reason, each
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
(b) If a claim is to be made by a party entitled to indemnification
under this Section 11.11 or Section 7.15 against the indemnifying party, the
party entitled to such indemnification shall give written notice to the
indemnifying party promptly after the party entitled to indemnification receives
actual notice of any claim, action, suit, loss, cost, liability, damage or
expense incurred or instituted for which the indemnification is sought. If
requested by the Borrowers in writing, and so long as no Default or Event of
Default shall have occurred and be continuing, such indemnitee shall contest at
the expense of the Borrowers the validity, applicability and/or amount of such
suit, action, or cause of action to the extent such contest may be conducted in
good faith on legally supportable grounds. If any lawsuit or enforcement action
is filed against any party entitled to the benefit of indemnity under this
Section 11.11, written notice thereof shall be given to the indemnifying party
as soon as practicable (and in any event within 20 days after the service of the
citation or summons). Notwithstanding the foregoing, the failure so to notify
the indemnifying party as provided in this Section will relieve indemnifying
party from liability hereunder only if and to the extent that such failure
results in the forfeiture by the indemnifying party of any substantive rights or
defenses. After such notice, if the indemnifying party shall acknowledge in
writing to the Indemnified Party that the indemnifying party shall be obligated
under the terms of its
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indemnity hereunder in connection with such lawsuit or action, then, so long as
no Default or Event of Default shall occur and be continuing, the indemnifying
party shall be entitled, if it so elects, to take control of the defense and
investigation of such lawsuit or action and to employ and engage counsel of its
own choice reasonably acceptable to the Indemnified Party to handle and defend
the same, at the indemnifying party's cost, risk and expense, provided, however,
that the indemnifying party and its counsel shall proceed with diligence and in
good faith with respect thereto. If (i) the engagement of such counsel by the
indemnifying party would present a conflict of interest which would prevent such
counsel from effectively defending such action on behalf of the Indemnified
Party, (ii) the defendants in, or targets of, any such lawsuit or action include
both the Indemnified Party and indemnifying party, and the Indemnified Party
reasonably concludes that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party,
(iii) the indemnifying party fails to assume the defense of the lawsuit or
action or to employ counsel reasonably satisfactory to such Indemnified Party,
in either case in a timely manner, or (iv) a Default or Event of Default shall
occur and be continuing, then such Indemnified Party may employ separate counsel
to represent or defend it in any such action or proceeding and the indemnifying
party will pay the fees and disbursements of such counsel, provided, however,
that each indemnitee shall endeavor, but shall not be obligated, in connection
with any matter covered by this Section 11.11 which also involves other
indemnities, to use reasonable efforts to avoid unnecessary duplication of
efforts by counsel for all indemnities and provided further, that in no event
shall the Borrowers be liable for the fees and expenses of more than one
separate firm for the Indemnified Parties. The Indemnified Party shall cooperate
(with all out of pocket costs and expenses associated therewith to be paid by
the indemnifying party) in all reasonable respects with the indemnifying party
and such attorneys in the investigation, trial and defense of such lawsuit or
action and any appeal arising therefrom; provided, however, that the Indemnified
Party may, at its own cost (except as set forth in, and in accordance with, the
foregoing sentence), participate in the investigation, trial and defense of such
lawsuit or action and any appeal arising therefrom. If the indemnifying party
has acknowledged to the Indemnified Party its obligation to indemnify hereunder,
the Indemnified Party, so long as no Default or Event of Default shall have
occurred and be continuing, shall not settle such lawsuit or enforcement action
without the prior written consent of the indemnifying party and, if the
indemnifying party has not so acknowledged its obligation, the Indemnified Party
shall not settle such lawsuit or enforcement action without giving 20 days'
prior written notice of such settlement and its terms to the indemnifying party.
11.13 Headings and References. The headings of the Articles and
Sections of this Agreement are inserted for convenience of reference only and
are not intended to be a part of, or to affect the meaning or interpretation of
this Agreement. Words such as "hereof", "hereunder", "herein" and words of
similar import shall refer to this Agreement in its entirety and not to any
particular
105
<PAGE> 111
Section or provisions hereof, unless so expressly specified. As used herein, the
singular shall include the plural, and the masculine shall include the feminine
or a neutral gender, and vice versa, whenever the context requires.
11.14 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
11.15 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
11.16 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any term of this Agreement,
the terms and provisions of this Agreement shall control.
11.17 Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
Georgia law, shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrowers shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrowers to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the applicable
Borrower. As used in this paragraph, the term "Highest Lawful Rate" means the
maximum lawful interest rate, if any, that at any time or from time to time
106
<PAGE> 112
may be contracted for, charged, or received under the laws applicable to such
Lender which are presently in effect or, to the extent allowed by law, under
such applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
11.18 Confidentiality. Except as provided in Section 7.01(e) hereof,
the Lenders shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with their customary procedures for
handling confidential information of this nature but may, in any event, make
disclosures reasonably required in connection with the contemplated transfer or
assignment of any of the Loans or participations or as required or requested by
any legal process or applicable regulatory agency; provided that, unless
specifically prohibited by applicable law or court order, each Lender shall
notify the respective Borrower of any request under legal process by any
governmental agency or representative thereof for disclosure of such
information.
11.19 Currency Indemnity. If, under any law, whether as a result of a
judgment against any Borrower or Guarantor or the liquidation of any Borrower or
Guarantor or for any other reason, any payment to (or for the benefit of) the
Agent or any Lender under or in connection with the Loan Documents is made or is
recovered in a currency other than that in which it is required to be paid,
then, to the extent that such payment (when converted at the rate of exchange on
the date of payment) falls short of the amount unpaid under the Loan Documents,
the Borrowers shall as separate and independent obligations fully indemnify such
Agent or Lender against the amount of the shortfall; and for the purposes of
this Section "rate of exchange" means the rate at which such Agent or Lender is
able on the relevant date to purchase in Charlotte, North Carolina the currency
in which the payment is required to be paid with the currency in which the
payment is in fact made or recovered. This provision shall not be construed as a
consent by the Agent or any Lender to payment in any currency other than the
currency in which payment is required to be made under the applicable provisions
of this Agreement and the other Loan Documents.
[Remainder of page intentionally left blank.]
107
<PAGE> 113
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
GREENFIELD INDUSTRIES, INC.
WITNESS: By: /s/ Gary L. Weller
-----------------------------------------
Name: Gary L. Weller
Title: Senior Vice President,
Chief Financial Officer and
Secretary
/s/ Raul Hemel
- ------------------------------
/s/ Kimberly B. Sallrick
- ------------------------------ CIRBO LIMITED
WITNESS: By: /s/ Gary L. Weller
-----------------------------------------
Name: Gary L. Weller
Title: Director
/s/ Raul Hemel
- ------------------------------
/s/ Kimberly B. Sallrick
- ------------------------------
KEMMER HARTMETALLWERKZEUGE GMBH
WITNESS: By: /s/ Gary L. Weller
-----------------------------------------
Name: Gary L. Weller
Title: Geschaftsfuhrer
/s/ Raul Hemel
- ------------------------------
/s/ Kimberly B. Sallrick
- ------------------------------
Signature Page 1 of 7
<PAGE> 114
WITNESS: NATIONSBANK, N.A., as Agent for the Lenders
/s/ Kimberly B. Sallrick By: /s/ Mark D. Halmrast
- ------------------------------ -----------------------------------------
Name: Mark D. Halmrast
/s/ Raul Hemel Title: Vice President
- ------------------------------
WITNESS: NATIONSBANK, N.A.
/s/ Kimberly B. Sallrick By: /s/ Mark D. Halmrast
- ------------------------------ -----------------------------------------
Name: Mark D. Halmrast
/s/ Raul Hemel Title: Vice President
- ------------------------------
Lending Office:
NATIONSBANK, N.A.
101 North Tryon Street, NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Kevin M. Stephens
Telephone: (704) 386-8388
Telecopy: (704) 388-9436
Wire Transfer Instructions:
NationsBank, N.A.
Atlanta, Georgia
ABA# 061-0000-52
Reference Greenfield Industries
Attention: Corporate Loan Services
Account No.: 01200104430
REF. Greenfield Industries
Offshore Currency Lending Office:
NATIONSBANK, N.A.
101 North Tryon Street, NC1-001-15-04
--------------------------------------------
Charlotte, North Carolina 28255
--------------------------------------------
Attention: Kevin M. Stephens
Telephone: (704) 386-8388
--------------------
Telecopy: (704) 388-9436
--------------------
Signature Page 2 of 7
<PAGE> 115
WITNESS: WACHOVIA BANK OF GEORGIA, N.A.
/s/ Elizabeth Martin By: /s/ Kevin B. Harrison
- ------------------------------ -----------------------------------------
Name: Kevin B. Harrison
---------------------------------------
Title: Vice President
- ------------------------------ --------------------------------------
Lending Office:
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Telephone: (404) 332-5269
-----------------------
Telecopy: (404) 332-6920
------------------------
Wire Transfer Instructions:
Wachovia Bank of Georgia, N.A.
Atlanta, Georgia
ABA# 061000010
Reference:
----------------------------------
Attention: Bertie Eaton
----------------------------------
Account No.: 18-800-621
---------------------
REF. Greenfield Industries
-----------------------------
Offshore Currency Lending Office:
301 North Main Street
--------------------------------------------
Winston-Salem, NC 27150-2104
--------------------------------------------
Telephone: (910) 770-6129
-----------------------
Telecopy: (910) 770-4875
------------------------
Signature Page 3 of 7
<PAGE> 116
WITNESS: SUNTRUST BANK, ATLANTA
By: /s/ Bradley J. Staples
- ------------------------------ -----------------------------------------
Name: Bradley J. Staples
---------------------------------------
/s/ Thomas R. Bants Title: Assistant Vice President
- ------------------------------ --------------------------------------
By: /s/ Charles W. Burton
-----------------------------------------
Name: Charles W. Burton
---------------------------------------
Title: Vice President
--------------------------------------
Lending Office:
25 Park Place, N.E., Mail Code 126
Atlanta, Georgia 30302
Telephone:
----------------------------------
Telecopy: 404/588-8833
Wire Transfer Instructions:
SunTrust Bank, Atlanta
Atlanta, Georgia
ABA# 061000104
Reference:
----------------------------------
Attention:
----------------------------------
Account No.:
----------------------
REF.
------------------------------
Offshore Currency Lending Office:
--------------------------------------------
--------------------------------------------
Telephone:
---------------------
Telecopy:
----------------------
Signature Page 4 of 7
<PAGE> 117
WITNESS: COMMERZBANK AG, ATLANTA AGENCY
/s/ H. Yergey By: /s/ Andreas Bremer
- ------------------------------ -----------------------------------------
H. Yergey, VP Name: Andreas Bremer
---------------------------------------
/s/ E. Kagerer Title: SVP & Manager
- ------------------------------ --------------------------------------
E. Kagerer, VP
By: /s/ M. Smith
-----------------------------------------
Name: Mary Smith
---------------------------------------
Title: AVP
--------------------------------------
Lending Office:
1230 Peachtree Street, N.E., Suite 3500
Atlanta, Georgia 30309
Telephone: (404) 888-6500
---------------------
Telecopy: (404) 888-6539
----------------------
Wire Transfer Instructions:
Commerzbank, AG, New York Branch
ABA# 026008044, Short Name: Commerz NYC,
for account credit: Commerzbank AG,
Atlanta, Ref.: Greenfield Industries
Offshore Currency Lending Office:
same as above
--------------------------------------------
--------------------------------------------
Telephone: (212) 266-7200
---------------------
Telecopy: (212) 266-7235
----------------------
Signature Page 5 of 7
<PAGE> 118
WITNESS: NATIONAL CITY BANK, KENTUCKY
/s/ L. Davidson By: /s/ C. C. Tate
- ------------------------------ -----------------------------------------
Name: Carrie C. Tate
---------------------------------------
/s/ C. C. Tate Title: Vice President
- ------------------------------ --------------------------------------
Lending Office:
5304 CHAVERSHAM LN.
NORCROSS GA 30092
Telephone: 770 441-7838
---------------------
Telecopy: 770 441-1525
----------------------
Wire Transfer Instructions:
National City Bank, Kentucky
Louisville, Kentucky
ABA# 0830-0005-6
Reference: Greenfield Industries
---------------------------------
Attention: Etta Moore, CLO
---------------------------------
Account No.: 151804
--------------------
REF.
----------------------------
Offshore Currency Lending Office:
National City Bank - CLEVELAND
--------------------------------------------
Fred Lingenfelter
--------------------------------------------
Telephone: 216-575-2900
---------------------
Telecopy: 216-575-2161
----------------------
Signature Page 6 of 7
<PAGE> 119
WITNESS: FIRST UNION NATIONAL BANK OF GEORGIA
/s/ William T. Goetz By: /s/ Michael R. Jordan
- ------------------------------ -----------------------------------------
Name: Michael R. Jordan
---------------------------------------
Title: SVP
- ------------------------------ --------------------------------------
Lending Office:
999 Peachtree Street, N.E. 12th Floor
Atlanta, Georgia 30309
Telephone: 404/827-7579
Telecopy: 404/225-4255
Wire Transfer Instructions:
First Union National Bank of Georgia
Atlanta, Georgia
ABA# 061000227
Reference: Greenfield Industries, Inc.
Attention: Marie Smithwick
Account No.:980351
REF.
--------------------------
Offshore Currency Lending Office:
First Union National Bank, London Branch
1 Bishopsgate
London EC2N 3AB England
Attention: Michelle Clark (Administrative)
Ian Morrison (Credit Contact)
Telephone: 44-171-621-1477
Telecopy: 44-171-929-4645
Signature Page 7 of 7
<PAGE> 1
EXHIBIT 10.85
AMENDED AND RESTATED
GREENFIELD INDUSTRIES, INC.
EMPLOYEE STOCK OPTION PLAN
ARTICLE I
INTRODUCTION
1. Adoption and Purpose.
---------------------
a. Greenfield Industries, Inc., a Delaware corporation (the "Company"),
hereby adopts this Greenfield Industries, Inc. Employee Stock Option Plan (the
"Plan"), dated July 1, 1993 and reserves from the authorized but unissued shares
of its Common Stock, par value $0.01 per share (the "Common Stock"), a total of
2,000,000 shares (the number of such shares being subject to adjustment as
provided in Article III hereof) for issuance pursuant to the Plan, all on the
terms set forth in the Plan.
b. The purpose of the Plan is to provide selected key employees of the
Company, key employees of any subsidiary corporation or parent corporation of
the Company now existing or hereafter formed or acquired, upon whose efforts the
Company is dependent for the successful conduct of its business, an opportunity
to obtain a proprietary interest in the Company, to increase such proprietary
interest, or to benefit from the appreciation in the value of the Common Stock.
The Plan will provide a means for such selected key employees to purchase shares
of Common Stock pursuant to non-qualified stock options (the "Non-Qualified
Options") and for such key employees to purchase shares of common stock pursuant
to incentive stock options (the "Incentive Options," and, together with the
Non-Qualified Options, the "Options"). Incentive Options are intended to qualify
as options described in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), but the Company makes no warranty as to the qualification
of any Option as an Incentive Option.
c. As used in the Plan, the terms "subsidiary corporation" and "parent
corporation" shall mean, respectively, a corporation coming within the
definition of such terms contained in Sections 424(f) and 424(e) of the Code.
d. Shares issued pursuant to the Plan shall be fully paid and
nonassessable.
2. Administration.
--------------
a. The Plan shall be administered by the Board of Directors (the "Board")
or such committee thereof as may be appointed from time to time by the Board of
Directors. Any such committee shall consist of two or more individuals who shall
be members of the Board and shall be comprised solely of directors who are
"Non-Employee Directors" within the meaning of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Any reference
to the Board of Directors contained herein shall mean and include any such duly
authorized committee thereof.
b. Subject to the terms and conditions of the Plan, the Board shall have
full and complete discretionary authority: (i) to construe and interpret the
Plan; (ii) to define the terms used herein; (iii) to prescribe, amend and
rescind rules and regulations relating to the Plan; (iv) subject to the
conditions set forth in the Plan, to determine the individuals, if any, to whom
Options shall be granted (the "Optionees"), the time or times at which Options
shall be granted, the period or periods of exercisability of each Option, the
number of shares to be subject to each Option, and the Option price; and (v) to
make all other determinations necessary or advisable for the administration of
the Plan. All determinations and interpretations made by the Board shall be
binding and conclusive on all Optionees and on their legal representatives and
beneficiaries.
c. In making any determination as to the individuals to whom Options shall
be granted under the Plan and as to the number of shares of Common Stock to be
covered by such Options, the Board shall take into account the duties of the
respective individuals, their length of service, their amount of earnings, their
present and potential contributions to the success of the Company, and such
other factors as the Board shall deem relevant in connection with accomplishing
the purposes of the Plan; provided, however, that no participant shall be
granted Incentive Options in any calendar year to purchase shares of stock in
the Company or in any subsidiary corporation or parent corporation of the
Company in excess of the maximum allotment described in Section 5 of Article II
of the Plan.
<PAGE> 2
d. No member or former member of the Board shall be liable for any action
or determination made in good faith with respect to the Plan or any Option
granted hereunder.
<PAGE> 3
ARTICLE II
STOCK OPTIONS
-------------
1. Eligibility; Participation; Special Limitations.
-----------------------------------------------
a. Key employees of the Company, or of any subsidiary corporation or parent
corporation of the Company, including directors who are employees, except as
otherwise provided in the Plan, shall be eligible to receive Non-Qualified and
Incentive Options under the Plan. The Board may determine by resolution that
certain employees or classes of employees are not eligible to receive Options
under the Plan. An individual who has been granted an Option may, if otherwise
eligible, be granted additional Options if the Board shall so determine,
provided, however, the number of Incentive Options which may be granted to an
individual shall not exceed the maximum allotment described in the Plan.
b. At the time a Non-Qualified Option is granted, there shall be a written
non-qualified stock option agreement (the "Non-Qualified Stock Option
Agreement") between the participant and the Company setting forth the terms and
exercise periods with respect to the Non-Qualified Options granted.
c. At the time an Incentive Option is granted, there shall be a written
incentive stock option agreement (the "Incentive Stock Option Agreement")
between the participant and the Company setting forth the terms and exercise
periods with respect to the Incentive Options granted.
d. Nothing contained in the Plan or in any resolution adopted or to be
adopted by the Board or the shareholders of the Company, and no action taken by
the Board, shall entitle a person to receive or have a right to receive any
Option unless and until the Optionee has executed and delivered to the Company a
Non-Qualified Stock Option Agreement or an Incentive Stock Option Agreement with
respect to such option.
2. Option Price.
------------
a. The initial per share option price of any Non-Qualified Option shall be
established by the Board, provided that the option price shall not be less than
the fair market value of the Common Stock on the date of grant.
b. The per share exercise price of any Incentive Option shall not be less
than the fair market value of the Common Stock on the date of grant; provided,
however, that, in the case of a participant who owns more than ten percent (10%)
of the total combined voting power of all classes of stock in the Company, or to
the extent applicable, any subsidiary corporation or parent corporation of the
Company at the time an Incentive Option is granted to the participant (a "10%
Shareholder"), the initial per share option price shall not be less than one
hundred ten percent (110%) of the fair market value of the Common Stock on the
date of grant.
c. For the purposes of this Section, the fair market value of a share of
Common Stock on any date shall be equal to the closing sale price of a share of
the Common Stock as published by a national securities exchange on which the
shares of the Common Stock are traded on such date or, if there is no sale of
the Common Stock on such date, the average of the bid and asked prices on such
exchange at the close of trading on such date or, if shares of Common Stock are
not listed on a national securities exchange on such date but are authorized for
quotation in the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") National Market System ("NMS"), the last transaction price per
share as reported by NASDAQ NMS on such date or, if shares of Common Stock are
not authorized for quotation in NASDAQ NMS on such date, the average of the bid
and asked prices in the over the counter market or, if the Common Stock is not
listed on a national securities exchange, quoted in NASDAQ NMS or quoted in the
over the counter market, the fair market value of a share of the Common Stock on
such date as shall be determined in good faith by the Board. In rendering its
determination of the Common Stock's fair market value, the Board shall comply
with Section 422(b)(4) of the Code and the applicable regulations promulgated
thereunder.
d. For purposes of the Plan, the determination of the Board of the fair
market value of a share shall be conclusive.
3. Term During Which Options May Be Granted.
----------------------------------------
No Option may be granted after the date on which Options granted to all
Optionees shall equal 2,000,000 shares of Common Stock (the number of such
shares being subject to adjustment as provided in Article III hereof). If an
Option shall expire or terminate without having been exercised in full, any
<PAGE> 4
shares of Common Stock covered by that Option which are not purchased may be
added to the shares otherwise available for Options to be granted pursuant to
the Plan. Notwithstanding any other provision of this Plan to the contrary, any
Option granted pursuant to this Plan must be granted within ten (10) years from
the earlier of the date the Plan is adopted by the Board or the date of
shareholder approval described in Section 4 of Article IV.
4. Term During Which Options May be Exercised.
------------------------------------------
Participants shall be granted Options for such term as the Board shall
determine. The term of any Option which is an Incentive Option shall not exceed
ten (10) years from the date of the granting thereof; provided, however, in the
case of a participant who is a 10% Shareholder at the time an Incentive Option
is granted to the participant, the term with respect to such Incentive Option
shall not be in excess of five (5) years from the granting thereof.
5. Maximum Allotment of Incentive Options.
--------------------------------------
The aggregate fair market value of the shares of Common Stock (determined
on the date of grant) for which a participant may be granted Incentive Options
which are exercisable for the first time in any particular calendar year
(whether under the terms of the Plan or any other stock option plan of the
Company, its parent corporation or any subsidiary corporation) shall not exceed
$100,000. To the extent any Option which is intended to be an Incentive Option
is granted to any participant fails to satisfy the requirements of this Section,
the Incentive Option shall be treated as a Non-Qualified Option. This Section
shall be applied by taking Options into account in the order in which they are
granted.
6. Exercise of Options.
-------------------
a. A participant may exercise each Option granted to the participant in
such installments as the Board shall determine at the time of the grant thereof.
b. Except as otherwise set forth in the Plan or the applicable
Non-Qualified Stock Option Agreement or Incentive Stock Option Agreement, an
Option may be exercised in whole or in part at any time or from time to time.
c. An option may be exercised only by a written notice of intent to
exercise such Option with respect to a specified number of shares of the Common
Stock and payment to the Company of the amount of the Option price for the
number of shares of the Common Stock so specified: provided, however, that, if
the Board shall in its sole discretion so determine at the time of the grant or
exercise of any Option, all or any portion of such payment may be made in kind
by the delivery of shares of the Common Stock having a fair market value, on the
date of delivery (as determined in the manner set forth in Section 2(c) of this
Article), equal to the portion of the Option price so paid. Options granted
pursuant to the Plan shall be exercised by the Optionee as to all or part of the
shares covered thereby by giving written notice of the exercise thereof to the
corporate secretary of the Company at the principal business office of the
Company, specifying the number of shares to be purchased and accompanied by
payment of the full purchase price therefor: (i) in cash or by certified or
official bank check, (ii) if the Board in its sole discretion determines under
this Section 6(c) of Article II of the Plan, in shares of Common Stock, valued
as of the date of exercise, of the same class as those to be granted by the
exercise of the Option, or (iii) if the Board in its sole discretion determines,
in a combination of the methods described in (i) and (ii) above. The Company
will deliver the shares being purchased within five business days of receipt of
notice, payment and any other items required under this Plan or the applicable
Non-Qualified Stock Option Agreement or Incentive Stock Option Agreement to
exercise Options by an Optionee.
d. An Option may, in the discretion of the Board, include a reload stock
option right which shall entitle the Optionee, upon (i) the exercise of such
original Option prior to the Optionee's termination of employment and (ii)
payment of the appropriate exercise price in shares of Common Stock that have
been owned by such Optionee for at least six months prior to the date of
exercise, to receive a new option (the "Reload Option") to purchase, at the fair
market value on the date of the exercise of the original Option, the number of
shares of Common Stock equal to the number of whole shares delivered by the
Optionee in payment of the exercise price of the original Option. Such Reload
Option shall be subject to the same terms and conditions, including expiration
date, and shall be exercisable at the same time or times as the original Option
with respect to which it is granted, except that in no event shall such Reload
Option be exercisable within six months of its date of grant.
e. To the extent that an Option is not exercised within the period of
exercisability specified in the applicable Non-Qualified Stock Option Agreement
<PAGE> 5
or Incentive Stock Option Agreement, it shall expire as to the then unexercised
part.
f. In no event shall an Option granted pursuant to this Plan be exercised
for a fraction of a share.
7. Transferability.
---------------
An Option granted pursuant to the Plan shall not be assignable or
transferable by the Optionee, either voluntarily or by operation of law, other
than by will or by the laws of descent and distribution. Each Option granted to
the Optionee may be exercised only by the Optionee, and after the death of
Optionee, only by the person or persons to whom the rights under such Option
pass by the laws of descent and distribution, all in accordance with this Plan.
8. Termination of Employment.
-------------------------
a. Upon termination of employment of any participant with the Company and
all subsidiary corporations and parent corporations of the Company, any Option
previously granted to the participant, unless otherwise specified by the Board,
shall, to the extent not previously exercised, terminate and become null and
void provided that:
(i) if any participant shall die while in the employ of such corporation or
during either the three (3) month or one (1) year period, whichever is
applicable, specified in clause (ii) below and at a time when such participant
was entitled to exercise an Option as herein provided, the legal representative
of such participant, or such person who acquired such Option by bequest or
inheritance or by reason of the death of the participant, may, not later than
one (1) year from the date of death, exercise such Option with respect to the
number of shares as to which such option was exercisable on the date of death,
to the extent the Option has not been exercised with respect to all such shares;
(ii) if the employment of any participant to whom such Option shall have
been granted shall terminate by reason of the participant's retirement (at such
age or upon such conditions as shall be specified by the Board), disability (as
described in Section 22(e)(3) of the Code) or dismissal by the employer other
than for cause (as defined below), and such participant is entitled to exercise
such Option on the date of death, retirement, disability or dismissal, such
participant shall have the right to exercise such Option so granted, to the
extent the Option has not been exercised, in respect of any or all of such
number of shares to which such Option has not been exercised at any time up to
and including (A) three (3) months after the date of such termination of
employment in the case of termination by reason of retirement or dismissal other
than for cause and (B) one (1) year after the date of termination of employment
in the case of termination by reason of disability.
b. If an employee voluntarily terminates his or her employment, or is
discharged for cause, any Option granted hereunder shall, unless otherwise
specified by the Board, immediately terminate with respect to any unexercised
portion thereof. For the purposes of the plan, the term "for cause" shall mean
(i) with respect to an employee who is a party to a written agreement with, or
alternatively, participates in a compensation or benefit plan of the Company or
a subsidiary corporation or parent corporation of the Company, which agreement
or plan contains a definition of "for cause" or "cause" (or words of like
import) for purposes of termination of employment thereunder by the Company or
such subsidiary corporation or parent corporation of the Company, "for cause" or
"cause" as defined in the most recent of such agreements or plans, or (ii) in
all other cases, as determined by the Board in its sole discretion, the term
"for cause" shall mean: (A) the willful commission by an employee of a criminal
or other act that causes or is likely to cause substantial economic damage to
the Company or a subsidiary corporation or parent corporation of the Company or
substantial injury to the business reputation of the Company or a subsidiary
corporation or parent corporation of the Company; (B) the commission by an
employee of an act of fraud in the performance of such employee's duties on
behalf of the Company or a subsidiary corporation or parent corporation of the
Company; or (C) the continuing willful failure of an employee to perform the
duties of such employee to the Company or a subsidiary corporation or parent
corporation of the Company (other than such failure resulting from the
employee's incapacity due to physical or mental illness) after written notice
thereof (specifying the particulars thereof in reasonable detail) and a
reasonable opportunity to be heard and cure such failure are given to the
employee by the Board. For purposes of the Plan, no act, or failure to act, on
the employee's part shall be considered "willful" unless done or omitted to be
done by the employee not in good faith without reasonable belief that the
employee's action or omission was in the best interest of the Company or a
subsidiary corporation or parent corporation of the Company.
c. For the purposes of the Plan, an employment relationship shall be deemed
<PAGE> 6
to exist between an individual and a corporation if, at the time of the
determination, the individual was an "employee" of such corporation for purposes
of Section 422 of the Code. If an individual is on military, sick leave or other
bona fide leave of absence such individual shall be considered an "employee" for
purposes of the exercise of an option and shall be entitled to exercise such
Option during such leave if the period of such leave does not exceed 90 days,
or, if longer, so long as the individual's right to reemployment with the
Company (or a related corporation) is guaranteed either by statute or by
contract. If the period of leave exceeds ninety (90) days, the employment
relationship shall be deemed to have terminated on the ninety-first (91st) day
of such leave, unless the individual's right to reemployment is guaranteed by
statute or contract.
d. A termination of employment shall not be deemed to occur by reason of
(i) the transfer of an employee from employment by the Company to employment by
a subsidiary corporation or a parent corporation of the Company or (ii) the
transfer of an employee from employment by a subsidiary corporation or a parent
corporation of the Company to employment by the Company or by another subsidiary
corporation or parent corporation of the Company.
e. Notwithstanding anything contained in this Plan to the contrary, no
person shall be entitled to exercise any Option after the period of
exercisability of such Option as specified in the applicable Non-Qualified Stock
Option Agreement or Incentive Stock Option Agreement.
f. The Board may in its discretion extend the period during which a
Non-Qualified Option may be exercised to such period, not to exceed three years
following the termination of a participant's employment or service with the
Company or subsidiary corporation or parent corporation of the Company, as the
Committee may determine in its discretion to be appropriate in any particular
instance.
9. Change of Position; Disclaimer of Rights
----------------------------------------
Except as otherwise provided in a Non-Qualified Stock Option Agreement or
Incentive Stock Option Agreement, any change of an Optionee's duties or
positions with the Company or with any subsidiary corporation or parent
corporation of the Company shall not affect the Optionee's right to exercise
Options granted pursuant to the Plan; provided, however, that no provision in
the Plan or any Option shall be construed to confer upon the Optionee any right
to be employed by the Company or any subsidiary corporation or parent
corporation of the Company, or to interfere in any way with the right and
authority of the Company or any subsidiary corporation or parent corporation of
the Company either to increase or decrease the compensation of the Optionee, at
any time, or to terminate any relationship or employment between the Optionee
and the Company or any subsidiary corporation or parent corporation of the
Company.
10. Compliance with Law.
-------------------
Any person exercising an Option shall make such representations and
agreements and furnish such information as the Board may in its discretion deem
necessary or desirable to assure compliance by the Company, on terms acceptable
to the Company, with the provisions of the Securities Act of 1933, as amended
(the "Securities Act"), and any other applicable legal requirements.
11. Issuance of Certificates; Legends.
---------------------------------
a. Upon any exercise of an Option which may be granted hereunder and
payment of the Option's purchase price, a certificate for the shares of Common
Stock as to which the Option has been exercised shall be issued by the Company
in the name of the person exercising the Option and shall be delivered to or
upon the order of such person or persons. The Company may endorse such legend or
legends upon the certificates for shares issued upon exercise of an Option
granted hereunder and may issue such "stop transfer" instructions to its
transfer agent in respect of such shares as, in its discretion, it determines to
be necessary or appropriate to (i) prevent a violation of, or to perfect an
exemption from, the registration requirements of the Securities Act, (ii)
implement the provisions of the Plan and any agreement between the Company and
the Optionee with respect to such shares, or (iii) permit the Company to
determine the occurrence of a disqualifying disposition, as described in Section
421(b) of the Code, of shares transferred upon exercise of an Incentive Option
granted under the Plan.
b. The Company shall pay all issue or transfer taxes with respect to the
issuance or transfer of shares of Common Stock, as well as all fees and expenses
necessarily incurred by the Company in connection with such issuance or
transfer.
<PAGE> 7
c. The Company, in its discretion, may postpone the issuance and delivery
of shares of Common Stock upon any exercise of an Option until completion of a
securities exchange listing or registration or other qualification of such
shares under any state or federal law, rule or regulation as the Company may
consider appropriate.
12. Listing of Shares and Related Matters.
-------------------------------------
If at any time the Board shall determine in its discretion that the
listing, registration or qualification of the shares of Common Stock covered by
the Plan upon any national securities exchange or under any state or federal
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the sale or
purchase of shares under the Plan, no Option may be exercised in whole or in
part unless and until such listing, registration, qualification, consent or
approval shall have been effected or obtained, or otherwise provided for, free
of any conditions not acceptable to the Board.
ARTICLE III
STOCK ADJUSTMENTS
1. The provisions of this Article shall be applicable to any Non-Qualified
Option or Incentive Option awarded to any individual pursuant to Article II. Any
adjustment of an Incentive Stock Option under this Article shall be made in such
manner as not to constitute a "modification" within the meaning of Section
424(h)(3) of the Code.
2. In the event that at any time after the effective date of the Plan the
outstanding shares of Common Stock are changed into or exchanged for a different
number or kind of shares or other securities of the Company by reason of merger,
consolidation, recapitalization, reclassification, stock split, stock dividend,
combination of shares or the like, the Board shall make an appropriate and
equitable adjustment in the number and kind of shares as to which all
outstanding Options granted pursuant to the Plan, or portions thereof then
unexercised, shall be exercisable, to the end that after such event the shares
subject to the Plan and each Optionee's proportionate interest shall be
maintained as before the occurrence of such event. Any such adjustment made by
the Board shall be final and binding upon all Optionees, the Company, and all
other interested persons.
3. Adjustments under this Article III shall be made by the Board, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding, and conclusive. No fractional shares of Common Stock or
units of other securities shall be issued pursuant to any such adjustment, and
any fractions resulting from any such adjustment shall be eliminated in each
case by rounding downward to the nearest whole share.
ARTICLE IV
MISCELLANEOUS
1. Amendment and Termination of Plan.
---------------------------------
a. The Board may, in its discretion, at any time suspend or terminate the
Plan. The Board may also at any time amend or revise the terms of the Plan or
any Option granted under the Plan.
b. No amendment, suspension, or termination of the Plan shall, subject to
Article III hereof, alter or impair any rights or obligations under any Option
granted under the Plan without the consent of the Optionee.
2. Fees and Expenses.
-----------------
Except as otherwise provided in this Plan, the Company will pay any and all
fees and expenses necessarily incurred by the Company in connection with the
administration of the Plan.
3. Withholding for Taxes.
---------------------
Any issuance of Common Stock pursuant to the exercise of an Option under
the Plan shall not be made until appropriate arrangements satisfactory to the
Board have been made for the payment of any tax amounts (federal, state, local
or other) that may be required to be withheld or paid by the Company (or any
subsidiary or parent thereof) with respect to such Optionee. Such arrangements
may, at the discretion of the Board, include allowing the Optionee to tender to
the Company shares of Common Stock owned by the Optionee, which have an
<PAGE> 8
aggregate fair market value per share as of the date of such withholding that is
not greater than the sum of all tax amounts to be withheld with respect thereto,
together with payment of any remaining portion of such tax amounts in cash or by
check payable and acceptable to the Board.
Notwithstanding the foregoing, if on the date of an event giving rise to a
tax withholding obligation on the part of the Company the Optionee is an officer
or individual subject to Rule 16b-3, such tax withholding shall be automatically
effectuated by the Company withholding the necessary number of shares of Common
Stock (at the highest applicable marginal tax rate for individuals) from such
Option exercise.
4. Adoption and Effectiveness of Plan.
----------------------------------
The Plan shall be adopted by resolution of the Company's Board on July 1,
1993, and shall be effective as of such date or a subsequent date set forth in
such resolution, subject to approval by the holders of a majority of the
outstanding shares of Common Stock of the Company within one (1) year of such
adoption. Prior to such shareholder approval, Options may be granted under the
Plan, but any such Option by its terms shall not be exercisable prior to such
approval. If the Plan is not approved by the shareholders of the Company, the
Plan shall terminate, and all Options granted under the Plan shall terminate and
become null and void.
5. No Obligation to Exercise Option.
--------------------------------
The granting of an Option shall impose no obligation on the Optionee to
exercise such Option.
6. Number; Gender.
--------------
Whenever used herein, nouns in the singular shall include the plural, and
the masculine pronoun shall include the feminine gender.
7. Partial Invalidity.
------------------
The invalidity of any provision contained in the Plan or any Non-Qualified
Stock Option Agreement, Incentive Stock Option Agreement or any other documents
or instrument evidencing the granting of an Option shall not be deemed to affect
the validity of any other provision contained in the Plan or the applicable
document.
8. Governing Law.
-------------
The Plan and any related documents or instruments shall be governed and
construed in accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused the Plan to be duly executed by
its authorized officers as of the 1st day of July, 1993, as amended and restated
on November 12, 1996 and as further amended on February 18, 1997.
<PAGE> 1
EXHIBIT 10.86
GREENFIELD INDUSTRIES, INC.
AMENDED AND RESTATED
1995 RESTRICTED STOCK BONUS PLAN
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
SECTION 1. PURPOSE AND DURATION .......................................... 1
1.1 Adoption and Purpose of the Plan ......................... 1
1.2 Effective Date ........................................... 1
SECTION 2. DEFINITIONS ................................................... 1
2.1 Definitions .............................................. 1
SECTION 3. ADMINISTRATION ................................................ 6
3.1 The Board of Directors ................................... 6
3.2 Authority of the Board ................................... 7
3.3 Delegation by the Board .................................. 7
3.4 Decisions Binding ........................................ 7
SECTION 4. ELIGIBILITY AND ELECTION TO PARTICIPATE ....................... 7
4.1 Eligible Employees ....................................... 7
4.2 Election by Eligible Employee to
Participate ............................................ 8
SECTION 5. SHARES SUBJECT TO THE PLAN .................................... 8
5.1 Number of Shares ......................................... 8
5.2 Restrictions on Shares ................................... 9
5.3 Lapsed Awards ............................................ 9
5.4 Adjustments in Awards and Authorized
Shares ................................................. 9
SECTION 6. TERMS AND CONDITIONS OF AWARDS ................................ 9
6.1 Award Agreement .......................................... 9
6.2 Period of Restriction .................................... 10
6.3 Timing and Irrevocability of Election .................... 10
6.4 Transferability .......................................... 10
6.5 Legend on Certificates ................................... 11
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
6.6 Removal of Restrictions .................................. 11
6.7 Voting Rights ............................................ 11
6.8 Dividends and Other Distributions ........................ 11
6.9 Cancellation of Shares ................................... 12
6.10 Change in Control ........................................ 12
6.11 No Fractional Shares ..................................... 13
SECTION 7. MISCELLANEOUS ................................................. 13
7.1 No Effect on Employment or Service ....................... 13
7.2 Participation ............................................ 13
7.3 Successors ............................................... 13
7.4 Beneficiary Designations ................................. 13
SECTION 8. AMENDMENT, TERMINATION AND DURATION ........................... 14
8.1 Amendment, Suspension or Termination ..................... 14
8.2 Duration of this Plan .................................... 14
SECTION 9. TAX WITHHOLDING ............................................... 14
9.1 Withholding Requirements ................................ 14
9.2 Withholding Arrangements ................................ 14
SECTION 10. LEGAL CONSTRUCTION ............................................ 15
10.1 Gender and Number ....................................... 15
10.2 Severability ............................................ 15
10.3 Requirements of Law ..................................... 15
10.4 Securities Law Compliance ............................... 15
10.5 Legend on Certificates .................................. 16
10.6 Governing Law ........................................... 16
10.7 Captions ................................................ 16
10.8 Reservation of Shares ................................... 16
</TABLE>
2
<PAGE> 4
GREENFIELD INDUSTRIES, INC.
AMENDED AND RESTATED
1995 RESTRICTED STOCK BONUS PLAN
SECTION 1
PURPOSE AND DURATION
1.1 Adoption and Purpose of the Plan. Greenfield Industries, Inc. (the
"Company") hereby adopts this 1995 Restricted Stock Bonus Plan (the
"Plan"). The Plan is intended to motivate and retain certain key
Employees (as hereinafter defined) of the Company by enabling them to
acquire shares of the Company's common stock, $.01 par value per share
(the "Shares" or singularly, a "Share") under the terms and conditions
of and in accordance with this Plan, thereby furthering the growth and
financial success of the Company by aligning the interests of such
Employees with the interests of the Company's stockholders.
1.2 Effective Date. The effective date (the "Effective Date") of the Plan
shall be the date of approval by the Company's stockholders. If such
approval is not obtained on or before December 31, 1996, the Plan shall
terminate on such date and all Awards (as hereinafter defined) of
Shares made prior to such date shall be rescinded and the portion of
the Incentive Bonus (as hereinafter defined) elected to be received in
Shares shall be paid in full to the Employee without interest. In
addition, prior to stockholder approval, no Shares issued pursuant to
the Plan shall be considered issued or outstanding.
SECTION 2
DEFINITIONS
2.1 Definitions. The following words and phrases shall have the following
meanings unless a different meaning is plainly required by the context:
(a) "1934 Act" means the Securities Exchange Act of 1934, as
amended. Reference to a specific section of the 1934 Act or
regulation thereunder shall include such section or
regulation, any valid regulation
<PAGE> 5
promulgated under such section, and any comparable provision
of any future legislation or regulation amending,
supplementing or superseding such section or regulation.
(b) "Act" means the Securities Act of 1933, as amended. Reference
to a specific Section of the Act or regulation thereunder
shall include such section or regulation, any valid regulation
promulgated under such section, and any comparable provision
of any future legislation or regulation amending,
supplementing or superseding such section or regulation.
(c) "Affiliate" means any corporation or other entity (including,
but not limited to, partnerships and joint ventures)
controlling, controlled by or under common control with, the
Company.
(d) "Award" means a grant of Shares under Section 4.2 of this
Plan.
(e) "Award Agreement" means the written agreement setting forth
the terms and provisions applicable to each Award granted
under this Plan.
(f) "Board" or "Board of Directors" means the Board of Directors
of the Company.
(g) A "Change in Control" of the Company shall be deemed to have
occurred if any of the following events occur on or after the
Effective Date:
(i) any corporation, Person, other entity or group
becomes the "beneficial owner" (as defined in Rule
13d-3 under the 1934 Act) of more than fifty percent
(50%) of the then outstanding voting stock of the
Company otherwise than through a transaction arranged
by, or consummated with, the prior approval of the
Board;
(ii) the stockholders of the Company approve a definitive
agreement to merge or consolidate with
2
<PAGE> 6
or into another corporation in a transaction in which
neither the Company nor any of its subsidiaries or
Affiliates will be the surviving corporation, or to
sell or otherwise dispose of all or substantially all
of the Company's assets to any person or group other
than the Company or any of its subsidiaries or
Affiliates, other than a merger or a sale which will
result in the voting securities of the Company
outstanding prior to the merger or sale continuing to
represent at least fifty percent (50%) of the
combined voting power of the voting securities of the
corporation surviving the merger or sale; or
(iii) during any period of two (2) consecutive years,
individuals who at the beginning of such period
constitute the Board of Directors of the Company (and
any new Director whose election by the Board of
Directors of the Company or whose nomination for
election by the Company's stockholders was approved
by a vote of at least two thirds (2/3) of the
Directors then still in office who either were
Directors at the beginning of such period or whose
election or nomination for election was previously so
approved) cease for any reason to constitute a
majority of the Company's Board of Directors.
(h) "Code" means the Internal Revenue Code of 1986, as amended.
Reference to a specific section of the Code or regulation
thereunder shall include such section or regulation, any valid
regulation promulgated under such section, and any comparable
provision of any future legislation or regulation amending,
supplementing or superseding such section or regulation.
(i) [reserved]
(j) "Company" means Greenfield Industries, Inc., a Delaware
corporation, and any successor thereto.
3
<PAGE> 7
(k) "Deferred Bonus" means the amount, measured in dollars on the
Grant Date, that the Participant has elected to defer.
(l) "Director" means any individual who is a member of the Board
of Directors of the Company.
(m) "Disability" means a permanent and total disability within the
meaning of Code Section 22(e)(3).
(n) "Effective Date" shall have the meaning assigned to such term
in Section 1.2.
(o) "Election" shall have the meaning assigned to such term in
Section 6.1.
(p) "Eligible Employee" shall have the meaning assigned to such
term in Section 4.1.
(q) "Employee" means any employee of the Company, whether such
employee is so employed at the time this Plan is adopted or
becomes so employed subsequent to the adoption of this Plan.
(r) "Fair Market Value" means, if the Shares are listed on a
national securities exchange, the closing sales price of a
Share as published on a national securities exchange on which
the Shares are traded on such date or, if there is no sale of
the Shares on such date, the average of the bid and asked
prices on such exchange at the close of trading on such date
or, if Shares are not listed on a national securities exchange
but are authorized for quotation in the National Association
of Securities Dealers Automated Quotation System National
Market (the "Nasdaq National Market"), the last transaction
price per share as reported by the Nasdaq National Market on
such date or, if there is no sale of the Shares on such date,
the average of the bid and asked prices as reported by the
Nasdaq National Market on such date or, if Shares are not
authorized for quotation on the Nasdaq National Market on such
date, the average of the bid and asked prices as reported in
the over the counter
4
<PAGE> 8
market or, if the Shares are not listed on a national
securities exchange, quoted on the Nasdaq National Market or
quoted in the over the counter market, the Fair Market Value
of a Share on such date as shall be determined by the majority
vote of the Board of Directors. In rendering its determination
of the Shares' Fair Market Value, the Board of Directors shall
comply with Section 422(b)(4) of the Code and the applicable
regulations promulgated thereunder. For purposes of the Plan,
the Board of Directors' determination of the Fair Market Value
of a Share shall be conclusive.
(s) "Fiscal Year" means the fiscal year of the Company.
(t) "Grant Date" means the date that an Incentive Bonus is granted
to an Employee.
(u) "Incentive Bonus" means a bonus paid to an Employee under the
incentive compensation plan as adopted and operated by the
Board of Directors and/or the Compensation and Options
Committee, and as such program may be amended from time to
time, or such other program utilized by the Board of Directors
and/or the Compensation and Options Committee from time to
time to grant annual bonuses to the officers of the Company
which program is designated by the Board and/or the
Compensation and Options Committee as the substitute for the
incentive compensation plan for purposes of this Plan.
(v) "Participant" means an Eligible Employee who has an
outstanding Award.
(w) "Period of Restriction" means the period during which Shares
are subject to transfer and additional restrictions and,
therefore, are subject to a substantial risk of forfeiture.
(x) "Person" shall have the meaning given in Section 3(a)(9) of
the 1934 Act, as modified and used in Sections 13(d) and 14(d)
thereof; provided, however, a person shall not include (1) the
Company or any of its
5
<PAGE> 9
subsidiaries, (2) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
any of its subsidiaries, (3) an underwriter temporarily
holding securities pursuant to an offering of such securities,
or (4) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company.
(y) "Retirement" means, in the case of an Employee, a Termination
of Service by reason of the Employee's retirement at or after
age sixty-five (65).
(z) "Section 16 Person" means a person who, with respect to the
Shares, is subject to Section 16 of the 1934 Act.
(aa) "Share" or "Shares" shall have the meaning assigned to such
term in Section 1.1.
(ab) "Termination of Service" means a cessation of the
employee-employer relationship between an Employee and the
Company for any reason, including, but not limited to, a
cessation by resignation, discharge, death, Disability or
Retirement, but excluding any such cessation where there is a
simultaneous reemployment by the Company.
SECTION 3
ADMINISTRATION
3.1 The Board of Directors. This Plan shall be administered by the Board of
Directors or such committee as may be designated by the Board from time
to time. Any such committee shall consist of not less than two (2)
Directors. The members of the committee shall be appointed from time to
time by, and shall serve at the pleasure of, the Board of Directors.
The committee shall be comprised solely of Directors who are
"Non-Employee Directors" within the meaning of Rule 16b-3 of the 1934
Act. Any reference to the Board of Directors contained herein shall
mean and include any such duly authorized committee thereof.
6
<PAGE> 10
3.2 Authority of the Board. It shall be the duty of the Board to administer
this Plan in accordance with its provisions. The Board shall have all
powers and discretion necessary or appropriate to administer this Plan
and to control its operation, including, but not limited to, the power
to (a) determine who shall be deemed to be an Eligible Employee under
the Plan (b) prescribe the terms and conditions of Awards, (c)
interpret this Plan, (d) adopt rules for the administration,
interpretation and application of this Plan as are consistent
therewith, (e) interpret, amend or revoke any such rules and (f)
prescribe the form, which shall be consistent with this Plan, of the
instruments evidencing any Awards of Shares hereunder. Any action taken
by the Board in the interpretation or administration of the Plan shall,
as between the Company and the Participants, be final and conclusive.
3.3 Delegation by the Board. The Board, in its sole discretion and on such
terms and conditions as it may provide, may delegate all or any part of
its authority and powers under this Plan to one or more Directors or
officers of the Company; provided, however, that the Board may not
delegate its authority and powers (a) with respect to Section 16
Persons, or (b) in any way which would jeopardize this Plan's
qualification under Rule 16b-3 of the 1934 Act.
3.4 Decisions Binding. All determinations and decisions made by the Board
and any delegate of the Board pursuant to Section 3.3 shall be final,
conclusive, and binding on all persons, and shall be given the maximum
deference permitted by law.
SECTION 4
ELIGIBILITY AND ELECTION TO PARTICIPATE
4.1 Eligible Employees. The Employees eligible to participate in this Plan
shall include all Employees who (i) are designated by the Board and/or
the Compensation and Options Committee as eligible to receive an
Incentive Bonus and to participate in this Plan and (ii) have made a
timely Election (as hereinafter defined) to participate in the Plan
(the "Eligible Employees").
7
<PAGE> 11
4.2 Election by Eligible Employee to Participate.
(a) Each Eligible Employee will receive annual notification that
he or she may elect (the "Election") to defer up to fifty
percent (50%) of his or her Incentive Bonus and receive in
lieu thereof Shares of the Company in an amount determined
pursuant to paragraph 4.2(c) or 4.2(d) hereof, in either case
valued at the Fair Market Value of such Shares on the Grant
Date.
(b) The Election shall be made pursuant to the terms of Section
6.3 hereof. All Shares received pursuant to the Plan (an
"Award") shall be subject to a Period of Restriction of either
three (3) or five (5) years, at the election of the
Participant.
(c) In consideration of the foregoing of cash compensation, if the
Participant elects a three (3) year Period of Restriction, he
or she will receive Shares (the "Three Year Restricted
Shares") having a Fair Market Value on the Grant Date equal to
one hundred twenty (120%) percent of the amount of the
Deferred Bonus.
(d) In consideration of the foregoing of cash compensation, if the
Participant elects a five (5) year Period of Restriction, he
or she will receive Shares (the "Five Year Restricted Shares")
having a Fair Market Value on the Grant Date equal to one
hundred thirty-five (135%) percent of the Deferred Bonus.
SECTION 5
SHARES SUBJECT TO THE PLAN
5.1 Number of Shares. Subject to adjustment as provided in Section 5.3, an
aggregate of 250,000 Shares will be authorized and reserved for
issuance under this Plan. The Shares granted under this Plan may be
either authorized and unissued Shares or previously issued Shares
reacquired by the Company and held in treasury, or any combination
thereof.
8
<PAGE> 12
5.2 Restrictions on Shares. Shares issued to Participants pursuant to this
Plan shall be subject to the terms, conditions and restrictions
specified in Section 6 hereof and to such other terms, conditions and
restrictions as the Board in its discretion may provide.
5.3 Lapsed Awards. If an Award is canceled, terminates, expires or lapses
for any reason, any Shares subject to such Award thereafter shall be
available for the grant of an Award under the Plan. Subject to the
provisions of Section 8.2 hereof, the Plan shall remain in effect until
all Awards now or hereafter subject to the Plan shall have vested or
lapsed.
5.4 Adjustments in Awards and Authorized Shares. In the event that a
dividend shall be declared payable in Shares, the number of Shares
reserved for issuance pursuant to this Plan but not yet subject to
grant shall be adjusted by adding to each such Share the number of
Shares which would be distributable in respect thereof if such Shares
had been outstanding on the record date for the issuance of such stock
dividend. In the event that the outstanding Shares shall be converted
into or exchanged for a different number of Shares or other securities
of the Company or of another corporation, whether through stock split,
recapitalization, split-up, merger, consolidation, reorganization,
combination or other issuance or exchange of shares, then there shall
be substituted for each Share granted pursuant to this Plan and for
each Share reserved for issuance pursuant to the Plan but not yet
subject to grant, the number and kind of Shares or other securities
which each Share shall have been so converted into or for which each
Share shall have been so exchanged, in such manner as the Board shall
determine to be advisable or appropriate to prevent the dilution or
diminution of such Shares.
SECTION 6
TERMS AND CONDITIONS OF AWARDS
6.1 Award Agreement. Shares granted pursuant to the Plan shall be evidenced
by an Award Agreement, substantially in the form set forth on Exhibit A
hereto, that shall specify the number of Shares received and such other
terms and conditions as the Board shall determine. Unless the Board,
9
<PAGE> 13
in its sole discretion, determines otherwise, Shares shall be held
by the Company as escrow agent until the end of the applicable Period
of Restriction.
6.2 Period of Restriction.
(a) The Period of Restriction with respect to Three Year
Restricted Shares will be (i) one year from the Grant Date for
one-third of the Three Year Restricted Shares, (ii) two years
from the Grant Date for one-third of the Three Year Restricted
Shares and (iii) three years from the Grant Date for the
remaining one-third of the Three Year Restricted Shares.
(b) The Period of Restriction with respect to Five Year Restricted
Shares will be (i) one year from the Grant Date for one-fifth
of the Five Year Restricted Shares, (ii) two years from the
Grant Date for one-fifth of the Five Year Restricted Shares,
(iii) three years from the Grant Date for one-fifth of the
Five Year Restricted Shares, (iv) four years from the Grant
Date for one-fifth of the Five Year Restricted Shares, and (v)
five years from the Grant Date for the remaining one-fifth of
the Five Year Restricted Shares.
6.3 Timing and Irrevocability of Election. The Election for each Fiscal
Year must be made annually (1) no later than the date determined by the
Board, which date shall be prior to the commencement of the Fiscal Year
for which the Incentive Bonus will be granted, or (2) within thirty
(30) days of the commencement of an Employee's eligibility to
participate in the Plan; provided, however, that Elections for the
Incentive Bonus for the Company's Fiscal Year ended December 31, 1995
must be made no later than December 31, 1995. All Elections hereunder
shall be irrevocable.
6.4 Transferability. Except as provided in this Section 6, Shares may not
be sold, transferred, gifted, bequeathed, pledged, assigned, or
otherwise alienated or hypothecated, voluntarily or involuntarily,
until the end of the applicable Period of Restriction; provided,
however, that in no event may the restrictions on Shares issued to a
Section 16 Person lapse prior to six (6) months following the Grant
10
<PAGE> 14
Date (or such shorter period as may be permissible while maintaining
compliance with Rule 16b-3 of the 1934 Act).
6.5 Legend on Certificates. The Board, in its sole discretion, may legend
the certificates representing Shares to give appropriate notice of such
restrictions. For example, the Board may determine that some or all
certificates representing Shares shall bear the following legend:
"THE SALE OR OTHER TRANSFER OF THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE, WHETHER VOLUNTARY, INVOLUNTARY, OR BY OPERATION OF LAW, IS
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
GREENFIELD INDUSTRIES, INC. 1995 RESTRICTED STOCK BONUS PLAN. A COPY OF
THIS PLAN MAY BE OBTAINED FROM THE SECRETARY OF GREENFIELD INDUSTRIES,
INC."
6.6 Removal of Restrictions. The Board, in its sole discretion, may
accelerate the time at which any restrictions shall lapse and remove
any restrictions; provided, however, that the Period of Restriction on
Shares granted to a Section 16 Person may not lapse until at least six
(6) months after the Grant Date (or such shorter period as may be
permissible while maintaining compliance with Rule 16b-3 of the 1934
Act). After the termination of the applicable Period of Restriction,
the Participant shall be entitled to have any legend under Section 6.5
removed from his or her Share certificate, and the Shares shall be
freely transferable by the Participant.
6.7 Voting Rights. Commencing with the Effective Date, Participants holding
Shares issued hereunder may, during the Period of Restriction, exercise
full voting rights with respect to those Shares.
6.8 Dividends and Other Distributions. Commencing with the Effective Date,
Participants holding Shares shall, during the Period of Restriction, be
entitled to receive all dividends and other distributions paid with
respect to such Shares. If any such dividends or distributions are paid
in Shares, the Shares received in such dividend or distribution shall
be subject to all of the same restrictions, including, but not limited
to, restrictions on transferability and forfeitability as the Shares
with respect to which they were paid.
11
<PAGE> 15
With respect to Shares issued to a Section 16 Person, any dividend or
distribution that constitutes a "derivative security" or an "equity
security" under Section 16 of the 1934 Act shall be subject to a
Period of Restriction equal to the longer of (a) the remaining Period
of Restriction on the Shares with respect to which the dividend or
distribution is paid, or (b) six (6) months (or such shorter period as
may be permissible while maintaining compliance with Rule 16b-3 of the
1934 Act).
6.9 Cancellation of Shares.
(a) On the date of the Participant's Termination of Service for
cause, as determined by the Board of Directors, all Shares
held by such Participant for which the Period of Restriction
has not lapsed shall revert to the Company and thereafter
shall be available for issuance under this Plan.
(b) In the event of a Participant's Termination of Service by
reason of Retirement, resignation or termination not for
cause, all Shares held by such Participant for which the
Period of Restriction has not lapsed shall revert to the
Company and thereafter shall be available for issuance under
the Plan; provided, however, that the Board may, in its sole
discretion, cause all or a portion of the Shares held by a
Participant for which the Period of Restriction has not lapsed
to immediately vest in full and remove all restrictions.
(c) In the event of a Participant's Termination of Service by
reason of death or Disability, all Shares held by such
Participant for which the Period of Restriction has not lapsed
shall immediately vest in full and all restrictions shall be
removed.
6.10 Change in Control. In the event of a Change in Control prior to a
Participant's Termination of Service, the Board may, in its sole
discretion, cause all or a portion of the Shares held by a Participant
for which the Period of Restriction has not lapsed to immediately vest
in full and remove all restrictions; provided, however that the Period
of Restriction on Shares granted to a Section 16 Person may
12
<PAGE> 16
not lapse until at least six (6) months after the Grant Date (or such
shorter period as may be permissible while maintaining compliance with
Rule 16b-3 of the 1934 Act).
6.11 No Fractional Shares. The Company will not be obligated to deliver
fractional Shares but may round the number of Shares to be delivered
down to the next whole number.
SECTION 7
MISCELLANEOUS
7.1 No Effect on Employment or Service. Nothing in this Plan shall
interfere with or limit in any way the right of the Company to
terminate any Participant's employment or service at any time, with or
without cause. For purposes of this Plan, transfer of employment of a
Participant between the Company and any of its Affiliates (or between
Affiliates) shall not be deemed a Termination of Service.
7.2 Participation. No Employee shall have the right to be selected to
participate in this Plan, or, having been so selected, to be selected
to participate in the future.
7.3 Successors. All obligations of the Company under this Plan, with
respect to Shares issued hereunder, shall be binding on any successor
to the Company, whether the existence of such successor is the result
of a direct or indirect purchase, merger, consolidation or otherwise,
of all or substantially all of the business or assets of the Company.
7.4 Beneficiary Designations. If permitted by the Board, a Participant
under this Plan may name a beneficiary or beneficiaries to whom any
Shares, shall be distributed in the event of the Participant's death.
Each such designation shall revoke all prior designations by the
Participant and shall be effective only if given in a form and manner
acceptable to the Board. In the absence of any such designation, any
Shares subject to a Period of Restriction at the Participant's death
shall be distributed to the Participant's estate.
13
<PAGE> 17
SECTION 8
AMENDMENT, TERMINATION AND DURATION
8.1 Amendment, Suspension or Termination. The Board, in its sole
discretion, may amend or terminate this Plan, or any part thereof, at
any time and for any reason; provided, however, that if and to the
extent required to maintain this Plan's qualification under Rule 16b-3
of the 1934 Act, any such amendment shall be subject to stockholder
approval. The amendment, suspension or termination of this Plan shall
not, without the consent of the Participant, alter or impair any
rights or obligations under any Shares theretofore granted to such
Participant. No grants of Shares may be made during any period of
suspension or after termination of this Plan.
8.2 Duration of this Plan. This Plan shall become effective on the
Effective Date and, subject to Section 8.1, shall remain in effect for
a period of ten (10) years.
SECTION 9
TAX WITHHOLDING
9.1 Withholding Requirements. The Company shall have the power and the
right to deduct or withhold, or require a Participant to remit to the
Company, an amount sufficient to satisfy federal, state and local taxes
(including the Participant's FICA obligation) required to be withheld
with respect to an Award of Shares or any dividends or other
distributions payable with respect thereto.
9.2 Withholding Arrangements. Subject to the requirements of Rule 16b-3 of
the 1934 Act, the Board, in its sole discretion and pursuant to such
procedures as it may specify from time to time, may permit a
Participant to satisfy such tax withholding obligation, in whole or in
part, by (a) electing to have the Company withhold otherwise
deliverable Shares, or (b) delivering to the Company Shares then owned
by the Participant having a Fair Market Value equal to the amount
required to be withheld. The amount of the withholding requirement
shall be deemed to include any amount that the Board agrees may be
withheld at the time any such election is made, not to exceed the
minimum required amount of withholding applicable to the Participant
with respect to the Shares on the date that the amount of tax to
14
<PAGE> 18
be withheld is determined. The Fair Market Value of the Shares to
be withheld or delivered shall be determined as of the date that the
taxes are required to be withheld.
SECTION 10
LEGAL CONSTRUCTION
10.1 Gender and Number. Except where otherwise indicated by the context, any
masculine term used herein also shall include the feminine, the plural
shall include the singular, and the singular shall include the plural.
10.2 Severability. In the event any provision of this Plan shall be held
illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of this Plan, and this Plan shall be
construed and enforced as if the illegal or invalid provision had not
been included.
10.3 Requirements of Law. The issuance of Shares under this Plan shall be
subject to all applicable laws, rules and regulations, and to such
approvals by any governmental agencies or national securities exchanges
as may be required from time to time.
10.4 Securities Law Compliance. With respect to Section 16 Persons, grants
under this Plan are intended to comply with all applicable conditions
of Rule 16b-3 of the 1934 Act. To the extent any provision of this Plan
or action by the Board fails to so comply, it shall be deemed null and
void, to the extent permitted by law and deemed advisable or
appropriate by the Board in its sole discretion.
15
<PAGE> 19
10.5 Legend on Certificates. In the event that at any time Shares issued
pursuant to the Plan shall not have been registered under the Act, at
the time of issuance such Shares shall be subject to stop transfer
instructions and shall be inscribed with the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE
SOLD OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT COVERING SUCH
SHARES IS EFFECTIVE UNDER THE ACT OR (II) THE TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT AND, IF GREENFIELD INDUSTRIES, INC.
("GREENFIELD") REQUESTS, AN OPINION SATISFACTORY TO GREENFIELD TO SUCH
EFFECT HAS BEEN RENDERED BY COUNSEL."
Shares will not be transferred unless such transfer has been registered
under the Act and any applicable securities laws of other
jurisdictions, or an exemption from registration is available and
evidence of such registration or exemption from registration reasonably
satisfactory to the Company is furnished to the Company.
10.6 Governing Law . This Plan and any related documents or instruments
shall be construed in accordance with and governed by the laws of the
State of Delaware.
10.7 Captions . Captions are provided herein for convenience of reference
only, and shall not serve as a basis for interpretation or construction
of this Plan.
10.8 Reservation of Shares. The Company during the term of the Plan, will at
all times reserve and keep available the number of Shares as shall be
sufficient to satisfy the requirements of the Plan. The inability of
the Company to obtain the necessary approvals from any regulatory body
having jurisdiction or approval deemed necessary by the Company's
counsel to the lawful issuance and sale of any Shares under the Plan
shall relieve the Company of any liability in respect of the
nonissuance or sale of such Shares as to which such requisite authority
shall not have been obtained.
16
<PAGE> 1
EXHIBIT 11
GREENFIELD INDUSTRIES, INC.
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS(1)
(in thousands, except per share data)
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31
------------------------------------
1996 1995 1994
------- ------- -------
<S> <C> <C> <C>
PRIMARY EARNINGS PER SHARE:
Weighted average number of common shares outstanding 16,328 16,252 16,250
======= ======= =======
Net income $26,189 $31,465 $22,009
======= ======= =======
Net income per common share $ 1.60 $ 1.94 $ 1.35
======= ======= =======
FULLY DILUTED EARNINGS PER SHARE:
Weighted average number of common shares outstanding 16,328 16,252 16,250
Shares issued upon assumed conversion of the Mandatorily
Redeemable Convertible Preferred Securities 1,919 -- --
Weighted average number of common and common
equivalent shares outstanding 18,247 16,252 16,250
======= ======= =======
Net income $26,189 $31,465 $22,009
Interest expense on Mandatorily Redeemable Convertible
Preferred Securities, net of applicable income taxes 2,841 -- --
------- ------- -------
Net income, adjusted $29,030 $31,465 $22,009
======= ======= =======
Net income per common share $ 1.59 $ 1.94 $ 1.35
======= ======= =======
</TABLE>
(1) All numbers of shares in this exhibit are weighted on the basis of the
number of days the shares were outstanding or assumed to be outstanding
during each period. The effect of shares to be issued upon the exercise
of outstanding stock options is not material.
<PAGE> 1
EXHIBIT 13
Selected Financial Data
<TABLE>
<CAPTION>
Statement of Operations Data
Years ended December 31,
(In thousands, except per share data) 1996 1995 1994 1993 1992
========================================================================================================================
<S> <C> <C> <C> <C> <C>
Net sales $510,094 $420,188 $271,787 $228,844 $215,260
Cost of sales 357,203 288,158 180,974 157,551 153,666
- ------------------------------------------------------------------------------------------------------------------------
Gross profit 152,891 132,030 90,813 71,293 61,594
Selling, general and administrative expenses 88,944 70,952 50,229 41,007 43,925
Restructuring costs 4,000 - 1,300 - 2,218
- ------------------------------------------------------------------------------------------------------------------------
Operating income 59,947 61,078 39,284 30,286 15,451
Interest expense 11,049 8,223 3,169 8,302 12,764
Dividends on mandatorily redeemable
convertible preferred securities 4,734 - - - -
- ------------------------------------------------------------------------------------------------------------------------
Income before provision (benefit) for income
taxes and extraordinary loss 44,164 52,855 36,115 21,984 2,687
Provision (benefit) for income taxes 17,975 21,390 14,106 6,338 (103)
- -------------------------------------------------------------------------------------------------------------------------
Income before extraordinary loss 26,189 31,465 22,009 15,646 2,790
Extraordinary loss(1) - - - 1,832 -
- ------------------------------------------------------------------------------------------------------------------------
Net income $ 26,189 $ 31,465 $ 22,009 $ 13,814 $ 2,790
========================================================================================================================
Earnings per common share:
Before extraordinary loss $ 1.60 $ 1.94 $ 1.35 $ 1.24 $ 0.28
Extraordinary loss - - - 0.15 -
- ------------------------------------------------------------------------------------------------------------------------
Earnings per common share:
Primary $ 1.60 $ 1.94 $ 1.35 $ 1.09 $ 0.28
========================================================================================================================
Fully diluted(2) $ 1.59 $ - $ - $ - $ -
========================================================================================================================
Weighted average number of common and
common equivalent shares:
Primary 16,328 16,252 16,250 12,654 10,000
========================================================================================================================
Fully diluted(2) 18,247 - - - -
========================================================================================================================
Dividends per common share $ 0.17 $ 0.13 $ 0.09 $ 0.04 $ -
========================================================================================================================
</TABLE>
(1) In connection with the repayment of indebtedness from the proceeds of
the initial public offering of common stock, the Company incurred
certain prepayment penalties. Subsequent thereto, the Company
negotiated new credit facilities with another bank group resulting in
lower interest rates and less restrictive covenants. In connection
with these transactions, the Company incurred costs of $3,001, less
applicable income tax benefits of $1,169.
(2) For the years ended December 31, 1995 through 1992, there was no
dilutive effect.
<TABLE>
<CAPTION>
Balance Sheet Data
As of December 31, (In thousands) 1996 1995 1994 1993 1992
========================================================================================================================
<S> <C> <C> <C> <C> <C>
Working capital $187,297 $123,807 $ 79,225 $ 75,467 $ 41,901
Total assets 562,644 398,463 319,935 206,081 185,123
Total debt 163,138 140,831 97,835 52,676 125,896
Mandatorily redeemable convertible
preferred securities 115,000 - - - -
Stockholders' equity 200,728 179,260 147,903 125,710 23,680
</TABLE>
Greenfield Industries, Inc. 19
<PAGE> 2
Management's Discussion and Analysis
OVERVIEW
During the periods discussed below, Greenfield Industries, Inc.'s results of
operations were significantly affected by a series of acquisitions that enabled
it to offer a wider range of products and increase its manufacturing
capabilities. Acquisitions which were accounted for using the purchase method
of accounting, are reflected in the consolidated financial statements from the
acquired companies' respective dates of acquisition. In each of the
acquisitions, the excess of the purchase price paid over the estimated fair
value of net assets acquired, if any, was allocated to goodwill. The
amortization of goodwill resulted in a noncash charge to operations which
approximated $4.3 million in 1996.
Greenfield Industries, Inc. (Greenfield or the Company) has
consolidated many of the acquired operations into existing facilities,
rationalized and focused remaining facilities, and completed plant
consolidation and relocation projects in order to integrate product lines and
rationalize excess capacity. The Company has made substantial capital
investments for the business. Over $69.2 million has been spent during the
three-year period ended December 31, 1996 of which $29.2 million was spent on
capital investments in 1996. Such amounts were in excess of depreciation
expense for the related periods. As a result, the Company has improved the
efficiency of its manufacturing and distribution operations and increased the
range of products and services offered to its customers.
The Company has made the following acquisitions in the past three
years which affected the results of operations:
<TABLE>
<S> <C>
October 1994 Threads, Inc.
October 1994 Hendersonville Industrial Tool Co., Inc.
November 1994 The Cleveland Twist Drill Company
November 1994 Carbidie Corporation
January 1995 American Mine Tool Division of Valenite, Inc. (AMT)
June 1995 Van Keuren, Inc. (VK)
December 1995 Cleveland Europe Limited (Cleveland Europe)
January 1996 Rule Industries, Inc. (Rule)
June 1996 Boride Products, Inc. (Boride)
July 1996 Arkansas Cutting Tools, a division of Production Carbide
& Steel Company (ACT)
December 1996 Bassett Rotary Tool Company (Bassett)
</TABLE>
For a better understanding of the significant factors that influenced
the Company's performance during the past three years, the following discussion
should be read in conjunction with the consolidated financial statements and
notes thereto appearing elsewhere in this Annual Report.
RESULTS OF OPERATIONS
The following table sets forth for the years indicated the percentage of net
sales represented by certain items reflected in the Company's consolidated
statement of operations:
<TABLE>
<CAPTION>
Years ended December 31, 1996 1995 1994
- --------------------------------------------------------
<S> <C> <C> <C>
Net sales 100.0% 100.0% 100.0%
Cost of sales 70.0 68.6 66.6
- --------------------------------------------------------
Gross profit 30.0 31.4 33.4
Selling, general and
administrative expenses 17.4 16.9 18.5
Restructuring costs 0.8 -- 0.4
- --------------------------------------------------------
Operating income 11.8 14.5 14.5
Interest expense 2.2 1.9 1.2
Dividends on mandatorily
redeemable convertible
preferred securities 1.0 -- --
- --------------------------------------------------------
Income before provision for
income taxes 8.6 12.6 13.3
Provision for income taxes 3.5 5.1 5.2
- --------------------------------------------------------
Net income 5.1% 7.5% 8.1%
========================================================
</TABLE>
1996 COMPARED TO 1995
Net sales for the year ended December 31, 1996 were $510.1 million, an increase
of $89.9 million, or 21.4%, over net sales of $420.2 million for the year ended
December 31, 1995. Of the $89.9 million increase in net sales, $81.2 million
was due to the net sales of newly-acquired businesses, with the remaining $8.7
million increase related to increased net sales from existing businesses.
Including the effect of the newly-acquired businesses, net sales of the
Company's six product groups were as follows:
<TABLE>
<CAPTION>
Years ended December 31, Increase
(In millions) 1996 1995 (decrease)
- -----------------------------------------------------------------
<S> <C> <C> <C>
Industrial Products $260.0 $226.5 $33.5
Engineered Products 69.2 62.2 7.0
Energy & Construction
Products 61.4 54.4 7.0
Electronics Products 60.7 60.8 (0.1)
Consumer Products 34.3 16.3 18.0
Marine Products 24.5 -- 24.5
- ----------------------------------------------------------------
$510.1 $420.2 $89.9
================================================================
</TABLE>
The increases in net sales of the industrial and consumer products
groups were primarily attributable to the sales from the newly-acquired
businesses of Rule and Cleveland Europe. Net sales of engineered products were
up from 1995 primarily due to the acquisition of Boride. Net sales of the
electronics products group decreased for the year ended December 31, 1996,
primarily as a result of being adversely affected by a decline in demand
believed to be caused by inventory destocking in Europe and, to a lesser
extent, in the United States. Net sales of energy and construction products
were affected by the continued increase in demand for energy products. All of
the net sales of
20 Greenfield Industries, Inc.
<PAGE> 3
the marine products group were attributable to the Rule acquisition in January
1996.
Gross profit increased 15.8% to $152.9 million from $132.0 million in
the comparable period in 1995, primarily as a result of the sales increases
discussed above. The gross profit margin decreased to 30.0% from 31.4%. The
decrease in gross profit margin resulted primarily from lower production levels
and plant inefficiencies relating to a decline in sales from existing
businesses in the third and fourth quarters of 1996 as compared to the same
quarters of 1995 and as compared to the first and second quarters of 1996,
costs associated with the startup of certain new operations, and the effect of
lower gross margins on products sold by certain acquired businesses.
Selling, general and administrative (SG&A) expenses increased $18.0
million in 1996, and SG&A expenses as a percentage of net sales increased to
17.4% from 16.9% in 1995. The increase was primarily a result of the Rule,
Cleveland Europe and Boride acquisitions, which have slightly higher selling
expenses as a percent of sales than the Company's historical percentage, and a
$1.5 million stock-based compensation charge discussed below.
During the second quarter of 1996, the Company's stockholders approved
stock-based compensation plans for key executives of the Company under which
certain key executives may receive restricted stock awards if certain criteria,
including increases in the Company's stock price and earnings per share, are
achieved over the next several years. Compensation expense charged during 1996
pursuant to such plans was $1.5 million. Compensation charges attributable to
the plans in future periods, if any, are estimated to be less than the charge
for the current period; however, such charges will be based in part on
increases in the Company's stock price and earnings per share and therefore,
may fluctuate significantly from period to period.
Restructuring costs of $4.0 million were recorded in 1996 relating
primarily to severance and other employee-related costs associated with the
reorganization and restructuring of the Company's business groups. In
connection with this reorganization, certain functions were identified as
redundant and will be combined or eliminated, with the objective of making each
business group more focused and responsive to its respective customer base. The
Company continues to evaluate its operations with an intent to streamline
operations, improve productivity and reduce costs and may implement additional
rationalization programs in the future.
Operating income, after the above-noted stock-based compensation
charge and the restructuring costs, declined $1.1 million, or 1.9%, to $59.9
million while operating margins decreased to 11.8% from 14.5% during 1996 as
compared to 1995. Operating margins declined due to lower gross margins,
higher SG&A expenses and the restructuring costs, all discussed above.
Interest expense increased $2.8 million to $11.0 million in 1996 from
$8.2 million in 1995. The increase in interest expense resulted from an
increase in the debt level of the Company, which was primarily due to
acquisitions, partially offset by the proceeds from the issuance of the
company-obligated, mandatorily redeemable convertible preferred securities
during April 1996. The net proceeds from such issuance of approximately $110.7
million were used to repay Company indebtedness.
Dividends on company-obligated, mandatorily redeemable convertible
preferred securities of Greenfield Capital Trust were $4.7 million for the year
ended December 31, 1996.
The provision for income taxes decreased to $18.0 million for 1996, a
decrease of $3.4 million from 1995, reflecting the lower pretax income. The
effective tax rate increased slightly from 40.5% in 1995 to 40.7% in 1996,
primarily due to an increase in nondeductible goodwill amortization.
Net income decreased to $26.2 million for 1996, a decrease of $5.3
million, or 16.8%, from 1995 as a result of the factors noted above. Net income
as a percentage of net sales decreased to 5.1% from 7.5%. Primary earnings per
common share decreased to $1.60 from $1.94 for the years ended December 31,
1996 and 1995, respectively. Fully diluted earnings per share for the year
ended December 31, 1996 were $1.59.
1995 COMPARED TO 1994
Net sales for the year ended December 31, 1995 were $420.2 million, an increase
of $148.4 million, or 54.6%, over net sales of $271.8 million for the year
ended December 31, 1994. Of the $148.4 million increase in net sales, $111.7
million was due to the increase in net sales of newly-acquired businesses, with
the remaining $36.7 million increase related to increased net sales from
existing businesses (which represents a 14.2% increase from the prior year).
Volume increases accounted for substantially all of the 14.2% increase.
Industrial and consumer sales increased $79.8 million from 1994, mining and
wear parts products sales increased $52.1 million, electronics products sales
increased $12.6 million, and oilfield equipment product sales increased $3.9
million. The increase in industrial and consumer sales is due primarily to
sales relating to acquisitions and strong industrial products demand. The
increase in electronics products sales is attributable to volume increases as a
result of increased demand in all markets. The mining and wear parts products
sales increases are attributable to acquisitions.
Gross profit increased 45.4% to $132.0 million from $90.8 million in
the prior period primarily as a result of the sales increases discussed above.
The gross profit margin decreased to 31.4% from 33.4%. The decrease in gross
profit margin resulted primarily from the recent acquisitions, most of which
historically operated with lower gross margins than the Company. Gross profit
margin from existing businesses was 33.5% for the year ended December 31, 1995.
SG&A expenses increased $20.7 million in 1995. SG&A expenses as a
percentage of net sales decreased to 16.9% from 18.5%. The total dollar
increase was a result of the acquisitions and increased sales while the
percentage decrease was due to savings from rationalization of certain selling,
general and
Greenfield Industries, Inc. 21
<PAGE> 4
Management's Discussion and Analysis (Continued)
administrative functions of the acquired companies and increased sales.
Operating income for 1995 improved $21.8 million, or 55.5%, to $61.1
million compared to $39.3 million in 1994 while operating margins remained
constant at 14.5% year over year. The improved operating profit resulted from
the factors noted above, while the unchanged operating margins resulted from
the Company's acquisitions in late 1994 and early 1995, as the operating
margins of the acquired businesses were generally lower than those of the
Company, offset by rationalization savings.
Interest expense increased to $8.2 million in 1995 from $3.2 million
in 1994. The increase in interest expense resulted primarily from the increase
in the debt level of the Company due to acquisitions.
The provision for income taxes increased to $21.4 million for 1995, an
increase of $7.3 million over 1994, due to the increase in pretax income in
1995 and the increase in the effective income tax rate to 40.5% in 1995 as
compared to 39.1% in 1994. The effective income tax rate in 1995 increased due
to nondeductible goodwill amortization related to certain of the Company's
recent acquisitions and higher foreign taxable income.
Net income increased to $31.5 million in 1995, an increase of $9.5
million, or 43.0%, over 1994 as a result of the factors noted above. Net income
as a percentage of net sales decreased to 7.5% from 8.1%. Primary earnings per
common share increased to $1.94 from $1.35 in the prior year.
LIQUIDITY AND CAPITAL RESOURCES
During the three years ended December 31, 1996, 1995 and 1994, cash provided by
operating activities was approximately $2.2 million, $17.4 million and $40.4
million, respectively. The decline in cash provided by operating activities is
due primarily to an increase in accounts receivable corresponding with
increased sales, an increase in inventories in order to improve customer
service, and reductions in both accounts payable and accrued liabilities,
including restructuring and acquisition reserves.
During 1996, cash was used to finance capital expenditures of
approximately $29.2 million. There were no individually significant capital
expenditures in 1996. In addition, the acquisitions of Rule, ACT, Boride and
Bassett used cash of approximately $111.2 million. During 1996, the Company
paid common stock dividends of approximately $2.8 million. Net borrowings of
the Company increased by approximately $23.2 million during 1996. During this
period the Company borrowed approximately $140.7 million, primarily related to
the acquisitions of Rule, Boride, ACT and Bassett, as well as borrowings for
operating activities. These borrowings were offset by the repayment of
indebtedness from the net proceeds of approximately $110.7 million from the
issuance of the mandatorily redeemable convertible preferred securities.
During 1995, net cash provided by operating and financing activities
was used to finance capital expenditures of approximately $26.8 million, to
purchase AMT, VK and Cleveland Europe, to pay a portion of the purchase price
of the then-pending acquisition of Rule (which was completed in January 1996)
and to pay dividends of approximately $2.1 million on the common stock. Net
borrowings increased by approximately $41.8 million. Major capital expenditures
in 1995 included the expansion of the Clemson, South Carolina facility, the
construction of a new manufacturing facility in Solon, Ohio, and capacity
additions at the Company's electronics and carbide operations.
During 1994, net cash provided by operating and financing activities
was used to finance capital expenditures of approximately $13.1 million and pay
dividends of $1.4 million on the common stock. Net borrowings of the Company
increased by approximately $45.9 million in 1994 primarily due to acquisitions.
The purchase price for the 1996 acquisitions of Rule, Boride, ACT and
Bassett totalled approximately $111.2 million in cash. In addition, the Company
assumed liabilities of the acquired companies totalling approximately $24.6
million, including $2.4 million in acquisition costs. The Company expects that
these acquisitions will expand sales and product offerings in the industrial,
consumer, marine and engineered products markets.
The purchase prices for the 1995 acquisitions of AMT, VK and Cleveland
Europe totalled approximately $24.4 million in cash. In addition, the Company
assumed liabilities of the acquired companies totalling approximately $7.8
million, including $1.0 million in acquisition costs.
The purchase prices for the 1994 acquisitions totalled approximately
$73.6 million in cash. In addition, the Company assumed liabilities of the
acquired companies totalling approximately $43.6 million, including $1.9
million in acquisition costs.
The Company believes that its principal manufacturing facilities have
sufficient capacity to accommodate future internal growth expectations, but it
continues to evaluate its facilities with a view to maintain cost-effective and
modern facilities. Management anticipates that capital expenditures for 1997
will range from approximately $28 million to $32 million and will consist
primarily of selected machinery and equipment purchases to improve production
methods and processes and increase capacity at certain facilities. Funding for
capital expenditures is expected to be provided by cash from operating
activities and through the Company's credit facilities.
The Company has a $130 million senior unsecured multi-currency
revolving credit facility and a $50 million acquisition facility provided by a
banking syndicate. The multi-currency facility provides for loans of up to DM
30 million and Sterling 15 million (collectively the foreign currency
commitments). As of December 31, 1996, the Company had $76.4 million
outstanding under the multi-currency facility, of which $15.9 million was in
foreign currency commitments. The revolving credit line generally bears
interest at floating rates based upon the
22 Greenfield Industries, Inc.
<PAGE> 5
prime rate or LIBOR, at the option of the Company. As of December 31, 1996, the
interest rate on borrowings under the revolving credit line ranged from
approximately 6.3% to 8.3% per annum. At December 31, 1996, there was $53.6
million available under the multi-currency facility and $50.0 million available
under the acquisition facility.
The multi-currency credit facility is scheduled to terminate in
December 2001. The agreement relating to the facility contains provisions
which, among other things, limit certain additional borrowings and capital
expenditures, require maintenance of certain debt to capital and debt to cash
flow ratios and net worth levels. At December 31, 1996 and 1995, the Company
was in compliance with such provisions.
In April 1996, the Company completed a private placement to
institutional investors of $115.0 million of 6% convertible preferred
securities (liquidation preference of $50 per convertible preferred security).
The placement was made through Greenfield Capital Trust, a newly-formed
Delaware business trust. The securities represent undivided beneficial
ownership interests in the Trust and are fully, irrevocably and unconditionally
guaranteed by Greenfield. Greenfield owns all of the common securities of the
Trust. The assets of the Trust consist of Greenfield's 6% Convertible Junior
Subordinated Deferrable Interest Debentures Due 2016 which were acquired with
the proceeds of the offering. The convertible preferred securities are
convertible at the option of the holders thereof at any time into the common
stock of Greenfield at an effective conversion price of $41.25 per share and
are redeemable at Greenfield's option after April 15, 1999. The approximately
$110.7 million net proceeds of the offering were used by Greenfield to retire
indebtedness. A registration statement relating to resales of such convertible
preferred securities was declared effective by the Securities and Exchange
Commission on September 26, 1996.
On July 1, September 30 and December 31, 1996, Greenfield Capital
Trust paid quarterly cash dividends totalling approximately $4.7 million to
holders of the mandatorily redeemable convertible preferred securities. The
Company paid quarterly cash dividends on common stock of $0.04 per share on
March 29, June 28, and September 30, 1996 and $0.05 per common share on
December 30, 1996.
As of December 31, 1996, the Company had a backlog of $45.8 million,
as compared to $44.3 million as of December 31, 1995. The Company's backlog
consists of firm customer purchase orders which are subject to cancellation by
the customer upon notification. The Company anticipates that approximately 90%
of its backlog at any given time will be shipped within the next three-month
period.
Based on its current operating plans, the Company believes that it
will have sufficient cash from operations and its existing credit facilities to
meet its currently anticipated needs for liquidity and capital expenditures.
EFFECTS OF INFLATION
The Company's manufacturing costs and expenses are affected by price changes.
The Company has historically mitigated inflationary effects by passing price
changes along to its customers and by continually developing and implementing
more cost-effective manufacturing and other operational procedures. The
Company's continued ability to mitigate the effect of price changes will depend
on future market factors.
FOREIGN OPERATIONS
The Company's primary foreign operations are conducted through its subsidiaries
in Canada, Mexico, Germany and the United Kingdom. The functional currencies of
these subsidiaries are the currencies native to the specific country in which
the subsidiary is located. Foreign operations accounted for approximately 14%,
13% and 12% of the Company's net sales in 1996, 1995 and 1994, respectively.
Fluctuations in exchange rates can impact operating results, including net
sales and operating expenses, when translations of the subsidiary financial
statements are made. The Company hedges certain of its balance sheet exposure
by borrowing in British Pounds and German Deutschemarks in the United Kingdom
and Germany, respectively (see Liquidity and Capital Resources). The Company
does not enter into foreign currency forward exchange contracts for speculative
trading purposes.
RESTRUCTURING COSTS
During the third quarter of 1996, the Company recorded a restructuring charge
of $4 million ($2.4 million, net of tax benefits, or $0.15 per common share).
These costs were primarily related to employee severance and certain other
nonrecurring charges resulting from the effects of the reorganization of the
Company's business groups. In connection with this reorganization, certain
functions were identified as redundant and are being eliminated or consolidated
into other locations with the objective of making each business group more
responsive to its respective customer base and to enhance manufacturing
efficiencies. This restructuring has resulted in a reduction in personnel and
the elimination of certain duplicate functions, thereby eliminating excessive
costs and redundancies in future periods. The $4.0 million charge includes
employee-related costs (primarily severance and relocation), write-downs of
idled plant assets and other nonrecurring items. Of the total $4.0 million
charge, approximately $0.8 million had been incurred as of December 31, 1996.
The Company expects to incur substantially all of the remaining costs during
1997.
FORWARD-LOOKING STATEMENTS
Certain statements contained herein are forward-looking statements. Actual
results could differ materially from those anticipated as a result of various
factors, including cyclical or other downturns, the inability to achieve cost
reductions through consolidation and restructuring of acquired companies, and
possible future acquisitions that may not be complementary or additive.
Greenfield Industries, Inc. 23
<PAGE> 6
Statement of Management's Responsibility for Financial Reporting
The accompanying consolidated financial statements of Greenfield Industries,
Inc. have been prepared by management, which is responsible for their integrity
and objectivity. The statements have been prepared in conformity with generally
accepted accounting principles and include amounts based on management's best
estimates and judgments. Financial information elsewhere in this Annual Report
is consistent with that in the consolidated financial statements.
Management has established and maintains a system of internal control
designed to provide reasonable assurance that assets are safeguarded and that
the financial records reflect the authorized transactions of the Company. The
system of internal control includes widely communicated statements of policies
and business practices that are designed to require all employees to maintain
high ethical standards in the conduct of Company affairs. The internal controls
are augmented by organizational arrangements that provide for appropriate
delegation of authority and division of responsibility.
The consolidated financial statements have been audited by Price
Waterhouse LLP, independent accountants. As part of their audit of the
Company's 1996 consolidated financial statements, Price Waterhouse LLP
considered the Company's system of internal control to the extent they deemed
necessary to determine the nature, timing and extent of their audit tests.
The Board of Directors pursues its responsibility for the Company's
financial reporting through its Audit Committee. The Audit Committee meets
periodically with the independent accountants and management. The independent
accountants have direct access to the Audit Committee, with and without the
presence of management representatives, to discuss the results of their audit
work and their comments on the adequacy of internal accounting controls and the
quality of financial reporting.
<TABLE>
<S> <C>
/s/ Gary L. Weller /s/ Jeffrey F. Reed
Gary L. Weller Jeffrey F. Reed
Senior Vice President, Vice President, Finance
Chief Financial Officer and Secretary
</TABLE>
Report of Independent Public Accountants
To the Board of Directors and Stockholders [LOGO]
of Greenfield Industries, Inc.
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of operations, of changes in stockholders' equity and
of cash flows present fairly, in all material respects, the financial position
of Greenfield Industries, Inc. and its subsidiaries at December 31, 1996 and
1995, and the results of their operations and their cash flows for each of the
three years in the period ended December 31, 1996, in conformity with generally
accepted accounting principles. These financial statements are the
responsibility of the Company's management; our responsibility is to express an
opinion on these financial statements based on our audits. We conducted our
audits of these statements in accordance with generally accepted auditing
standards which 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 assessing the
accounting principles used and significant estimates made by management, and
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for the opinion expressed above.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
St. Louis, Missouri
January 30, 1997
24 Greenfield Industries, Inc.
<PAGE> 7
Consolidated Statement of Operations
(In thousands, except per share data)
<TABLE>
<CAPTION>
Years ended December 31, 1996 1995 1994
=========================================================================================================================
<S> <C> <C> <C>
Net sales $ 510,094 $ 420,188 $ 271,787
Cost of sales 357,203 288,158 180,974
- -------------------------------------------------------------------------------------------------------------------------
Gross profit 152,891 132,030 90,813
Selling, general and administrative expenses 88,944 70,952 50,229
Restructuring costs 4,000 -- 1,300
- -------------------------------------------------------------------------------------------------------------------------
Operating income 59,947 61,078 39,284
Interest expense 11,049 8,223 3,169
Dividends on Company-obligated, mandatorily redeemable
convertible preferred securities of Greenfield Capital
Trust at 6% per annum 4,734 -- --
- -------------------------------------------------------------------------------------------------------------------------
Income before provision for income taxes 44,164 52,855 36,115
Provision for income taxes 17,975 21,390 14,106
- -------------------------------------------------------------------------------------------------------------------------
Net income $ 26,189 $ 31,465 $ 22,009
=========================================================================================================================
Earnings per common share:
Primary $ 1.60 $ 1.94 $ 1.35
Fully diluted(1) $ 1.59 $ -- $ --
=========================================================================================================================
Weighted average common and common equivalent
shares outstanding:
Primary 16,328 16,252 16,250
Fully diluted(1) 18,247 -- --
=========================================================================================================================
Dividends per common share $ 0.17 $ 0.13 $ 0.09
=========================================================================================================================
</TABLE>
(1) For the years ended December 31, 1995 and 1994, there was no dilutive
effect.
See accompanying Notes to Consolidated Financial Statements.
Greenfield Industries, Inc. 25
<PAGE> 8
Consolidated Balance Sheet
(In thousands, except share data)
<TABLE>
<CAPTION>
December 31, 1996 1995
========================================================================================================================
<S> <C> <C>
ASSETS
Current assets:
Cash $ 1,721 $ 5,258
Accounts receivable, net 83,199 63,618
Inventories, net 152,659 109,769
Prepaid expenses and other 8,034 4,069
- ------------------------------------------------------------------------------------------------------------------------
Total current assets 245,613 182,714
Property, plant and equipment, net 144,300 109,022
Goodwill, net 169,958 98,795
Other assets, net 2,773 7,932
- ------------------------------------------------------------------------------------------------------------------------
$ 562,644 $ 398,463
========================================================================================================================
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ 513 $ 633
Accounts payable 22,392 24,586
Accrued liabilities 35,411 33,688
- ------------------------------------------------------------------------------------------------------------------------
Total current liabilities 58,316 58,907
- ------------------------------------------------------------------------------------------------------------------------
Long-term debt 162,625 140,198
Deferred taxes 9,524 4,207
Other long-term liabilities 16,451 15,891
- ------------------------------------------------------------------------------------------------------------------------
Total liabilities 246,916 219,203
- ------------------------------------------------------------------------------------------------------------------------
Commitments and contingencies (Note 14)
Company-obligated, mandatorily redeemable convertible preferred
securities of subsidiary Greenfield Capital Trust 115,000 --
- ------------------------------------------------------------------------------------------------------------------------
Stockholders' equity:
Preferred stock, $.01 par value, 1,500,000 shares authorized,
no shares issued and outstanding
Common stock, $.01 par value, 100,000,000 shares authorized,
16,374,925 and 16,260,377 shares issued and outstanding, respectively 164 163
Additional paid-in capital and other 109,759 111,615
Retained earnings 92,425 69,014
Cumulative translation adjustment (1,620) (1,532)
- -------------------------------------------------------------------------------------------------------------------------
Total stockholders' equity 200,728 179,260
- ------------------------------------------------------------------------------------------------------------------------
$ 562,644 $ 398,463
========================================================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
26 Greenfield Industries, Inc.
<PAGE> 9
Consolidated Statement of Changes in Stockholders' Equity
For the years ended December 31, 1994, 1995 and 1996
(In thousands)
<TABLE>
<CAPTION>
Additional Cumulative
Common Paid-In Retained Translation
Stock Capital & Other Earnings Adjustment Total
=====================================================================================================================
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1993 $159 $107,338 $19,075 $ (862) $125,710
Net income 22,009 22,009
Exercise of stock options and tax
benefits relating thereto 1 1,288 1,289
Dividends declared and paid (1,435) (1,435)
Partial repayment of stock
subscriptions receivable 128 128
Cumulative translation adjustment 202 202
- ----------------------------------------------------------------------------------------------------------------------
Balance, December 31, 1994 160 108,754 39,649 (660) 147,903
- ----------------------------------------------------------------------------------------------------------------------
Net income 31,465 31,465
Exercise of stock options and tax
benefits relating thereto 3 3,520 3,523
Dividends declared and paid (2,100) (2,100)
Additional minimum pension liability (783) (783)
Partial repayment of stock
subscriptions receivable 124 124
Cumulative translation adjustment (872) (872)
- -----------------------------------------------------------------------------------------------------------------------
Balance, December 31, 1995 163 111,615 69,014 (1,532) 179,260
- ----------------------------------------------------------------------------------------------------------------------
Net income 26,189 26,189
Exercise of stock options and tax
benefits relating thereto 1 1,218 1,219
Dividends declared and paid (2,778) (2,778)
Partial repayment of stock
subscriptions receivable and other (115) (115)
Executive restricted stock awards 761 761
Issuance costs of mandatorily redeemable
convertible preferred securities (4,254) (4,254)
Additional minimum pension liability 534 534
Cumulative translation adjustment (88) (88)
- -----------------------------------------------------------------------------------------------------------------------
Balance, December 31, 1996 $164 $109,759 $92,425 $(1,620) $200,728
======================================================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
Greenfield Industries, Inc. 27
<PAGE> 10
Consolidated Statement of Cash Flows
(In thousands)
<TABLE>
<CAPTION>
Years ended December 31, 1996 1995 1994
=======================================================================================================================
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $ 26,189 $ 31,465 $ 22,009
Adjustments to reconcile net income to net cash provided by
operating activities, excluding the effects of acquisitions:
Depreciation 14,259 11,319 9,305
Amortization 4,620 2,908 1,491
Deferred income taxes 8,390 5,759 3,606
Tax benefits relating to stock options 315 3,210 1,210
Other 1,356 (811) 664
Changes in operating assets and liabilities:
Accounts receivable, net (7,126) (6,080) (3,859)
Inventories (22,073) (21,452) (1,137)
Prepaid expenses and other (2,639) (1,440) 3,251
Accounts payable (9,513) 3,912 1,244
Accrued liabilities (11,620) (11,403) 2,641
- -----------------------------------------------------------------------------------------------------------------------
Net cash provided by operating activities 2,158 17,387 40,425
- -----------------------------------------------------------------------------------------------------------------------
Cash flows from investing activities:
Capital expenditures (29,185) (26,847) (13,141)
Proceeds from the sale of fixed assets 2,018 1,219 325
Purchase of businesses, net of cash acquired (111,183) (24,434) (73,639)
Investment in Rule -- (5,611) --
- -----------------------------------------------------------------------------------------------------------------------
Net cash used in investing activities (138,350) (55,673) (86,455)
- ------------------------------------------------------------------------------------------------------------------------
Cash flows from financing activities:
Proceeds from borrowings 140,743 123,950 71,800
Payments on borrowings (117,559) (82,148) (25,915)
Net proceeds from issuance of mandatorily
redeemable convertible preferred securities 110,746 -- --
Dividends paid on common stock (2,778) (2,100) (1,435)
Other 1,381 (299) (26)
- ------------------------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 132,533 39,403 44,424
- -----------------------------------------------------------------------------------------------------------------------
Effect of exchange rate changes on cash 122 145 (1,160)
- ------------------------------------------------------------------------------------------------------------------------
Net (decrease) increase in cash (3,537) 1,262 (2,766)
Cash at beginning of year 5,258 3,996 6,762
- -----------------------------------------------------------------------------------------------------------------------
Cash at end of year $ 1,721 $ 5,258 $ 3,996
=======================================================================================================================
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Interest $ 10,937 $ 7,317 $ 2,643
Dividends on mandatorily redeemable
convertible preferred securities 4,734 -- --
Income taxes 18,601 16,797 7,699
Supplemental schedule of noncash investing and financing activities:
Assets obtained under capital leases -- -- 241
The Company purchased several companies as detailed in Note 3
in 1996, 1995 and 1994. In conjunction with the acquisitions,
liabilities were assumed as follows:
Fair value of assets acquired $ 59,370 $ 26,199 $ 56,284
Fair value assigned to goodwill 76,379 6,009 60,940
Cash paid (111,183) (24,434) (73,639)
- ------------------------------------------------------------------------------------------------------------------------
Liabilities assumed $ 24,566 $ 7,774 $ 43,585
=======================================================================================================================
</TABLE>
See accompanying Notes to Consolidated Financial Statements.
28 Greenfield Industries, Inc.
<PAGE> 11
Notes to Consolidated Financial Statements
(Dollars in thousands, except per share data)
1. BUSINESS
Greenfield Industries, Inc. (Greenfield or the Company) is a global
manufacturer of expendable products for material cutting, material removal and
wear applications used in various industries. The Company also manufactures a
limited number of products (primarily bilge pumps) for the marine industry. The
Company markets its products through six product groups which are as follows:
(1) industrial products, (2) engineered products, (3) energy and construction
products, (4) electronics products, (5) consumer products, and (6) marine
products. The majority of the Company's products are made from either
high-speed steel or tungsten carbide. The Company's largest concentration of
business is in North America but it sells its products throughout the world.
2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The policies utilized by the Company in the preparation of the consolidated
financial statements conform to generally accepted accounting principles, and
require management to make estimates and assumptions that affect the reported
amounts of assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual amounts could differ from these estimates.
The significant accounting policies followed by the Company are
described below.
REVENUE RECOGNITION
Revenue from the sale of the Company's products is recognized upon shipment to
the customer.
PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries. All significant intercompany transactions and
balances are eliminated in consolidation.
FOREIGN CURRENCY TRANSLATION
The accounts of the Company's foreign subsidiaries are maintained in their
respective local currencies. The accompanying consolidated financial statements
have been translated and adjusted to reflect U.S. dollars on the bases
presented below.
Assets and liabilities are translated into U.S. dollars at year-end
exchange rates. Income and expense items are translated at average rates of
exchange prevailing during the year. Adjustments resulting from the process of
translating the consolidated amounts into U.S. dollars are accumulated in a
separate translation adjustment account included in stockholders' equity.
Common stock and additional paid-in capital are translated at historical U.S.
dollar equivalents in effect at the date of acquisition. Foreign currency
transaction gains and losses are included in earnings currently. The Company
recognized net foreign currency transaction gains of $599, $540 and $227 for
the years ended December 31, 1996, 1995 and 1994, respectively.
CASH
For purposes of the consolidated statement of cash flows, the Company considers
all highly liquid investments with an original maturity of three months or less
to be cash. Cash overdrafts, if any, on the Company's disbursement accounts are
included in the balances outstanding under the Company's revolving credit
facilities.
CONCENTRATION OF CREDIT RISK
The Company sells its products to distributors and end-users in the industrial,
energy and construction, electronics, engineered products, consumer and marine
markets. While most of the Company's business activity is with customers
located within North America, the Company also serves customers in Europe and
the Far East. The Company performs ongoing credit evaluations of its customers
and generally does not require collateral. The Company maintains reserves for
potential credit losses and historically such losses have been within
management's expectations. At December 31, 1996, the Company had no significant
concentrations of credit risk.
RELATIONSHIPS WITH SUPPLIERS
The Company purchases tungsten carbide materials from
multiple suppliers, for which alternative suppliers also exist and are
adequate. Although the Company purchases the majority of its domestic
high-speed steel requirements from a single supplier, the Company believes that
the supply of steel and the number of alternative suppliers are adequate. The
Company considers its relationships with its primary suppliers to be strong.
INVENTORIES
Inventories are stated at the lower of cost or market. Cost is determined using
the last-in, first-out (LIFO) method, for substantially all domestic
inventories. For various tax and statutory reasons, inventories of the
Company's foreign subsidiaries are stated at first-in, first-out (FIFO) cost.
The effects on the consolidated financial position and results of operations
from applying the FIFO method (versus the LIFO method) to certain inventories
are immaterial. If the FIFO method (which approximates replacement cost) had
been used in determining cost for all inventories, inventories would have been
approximately $5,675 and $5,181 higher at December 31, 1996 and 1995,
respectively. Inventories include the cost of materials,
Greenfield Industries, Inc. 29
<PAGE> 12
Notes to Consolidated Financial Statements (Continued)
direct labor and manufacturing overhead. Obsolete or unsalable inventories are
reflected at their estimated net realizable values.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment is carried at cost and is depreciated using the
straight-line method over the estimated useful lives of the assets which range
from 3 to 40 years. Properties held under capital leases are recorded at the
present value of the noncancelable lease payments over the term of the lease
and are amortized over the shorter of the lease term or the estimated useful
lives of the assets. Expenditures for repairs, maintenance and renewals are
charged to income as incurred. Expenditures which improve an asset or extend
its estimated useful life are capitalized. When properties are retired or
other-wise disposed of, the related cost and accumulated depreciation are
removed from the accounts and any gain or loss is included in income.
GOODWILL
The excess of the purchase price over the fair value of net assets acquired in
business combinations is capitalized and amortized on a straight-line basis
over the estimated period benefited. The amortization period for all
acquisitions to date is 40 years. Amortization expense for the years ended
December 31, 1996, 1995 and 1994 was approximately $4,279, $2,636 and $1,221,
respectively. Accumulated amortization at December 31, 1996 and 1995 was
approximately $11,849 and $7,592, respectively. The carrying value of goodwill
is assessed for recoverability by management based on current and anticipated
conditions, including expected cash flows and operating results generated by
the underlying tangible assets. Management believes that there has been no
impairment at December 31, 1996.
OTHER ASSETS
Other assets are primarily comprised of debt issuance and trademark costs. At
December 31, 1995, other assets also included an investment in Rule Industries,
Inc. stock as further described in Note 3. Debt issuance costs are being
amortized on a straight-line basis over the life of the related obligation and
trademarks are being amortized on a straight-line basis over 40 years.
Amortization expense for the years ended December 31, 1996, 1995 and 1994 was
approximately $341, $272 and $270, respectively. Accumulated amortization at
December 31, 1996 and 1995 was $3,568 and $3,471, respectively.
INCOME TAXES
The Company accounts for income taxes under Statement of Financial Accounting
Standards No. 109, "Accounting for Income Taxes" (FAS 109). Under FAS 109, the
deferred tax provision is determined using the liability method, whereby
deferred tax assets and liabilities are recognized based upon temporary
differences between the financial statement and income tax bases of assets and
liabilities using presently enacted tax rates.
EARNINGS PER SHARE
Fully diluted earnings per share primarily reflect the effects of conversion of
the Company's mandatorily redeemable convertible preferred securities and
elimination of the related dividends, net of applicable income taxes (see Note
5). Primary earnings per share is computed by dividing net income available to
common stockholders by the weighted average number of common and common
equivalent shares outstanding during the period. Options under the Company's
employee and directors stock option plans are not included as common stock
equivalents for earnings per share purposes since they did not have a material
dilutive effect.
ENVIRONMENTAL LIABILITIES
Environmental expenditures that relate to current operations are expensed or
capitalized as appropriate. Expenditures that relate to an existing condition
caused by past operations, and that do not contribute to current or future
revenue generation, are expensed. Liabilities are recorded when environmental
assessments and/or remedial efforts are probable, and the costs can be
reasonably estimated.
EMPLOYEE STOCK-BASED COMPENSATION
The Company accounts for employee stock options and variable stock awards in
accordance with Accounting Principles Board No. 25, "Accounting for Stock
Issued to Employees" (APB 25). Under APB 25, the Company applies the intrinsic
value method of accounting. For employee stock options accounted for using the
intrinsic value method, no compensation expense is recognized because the
options are granted with an exercise price equal to the market value of the
stock on the date of grant. For variable stock awards accounted for using the
intrinsic value method, compensation cost is estimated and recorded each period
from the date of grant to the measurement date based on the market value of the
stock at the end of each period.
During 1996, Statement of Financial Accounting Standards No. 123,
"Accounting for Stock-Based Compensation" (FAS 123), became effective for the
Company. FAS 123 prescribes the recognition of compensation expense based on
the fair value of options or stock awards determined on the date of grant.
However, FAS 123 allows companies to continue to apply the valuation methods
set forth in APB 25. For companies that continue to apply the valuation methods
set
30 Greenfield Industries, Inc.
<PAGE> 13
forth in APB 25, FAS 123 mandates certain pro forma disclosures as if the fair
value method had been utilized. See Note 12 for additional discussion.
3. ACQUISITIONS
The following table summarizes certain information regarding the Company's
acquisitions during the past three years.:
<TABLE>
<S> <C> <C>
Net cash
Date Business purchase price
- ---------------------------------------------------------------------------------
October 1994 Threads, Inc. and
Hendersonville Industrial
Tool Co., Inc. $ 5,272
November 1994 The Cleveland Twist
Drill Company (CTD) $ 45,867
November 1994 Carbidie Corporation
(Carbidie) $ 22,500
January 1995 American Mine Tool
Division of Valenite,
Inc. (AMT) $ 14,676
June 1995 Van Keuren, Inc. $ 2,500
December 1995 Cleveland Europe Limited $ 7,258
January 1996 Rule Industries, Inc. (Rule) $ 84,046
June 1996 Boride Products, Inc. $ 8,768
July 1996 Arkansas Cutting Tools, a
division of Production
Carbide & Steel Company $ 4,872
December 1996 Bassett Rotary Tool
Company $ 13,497
</TABLE>
During the past three years, the Company has made several acquisitions
which have significantly expanded its product lines. These acquisitions were
each accounted for using the purchase method of accounting and financed
primarily through bank borrowings, resulting in an increase in the Company's
outstanding debt. Results of operations of each acquired company have been
included in the Company's consolidated financial statements from the date of
acquisition. The purchase price of each acquisition was allocated to the assets
acquired and liabilities assumed based on their estimated fair value at the
date of acquisition. The excess of purchase price over the estimated fair value
of net assets acquired was, in each instance, recorded as goodwill. Except for
Rule, CTD and Carbidie, the pro forma effects, individually and collectively,
of the acquisitions on the Company's consolidated results of operations and
financial position are not material.
The following table sets forth pro forma information for the Company
as if the acquisition of Rule had taken place on January 1, 1995 and the
acquisitions of Rule, CTD and Carbidie had taken place on January 1, 1994,
respectively. This information is unaudited and does not purport to represent
actual revenue, net income and earnings per share had the acquisitions actually
occurred on January 1, 1995 and 1994, respectively. The pro forma effects of
Rule, had the acquisition taken place on January 1, 1996, are not material.
<TABLE>
<CAPTION>
Pro forma information
For the years ended December 31,
1995 1994
- ------------------------------------------------------------------------------
<S> <C> <C>
Net sales $484,600 $419,662
Net income $ 31,479 $ 24,917
Primary earnings per
common share $ 1.94 $ 1.53
</TABLE>
In connection with a definitive merger agreement between Rule and the
Company, on September 11, 1995 Greenfield exercised its option to acquire
630,000 shares of Rule common stock for approximately $5,611, including
acquisition costs. The cost of the Rule common stock is reflected as other
assets on the December 31, 1995 consolidated balance sheet. On January 12,
1996, Greenfield acquired the remaining outstanding shares of Rule common stock
as discussed further below.
In connection with the Company's acquisition of Rule in January 1996,
the Company recorded a restructuring reserve of $2,600 in purchase accounting
primarily related to the closing of two Rule facilities (including the
corporate office) and the involuntary termination of a substantial number of
Rule employees. Of the $2,600 reserve, $1,240 related to employee severance
costs, $346 related to the closure of the two facilities, and $1,014 related to
other nonrecurring costs associated with terminating certain Rule operations.
This restructuring has resulted in a reduction in personnel and the elimination
of certain duplicate functions. The employee severance costs related to the
reduction of approximately 62 employees from the acquisition date. Of the total
$2,600 reserve, substantially all of the costs had been paid as of December 31,
1996.
The Company, as part of the acquisition of CTD, recorded a
restructuring and plant consolidation liability of $10,480 in purchase
accounting relating to the consolidation of certain facilities of CTD into
existing facilities of the Company. The $10,480 liability included $8,430 in
costs associated with plant closures, $2,000 in severance pay and $50 in other
costs. Substantially all of these costs had been paid as of December 31, 1996.
Greenfield Industries, Inc. 31
<PAGE> 14
Notes to Consolidated Financial Statements (Continued)
4. LONG-TERM DEBT
Long-term debt consisted of the following at December 31:
<TABLE>
<CAPTION>
1996 1995
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
SENIOR NOTES PAYABLE TO INSTITUTIONAL INVESTORS:
Principal payable in annual installments of $10,715 commencing October 15, 1999 with a final
payment of $10,710 on October 15, 2005; interest payable semi-annually at 7.31%; unsecured $ 75,000 $ 75,000
INDUSTRIAL REVENUE BONDS:
Principal due March 1, 2015; interest payable monthly at 4.3% at December 31, 1996;
secured by related property and equipment 5,602 4,178
Principal due August 1, 2015; interest payable monthly at 4.5% at December 31, 1996;
secured by related property and equipment 3,751 3,287
NOTES PAYABLE TO BANKS:
Principal due in annual installments of approximately $37; interest payable semi-annually
at 6.0%; secured by the mortgage on the property of Kemmer AG, an indirect,
wholly-owned subsidiary 1,334 1,802
Other 14 --
REVOLVING CREDIT FACILITIES:
Multi-currency facility; payable in full on December 9, 2001; interest payable quarterly at
LIBOR plus a specified percentage, or at a base rate as set forth within the loan
agreement. The interest rate under each option is determined by the Company's ratio
of total indebtedness to cash flow (6.3% to 8.3% at December 31, 1996); unsecured
Domestic 60,500 --
Foreign currency 15,930 --
Domestic facility (replaced in December 1996) -- 34,400
Foreign currency denominated facility (replaced in December 1996) -- 20,709
CAPITAL LEASE OBLIGATIONS 1,007 1,455
- ------------------------------------------------------------------------------------------------------------------------
163,138 140,831
Less current portion of long-term debt and amounts due on demand, including
$462 and $590 of capital lease obligations at December 31, 1996 and 1995, respectively. (513) (633)
- -------------------------------------------------------------------------------------------------------------------------
$162,625 $140,198
========================================================================================================================
</TABLE>
32 Greenfield Industries, Inc.
<PAGE> 15
During December 1996, the Company replaced its existing foreign and
domestic unsecured revolving credit facilities. The new agreement provides for
a $130,000 multi-currency unsecured revolving facility and a $50,000 U.S.
dollar acquisition facility. The multi-currency revolving facility provides for
loans of up to DM 30,000 and Sterling 15,000. The facility requires commitment
fees of 0.20% or 0.25% per annum (as determined by the Company's ratio of total
indebtedness to cash flow) payable quarterly on any unused portion of the
multi-currency facility. As of December 31, 1996, interest on borrowings under
the multi-currency facility ranged from 6.3% to 8.3% per annum. At December 31,
1996 there was $53,570 available under the multi-currency facility and $50,000
available under the acquisition facility.
On October 23, 1995 the Company completed the private placement of
$75,000 of senior unsecured notes (Notes) with various institutional investors.
The Notes, bearing interest payable quarterly at 7.31%, are due in 2005 with
equal payments beginning in 1999. The proceeds from the Notes were used to
refinance existing indebtedness and for general corporate purposes.
On August 16, 1995 the Company, through CTD, issued $7,200 in City of
Solon, Ohio Industrial Development Revenue Bonds (The Cleveland Twist Drill
Company Project) Series 1995 (Ohio Bonds) to pay for the construction of a new
manufacturing facility in Solon, Ohio. The Ohio Bonds mature on August 1, 2015
and bear interest at 4.5% at December 31, 1996. The proceeds from the Ohio
Bonds are held in trust until needed for the construction. Approximately $3,751
has been received from the Ohio Bonds as of December 31, 1996.
On March 31, 1995 the Company, in conjunction with the South Carolina
Jobs-Economic Development Authority, issued $7,200 in Tax-Exempt Adjustable
Mode Economic Development Revenue Bonds (South Carolina Bonds) to pay for the
expansion of its facility in Clemson, South Carolina. The South Carolina Bonds
mature on March 1, 2015 and bear interest at 4.3% at December 31, 1996. The
proceeds from the South Carolina Bonds are held in trust until needed for the
expansion. Approximately $5,602 has been received from the South Carolina
Bonds as of December 31, 1996.
On March 15, 1995 the Company amended its existing $20,000 unsecured
foreign credit facility. The amended agreement provided for a DM 21 million
unsecured credit facility and a Sterling 4.5 million unsecured credit facility.
In connection with the acquisition of Cleveland Europe Limited, during December
1995, the Company amended the unsecured foreign credit facility, increasing the
Sterling Facility to Sterling 9.5 million. As discussed above, this foreign
revolving credit facility was replaced in December 1996.
During November 1994, the Company amended its existing unsecured
credit facility. The amended agreement provided for a $110,000 domestic
revolving facility and a $20,000 acquisition facility. The facility required
commitment fees of 0.25% or 0.375% per annum (as determined by the Company's
ratio of total indebtedness to cash flow) payable quarterly on any unused
portion of the domestic and foreign revolving credit facilities. As discussed
above, the domestic revolving facility and the acquisition facility were
replaced in December 1996.
The financing agreements contain provisions which limit additional
borrowings and capital expenditures, require maintenance of certain debt to
capital and debt to cash flow ratios and net worth levels. At December 31, 1996
and 1995, the Company was in compliance with such provisions.
At December 31, 1996, the minimum principal payments of long-term
debt, excluding capital lease obligations, for the five subsequent fiscal years
are as follows:
<TABLE>
<CAPTION>
Industrial Revolving
Notes revenue credit
payable bonds facility Total
- ------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1997 $ 51 $ -- $ -- $ 51
1998 37 -- -- 37
1999 10,752 -- -- 10,752
2000 10,752 -- -- 10,752
2001 10,752 -- 76,430 87,182
2002 and thereafter 44,004 9,353 -- 53,357
- -------------------------------------------------------------------------------------
$76,348 $9,353 $76,430 $162,131
=====================================================================================
</TABLE>
The book value of long-term debt at December 31, 1996 approximates
fair value.
Greenfield Industries, Inc. 33
<PAGE> 16
Notes to Consolidated Financial Statements (Continued)
5. MANDATORILY REDEEMABLE CONVERTIBLE
PREFERRED SECURITIES
On April 24, 1996, the Company completed a private placement to institutional
investors of $115,000 of 6% Convertible Preferred Securities (liquidation
preference of $50 per Convertible Preferred Security). The placement was made
through Greenfield Capital Trust (Trust), a newly-formed Delaware business
trust. The securities represent undivided beneficial ownership interests in the
Trust and are fully, irrevocably and unconditionally guaranteed by Greenfield.
Greenfield owns all of the common securities of the Trust. The assets of the
Trust consist of Greenfield's 6% Convertible Junior Subordinated Deferrable
Interest Debentures Due 2016 which were acquired with the proceeds from the
offering. The Convertible Preferred Securities are convertible at the option of
the holders at any time into the common stock of Greenfield at an effective
conversion price of $41.25 per share and are redeemable at Greenfield's option
after April 15, 1999. The net proceeds of the offering of approximately
$110,746 were used by Greenfield to retire indebtedness. A registration
statement relating to resales of such Convertible Preferred Securities was
declared effective by the Securities and Exchange Commission on September 26,
1996.
6. LEASE COMMITMENTS
The Company leases certain of its equipment under noncancelable lease
agreements. These agreements extend for a period of up to 42 months and contain
purchase or renewal options on a month-to-month basis. The leases are reflected
in the consolidated financial statements as capitalized leases in accordance
with the requirements of Statement of Financial Accounting Standards No. 13,
"Accounting for Leases."
In addition, the Company has manufacturing facilities, office space
and certain equipment leased under noncancelable operating leases having
remaining terms of up to 14 years. Minimum lease payments under long-term
capital and operating leases at December 31, 1996 are as follows:
<TABLE>
<CAPTION>
Capital Operating
leases leases
<S> <C> <C>
1997 $ 494 $ 4,989
1998 274 5,359
1999 141 2,638
2000 246 2,285
2001 -- 1,881
2002 and thereafter -- 10,283
- ---------------------------------------------------------------------
Total minimum lease payments 1,155 $27,435
=======
Less amount representing interest (148)
- -----------------------------------------------------
Present value of net minimum lease
payments, including current
portion of $462 $1,007
=====================================================
</TABLE>
Rental expense incurred on the operating leases in 1996, 1995 and 1994
approximated $6,070, $2,840 and $2,291, respectively.
7. INCOME TAXES
Income (loss) before provision (benefit) for income taxes for the years ended
December 31 was taxed under the following jurisdictions:
<TABLE>
<CAPTION>
1996 1995 1994
- ---------------------------------------------------------------
<S> <C> <C> <C>
Domestic $34,694 $45,213 $36,594
Foreign 9,470 7,642 (479)
- ---------------------------------------------------------------
Total $44,164 $52,855 $36,115
===============================================================
</TABLE>
34 Greenfield Industries, Inc.
<PAGE> 17
The provision (benefit) for income taxes charged to operations was as
follows:
<TABLE>
<CAPTION>
1996 1995 1994
- --------------------------------------------------------------------
<S> <C> <C> <C>
Current tax provision (benefit):
U.S. federal $ 8,587 $10,383 $ 7,940
State and local 1,471 2,101 1,660
Foreign (473) 3,147 900
- --------------------------------------------------------------------
Total current provision 9,585 15,631 10,500
- --------------------------------------------------------------------
Deferred tax provision (benefit):
U.S. federal 3,820 4,637 4,504
State and local 695 785 602
Foreign 3,875 337 (1,500)
- --------------------------------------------------------------------
Total deferred provision 8,390 5,759 3,606
- --------------------------------------------------------------------
Total provision for
income taxes $17,975 $21,390 $14,106
====================================================================
</TABLE>
Deferred tax liabilities (assets) are comprised of the following at
December 31:
<TABLE>
<CAPTION>
1996 1995
- ---------------------------------------------------------------------
<S> <C> <C>
Depreciation $ 18,705 $ 14,226
LIFO inventory 7,300 7,424
Foreign deferred tax liabilities,
primarily related to depreciation 3,437 2,334
Other 135 105
- ---------------------------------------------------------------------
Gross deferred tax liabilities 29,577 24,089
- ---------------------------------------------------------------------
Property, plant and equipment
basis differences (2,253) (1,547)
Restructuring costs (2,093) (2,517)
Inventory reserves and costing
capitalization (4,174) (1,772)
Retiree health (3,578) (3,490)
Pension (2,301) (2,309)
Workers' compensation reserves (726) (651)
Environmental reserves (1,053) (998)
Other accruals (3,266) (2,331)
Foreign deferred tax assets, primarily
loss carryforwards and other reserves (936) (3,708)
Other (1,327) (866)
- ---------------------------------------------------------------------
Gross deferred tax assets (21,707) (20,189)
- ---------------------------------------------------------------------
Deferred tax assets valuation allowance 975 975
- ---------------------------------------------------------------------
Net deferred tax liability $ 8,845 $ 4,875
=====================================================================
</TABLE>
The deferred tax asset valuation allowance at December 31, 1996
primarily represents excess deductible temporary differences over taxable
temporary differences for foreign operations and potential nonrealization of
certain other deferred tax assets. The tax benefits, if any, from the future
recognition of certain deductible temporary differences present at the date of
the acquisition of CTD and Rule, but not recognized at that time, will be
applied to reduce goodwill.
The provision for income taxes differs from the amount of income tax
determined by applying the applicable U.S. statutory federal income tax rate
to pretax income as a result of the following differences:
<TABLE>
<CAPTION>
1996 1995 1994
- -------------------------------------------------------------------
<S> <C> <C> <C>
Statutory U.S. rate $15,457 $18,499 $12,640
Increase (decrease) in rate
resulting from:
Foreign taxes, net 172 809 (432)
State/local taxes, net 1,532 1,876 1,471
Nondeductible goodwill
amortization 1,258 957 282
Other (444) (751) 145
- -------------------------------------------------------------------
Effective tax rate $ 17,975 $ 21,390 $ 14,106
===================================================================
</TABLE>
8. RESTRUCTURING COSTS
The results of operations for the year ended December 31, 1996 included
restructuring costs of $4,000 (approximately $2,400 net of related tax
benefits, or $0.15 per common share), on a primary basis. These costs were
primarily related to employee severance and certain other nonrecurring charges
resulting from the effects of the reorganization of the Company's business
groups. The restructuring costs included the costs associated with the
combination or elimination of certain functions or operations which were
identified as redundant. The $4,000 restructuring charge recorded in the third
quarter included $2,727 for employee-related costs consisting primarily of
severance costs, $585 for the noncash write-down of plant assets where
operations have been or will be terminated, and $688 for other nonrecurring
severance costs for personnel that have been terminated or will be terminated
in future periods. The employee severance costs relate to the reduction of
approximately 42 employees as of December 31, 1996 and future reductions of
approximately
Greenfield Industries, Inc. 35
<PAGE> 18
Notes to Consolidated Financial Statements (Continued)
28 employees. Of the total $4,000 charge, approximately $777 had been incurred
through December 31, 1996. The remaining accrual primarily relates to employee
severance costs and costs associated with the closure of two facilities.
During 1994, the Company recorded restructuring costs of $1,300
relating to the consolidation of the plant in Switzerland into a plant in
Germany. The $1,300 charge is comprised of $700 in costs associated with plant
closures and relocation of machinery and equipment, $500 in severance costs
related to approximately 35 administrative staff and plant personnel at the
closed Swiss facility and $100 in other costs. The Company substantially
completed the restructuring by the end of 1994.
The Company continues to evaluate its operations with an intent to
streamline operations, improve productivity and reduce costs and may implement
additional rationalization programs in the future.
9. RETIREMENT PLANS
The Company offers substantially all of its domestic employees a retirement
savings plan under Section 401(k) of the Internal Revenue Code. Employees may
elect to enter a written salary deferral agreement under which a maximum of 15%
of their salaries may be contributed to the plan, subject to aggregate limits
required under the Internal Revenue Code. The Company is required to make a
mandatory contribution of 2% of qualified employee earnings. In addition, the
Company will match a percentage of the employees' contribution up to a
specified maximum percentage of their salaries and may make a discretionary
contribution from profits upon resolution of its Board of Directors. For the
years ended December 31, 1996, 1995 and 1994, the Company made contributions to
the defined contribution plans of approximately $3,923, $3,406 and $2,448,
respectively.
CTD, Carbidie and AMT had defined benefit pension plans covering
substantially all domestic employees with the exception of AMT non-union
employees when they were acquired by the Company. All of these plans were
frozen in 1995, and benefits were frozen at 1995 levels. In addition, Rule had
a defined benefit pension plan for certain employees for which the benefits had
been frozen prior to the Company's acquisition of Rule in January 1996. The
Company's funding policy with respect to such plans is to contribute annually
the minimum amount required under ERISA. Plan assets include marketable equity
securities, U.S. government securities, federal agency obligations, corporate
debt instruments, money market funds and other fixed income securities.
In connection with the CTD and Carbidie acquisitions in 1994, the
Company recorded an aggregate net liability of $6,051 in purchase accounting
representing the excess of the estimated projected benefit obligation (PBO)
over the fair value of plan assets. During 1996, the Company recorded a net
liability of $700 in purchase accounting for the excess of the PBO over the
fair value of the plan assets in connection with the Rule acquisition.
The following tables set forth the defined benefit pension plans' net
periodic pension costs for the years ended December 31, 1996 and 1995 and the
plans' net funded status, amounts recorded in the consolidated balance sheet,
and other summary information at December 31, 1996 and 1995:
<TABLE>
<CAPTION>
For the years ended December 31, 1996 1995
- -------------------------------------------------------------------
<S> <C> <C>
NET PERIODIC PENSION COST:
Service cost $ 30 $ 502
Interest cost 2,297 2,334
Other (732) 583
Less: Actual return on plan assets (1,560) (2,842)
- -------------------------------------------------------------------
Net periodic pension cost $ 35 $ 577
===================================================================
December 31, 1996 1995
- -------------------------------------------------------------------
NET PENSION LIABILITY:
Vested accumulated benefit obligation $32,226 $30,288
===================================================================
Nonvested accumulated
benefit obligation $ 751 $ 1,622
===================================================================
PBO $33,228 $31,910
Fair value of plan assets (29,570) (27,361)
Unrecognized prior service cost (30) --
Unrecognized net loss (29) (519)
Additional minimum pension liability 279 783
- -------------------------------------------------------------------
Net pension liability $ 3,878 $ 4,813
===================================================================
Discount rate used to determine
the PBO 8.0% 7.5%
Assumed long-term rate of
return on plan assets 9.0% 9.0%
</TABLE>
10. POSTRETIREMENT BENEFITS
Under Statement of Financial Accounting Standards No. 106, "Employers'
Accounting for Postretirement Benefits Other Than Pensions," the Company is
required to recognize the cost of providing health care and other benefits to
retirees
36 Greenfield Industries, Inc.
<PAGE> 19
over the term of the employees' service. Prior to the acquisitions of CTD and
Carbidie, the Company provided no postretirement benefits other than those
related to the 401(k) plans described in Note 9. CTD and a certain other
subsidiary provides health care insurance benefits to certain of its retired
employees. All of these plans were frozen in 1995, and benefits were frozen at
1995 levels. In connection with the CTD acquisition in 1994, the Company
recorded a liability of $11,939 in purchase accounting representing the
estimated discounted present value of the expected future retiree benefits
attributed to employees' service rendered in periods prior to Greenfield's
acquisition.
The following tables set forth the plans' net periodic postretirement
benefit cost for the years ended December 31, 1996 and 1995, the accumulated
postretirement benefit obligation (APBO) at December 31, 1996 and 1995 and
other summary information:
<TABLE>
<CAPTION>
For the years ended December 31, 1996 1995
- ---------------------------------------------------------------
<S> <C> <C>
NET PERIODIC POSTRETIREMENT
BENEFIT COST:
Service cost $ -- $ 55
Interest cost 765 873
- ---------------------------------------------------------------
Net periodic postretirement
benefit cost $ 765 $ 928
===============================================================
December 31, 1996 1995
- ---------------------------------------------------------------
ACCUMULATED POSTRETIREMENT
BENEFIT OBLIGATION:
APBO (consisting solely of retirees
and dependents) $ 9,653 $11,692
Unrecognized net gain (loss) 754 (3)
- ---------------------------------------------------------------
Net APBO $10,407 $11,689
===============================================================
Discount rate used in measuring
the APBO 8.0% 7.5%
Assumed health care cost trend rate
used in measuring the APBO 8.5% 8.5%
</TABLE>
The assumed health care cost trend rate used in measuring the APBO for
1996 and 1995 decreased gradually to 6% (until 2002 and thereafter). If the
assumed health care cost trend rates were increased by 1%, the APBO for 1996
and 1995 would have increased approximately $434 and $558, respectively.
There are no plan assets and the Company expects to continue to fund
these benefit costs on a pay-as-you-go basis. During 1996 and 1995, the Company
made payments of approximately $1,400 and $1,018, respectively, related to
these benefits.
11. 1993 EXECUTIVE STOCK OPTIONS
In 1993, the Company established the 1993-1 Executive Stock Option Plan (1993-1
Plan) and granted to certain officers of Rogers Tool Works, Inc., a
wholly-owned subsidiary of the Company (RTW) non-qualified stock options to
purchase an aggregate 438,258 shares of common stock at a price of $0.51 per
share, subject to adjustment, in exchange for the cancellation of RTW shares
held by these officers. In addition, the Company cancelled the promissory notes
of each of these officers issued to finance the purchase of their RTW shares.
The exercise price with respect to the options granted was determined to
preserve the original purchase price per share of the RTW shares cancelled. The
options became exercisable as to 25% of the shares issuable thereunder on
January 26, 1994, and as to a cumulative 35%, 50% and 100% of the shares
issuable thereunder on each succeeding six-month anniversary thereof. As of
December 31, 1995 all of the options had been exercised. During the years ended
December 31, 1995 and 1994, 284,891 and 153,367 shares, respectively, were
issued in connection with the 1993-1 Plan.
In 1993, the Company also adopted the 1993-2 Executive Stock Option
Plan (1993-2 Plan) pursuant to which non- qualified stock options were granted
to certain existing shareholders prior to the initial public offering to
acquire an aggregate 453,350 shares of the Company's common stock, subject to
adjustment, by tendering existing common stock in payment thereof. The exercise
price of all options was the current market price on the date of exercise and
all options were exercised only by exchanging shares of previously owned common
stock. The grant and exercise of options under the 1993-2 Plan did not result
in any increase in the beneficial ownership of common stock by the plan
participants from the number of shares owned immediately after the initial
public offering. Under the terms of the 1993-2 Plan, the options were exercised
immediately after the initial public offering and the shares of common stock
issued thereunder became freely transferable by each participant as to 25% of
the shares issuable to such participants on January 31, 1994 and as to a
Greenfield Industries, Inc. 37
<PAGE> 20
Notes to Consolidated Financial Statements (Continued)
cumulative 35%, 50% and 100% of the shares issuable to such participant on each
succeeding six-month anniversary thereof. The shares tendered in exercise of
options granted under the 1993-2 Plan were issued under promissory notes due in
1998 through 2002. The notes are reflected in stock subscriptions receivable,
included in additional paid-in capital and other, in the accompanying
consolidated financial statements.
12. STOCK OPTION AND STOCK INCENTIVE PLANS
STOCK OPTION PLANS
The Company has three stock options plans: the Employee Stock Option Plan
(Employee Plan), the 1995 Directors Non-Qualified Stock Option Plan (Directors
Plan) and the 1993 Directors Non-Qualified Stock Option Plan (1993 Directors
Plan).
The Employee Plan provides for the granting of options to purchase up
to 1,000,000 shares of common stock to the Company's executive officers and key
employees at prices equal to the fair market value of the stock on the date of
grant. Options outstanding at December 31, 1996 entitle the holders to purchase
common stock at prices ranging between $16.00 and $37.00 per share, subject to
adjustment. Options shall become exercisable with respect to one-fourth of the
shares covered thereby on each anniversary of the date of grant, commencing on
the second anniversary of such date. The right to exercise the options expires
ten years from the date of grant, or earlier if an option holder ceases to be
employed by the Company.
The Directors Plan provides for the granting of options to purchase up
to 125,000 shares of common stock to the Company's Directors who are not
employees of the Company at prices equal to the fair market value of the stock
on the date of grant. Options are granted to each eligible Director on the date
such person is first elected to the board of directors of the Company and on
each subsequent re-election date. The Directors Plan was approved in May 1996
by the stockholders. Options outstanding at December 31, 1996 entitle the
holders to purchase common stock at a price of $37.00 per share, subject to
adjustment. Options granted upon re-election shall become exercisable in full
on the first anniversary of such date. All other options shall become
exercisable with respect to one-fourth of the shares covered thereby on each
anniversary date of the date of grant, commencing on the second anniversary of
such date. The right to exercise the options expires ten years from the date of
grant, or earlier, if an option holder ceases to be a Director of the Company.
The 1993 Directors Plan provides for the granting of options to
purchase up to 100,000 shares of common stock to the Company's Directors who
are not employees of the Company at prices equal to the fair market value of
the stock on the date of grant. Options are granted to each eligible Director
on the date such person is first elected to the board of directors of the
Company. Options outstanding at December 31, 1996 entitle the holders to
purchase common stock at prices ranging between $15.50 and $25.75 per share,
subject to adjustment. Options shall become exercisable with respect to
one-fourth of the shares covered thereby on each anniversary of the date of
grant, commencing on the second anniversary of such date. The right to exercise
the options expires ten years from the date of grant, or earlier if an option
holder ceases to be a Director of the Company. Subsequent to the May 1996
approval of the Directors Plan, no further grants will be issued under the 1993
Directors Plan.
A summary of the status of the Company's stock option plans as of
December 31, 1996, 1995 and 1994, and changes during the years then ended are
presented below:
<TABLE>
<CAPTION>
1996 1995 1994
-------------------- ------------------- -------------------
Weighted- Weighted- Weighted-
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at beginning of year 788,175 $21.95 578,500 $18.76 368,500 $15.98
Granted 255,400 $28.58 244,300 $29.07 217,500 $23.36
Exercised (55,000) $16.53 (10,375) $16.07 -- --
Forfeited (34,175) $27.21 (24,250) $19.93 (7,500) $16.18
------- ------- -------
Outstanding at end of year 954,400 $23.85 788,175 $21.95 578,500 $18.76
======= ======= =======
Exercisable at end of year 158,875 $18.12 77,125 $15.98 -- --
======= ======= =======
</TABLE>
38 Greenfield Industries, Inc.
<PAGE> 21
The following table summarizes information for options currently
outstanding and exercisable at December 31, 1996:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
----------------------------------------------- --------------------------------
Weighted Average Weighted Weighted
Range of Remaining Average Average
Exercise Number Contractual Exercise Number Exercise
Prices Outstanding Life Price Exercisable Price
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$14-21 308,000 7 $16.24 118,015 $16.13
$22-29 360,150 9 $25.23 40,860 $23.85
$30-37 286,250 9 $30.31 --
------- -------
$14-37 954,400 8 $23.85 158,875 $18.12
======= =======
</TABLE>
In connection with the resignation of a member of the Company's Board
of Directors, in 1994 the Company exchanged options for 10,000 shares of common
stock previously granted to the Director with a warrant to purchase 10,000
shares of common stock at an exercise price equal to the exercise price of the
options.
STOCK INCENTIVE PLANS
The Company has two stock incentive plans: the 1995 Equity Incentive Plan
(Incentive Plan) and the 1995 Restricted Stock Bonus Plan (Ownership Plan).
Both plans were approved in May 1996 by the stockholders of the Company.
The Incentive Plan provides for the granting of up to 273,000 shares
of common stock to certain senior executives of the Company in time-lapse
restricted stock, performance contingent restricted stock and performance
shares. Time-lapse restricted stock vests in one-third increments over a
three-year period commencing four years after the date of the award.
Performance contingent restricted stock is earned when the price for the
Company's stock reaches certain predetermined levels, and then vests over a
three- or five-year period. Performance shares are earned based on attainment
of a predetermined four-year cumulative earnings per share level. Attainment of
between 50% and 200% of the predetermined objective will entitle the
participants to receive restricted performance shares of between 50% and 200%
of the target award, which then vest over a three-year period. No performance
shares are earned if less than 50% of the performance objective is obtained.
The Ownership Plan provides for the issuance of up to 250,000 shares
of common stock to certain employees, by allowing such employees to elect to
defer up to 50% of their annual cash bonus and receive, in lieu thereof, shares
of the Company's common stock. The Company will increase the employees'
deferred bonus by either 20% or 35% (depending on the employees' selection of 3
or 5 years, respectively, for the restriction period).
Shares issued under these plans are restricted and are subject to
forfeiture upon termination of employment. During the period that the shares
are restricted, award holders have the right to vote and to receive dividends
on such shares.
A summary of stock earned and issued pursuant to the Incentive Plan
and Ownership Plan for the year ended December 31, 1996 follows:
<TABLE>
<CAPTION>
Market Value
Shares on Date Earned Vesting Period
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Incentive Plan
Time-lapse Restricted Stock 26,000 $30.50 Nov 1999 - Nov 2001
Time-lapse Restricted Stock 8,000 $31.625 July 2000 - July 2002
Performance Contingent Restricted Stock 7,700 $37.75 Nov 2000
------
41,700
Ownership Plan 17,848 $30.50 Feb 1997 - Feb 2001
------
Total restricted shares earned and issued in 1996 59,548
======
</TABLE>
Greenfield Industries, Inc. 39
<PAGE> 22
Notes to Consolidated Financial Statements (Continued)
The Company awarded up to 273,000 shares of restricted stock to certain senior
executives under the Incentive Plan, subject to the attainment of certain
performance levels, as discussed above. The weighted average fair value of the
shares on the grant date was $30.73. The Company applies APB 25 and related
interpretations in accounting for stock awards under the Incentive and
Ownership Plans. Under APB 25, the Company recorded $1,500 of compensation
expense during 1996 attributable to these awards, which is included in selling,
general and administrative expenses in the 1996 consolidated statement of
operations.
Shares which have been issued but which remain restricted are recorded
as deferred compensation, a reduction to additional paid-in capital. The
increase in additional paid-in capital of $761 during 1996 represents the
issuance of executive stock awards and is net of this deferred compensation. As
the shares vest and become unrestricted, the deferred compensation will be
recorded as compensation expense and additional paid-in capital will increase.
PRO FORMA DISCLOSURES
The Company applies APB 25 and related interpretations in accounting for its
stock option plans. Accordingly, except for the Incentive and Ownership Plans
as described above, no compensation cost has been recognized for the stock
options because the options were granted with an exercise price equal to the
stock price on the date of grant. Had compensation costs for the Company's
stock option plans been determined based on the fair value of the options on
the grant dates consistent with the methodology prescribed by FAS 123, the
Company's net income and earnings per share would have been reduced to the pro
forma amounts indicated below. Due to the adoption of the methodology
prescribed by FAS 123, the pro forma results shown below only reflect the
impact of options and stock awards granted in 1996 and 1995. Because future
options and stock awards may be granted, the pro forma impact for 1996 and 1995
is not necessarily indicative of the impact in future years.
<TABLE>
<CAPTION>
1996 1995
- ----------------------------------------------------------------
<S> <C> <C> <C>
Net income As reported $26,189 $31,465
Pro forma 25,614 31,336
Primary earnings As reported $ 1.60 $ 1.94
per share Pro forma $ 1.55 $ 1.90
</TABLE>
The fair value of the options granted (which is amortized over the
option vesting period in determining the pro forma impact), is estimated on the
date of grant using the Black-Scholes multiple option-pricing model with the
following weighted average assumptions:
<TABLE>
<CAPTION>
1996 1995
- ------------------------------------------------------------------------------
<S> <C> <C>
Expected life of options 5 years 5 years
Risk-free interest rates 5.36 - 6.69% 5.69 - 7.76%
Expected volatility of stock 32% 29%
Expected dividend yield 0.5% 0.5%
</TABLE>
The weighted average fair value of options granted during the years
ended December 31, 1996 and 1995 was $10.84 and $10.34 per share, respectively.
13. RELATED PARTIES
Harbour Group Investments, L.P. (HGI, L.P.) was the Company's principal
stockholder prior to HGI, L.P.'s sale of substantially all of its shares in a
secondary stock offering in March 1994. Under terms of a corporate development
consulting and advisory services agreement, the Company incurred fees totalling
$580, $445 and $1,109 in 1996, 1995 and 1994, respectively, payable to an
affiliate of HGI, L.P. related to corporate development services provided in
identifying, negotiating and consummating certain acquisitions.
Under terms of a management consulting and advisory services
agreement, Harbour Group, Ltd. (HGL), an affiliate of HGI, L.P., charges the
Company for direct management and administrative services provided to the
Company based on HGL's approximate costs for such services. These charges
totalled approximately $53, $182 and $250 for the years ended December 31,
1996, 1995 and 1994, respectively, and are reflected in selling, general and
administrative expenses in the accompanying consolidated financial statements.
At December 31, 1996 and 1995, a member of HGL management owned 80,000
shares of the Company's common stock partially financed with promissory notes
totalling $101 due in 1998 through 2003. The notes are reflected in stock
subscriptions receivable, included in additional paid-in capital and other, in
the accompanying consolidated financial statements.
40 Greenfield Industries, Inc.
<PAGE> 23
14. COMMITMENTS AND CONTINGENCIES
The Company is involved in certain claims and legal proceedings in which
monetary damages are sought. The Company is vigorously contesting these claims.
However, resolution of these claims is not expected to occur quickly and their
ultimate outcome presently cannot be predicted. It is the opinion of management
that any liability of the Company for claims or proceedings will not materially
affect its financial position.
In connection with the acquisition of CTD, the Company recorded a
liability of $2,600 in purchase accounting for certain estimated environmental
clean-up costs to be incurred relative to acquired CTD facilities. This
estimated potential liability, which is included in other accrued liabilities,
has not been reduced for any expected proceeds from other potentially
responsible third parties. At December 31, 1996, the liability balance was
approximately $2,200.
15. SEGMENT INFORMATION
Worldwide operations data, as required by Statement of Financial Accounting
Standards No. 14, "Financial Reporting for Segments of a Business Enterprise,"
are listed below. Profitability of the Company's foreign operations by
geographic area was determined based on ultimate sales to unaffiliated
customers. Income from operations was included in the geographic area of the
entity transacting the final sale. Intercompany sales have been eliminated in
consolidation.
<TABLE>
<CAPTION>
For the years ended December 31,
-----------------------------------------------------------------------
Net sales to Income
unaffiliated from Identifiable Capital
customers operations assets expenditures
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1996
North America $451,383 $50,463 $514,163 $27,175
Europe 58,711 9,484 48,481 2,010
- ----------------------------------------------------------------------------------------------------
$510,094 $59,947 $562,644 $29,185
====================================================================================================
1995
North America $377,314 $52,112 $352,532 $26,177
Europe 42,874 8,966 45,931 670
- ----------------------------------------------------------------------------------------------------
$420,188 $61,078 $398,463 $26,847
====================================================================================================
1994
North America $240,809 $38,223 $289,610 $12,345
Europe 30,978 1,061 30,325 1,037
- ----------------------------------------------------------------------------------------------------
$271,787 $39,284 $319,935 $13,382
====================================================================================================
</TABLE>
Export revenues included in the North American net sales to
unaffiliated customers were as follows:
<TABLE>
<CAPTION>
For the years ended December 31, 1996 1995 1994
- ----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Geographic Areas:
Far East $20,091 $19,837 $ 9,113
Canada/Latin America 10,534 5,749 6,521
Europe 15,340 7,601 3,572
Other 1,343 665 36
- ----------------------------------------------------------------------------------------------------
$47,308 $33,852 $19,242
====================================================================================================
</TABLE>
Greenfield Industries, Inc. 41
<PAGE> 24
Notes to Consolidated Financial Statements (Continued)
16. SUPPLEMENTAL BALANCE SHEET INFORMATION
<TABLE>
<CAPTION>
December 31, 1996 1995
- ----------------------------------------------------------------------------------------------------
<S> <C> <C>
ACCOUNTS RECEIVABLE:
Trade receivables $ 86,962 $ 66,242
Allowance for doubtful accounts and customer rebates (3,763) (2,624)
- ----------------------------------------------------------------------------------------------------
$ 83,199 $ 63,618
====================================================================================================
INVENTORIES:
Raw materials and component parts $ 49,500 $ 28,248
Work in process 38,055 31,648
Finished goods 65,104 49,873
- ----------------------------------------------------------------------------------------------------
$152,659 $ 109,769
====================================================================================================
PROPERTY, PLANT AND EQUIPMENT:
Machinery and equipment $143,664 $ 108,077
Buildings 33,125 20,531
Land and land improvements 4,159 2,445
Property held under capital leases 4,496 4,579
- ----------------------------------------------------------------------------------------------------
Total property, plant and equipment at cost 185,444 135,632
Less accumulated depreciation and amortization, including
$3,715 and $3,241, respectively, related to property
held under capital leases (59,902) (46,833)
- ----------------------------------------------------------------------------------------------------
125,542 88,799
Construction in progress 17,338 18,558
Property held for sale 1,420 1,665
- ----------------------------------------------------------------------------------------------------
$144,300 $ 109,022
====================================================================================================
ACCRUED LIABILITIES:
Employee compensation and benefits $ 19,151 $ 18,676
Restructuring costs 3,371 4,919
Interest 1,656 1,544
Other 11,233 8,549
- ----------------------------------------------------------------------------------------------------
$ 35,411 $ 33,688
====================================================================================================
</TABLE>
17. QUARTERLY FINANCIAL DATA (UNAUDITED)
Summarized quarterly financial data for 1996, 1995 and 1994 appears below (in
thousands, except per share data):
<TABLE>
<CAPTION>
Primary
earnings
Net sales Gross profit Net income per share
-------------------------- -------------------------- ----------------------- ------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
1996 1995 1994 1996 1995 1994 1996 1995 1994 1996 1995 1994
- -------------------------------------------------------------------------------------------------------------------------
First quarter $132,698 $106,419 $ 62,631 $ 40,570 $ 34,007 $20,802 $ 8,569 $ 7,055 $ 5,040 $ .53 $ .43 $ .31
Second quarter 130,021 104,799 62,213 41,685 31,469 21,451 8,357 7,915 4,798 .51 .49 .29
Third quarter 121,370 104,147 65,679 34,999 32,683 22,051 3,959 8,085 5,975 .24 .50 .37
Fourth quarter 126,005 104,823 81,264 35,637 33,871 26,509 5,304 8,410 6,196 .32 .52 .38
- -------------------------------------------------------------------------------------------------------------------------
$510,094 $420,188 $271,787 $152,891 $132,030 $90,813 $26,189 $31,465 $22,009 $1.60 $1.94 $1.35
=========================================================================================================================
</TABLE>
42 Greenfield Industries, Inc.
<PAGE> 25
Corporate Information
Notice of Annual Meeting
The Annual Meeting of Stockholders of Greenfield Industries, Inc. will be held
on Tuesday, May 6, 1997 at 9:30 A.M. Eastern Time at the Radisson Riverfront
Hotel-Augusta, Two Tenth Street, Augusta, Georgia 30901, (706) 722-8900.
Form 10-K
A copy of the annual report on Form 10-K for the year
ended December 31, 1996, without exhibits, as filed with the Securities and
Exchange Commission, may be obtained by any stockholder of the Company at no
charge upon request in writing to:
Stockholder Relations
Greenfield Industries, Inc.
P.O. Box 2587
Augusta, Georgia 30903-2587
(706) 650-4134
Transfer and Dividend Disbursing Agent
First Chicago Trust Company of New York
P.O. Box 2536
Suite 4694
Jersey City, New Jersey 07303-2536
Independent Accountants
Price Waterhouse LLP
St. Louis, Missouri
Legal Counsel
Dickstein Shapiro Morin & Oshinsky LLP
Washington, D.C.
Common Stock Information
The Company's Common Stock trades on The Nasdaq National Market System under
the symbol "GFII." The following table sets forth, for the quarters indicated,
the high and low sales prices for the Common Stock as reported by The Nasdaq
Stock Market and the cash dividends per share declared during such periods.
<TABLE>
<CAPTION>
Quarterly
Sales Prices Cash
1996 High Low Dividends
- -------------------------------------------------------------
<S> <C> <C> <C>
Fourth quarter $31 3/4 $24 $ .05
Third quarter 34 22 1/2 .04
Second quarter 40 1/4 33 .04
First quarter 34 5/8 28 1/4 .04
1995
- -------------------------------------------------------------
Fourth quarter $32 3/4 $27 1/2 $ .04
Third quarter 35 1/2 28 1/2 .03
Second quarter 30 27 1/2 .03
First quarter 28 1/4 20 3/4 .03
</TABLE>
This Annual Report may contain various forward-looking statements and
assumptions concerning Greenfield Industries, Inc.'s operations, future results
and prospects. These statements are based on current expectations and are
subject to risks and uncertainties. In connection with the "safe harbor"
provisions of the Private Securities Litigation Reform Act of 1995, certain
statements included herein are forward-looking statements. Actual results could
differ materially from those anticipated as a result of various factors,
including cyclical or other downturns in demand, the inability to achieve cost
reductions through consolidation and restructuring of acquired companies, and
possible future acquisitions that may not be complementary or additive.
<PAGE> 1
EXHIBIT 21
GREENFIELD INDUSTRIES, INC.
Subsidiaries of the Registrant
Jurisdiction of
Subsidiary Incorporation
- ---------- -------------
Rogers Tool Works, Inc. Delaware
Subsidiaries:
TCM Europe, Inc. Delaware
RTW Limited United Kingdom
Kemmer International, Inc. Delaware
Subsidiaries:
Kemmer Hartmetallwerkzeuge GmbH, a German limited liability
company, is the principal subsidiary of Kemmer International,
Inc.; four additional foreign subsidiaries are engaged in the
same line of business (manufacture of circuit board drills)
Cirbo Limited United Kingdom
Subsidiary:
Cleveland Europe Limited United Kingdom
The Cleveland Twist Drill Company Ohio
Subsidiaries:
Cleveland Twist Drill Canada Ltd. Canada
Cleveland Twist Drill de Mexico, S.A. de C.V. Mexico
which in turn owns:
Herramientas Cleveland, S.A. de C.V. Mexico
which in turn owns:
Greenfield de Mexico, S.A. Mexico
Carbidie Corporation Delaware
Greenfield Industries Foreign Sales Corporation Barbados
GFI Aviation, Inc. Delaware
Greenfield Capital Trust Delaware
Rule Industries, Inc. Massachusetts
Subsidiaries:
Rule Paint & Chemical, Inc. Massachusetts
Rule International, Inc. Virgin Islands
RemGrit Abrasive Tool, Inc. Massachusetts
Rule Corporation Delaware
Rule Cutting Tools, Inc. Massachusetts
which in turn owns
Rule Manufacturing, Inc. Massachusetts
which in turn owns
Disston Canada, Inc. Canada
Bassett Rotary Tool Company Indiana
<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statements on Forms S-8 (No. 33-66904, No. 33-66906, No. 33-66898, No.
33-80545, No. 333-01116, and No. 333-01118) of Greenfield Industries, Inc. of
our report dated January 30, 1997 appearing on page 24 of the Annual Report to
Stockholders of Greenfield Industries, Inc. (which report and consolidated
financial statements are incorporated by reference in this Annual Report on
Form 10-K). We also consent to the incorporation by reference of our report on
the Financial Statement Schedule, which appears on page S-1 of this Form 10-K.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
St. Louis, Missouri
March 27, 1997
<PAGE> 1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ Donald E. Nickelson
------------------------
Donald E. Nickelson
<PAGE> 2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign the 1996 Annual Report
on Form 10-K of Greenfield Industries, Inc., and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite as fully to all intents and purposes as he might or could do in
person, and ratifying and confirming all that said attorney-in-fact and agent or
his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Dated: March 15, 1997 /s/ Paul W. Jones
-------------------
Paul W. Jones
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ John W. Burge, Jr.
------------------------
John W. Burge, Jr.
<PAGE> 4
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ Peter S. Finley
--------------------
Peter S. Finley
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ James C. Janning
----------------------
James C. Janning
<PAGE> 6
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ Robert E. Lefton
----------------------
Robert E. Lefton
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ Robert W. Pratt, Jr.
--------------------------
Robert W. Pratt, Jr.
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ Julian M. Seeherman
-------------------------
Julian M. Seeherman
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints Gary L. Weller and Paul W. Jones, and each of
them, as his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign the 1996 Annual Report on Form 10-K of Greenfield
Industries, Inc., and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite as fully to all intents and
purposes as he might or could do in person, and ratifying and confirming all
that said attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Dated: March 15, 1997 /s/ Dennis W. Sheehan
-----------------------
Dennis W. Sheehan
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> DEC-31-1996
<CASH> 1,721
<SECURITIES> 0
<RECEIVABLES> 86,962
<ALLOWANCES> 3,763
<INVENTORY> 152,659
<CURRENT-ASSETS> 245,613
<PP&E> 204,202
<DEPRECIATION> 59,902
<TOTAL-ASSETS> 562,644
<CURRENT-LIABILITIES> 58,316
<BONDS> 162,625
115,000
0
<COMMON> 164
<OTHER-SE> 200,564
<TOTAL-LIABILITY-AND-EQUITY> 562,644
<SALES> 510,094
<TOTAL-REVENUES> 510,094
<CGS> 357,203
<TOTAL-COSTS> 357,203
<OTHER-EXPENSES> 88,944
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 11,049
<INCOME-PRETAX> 44,164
<INCOME-TAX> 17,975
<INCOME-CONTINUING> 26,189
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 26,189
<EPS-PRIMARY> 1.60
<EPS-DILUTED> 1.59
</TABLE>
