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<SEC-DOCUMENT>0000800459-02-000023.txt : 20020917
<SEC-HEADER>0000800459-02-000023.hdr.sgml : 20020917
<ACCEPTANCE-DATETIME>20020917150149
ACCESSION NUMBER: 0000800459-02-000023
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 3
CONFORMED PERIOD OF REPORT: 20020630
FILED AS OF DATE: 20020917
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: HARMAN INTERNATIONAL INDUSTRIES INC /DE/
CENTRAL INDEX KEY: 0000800459
STANDARD INDUSTRIAL CLASSIFICATION: HOUSEHOLD AUDIO & VIDEO EQUIPMENT [3651]
IRS NUMBER: 112534306
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0630
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-09764
FILM NUMBER: 02765866
BUSINESS ADDRESS:
STREET 1: 1101 PENNSYLVANIA AVENUE N W
STREET 2: STE 1010
CITY: WASHINGTON
STATE: DC
ZIP: 20004
BUSINESS PHONE: 2023931101
MAIL ADDRESS:
STREET 1: 1101 PENNSYLVANIA AVENUE NW
STREET 2: SUITE 1010
CITY: WASHINGTON
STATE: DC
ZIP: 20004
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<TYPE>10-K
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<FILENAME>a10k02.txt
<DESCRIPTION>ANNUAL REPORT ON FORM 10-K
<TEXT>
Securities and Exchange Commission
Washington, D.C. 20549
Form 10-K
Annual Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
For the fiscal year ended June 30, 2002
Commission file number 1-9764
HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
(Exact name of Registrant as specified in its charter)
Delaware 11-2534306
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1101 Pennsylvania Ave., N.W., Ste. 1010, Washington, D.C. 20004
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (202) 393-1101
Securities registered pursuant to section 12(b) of the Act
Title of Each Class Name of Exchange on Which Registered
Common Stock, par value $.01 per share New York Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
Securities registered pursuant to section 12(g) of the Act: None
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No __
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K (229.405 of this chapter) is not contained herein, and
will not be contained, to the best of the registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K. X
The aggregate market value of the voting stock held by nonaffiliates of
the Registrant as of September 3, was $1,555,769,535.
Indicate the number of shares outstanding of each of the registrant's
classes of common stock, as of the latest practicable date: 32,489,230
shares of Common Stock, par value $.01 per share, as of September 3, 2002.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Annual Report to Stockholders for the fiscal
year ended June 30, 2002, are incorporated by reference in Part I, Item 1, and
Part II, Items 5, 7 and 8.
Portions of the Registrant's definitive Proxy Statement relating to the
2002 Annual Meeting of Stockholders are incorporated by reference in Part III,
Items 10 (as related to Directors), 11, 12, and 13.
Page 1
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2
TABLE OF CONTENTS
Page
PART I
Item 1. Business......................................... 5
Item 2. Properties....................................... 24
Item 3. Legal Proceedings................................ 27
Item 4. Submission of Matters to a Vote of
Security Holders................................. 27
Executive Officers of the Registrant............. 27
PART II
Item 5. Market for the Registrant's Common
Equity and Related Stockholder
Matters.......................................... 28
Item 6. Selected Financial Data.......................... 29
Item 7. Management's Discussion and
Analysis of Financial Condition and
Results of Operations............................ 29
Item 7A. Quantitative and Qualitative
Disclosures About Market Risk.................... 30
Item 8. Consolidated Financial Statements
and Supplementary Data........................... 31
Item 9. Changes in and Disagreements
With Accountants on Accounting and
Financial Disclosure............................. 31
PART III
Item 10. Directors and Executive Officers of
the Registrant.................................... 31
Item 11. Executive Compensation............................ 32
Item 12. Security Ownership of Certain
Beneficial Owners and Management
and Related Stockholder Matters................... 32
Item 13. Certain Relationships and Related
Transactions...................................... 32
Item 14. Controls and Procedures........................... 32
PART IV
Item 15. Exhibits, Financial Statement
Schedules and Reports on Form 8-K................. 33
List of Financial Statements and
Financial Statement Schedules..................... 43
Independent Auditor's Report...................... 45
Index to Exhibits................................. 49
3
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4
PART I
ITEM 1. BUSINESS
Overview
Harman International is a worldwide leader in the manufacture of high
quality high-fidelity audio products and audio systems for consumer and
professional use, and of integrated infotainment systems for many of the
major automotive makers in the world. For over 50 years, we have
developed, both internally and through a series of strategic acquisitions,
a broad range of product offerings sold under renowned brand names in
our principal markets. The Company has also developed a substantial
and experienced digital engineering capability. We believe that our
JBL, Infinity, Harman/Kardon, Mark Levinson and Becker brand names
are well-known worldwide for premium quality and performance. We
have built these brands by developing our world-class engineering,
manufacturing and marketing competence and have employed those
resources to establish worldwide leadership in these fields.
We organize our businesses by the end-user markets they serve. Our
Consumer Systems Group designs, manufactures, and markets
loudspeakers, audio electronics and infotainments systems for vehicles
and designs, manufactures, and markets loudspeakers and electronics for
home audio, video and computer applications. Our Professional Group
designs, manufactures, and markets loudspeakers, microphones,
electronics, and systems used by audio professionals in concert halls,
stadiums, airports and other buildings and recording, broadcast, cinema
and music reproduction applications.
We believe significant growth opportunities exist with our automotive
original equipment manufacturer customers through higher penetration
levels within existing models, increases in the number of models
offering our audio systems, supply agreements with additional
automakers and increases in per-vehicle content through the provision
of integrated infotainment systems and new hardware and software
licensing agreements. We have already received purchase commitments
for integrated infotainment systems to be installed in 2002 and 2003
model year vehicles manufactured by Mercedes-Benz, Audi, BMW and
Porsche. We began shipping integrated infotainment systems for the
BMW 7 Series in November 2001 and for the Mercedes-Benz E Class
5
in February 2002. We expect production of integrated infotainment
systems for the Audi A8 and certain Porsche models to begin during
fiscal 2003.
Our primary manufacturing facilities are located in California, Indiana,
Utah, Kentucky, Germany, the United Kingdom, Mexico, France,
Austria, Sweden, China and Hungary. Harman International Industries,
Incorporated is a Delaware corporation formed in 1980.
Consumer Systems Group
Our Consumer Systems Group designs, manufactures, and markets
loudspeakers, audio electronics and infotainments systems for vehicles
and designs, manufactures, and markets loudspeakers and electronics for
home audio, video and computer applications. These products and
systems are marketed under brand names including JBL, Infinity,
Harman/Kardon, Lexicon, Becker, Mark Levinson, Proceed, Revel and
AudioAccess. We believe that we have a unique portfolio of brand
names and range of product offerings in the consumer audio market, and
that the JBL, Infinity and Harman/Kardon brands are recognized
throughout the world for superior sound quality and excellent value.
High-end products bearing the Lexicon, Mark Levinson, Proceed and
Revel brands are acclaimed for their state-of-the-art sound reproduction.
The Consumer Systems Group offers premium, branded audio systems
to retail automobile purchasers through engineering and supply
agreements with original equipment manufacturers, including
DaimlerChrysler, BMW, Toyota, Lexus, Mitsubishi, Porsche, Land
Rover, Saab, Peugeot and Ferrari, complemented by non-branded
loudspeaker supply agreements with other automakers including Audi,
Volvo, VW, Ford, Renault and Fiat.
The Consumer Systems Group also supplies car audio, video and
navigation systems. We have also developed integrated infotainment
systems, which manage the car audio, video and navigation provided by
the Company, and climate control, telecommunications and internet
access functions, provided by third parties. We have already received
purchase commitments for integrated infotainment systems to be
installed in 2002 and 2003 model year vehicles manufactured by
Mercedes-Benz, Audi, BMW and Porsche. We began shipping
integrated infotainment systems for the BMW 7 Series in November
2001 and for the Mercedes-Benz E Class in February 2002. We expect
production of integrated infotainment systems for the Audi A8 and
6
certain Porsche models to begin during fiscal 2003. DaimlerChrysler,
our largest automotive customer, offers Infinity branded car audio
systems in the majority of its Chrysler, Dodge and Jeep lines. Mitsubishi
also offers Infinity branded car audio systems. In addition, JBL branded
audio systems are produced for Toyota, Peugeot and Hyundai. BMW
and Saab offer our Harman/Kardon systems and Lexus offers our high-
end Mark Levinson audio systems. Our Harman Becker head units and
navigation systems and non-branded loudspeaker systems are installed
in a substantial number of Mercedes-Benz, BMW and Porsche
automobiles.
The Consumer System Group offers its home and automotive aftermarket
audio and electronic products primarily through audio/video specialty
stores and certain well-respected audio/video chain stores, such as Circuit
City, Best Buy and Tweeter in North America and MediaMarkt in Europe.
These products include audio/video receivers, amplifiers, DVD and CD
players in addition to different types of loudspeakers and navigation
devices for cars. Our dealers are knowledgeable about the features and
capabilities of audio and video products and emphasize high-quality
systems to consumers. Sales and marketing activities for these products
include dealer education programs, point-of-sale displays, participation in
consumer audio trade shows, comprehensive product literature and mass-
media advertising. We currently offer home consumer products under
the Harman/Kardon, JBL, Mark Levinson, Infinity, Lexicon and Revel
brands.
The Consumer Systems Group also offers branded audio products to
personal computer users through supply agreements and licenses with
Dell and Apple. We believe that these audio systems enhance the appeal
and capability of the personal computer as an entertainment device.
Professional Group
Our Professional Group designs, manufactures, and markets
loudspeakers and electronics used by audio professionals in concert
halls, stadiums, airports and other buildings and recording, broadcast,
cinema and music reproduction applications. We provide high quality
products to the sound reinforcement, music instrument support, and
broadcast and recording segments of the professional audio market. We
offer complete systems solutions for professional installations and users
around the world. The professional group includes the JBL Professional,
Soundcraft, Crown, DOD, Digitech, dbx, AKG, Lexicon, BSS and
Studer brands.
7
We believe that our Professional Group is uniquely equipped to provide
turnkey systems solutions for professional audio applications that offer
the customer improved performance, reliability, ease of installation and
reduced cost. Professional applications of Harman products include
stadiums, opera houses, concert halls, recording studios, broadcast
studios, theaters, houses of worship and cinemas. Touring performing
artists also use our professional products. Sound systems incorporating
components manufactured by JBL, Crown, Lexicon, AKG, Studer and
Soundcraft are in use around the world in such places as the Grand Ole
Opry in Nashville, the Kennedy Center in Washington, D.C., Pacific
Bell Park in San Francisco, Experience Music Project in Seattle, the
Great Hall of the People in Beijing, China, the Royal Danish Theater in
Copenhagen and the Sydney Opera House in Sydney, Australia. Our
professional equipment is used on tour by performing artists throughout
the world.
The Company's professional audio products are marketed worldwide
through professional sound equipment dealers, including sound system
contractors that directly assist major users. The Company's sales and
marketing group for its professional products is separate and
independent of its consumer product sales group. Professional audio
sales and marketing activities include dealer education programs, point-
of-sale displays, participation in professional audio trade shows and
professional audio media advertising.
We believe that JBL Professional is a leader in the sound reinforcement
and cinema markets serving customers such as AMC Theatres, Loew's
Cineplex, Edwards Cinemas and United Artist Theaters. Stadiums,
concert halls, houses of worship and major concert tours rely on sound
reinforcement products from the professional group, such as JBL
loudspeakers, JBL, Crown and BSS amplifiers, BSS loudspeaker system
management products, AKG microphones, DOD and dbx signal
processing equipment, and Soundcraft mixing consoles, to produce high
quality sound.
Our AKG business manufactures high quality microphones and
headphones. Our expertise in the design and manufacture of miniature
transducers for special microphone applications has led to market
opportunities in the mobile telecommunications equipment and hands-
free automotive communications markets, as well as for its traditional
professional audio activities. We manufacture the earpiece and
mouthpiece transducer capsules for mobile telephone manufacturers
including Nokia, Kyocera, Ericsson and Sony. We also manufacture
8
miniature transducers for hands-free communications applications in
Mercedes-Benz automobiles and in General Motors automobiles that are
equipped with the OnStar system.
Professional customers in the recording and broadcast market include
radio and television stations, recording studios, postproduction houses,
digital editing suites, and home studios such as Lucasfilm's Skywalker
Ranch, Polygram Records and Walt Disney Imagineering, and are
primarily served by our Studer, JBL, Crown, Lexicon, Soundcraft,
AMEK, and AKG divisions.
Our JBL, Crown, DOD, Lexicon and Digitech businesses also serve the
music instrument support segment of the professional audio market.
JBL manufactures and markets loudspeakers, monitors and amplifiers.
Crown manufactures professional amplifiers. DOD, Digitech and dbx
sell sound effects and other signal processors, portable mixing consoles
and guitar amplifiers. The music instrument support market also
provides portable digital signal processing components, guitar
amplifiers and portable loudspeaker systems used by touring performers.
Music instrument support products are sold through music retail stores
such as Guitar Center and Sam Ash.
Products
Consumer Products. We believe that we are a leading global
manufacturer of premium branded automotive audio systems offered by
automakers as an option to their customers. In our offering of
loudspeakers, head units, amplifiers and infotainment systems through
automobile manufacturers, we leverage our expertise in the design and
manufacture of high-quality loudspeakers, radios and other electronics,
as well as the reputation for quality associated with our JBL, Infinity,
Harman/Kardon, Mark Levinson and Becker brand names. Our
engineers are engaged by the automobile manufacturers early in the
vehicle cabin design process to develop systems that optimize acoustic
performance and minimize weight and space requirements. We have
developed the technical competencies to offer multimedia systems to
automobile manufacturers integrating audio, video, navigation,
telematics, internet access, and security.
Our Infinity-branded car audio systems are offered by
DaimlerChrysler's Chrysler, Dodge and Jeep lines as well as by
Mitsubishi. Toyota, Peugeot and Hyundai offer JBL branded audio
systems. BMW, Jaguar and Saab offer our Harman/Kardon branded
9
systems and our Mark Levinson branded systems are offered by Lexus.
We also supply Harman Becker head units, navigation systems and
other electronics to DaimlerChrysler, BMW, Audi, Porsche and Renault.
We manufacture loudspeakers under the JBL, Infinity and Revel brand
names for the consumer home audio market. These loudspeaker lines
include models designed for two-channel stereo and multi-channel
surround sound applications in the home in a wide range of choices,
including floorstanding, bookshelf, powered, low frequency, in-wall,
wireless and all-weather, in styles and finishes ranging from high gloss
lacquers to genuine wood veneers. The JBL and Infinity product lines
also include car loudspeakers, amplifiers and crossover products sold in
the aftermarket.
We offer a broad range of consumer audio electronics. Our
Harman/Kardon home electronics line includes audio-video receivers
featuring Dolby Digital and DTS surround sound processing capabilities
and multi-channel amplifiers, multi-disc DVD players and CD
recorders. Becker manufactures and sells Traffic Pro radio navigation
systems and Becker On-Line Pro systems, which provide radio,
navigation, telephone and internet access.
We design and manufacture high-end electronics, including amplifiers,
pre-amplifiers, digital signal processors, compact disc players and
transports, DVD transports, amplifiers and surround sound processors
that we market under the renowned Mark Levinson and Proceed brands.
AudioAccess products provide in-home, multisource, multi-zone sound
system controls, serving home theater and multi-room applications.
Revel loudspeaker systems are designed to complement the superior
performance of Madrigal's electronic brands for both music and home
theater applications.
We also believe that we are a leader in the design and manufacture of
high-quality home theater surround sound processors and amplifiers
under the Lexicon name. Lexicon was a pioneer in the development of
digital signal processors for the professional audio market and has
successfully transferred its professional audio expertise to produce
excellent products sold to consumers.
Harman/Kardon branded premium audio systems are offered with
personal computers manufactured by Apple and Dell. We participate in
this market through design and brand name licensing as well as direct
sourcing. These audio systems enhance the appeal and capability of the
10
personal computer as an entertainment device.
Professional Products. Our professional products include loudspeaker
and audio equipment that are marketed under many of the most
respected brand names in the industry, including JBL Professional,
Soundcraft, Crown, Lexicon, DOD, Digitech, AKG, BSS, dbx, and
Studer.
The professional market is increasingly involved in digital technology.
We believe that our Professional Group is a leader in this market. Our
Professional Group derives value from its ability to share research and
development, engineering talent and other digital resources among its
divisions. Our Soundcraft, Studer, Crown, Lexicon and Harman Music
Group businesses each have substantial digital engineering resources
and work together to achieve common goals by sharing resources and
technical expertise.
The Professional Group's loudspeaker products are well known for high
quality and superior sound. The JBL Professional portfolio of products
includes studio monitors, loudspeaker systems, power amplifiers, sound
reinforcement systems, bi-radial horns, theater systems, surround
systems and industrial loudspeakers.
We believe that we are a leading manufacturer and marketer of audio
electronics equipment for professional use. Such products are marketed
on a worldwide basis under various trade names, including Soundcraft,
Crown, Lexicon, DOD, Digitech, AKG, BSS, dbx and Studer, and are
often sold in conjunction with our professional loudspeakers.
Our Soundcraft lines of high-quality sound mixing consoles extend from
automated multi-track consoles for professional recording studios to
compact professional mixers for personal recording and home studios.
Soundcraft products span four main market areas: sound reinforcement,
recording studios, broadcast studios and musical instrument dealers.
The Harman Music Group product line is marketed under the DOD,
dbx, and DigiTech brand names, and is sold primarily to professional
audio and musical instrument dealers. Harman Music Group products
include signal processing equipment, equalizers, mixers and special
effects devices.
We believe that we are also a leading manufacturer of high-quality
microphones and headphones. The AKG product line includes
11
microphones, audio headphones, surround-sound headphones and other
professional audio products marketed under the AKG brand name. AKG
has leveraged its engineering and manufacturing expertise to enter the
telecommunications market, supplying miniature transducers to mobile
phone makers Nokia, Ericsson, Kyocera and Sony, as well as the
automotive hands-free communications market, supplying microphone
arrays to Mercedes-Benz and General Motors.
We believe that our Crown business is a leading professional amplifier
manufacturer and enhances our ability to provide complete systems
solutions to the professional audio market. Our Lexicon digital signal
processing products are used in live sound applications and in recording
studios to produce sound effects and refine final mixes. Our Studer
Professional Audio recording and broadcast products are recognized for
their high quality and reliability. Products include analog and digital
mixing consoles, switching systems, digital audio workstations and
turnkey broadcasting studio installations.
Operating and Geographic Segment Information
The Company is organized into segments by the end-user markets they
serve - consumer and professional. Financial information about the
Company's operating and geographic segments required to be included in
this report is incorporated by reference to Note 9 of Notes to Consolidated
Financial Statements contained in the Company's Annual Report to
Stockholders for the fiscal year ended June 30, 2002.
Manufacturing
The Company believes that its manufacturing capabilities are essential to
maintaining and improving product quality and performance. Other than
certain Harman/Kardon electronic components, the Company
manufacturers most of the products it sells.
We believe that our facilities in California, Indiana, Kentucky, Mexico,
Germany, and Hungary that manufacture loudspeakers and electronics for
infotainment systems are world class. In each of these facilities, the
Company has shifted from traditional manual assembly lines to software-
driven, highly-automated lines designed to provide improved efficiency
and flexibility.
The Company's loudspeaker manufacturing capabilities include the
production of high-gloss lacquer and wooden veneer loudspeaker
12
enclosures, wire milling, voice coil winding and the use of computer
controlled lathes and other machine tools to produce precision
components. The Company's high degree of manufacturing integration
enables it to maintain consistent quality levels, resulting in reliable, high-
performance products. The Company capitalizes on opportunities to
transfer technology and materials developments across product lines to
maximize the utility of engineering, design, development and
procurement resources.
The Company's principal domestic manufacturing facility in Northridge,
California, manufactures JBL and Infinity loudspeakers and audio
electronics for home, car and professional applications. The Company
manufactures loudspeakers and assembles sound systems for the OEM
automotive market in Martinsville, Indiana. Harman Music Group
manufactures professional electronics products at its facility in Salt Lake
City, Utah. Crown International manufactures professional amplifiers at
its Elkhart, Indiana facility. The Company's newest manufacturing
facilities are located in Franklin, Kentucky and in Tijuana and Juarez,
Mexico. The Kentucky facility manufactures automotive audio systems
for Toyota and the Tijuana, Mexico facility manufactures loudspeaker
cabinets for JBL and Infinity. The Juarez facility manufactures
automotive audio systems for Chrysler.
The Company has a strong manufacturing presence in Europe. European
automotive loudspeaker and electronics manufacturing includes the
production of loudspeakers and amplifiers in the United Kingdom,
Germany, Sweden, France and Hungary. Infotainment systems, car
radios, navigation systems, amplifiers and other electronics are
manufactured in Germany. The Company manufactures cabinet
enclosures and assembles complete JBL and Infinity loudspeakers in
Denmark. European professional electronics manufacturing includes
Soundcraft in the United Kingdom (mixing consoles), Studer in
Switzerland (professional recording and broadcast equipment) and AKG
in Austria (microphones and headphones). The Company also has
engineering and design facilities in the U.S. and Germany.
Suppliers
Several independent suppliers manufacture products designed by Harman
Kardon. The loss of any one of these suppliers would not have a material
impact on the consolidated earnings or consolidated financial position of
the Company.
13
The Company utilizes certain third-party suppliers to manufacture
loudspeakers sold to personal computer manufacturers. Production
difficulties at these third-party suppliers would not have a material impact
on the consolidated earnings of the Company.
The Company uses externally-sourced microchips in many of its products.
A significant disruption in our microchip supply chain and an inability to
obtain alternative sources would have a material impact on the
consolidated sales and earnings of the Company.
Trademarks and Patents
The Company markets its products under numerous trademarks, including
JBL, Infinity, Harman Kardon, Citation, Crown, Audax, Becker,
Soundcraft, Spirit, AMEK, DOD, DigiTech, Lexicon, AKG, Studer, BSS,
Sound-Web, dbx, AudioAccess, Mark Levinson, Madrigal Imaging,
Proceed, Revel, VMAx, EON, Harman, and Control. The Company's
registrations cover use of its trademarks in connection with various
products, such as loudspeakers, speaker systems, speaker system
components and other electrical and electronic devices. These trademarks
are registered or otherwise protected in substantially all major
industrialized countries.
As of June 30, 2002, the Company held approximately 674 United States
and foreign patents covering various products, product designs and
circuits, and had approximately 888 patent applications pending around
the world. The Company vigorously protects and enforces its trademark
and patent rights.
Seasonality
The Company experiences seasonal fluctuations in sales and earnings.
The first fiscal quarter is the generally the weakest due to the automotive
model changeovers and the summer holidays in Europe. Variations in
seasonal demands among end-user markets may cause operating results to
vary from quarter to quarter.
Customers
Sales to DaimlerChrysler for fiscal year 2002 accounted for 20.6 percent
of the Company's consolidated net sales. At June 30, 2002, accounts
receivable due from DaimlerChrysler was 19 percent of consolidated
accounts receivable. The loss of sales to DaimlerChrysler would have a
14
material adverse effect on the consolidated sales, earnings and financial
position of the Company.
Backlog Orders
Because the Company's practice is to produce automotive products and
systems on a just-in-time basis and maintain sufficient inventories of
finished goods to fill orders promptly, the level of backlog is not
considered to be an important index of the Company's future
performance. The Company's order backlog was approximately $23.9
million at June 30, 2002.
Warranties
Harman warrants its home products to be free from defects in materials
and workmanship for a period ranging from 90 days to five years from the
date of purchase, depending on the product. The warranty is a limited
warranty, and it imposes certain shipping costs on the customer and
excludes deficiencies in appearance except for those evident when the
product is delivered. Harman dealers normally perform warranty service
for loudspeakers in the field, using parts supplied on an exchange basis by
the Company. Warranties in international markets are generally similar to
those in the domestic market.
Competition
The audio industry is fragmented and competitive with many
manufacturers, large and small, domestic and international, offering audio
products that vary widely in price and quality and are distributed through a
variety of channels. Consumer products are offered through channels
including audio specialty stores, discount stores, department stores, mail
order firms and internet merchants. Consumer products are also offered
as OEM options on automobiles and personal computers through the
automotive and computer dealer channels. Professional products are
offered through music instrument retailers, professional audio dealers,
contractors and installers and on a contract bid basis. The Company
concentrates on the higher-quality, higher-priced segments of the audio
market. The Company competes based upon its strong brand names, the
breadth of its product lines, and its comprehensive marketing, engineering
and manufacturing resources.
The Company believes that it currently has a significant share of the
consumer market for loudspeakers (home, automotive and computer),
15
primarily as a result of the strength of its brand names. We believe JBL
and Infinity are two of the most recognized loudspeaker brands in the
world. The development of our high-end loudspeaker brand, Revel, over
the past several years, has extended our market position and
complemented our Mark Levinson and Proceed high-end electronics lines.
The Company's principal competitors in the consumer loudspeaker
market include Bose, Boston Acoustics, B&W, KEF, Celestion,
Paradigm, Klipsch, Cambridge SoundWorks and Polk Audio.
Competition in the consumer electronic components segment remains
intense, with this market dominated by large Asian competitors. The
short life cycle of products and a need for continuous design and
development efforts characterize this segment. The Company's
competitive strategy is to compete in the higher-quality segments of this
market and to continue to emphasize the Company's ability to provide
systems solutions to customers, including a combination of loudspeakers
and electronics products, providing integrated surround sound and home
theater systems. The Company's principal electronics competitors include
Marantz, Kenwood, Sony, Denon, Onkyo, Nakamichi, Pioneer and
Yamaha. The Company competes in the high-end consumer electronics
market with its Mark Levinson, Lexicon and Proceed brands. Principal
competitors in this high-end market include Krell, McIntosh, Audio
Research, Meridian, Linn and Accuphase.
In the personal computer audio market, the Company's Harman/Kardon
products are offered on systems sold by Apple and Dell. Principal
competitors in this segment include Boston Acoustics, Creative Labs,
Altec-Lansing and LabTec.
In the OEM automotive market, the Company's principal competitors
include Bose, Pioneer and Foster Electric in the loudspeaker systems
segment and Alpine, Bosch, Panasonic, Siemens, Delphi, Visteon, Denso
and Mannesman in the electronics segment. The Company is the only
supplier of branded audio systems to Chrysler, Jeep and Mitsubishi
automobiles in the United States, and also supplies branded audio systems
to Toyota, Lexus, BMW, Saab and Peugeot. The Company also supplies
non-branded loudspeaker systems to Chrysler, Mercedes-Benz,
Volkswagen, Audi, Porsche, Volvo, Ford of Europe and Fiat. The
Company is a primary supplier of radio head units to Mercedes-Benz,
BMW and Porsche, and also supplies TV tuners, navigation systems and
other electronics to Mercedes-Benz, BMW, Porsche, Audi, and Renault.
The Company competes based upon the strength of its brand name
recognition and the quality of its products together with its technical
16
expertise in designing loudspeaker systems, electronics, navigation
systems, man-machine interfaces and complete multimedia systems to fit
the acoustic properties of each automobile model.
The market for professional sound systems is highly competitive. We
believe the Company has historically held a leading market position in the
professional loudspeaker market and has complemented its professional
loudspeaker line by adding digital professional electronics products and
broadcast and recording equipment. The Company competes using its
ability to provide systems solutions to meet the complete audio
requirements of its professional customers. Harman offers products for
most professional audio applications.
The Company competes in the sound reinforcement market using many of
its brand names, including JBL Professional, AKG, Crown, Soundcraft,
and BSS. Principal competitors in the sound reinforcement market
include the Electro Voice division of Telex, Eastern Acoustic
Works/Mackie, QSC, Sennheiser, Tannoy, Peavey, Shure, Audio
Technica, Fender, Marshall, Sony and Yamaha. The Professional Group
competes in the broadcast and recording areas with its Studer, AKG,
Soundcraft, and Lexicon brands. Principal recording and broadcast
competitors include Sony, Yamaha, Neve, Sennheiser, Denon, SSL,
Shure, Tascam, Alesis and Audio Technica. In the music instrument
market, competitors for the Company's JBL, DOD, Digitech, dbx,
Lexicon, and Spirit products include Yamaha, Peavey, Rane, Roland,
Alesis, Marshall, Fender, Sony, Mackie and T.C. Electronics.
The Professional Group also competes in the industrial and architectural
sound market. Competitors within this market include Siemens, Peavey,
and Tannoy.
Environmental Matters
The Company is subject to various federal, state, local and international
environmental laws and regulations, including those governing the use,
discharge and disposal of hazardous materials. The Company's
manufacturing facilities are believed to be in substantial compliance with
current laws and regulations. The cost of compliance with current
environmental laws and regulations has not been, and is not expected to
be, material.
17
Research and Development
The Company's expenditures for research and development were $109.9
million, $88.7 million and $76.2 million for the fiscal years ending June
30, 2002, 2001 and 2000, respectively.
Number of Employees
As of June 30, 2002, the Company had 10,389 full-time employees,
including 3,346 domestic employees and 7,043 international employees,
compared to 10,676 total employees at June 30, 2001.
Forward Looking Statements
This report contains forward-looking statements within the meaning of
Section 27A of the Securities Act and 21E of the Exchange Act of 1934.
You should not place undue reliance on these statements. Forward-
looking statements include information concerning possible or assumed
future results of operations, capital expenditures, the outcome of
pending legal proceedings and claims, including environmental matters,
goals and objectives for future operations, including descriptions of our
business strategies and purchase commitments from customers, among
other things. These statements are typically identified by words such as
"believe", "anticipate", "expect", "plan", "intend", "estimate", and
similar expressions. We base these statements on particular
assumptions that we have made in light of our industry experience, as
well as our perception of historical trends, current conditions, expected
future developments and other factors that we believe are appropriate
under the circumstances. As you read and consider the information in
this report, you should understand that these statements are not
guarantees of performance or results. In light of these risks and
uncertainties, there can be no assurance that the results and events
contemplated by the forward-looking statements contained in, or
incorporated by reference into, this report will in fact transpire.
Although we believe that these forward-looking statements are based on
reasonable assumptions, you should be aware that many factors could
affect our actual financial results or results of operations and could
cause actual results to differ materially from those expressed in the
forward-looking statements. Some of those factors are described below.
18
Failure to maintain relationships with our largest customer and failure
by our customers to continue to purchase expected quantities of our
products due to changes in market conditions could have an adverse
effect on our operations.
Sales to DaimlerChrysler accounted for 20.6% of our consolidated net
sales for the fiscal year ended June 30, 2002. We anticipate that
DaimlerChrysler will continue to account for a significant portion of our
sales for the foreseeable future; however, DaimlerChrysler is not
obligated to any long-term purchase of our products. The loss of sales to
DaimlerChrysler could have a material adverse effect on our
consolidated sales, earnings and financial position.
A decrease in discretionary spending would likely reduce our sales.
Our sales are dependent to a substantial extent on discretionary spending
by consumers, which may be adversely impacted by economic
conditions affecting disposable consumer income and retail sales. In
addition, our sales of audio products to the automotive OEM market are
dependent on the overall success of the automobile industry, as well as
the willingness, in many instances, of automobile purchasers to pay for
the option of a premium branded automotive audio system.
Our business could be adversely affected if we are unable to obtain raw
materials and components from our suppliers on favorable terms.
We are dependent upon certain unaffiliated domestic and foreign
suppliers for various components, parts, raw materials and certain
finished products. Some of our suppliers produce products that compete
with our products. Although we believe that the loss of any one or more
of our suppliers would not have a long-term material adverse effect on
our business because other suppliers would be able to fulfill our
requirements, the loss of certain suppliers could, in the short term,
adversely affect our business until alternative suppliers are able to ship
adequate amounts of raw materials or components to us. We have begun
using multiple vendors and have limited our reliance on any single
supplier.
We may lose market share if we are unable to compete successfully
against our current and future competitors.
The high fidelity audio products market is fragmented, highly
competitive, rapidly changing and characterized by price competition.
19
Many manufacturers, large and small, domestic and foreign, offer audio
systems that vary widely in price and quality and are marketed through a
variety of channels, including audio specialty stores, discount stores,
department stores and mail order firms. Some of our competitors have
financial and other resources greater than ours. We cannot assure you
that we will continue to compete effectively against existing or new
competitors that may enter our markets. We also compete indirectly
with automobile manufacturers that may improve the quality of original
equipment sound systems, reducing demand for our aftermarket mobile
audio products, or change the designs of their cars to make installation
of our aftermarket products more difficult or expensive.
Our products may not satisfy shifting consumer demand or compete
successfully with competitors' products.
Our business is based on the demand for audio products and our ability
to introduce distinctive new products that anticipate changing consumer
demands and capitalize upon emerging technologies. If we fail to
introduce new products, misinterpret consumer preferences or fail to
respond to changes in the marketplace, consumer demand for our
products could decrease and our brand image could suffer. In addition,
our competitors may introduce superior designs or business strategies,
undermining our distinctive image and our products' desirability. If any
of these events occur, our sales could decline.
Currency fluctuations may reduce the profits on our foreign sales or
increase our costs, either of which could adversely affect our financial
results.
A significant amount of our assets and operations are located outside the
United States. Consequently, we are subject to fluctuations in foreign
currency exchange rates. Translation losses as a result of currency
fluctuations may adversely affect the profits on our foreign sales and
have a negative impact on our financial results. In addition, we purchase
certain foreign-made products. Although we hedge a portion of our
foreign currency exposure and, due to the multiple currencies involved
in our business, foreign currency positions partially offset and are netted
against one another to reduce exposure, we cannot assure you that
fluctuations in foreign currency exchange rates will not make these
products more expensive to purchase. Any increase in our costs of
purchasing these products could negatively impact our financial results
to the extent we are not able to pass those increased costs on to our
customers.
20
If we do not continue to develop, introduce and achieve market
acceptance of new and enhanced products, our sales may decrease.
In order to increase sales in current markets and gain footholds in new
markets, we must maintain and improve existing products, while
successfully developing and introducing new products. Our new and
enhanced products must respond to technological developments and
changing consumer preferences. We may experience difficulties that
delay or prevent the development, introduction or market acceptance of
new or enhanced products. Furthermore, despite extensive testing, we
may be unable to detect and correct defects in our products before we
ship them to our customers. Delays or defects in new product
introduction may result in loss of sales or delays in market acceptance.
Even after we introduce them, our new or enhanced products may not
satisfy consumer preferences and product failures may cause consumers
to reject our products. As a result, these products may not achieve
market acceptance. In addition, our competitors' new products and
product enhancements may cause consumers to defer or forego
purchases of our products.
Our operations could be harmed by factors including political
instability, natural disasters, fluctuations in currency exchange rates
and changes in regulations that govern international transactions.
The risks inherent in international trade may reduce our international
sales and harm our business and the businesses of our distributors and
suppliers. These risks include:
-changes in tariff regulations;
-political instability, war, terrorism and other political risks;
-foreign currency exchange rate fluctuations;
-establishing and maintaining relationships with local distributors and
dealers;
-lengthy shipping times and accounts receivable payment cycles;
-import and export licensing requirements;
-compliance with a variety of foreign laws and regulations, including
unexpected changes in taxation and regulatory requirements;
-greater difficulty in safeguarding intellectual property than in the
U.S.; and
-difficulty in staffing and managing geographically diverse operations.
21
These and other risks may increase the relative price of our products
compared to those manufactured in other countries, reducing the
demand for our products.
If we are unable to enforce or defend our ownership and use of our
intellectual property, our business may decline.
Our future success will depend, in substantial part, on our intellectual
property. We seek to protect our intellectual property rights, but our
actions may not adequately protect the rights covered by our patents,
patent applications, trademarks and other proprietary rights, and
prosecution of our claims could be time consuming and costly. In
addition, the intellectual property laws of some foreign countries do not
protect our proprietary rights as do the laws of the U.S. Despite our
efforts to protect our proprietary information, third parties may obtain,
disclose or use our proprietary information without our authorization,
which could adversely affect our business. From time to time, third
parties have alleged that we infringe their proprietary rights. These
claims or similar future claims could subject us to significant liability
for damages, result in the invalidation of our proprietary rights, limit our
ability to use infringing intellectual property or force us to license third-
party technology rather than dispute the merits of any infringement
claim. Even if we prevail, any associated litigation could be time
consuming and expensive and could result in the diversion of our time
and resources.
Covenants in our debt agreements could restrict our operations.
The instruments governing our senior notes and our revolving credit
facility contain certain provisions that could restrict our operating and
financing activities. They restrict our ability to, among other things:
-create or assume liens;
-enter into sale-leaseback transactions; and
-engage in mergers or consolidations.
Because of the restrictions on our ability to create or assume liens, we
may have difficulty securing additional financing in the form of
additional indebtedness. In addition, our revolving credit facility
contains other and more restrictive covenants, including financial
covenants that will require us to achieve specified financial and
operating results and maintain compliance with specified financial
ratios. We may have to curtail some of our operations to maintain
22
compliance with these covenants. If we fail to comply with the
covenants contained in our debt agreements, the related debt incurred
under those agreements could be declared immediately due and payable,
which could also trigger a default under other agreements.
Our ability to meet the covenants or requirements in our credit facilities
and the indentures relating to our outstanding senior notes may be
affected by events beyond our control, and we cannot assure you that we
will satisfy these covenants and requirements.
A breach of these covenants or our inability to comply with the financial
ratios, tests or other restrictions could result in an event of default under
our revolving credit facility. Additionally, an event of default under our
revolving credit facility is also an event of default under the indentures
governing our senior notes. Upon the occurrence of an event of default
under our revolving credit facility, the lenders and/or the note holders
could elect to declare all amounts outstanding under our revolving credit
facility and/or one or both of the indentures, together with accrued
interest, to be immediately due and payable. If the payment of our
indebtedness was accelerated, there can be no assurance that we will be
able to make those payments or borrow sufficient funds from alternative
sources to make those payments. Even if we were to obtain additional
financing, that financing may be on unfavorable terms.
Harman International is a holding company with no operations of its
own and therefore our cash flow and ability to service debt are
dependent upon distributions from our subsidiaries.
Harman International's ability to service its debt and pay dividends is
dependent upon the operating earnings of its subsidiaries. The
distribution of those earnings, or advances or other distributions of
funds by those subsidiaries to Harman International, all of which could
be subject to statutory or contractual restrictions, are contingent upon
the subsidiaries' earnings and are subject to various business
considerations.
23
ITEM 2. PROPERTIES
We believe that our manufacturing capabilities are essential to
maintaining and improving product quality and performance. We
manufacture most of the products that we sell other than some of our
Harman Kardon electronic components. We also manufacture certain
products for other loudspeaker companies as an original equipment
manufacturer. Our principal manufacturing facilities are located in
California, Indiana, Utah, Kentucky, Germany, the United Kingdom,
Denmark, Mexico, France, Austria and Hungary. These facilities are
described in the table below.
24
<TABLE>
<CAPTION>
Square Owned or Percentage
Location Footage Leased Utilization Segments
- -------------------------- ---------- ---------- ------------- --------------
<S> <C> <C> <C> <C>
Northridge, California 569,000 Leased 94% Consumer,
Professional
Ittersbach, Germany 550,000 Owned 80% Consumer
17,000 Leased 100%
Worth-Schaitt, Germany 377,500 Owned 50% Consumer
Martinsville, Indiana 206,000 Owned 100% Consumer
Ringkobing, Denmark 256,000 Owned 90% Consumer
12,000 Leased 90%
Straubing, Germany 230,000 Leased 95% Consumer
Elkhart, Indiana 222,700 Owned 100% Professional
7,000 Leased 100%
Tijuana, Mexico 198,000 Leased 100% Consumer
Potters Bar, UK 160,000 Leased 100% Professional
Vienna, Austria 154,000 Leased 100% Professional
Chateau du Loir, France 151,000 Owned 100% Consumer
Juarez, Mexico 145,000 Leased 80% Consumer
Sandy, Utah 122,000 Leased 100% Professional
Szekesfehervar, Hungary 115,000 Owned 100% Consumer
Franklin, KY 110,000 Leased 100% Consumer
Bridgend, U.K. 108,000 Leased 100% Consumer
Regensdorf, Switzerland 107,600 Leased 100% Professional
</TABLE>
The company considers its properties to be suitable and adequate for its
present needs.
25
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26
ITEM 3. LEGAL PROCEEDINGS
There are various other legal claims pending against the Company, but in
the opinion of management, liabilities, if any, arising from such claims
will not have a material effect upon the consolidated financial condition or
results of operations of the Company.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
EXECUTIVE OFFICERS OF THE REGISTRANT
Officers are elected annually by the Board of Directors and hold office at
the pleasure of the Board of Directors until the next annual selection of
officers or until their successors are elected and qualified. The current
executive officers of the corporation, their ages at August 1, 2002 and
their business experience during the past five years are set forth below.
Sidney Harman, Ph.D. - 83
Executive Chairman, July 2000 - present
Chairman of the Board, Chief Executive Officer and Director, 1980 - July
2000
Bernard A. Girod - 60
Vice Chairman and Chief Executive Officer, July 2000 - present
Chief Executive Officer, November 1998 - present
President, March 1994 - November 1998
Director, July 1993 - present
Gregory P. Stapleton - 55
President and Chief Operating Officer, July 2000 to present
Chief Operating Officer, November 1998 - present
President of the Harman OEM Group, October 1987 - November 1998
Director, November 1987 - present
Frank Meredith - 45
Executive Vice President and Chief Financial Officer, July 2000 - present
Chief Financial Officer of the Company, February 1997 - present
Secretary, November 1998 - present
27
William S. Palin - 60
Vice President - Controller, March 1994 - present
Sandra B. Robinson - 43
Vice President - Financial Operations, November 1992 - present
Edwin C. Summers - 55
Vice President and General Counsel, July 1998 - present
Vice President, General Counsel and Secretary, First Alliance
Corporation, 1996 - July 1998
Floyd E. Toole, Ph.D., 64
Vice President - Acoustics, November 1991 - present
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON EQUITY
AND RELATED STOCKHOLDER MATTERS
The information required by Part II, Item 5 is incorporated by reference to
the information under the caption "Shareholder Information" on page 48
of the Company's Annual Report to Shareholders for the fiscal year ended
June 30, 2002.
28
ITEM 6. SELECTED FINANCIAL DATA
Five-Year Summary
(in thousands, except per share data,
for the fiscal years ended June 30)
<TABLE>
<CAPTION>
2002 2001 2000 1999 1998
------------ ------------ ------------ ------------ ------------
<C> <S> <S> <S> <S> <S>
Net sales $ 1,826,188 $ 1,716,547 $ 1,677,939 $ 1,500,135 $ 1,513,255
Operating income 103,221 71,228 121,722 38,663 100,325
Income before taxes 80,177 45,099 102,829 14,447 75,707
Net income 57,513 32,364 72,838 11,723 50,243
Diluted EPS 1.70 0.96 2.06 0.32 1.33
Total assets 1,480,280 1,159,385 1,137,505 1,065,755 1,130,684
Total debt 474,679 368,760 277,324 311,575 333,640
Shareholders' equity 526,629 422,942 486,333 468,187 511,899
Dividends per share 0.10 0.10 0.10 0.10 0.10
</TABLE>
Per-share data has been restated to reflect the two-for-one stock split in
August 2000.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The information required by Part II, Item 7 is incorporated by reference to
the information under the caption "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in the Company's Annual Report
to Shareholders for the fiscal year ended June 30, 2002.
29
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
The Securities and Exchange Commission requires that registrants include
information about potential effects of changes in interest rates and
currency exchange rates in their financial statements. The qualitative
information required by Part II, Item 7A is incorporated by reference to
the information under the captions "Interest Rate Sensitivity" and
"Foreign Currency" in Management's Discussion and Analysis of
Financial Condition and Results of Operations and Note 13 "Derivatives"
in the Company's Annual Report to Shareholders for the fiscal year ended
June 30, 2002.
Interest Rate Risk
The Company has used interest rate swaps to convert the interest rate on a
majority of its borrowings from fixed rates to variable rates. Including the
impact of the swaps, about 22% of the Company's borrowings were on a
fixed rate basis as of June 30, 2002; the remaining balance is subject to
changes in U.S short-term interest rates. In addition, the Company had
$86 million in equipment operating leases that are subject to fluctuations
in U.S. short-term interest rates.
To assess exposure to interest rate changes, the Company has performed a
sensitivity analysis assuming a hypothetical 100 basis point increase in
interest rates across all maturities. This analysis indicates that such
market movements would reduce fiscal 2002 net income, based on June
2002 positions, by approximately $2.3 million. Based on June 2001
positions, the effect on fiscal 2001 net income of such an increase in
interest rates was estimated to be $1.4 million.
Foreign Currency Risk
The Company is exposed to market risks arising from changes in foreign
exchange rates, principally the change in the value of the euro versus the
U.S. dollar.
The Company estimates the effect on projected 2003 net income, based
upon a recent estimate of foreign exchange transactional exposure, of a
uniform strengthening or uniform weakening of the transaction currency
pairs of 10 percent will decrease net income by $9 million or will
increase net income by $9 million. As of June 30, 2002, the Company
30
had hedged a portion of its estimated foreign currency transactions using
forward exchange contracts.
The Company estimates the effect on projected 2003 net income, based
upon a recent estimate of foreign exchange translation exposure
(translating the operating performance of our foreign subsidiaries into
U.S. dollars), of a uniform strengthening or weakening of the U.S. dollar
by 10 percent to decrease net income $5.9 million or to increase net
income $5.9 million.
The Company and its subsidiaries' net unhedged exposure in assets and
liabilities denominated in currencies other than their relevant functional
currencies as of June 30, 2002 and 2001 was not material to the
consolidated financial position of the Company.
Actual gains and losses in the future may differ materially from the
hypothetical gains and losses discussed above based on changes in the
timing and amount of interest rate and foreign currency exchange rate
movements and the Company's actual exposure and hedging transactions.
ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The information required by Part II, Item 8 is incorporated by reference to
the information under the caption "Consolidated Financial Statements" in
the Company's Annual Report to Shareholders for the fiscal year ended
June 30, 2002.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by Item 10 with respect to the Company's
directors is incorporated by reference to the information included under
the caption "Election of Directors" in the Company's Proxy Statement for
31
its 2002 Annual Meeting of Stockholders. Information required by
Item 10 with respect to the Company's executive officers is included in
Part I of this report.
ITEM 11. EXECUTIVE COMPENSATION
The information required by Item 11 is incorporated by reference to the
information provided under the caption "Compensation of Executive
Officers" in the Company's Proxy Statement for its 2002 Annual
Meeting of Stockholders.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS
The information required by Item 12 is incorporated by reference to the
information provided under the caption "Security Ownership of Certain
Beneficial Owners and Management" and "Equity Compensation Plan
Information" in the Company's Proxy Statement for its 2002 Annual
Meeting of Stockholders.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by Item 13 is incorporated by reference to the
information provided under the caption "Option Purchases" in the
Company's Proxy Statement for its 2002 Annual Meeting of Stockholders.
ITEM 14. CONTROLS AND PROCEDURES
There were no significant changes in the Company's internal controls or
in other factors that could significantly affect these controls subsequent to
management's most recent evaluation of its internal controls.
32
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
a) 1. Financial statements required to be filed hereunder
are indexed on page 43 hereof.
2. Financial statement schedules required to be filed
hereunder are indexed on page 43 hereof.
3. The exhibits required to be filed hereunder are
indexed on pages 49 through 54 hereof.
b) Reports on Form 8-K
None.
33
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34
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.
(Registrant): HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
By: (Signature and Title) /s/ Bernard A. Girod
---------------------------------------------------
Bernard A. Girod, Vice Chairman and Chief Executive
Officer
Date: September 17, 2002
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, this report has been signed below by the following persons on behalf
of the registrant and in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Sidney Harman Executive Chairman September 17, 2002
- -------------------------- of the Board -------------------
Sidney Harman of Directors
/s/ Bernard A. Girod Vice Chairman, Chief September 17, 2002
- -------------------------- Executive Officer and -------------------
Bernard A. Girod Director
/s/ Gregory P. Stapleton President, Chief Operating September 17, 2002
- -------------------------- Officer and Director -------------------
Gregory P. Stapleton
/s/ Frank Meredith Executive Vice President September 17, 2002
- -------------------------- and Chief Financial -------------------
Frank Meredith Officer (Principal
Accounting Officer)
/s/ Shirley M. Hufstedler Director September 17, 2002
- -------------------------- -------------------
Shirley M. Hufstedler
/s/ Ann McLaughlin Korologos Director September 17, 2002
- -------------------------- -------------------
Ann McLaughlin Korologos
/s/ Edward H. Meyer Director September 17, 2002
- -------------------------- -------------------
Edward H. Meyer
/s/ Stanley A. Weiss Director September 17, 2002
- -------------------------- -------------------
Stanley A. Weiss
35
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36
CERTIFICATIONS
I, Sidney Harman, certify that:
1. I have reviewed this annual report on Form 10-K of Harman
International Industries, Incorporated;
2. Based on my knowledge, this annual report does not contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not
misleading with respect to the period covered by this annual
report; and
3. Based on my knowledge, the financial statements, and other
financial information included in this annual report, fairly
present in all material respects the financial condition, results
of operations and cash flows of the registrant as of, and for,
the periods presented in this annual report.
Date: September 17, 2002
/s/ Sidney Harman
-------------------------------
Sidney Harman
Executive Chairman of the Board
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38
CERTIFICATIONS
I, Bernard A. Girod, certify that:
1. I have reviewed this annual report on Form 10-K of Harman
International Industries, Incorporated;
2. Based on my knowledge, this annual report does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the
circumstances under which such statements were made, not
misleading with respect to the period covered by this annual
report; and
3. Based on my knowledge, the financial statements, and other
financial information included in this annual report, fairly present
in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the
periods presented in this annual report.
Date: September 17, 2002
/s/ Bernard A. Girod
------------------------------
Bernard A. Girod
Vice Chairman of the Board and
Chief Executive Officer
39
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40
CERTIFICATIONS
I, Frank Meredith, certify that:
1. I have reviewed this annual report on Form 10-K of Harman
International Industries, Incorporated;
2. Based on my knowledge, this annual report does not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements made, in light of the
circumstances under which such statements were made, not
misleading with respect to the period covered by this annual
report; and
3. Based on my knowledge, the financial statements, and other
financial information included in this annual report, fairly present
in all material respects the financial condition, results of
operations and cash flows of the registrant as of, and for, the
periods presented in this annual report.
Date: September 17, 2002
/s/ Frank Meredith
----------------------------
Frank Meredith
Executive Vice President and
Chief Financial Officer
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42
LIST OF FINANCIAL STATEMENTS AND
FINANCIAL STATEMENT SCHEDULES
Index to Item 14(a)
Page Reference
------------------------
Annual
Report to
Form 10-K Shareholders
------------------------
Consolidated Financial Data (page 30 through 48 of the 2002 Annual
Report to Shareholders herein incorporated by reference as Exhibit 13.1):
Financial Table of Contents ............................................. 16
Independent Auditors'
Reports...................................................45............. 29
Consolidated Balance Sheets as of
June 30, 2002 and June 30, 2001 ...................................... 30
Consolidated Statements of
Operations for the years ended
June 30, 2002, 2001 and 2000 ......................................... 31
Consolidated Statements of Cash
Flows for the years ended
June 30, 2002, 2001 and 2000 ......................................... 32
Consolidated Statements of Shareholders'
Equity for the years ended
June 30, 2002, 2001 and 2000 ......................................... 33
Notes to Consolidated Financial Statements .............................. 34
Schedules for the years ended June 30, 2002, 2001 and 2000:
II Valuation and Qualifying
Accounts and Reserves .............................47
All other schedules have been omitted because they are not applicable, not
required, or the information has been otherwise supplied in the financial
statements or notes to the financial statements.
43
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44
Independent Auditors' Report
The Board of Directors
Harman International Industries, Incorporated:
Under the date of August 14, 2002, we reported on the consolidated
balance sheets of Harman International Industries, Incorporated and
subsidiaries as of June 30, 2002 and 2001, and the related consolidated
statements of operations, cash flows and shareholders' equity for each
of the years in the three-year period ended June 30, 2002, as contained
in the 2002 annual report to shareholders. These consolidated financial
statements and our report thereon are incorporated into by reference
in the annual report on Form 10-K for the year ended June 30, 2002.
In connection with our audits of the aforementioned consolidated
financial statements, we also audited the related financial statement
schedule as listed in the accompanying index. The financial statement
schedule is the responsibility of the Company's management. Our
responsibility is to express an opinion on the financial statement
schedule based on our audits.
In our opinion, such financial statement schedule, when considered in
relation to the basic consolidated financial statements taken as a whole,
present fairly, in all material respects, the information set forth therein.
/s/ KPMG
- -----------------------
Los Angeles, California
August 14, 2002
45
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46
Schedule II
HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
Valuation and Qualifying Accounts and Reserves
Years Ended June 30, 2002, 2001 and 2000
($000's omitted)
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Charged
Balance at Charged to To Other Balance
Beginning Costs and Accounts Deductions at End
Classification of Period Expenses Describe Describe of Period
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Year Ended June 30, 2000
Allowance for
doubtful accounts $ 8,732 $ 6,902 $ (394) (1) $ 3,480 (2) $ 11,760
Year Ended June 30, 2001
Allowance for
doubtful accounts $ 11,760 $ 5,721 $ (824) (1) $ 2,200 (2) $ 14,457
Year Ended June 30, 2002
Allowance for
doubtful accounts $ 14,457 $ 7,049 $ 1,037 (1) $ 4,332 (2) $ 18,211
</TABLE>
(1) Net effect of acquisitions, dispositions and foreign currency translation.
(2) Deductions for accounts receivable written off net of recoveries.
47
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48
HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
INDEX TO EXHIBITS
The following exhibits are filed as part of this report. Where such filing is
made by incorporation by reference to a previously filed statement or report,
such statement or report is identified in parenthesis.
There are omitted from the exhibits filed with this Annual Report on
Form 10-K certain promissory notes and other instruments and
agreements with respect to long-term debt of the Company, none of which
authorizes securities in a total amount that exceeds 10 percent of the total
assets of the Company and its subsidiaries on a consolidated basis.
Pursuant to Item 601(b)(4)(iii) of Regulation S-K, the Company hereby
agrees to file with the Securities and Exchange Commission copies of all
such omitted promissory notes and other instruments and agreements as
the Commission requests.
Exhibit Page
No. Description No.
3.1, 4.1 Restated Certificate of Incorporation filed with the
Delaware Secretary of State on October 7, 1986,
as amended by the Certificates of Amendment
filed with the Delaware Secretary of State on
November 13, 1986, November 9, 1993 and on
December 14, 2000. (Filed as Exhibit 3.1, 4.1 to
the Annual Report on Form 10-K for the fiscal
year-ended June 30, 2001, and hereby incorporated
by reference) ............................................. IBR
3.2,4.2 By-Laws of Harman International Industries, Incorporated,
as amended December 13, 1999. (Filed as Exhibit 3.2,4.5
to the Annual Report on Form 10-K for the fiscal year
ended June 30, 2000, and hereby incorporated by reference). IBR
49
4.3 Rights Agreement (including a Form of Certificate
of Designation of Series A Junior Participating
Preferred Stock as Exhibit A thereto, a Form Right
Certificate as Exhibit B thereto and a Summary of
Rights to Purchase of Preferred Stock as Exhibit C
thereto) (Incorporated by reference to the Form 8-A
filed by the Company on December 16, 1999)................. IBR
4.4 Certificate of Designation of Series A Junior
Participating Preferred Stock of Harman
International Industries, Incorporated, dated
January 11, 2000. (Filed as Exhibit 4.3 to the Annual
Report on Form 10-K for the fiscal year ended June
30, 2000, and hereby incorporated by reference)............ IBR
4.5 Amended and Restated Indenture, dated July 7, 1997
between Harman International Industries, Incorporated
and PNC Bank, National Association, as trustee.
(Filed as Exhibit 10.63 to the Quarterly Report on
Form 10-Q for the quarter ended September 30, 1998,
and hereby incorporated by reference)...................... IBR
4.6 Indenture, dated as of February 19, 2002, between
Harman International Industries, Incorporated and
J.P. Morgan Trust Company, National Association, as
trustee. (Filed as Exhibit 4.5 to the Registration Statement
on Form S-4 (File No. 333-83688) filed with the Commission
on March 4, 2002, and hereby incorporated by reference).... IBR
50
10.1 Lease dated as of June 18, 1987 between Harman
International Industries Business Campus Joint
Venture and JBL Inc., as amended. (Filed as Exhibit
10.1 to the Annual Report on Form 10-K for the
fiscal year ended June 30, 1987, and hereby incorporated
by reference) ............................................. IBR
10.2 Guaranty dated as of June 18, 1987 by Harman
International Industries, Inc. of Lease dated as of
June 18, 1987 between Harman International
Industries Business Campus Joint Venture and JBL
Inc., as amended. (Filed as Exhibit 10.2 to the
Annual Report on Form 10-K for the fiscal year
ended June 30, 1987 , and hereby incorporated
by reference) ............................................. IBR
10.3 Harman International Industries, Inc. 1987 Executive
Incentive Plan (adopted December 8, 1987). (Filed
as Exhibit 10.18 to the Annual Report on Form 10-K
for the fiscal year ended June 30, 1988, and
hereby incorporated by reference) ......................... IBR
10.4 Lease Agreement dated April 28, 1988, by and
between Harman International Business Campus
Joint Venture and Harman Electronics, Inc. (Filed
as Exhibit 10.23 to the Annual Report on Form
10-K for the fiscal year ended June 30, 1988,
and hereby incorporated by refercence)..................... IBR
10.5 Harman International Industries, Incorporated
Retirement Savings Plan, Amended and Restated
effective as of June 27, 2000 (Filed as Exhibit 10.26
to the Annual Report on Form 10-K for the fiscal
year-ended June 30, 2001, and hereby incorporated by
reference * ............................................... IBR
10.6 Amended and Restated Harman International Industries,
Incorporated Supplemental Executive Retirement Plan
dated October 1, 1999. (Filed as Exhibit 10.27 to the
Annual Report on Form 10-K for the fiscal year ended
June 30, 2000 (File No. 1-09764), and hereby
incorporated by reference) * .............................. IBR
51
10.7 Harman International Industries, Incorporated 1992
Incentive Plan, as amended. (Filed as Exhibit B to
the Company's Definitive Proxy Statement filed on
September 15, 1999 (File No. 1-09764), and hereby
incorporated by reference) * .............................. IBR
10.8 Harman International Industries, Inc. Deferred
Compensation Plan, effective June 1, 1997. (Filed
Form S-8 Registration Statement on June 9, 1997
(Reg. No. 333-28793), and hereby incorporated by
reference) * .............................................. IBR
10.9 First Amendment to Harman International Industries,
Inc. Deferred Compensation Plan dated October 1,
1999. (Filed as Exhibit 10.46 to the Annual Report
on Form 10-K for the fiscal year ended June 30,
2000, and hereby incorporated by reference) * .............. IBR
10.10 Multi-Currency, Multi-Option Credit Agreement dated
August 14, 2002, among Harman International Industries,
Incorporated and the several lenders from time to time
parties thereto ............................................ 55
10.11 First Amendment to the Lease Agreement by and between
Harman International Business Campus Joint Venture and
Harman Electronics, Inc. dated October 1995. (Filed as
Exhibit 10.57 to the Annual Report on Form 10-K for the
fiscal year ended June 30, 1996, and hereby incorporated
by reference) .............................................. IBR
10.12 First Amendment to the Lease Agreement by and
between Harman International Business Campus
Joint Venture and JBL, Inc. dated October 1995.
(Filed as Exhibit 10.58 to the Annual Report on
Form 10-K for the fiscal year ended June 30, 1996,
and hereby incorporated by reference) ...................... IBR
52
10.13 Employment Agreement between the Company and
William Palin dated April 4, 2001. (Filed as
Exhibit 10.69 to the Quarterly Report on Form 10-Q
for the quarter ended March 31, 2001, and
hereby incorporated by reference) * ........................ IBR
10.14 Equipment Financing Agreement between the
Company and State Street Bank and Trust dated
September 30, 1999. (Filed as Exhibit 10.67
to the Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999, and hereby
incorporated by reference) ................................. IBR
10.15 Participation Agreement among the Company,
State Street Bank and Trust, Four Winds Funding
Corporation, Commerzbank, Bank of Tokyo -
Mitsubishi Trust Company and BTM Capital
dated September 30, 1999. (Filed as Exhibit 10.68
to the Quarterly Report on Form 10-Q for the
quarter ended September 30, 1999 , and hereby
incorporated by reference) ................................. IBR
10.16 Harman International Industries, Incorporated,
Key Executive Officers Incentive Plan. (Filed as
Exhibit A to the Definitive Proxy Statement for the
Company's 2000 Annual Stockholder's Agreement
and hereby incorporated by reference) * .................... IBR
10.71 Form of Severance Agreement between the
Company and each of Sidney Harman, Bernard Girod,
Gregory Stapleton and Frank Meredith. (Filed as
Exhibit 10.71 to the Annual Report on Form
10-K for the year ended June 30, 2000, and
hereby incorporated by reference) * ........................ IBR
10.72 Benefit Agreement under the Supplemental
Executive Retirement Plan between Bernard A.
Girod and Harman International Industries,
Inc., dated June 22, 2001. (Filed as Exhibit
10.72 to the Annual Report on Form 10-K for the
year ended June 30, 2000, and hereby
incorporated by reference) * ............................... IBR
53
10.73 Benefit Agreement under the Supplemental
Executive Retirement Plan between Gregory
Stapleton and Harman International Industries,
Inc., dated June 20, 2001. (Filed as Exhibit
10.73 to the Annual Report on Form 10-K for the
year ended June 30, 2000, and hereby
incorporated by reference) * ............................... IBR
10.74 Benefit Agreement under the Supplemental
Executive Retirement Plan between Frank
Meredith and Harman International Industries,
Inc., dated June 21, 2000. (Filed as Exhibit
10.74 to the Annual Report on Form 10-K for the
year ended June 30, 2000, and hereby
incorporated by reference) * ................................ IBR
13.1 Pages 17 through inside back cover of Harman
International Industries, Incorporated Annual
Report to Shareholders for the fiscal year ended
June 30, 2002 ............................................... 57
21.1 Subsidiaries of the Company ................................. 59
23.1 Consent of Independent Auditors ............................. 65
99.1 Certification of Sidney Harman, Bernard Girod,
and Frank Meredith filed pursuant to 18 U.S.C., 1350,
as adopted pursuant to section 906 of the Sarbanes -
Oxley Act of 2002 ........................................... 69
__________________________
* Management contract or compensatory plan or arrangement
to be filed as an exhibit to this form pursuant to
Item 14 (c).
54
EXHIBIT 10.10
55
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56
EXHIBIT 13.1
57
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58
EXHIBIT 21.1
59
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60
Subsidiaries
Name of Entity Jurisdiction
AKG Acoustics GmbH Austria
AKG Acoustics GmbH Germany
AKG Acoustics Limited United Kingdom
Amek Systems and Controls Ltd. United Kingdom
Amek Technology Group Limited United Kingdom
Audax of America, Inc. Delaware
Becker of North America, Inc. Delaware
Becker Service und Verwaltungs GmbH Germany
BSS Audio United Kingdom
C-Audio United Kingdom
CAA AG Germany
Crown Audio, Inc. Delaware
Digital Audio Research Limited United Kingdom
Epicure Products, Inc. Delaware
Fosgate, Inc. Delaware
Harman Audio United Kingdom
Harman Audio de Mexico, S.A. de C.V. Mexico
Harman Audio Outlet, Inc. Delaware
Harman Becker Automotive Systems (Becker Division) GmbH Germany
Harman Becker Automotive Systems (Kentucky), Inc. Delaware
Harman Becker Automotive Systems (Pty) Ltd. South Africa
Harman Becker Automotive Systems (Straubing Division)
GmbH Germany
61
Name of Entity Jurisdiction
Harman Becker Automotive Systems (Wisconsin), Inc. Delaware
Harman Becker Automotive Systems Holding GmbH Germany
Harman Becker Automotive Systems, Inc. Delaware
Harman Becker Automotive Systems Manufacturing Kft. Hungary
Harman Becker Automotive Systems S.A. de C.V. Mexico
Harman Belgium NV Belgium
Harman Consumer OY Finland
Harman Consumer International SNC France
Harman Consumer Manufacturing A/S Denmark
Harman Consumer Nederland, B.V. Netherlands
Harman Consumer Scandinavia A/S Denmark
Harman de Mexico S.A. de C.V. Mexico
Harman Enterprises, Inc. Delaware
Harman Europe EEIG United Kingdom
Harman France, S.N.C. France
Harman Germany LLC Delaware
Harman Holding GmbH & Co. KG Germany
Harman Industries SNC France
Harman International Industries Limited United Kingdom
Harman International Singapore Pte. Ltd. Singapore
Harman Investment Company, Inc. Delaware
Harman Management GmbH Germany
Harman Motive United Kingdom
Harman Music Group, Incorporated Delaware
Harman Pro North America, Inc. Delaware
62
Name of Entity Jurisdiction
Harman Residential Group, Inc. Delaware
Harman (Suzhou) Electronics Co. Ltd. China
Harman UK Limited United Kingdom
Harman-Kardon, Incorporated Delaware
Ideasoft AG Germany
Infinity Systems, Inc. California
Innovative Systems GmbH Navigation-Multimedia Germany
ISAS Gesellschaft fnr innovative Anwendungs-Software Germany
mbH
JBL Incorporated Delaware
Lexicon, Incorporated Massachusetts
Madrigal Audio Laboratories, Inc. Delaware
Muller & Schmidt Vermogensverwaltungs-gesellschaft mbH Germany
Precision Devices United Kingdom
Son-Audax Loudspeakers Limited United Kingdom
Soundcraft Electronics United Kingdom
Studer Canada Limited Canada
Studer Deutschland GmbH Germany
Studer Digitec, S.A. France
Studer Japan Ltd. Japan
Studer Professional Audio AG Switzerland
Studer UK United Kingdom
Studer USA, Inc. Delaware
TEMIC SDS GmbH Germany
Total Audio Concepts Ltd. United Kingdom
63
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64
EXHIBIT 23.1
65
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66
INDEPENDENT AUDITORS' CONSENT
- --------------------------------------------------------
The Board of Directors
Harman International Industries, Incorporated:
We consent to the incorporation by reference in the Registration
Statement Nos. 33-20559, 33-28973, 33-36388, 33-60234, 33-60236,
33-59605, 333-02917, 333-28793, and 333-32673 on Form S-8, and
333-21021 on Form S-3 of Harman International Industries, Incorporated
of our report dated August 14, 2002, relating to the consolidated
balance sheets of Harman International Industries, Incorporated and
subsidiaries as of June 30, 2002 and 2001, and the related consolidated
statements of operations, cash flows and shareholders' equity and related
schedule for each of the years in the three-year period ended
June 30, 2002, which report appears in the June 30, 2002, annual
report on Form 10-K of Harman International Industries, Incorporated.
/s/ KPMG
- -----------------------
Los Angeles, California
September 16, 2002
67
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68
EXHIBIT 99.1
69
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70
CERTIFICATION PURSUANT TO
18 U.S.C. 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In connection with the Annual Report of Harman International Industries,
Incorporated (the "Company") on Form 10-K for the fiscal year ended
June 30, 2002, as filed with the Securities and Exchange Commission on
the date hereof (the "Report"), each of the undersigned officers of the
Company certifies, pursuant to 18 U.S.C. 1350, as adopted pursuant to
906 of the Sarbanes-Oxley Act of 2002, that, to such officer's
knowledge:
(1) The Report fully complies with the requirements
of Section 13(a) or 15(d) of the Securities Exchange
Act of 1934; and
(2) The information contained in the Report fairly presents,
in all material respects, the financial condition and
results of operations of the Company as of the dates
and for the periods expressed in the Report.
Date: September 17, 2002 /s/ Sidney Harman
------------------------------------------------
Name: Sidney Harman
Title: Executive Chairman
/s/ Bernard A. Girod
------------------------------------------------
Name: Bernard A. Girod
Title: Vice Chairman and Chief Executive Officer
/s/ Frank Meredith
------------------------------------------------
Name: Frank Meredith
Title: Chief Financial Officer
The foregoing certification is being furnished solely pursuant to 18
U.S.C. 1350 and is not being filed as part of the Report or as a separate
disclosure document.
71
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10
<SEQUENCE>3
<FILENAME>mca10k02.txt
<DESCRIPTION>MULTI-CURRENCY MULTI-OPTION CREDIT AGREEMENT
<TEXT>
MULTI-CURRENCY, MULTI-OPTION
CREDIT AGREEMENT
among
HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
The Several Lenders
from Time to Time Parties Hereto
JPMORGAN CHASE BANK,
as Arranger
JPMORGAN CHASE BANK,
as Sole Advisor, Lead Arranger and Bookrunner
JPMORGAN CHASE BANK,
as Administrative Agent
THE BANK OF NOVA SCOTIA,
as Documentation Agent
Dated as of August 14, 2002
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS...........................................1
1.1. Defined Terms...........................................1
1.2. Other Definitional Provisions...........................18
SECTION 2. THE COMMITTED RATE LOANS..............................19
2.1. Committed Rate Loans....................................19
2.2. Procedure for Committed Rate Loan Borrowing.............19
2.3. Repayment of Committed Rate Loans; Evidence of Debt.....19
2.4. Termination or Reduction of Commitments.................20
2.5. Optional Prepayments....................................20
2.6. Conversion and Continuation Options.....................20
2.7. Minimum Amounts of Tranches.............................21
2.8. Interest Rates and Payment Dates for
Committed Rate Loans...............................21
2.9. Inability to Determine Interest Rate....................21
2.10. Commitment Increases....................................22
SECTION 3. THE COMPETITIVE ADVANCE LOANS.........................23
3.1. Competitive Advance Loans...............................23
3.2. Procedure for Competitive Advance Loan Borrowing........24
3.3. Repayment of Competitive Advance Loans;
Evidence of Debt...................................24
3.4. Prepayments.............................................25
SECTION 4. THE LETTERS OF CREDIT.................................25
4.1. L/C Commitment..........................................25
4.2. Procedure for Issuance of Letters of Credit
under this Agreement...............................25
4.3. Fees, Commissions and Other Charges.....................26
4.4. L/C Participations......................................26
4.5. Reimbursement Obligation of the Company.................27
4.6. Obligations Absolute....................................27
4.7. Letter of Credit Payments...............................28
4.8. Application.............................................28
4.9. Issuance of Letters of Credit Priority for
Acceptance of Time Drafts..........................28
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS
AND LETTERSOF CREDIT..................................29
5.1. Facility Fee............................................29
5.2. Computation of Interest and Fees........................29
5.3. Pro Rata Treatment and Payments.........................29
5.4. Requirements of Law.....................................30
Page
5.5. Taxes...................................................32
5.6. Indemnity...............................................34
5.7. Change of Lending Office................................34
5.8. Company Controls on Exposure; Calculation of Exposure;
Prepayment if Exposure exceeds Commitments.........35
SECTION 6. REPRESENTATIONS AND WARRANTIES........................36
6.1. Financial Condition.....................................36
6.2. No Change...............................................36
6.3. Corporate Existence; Compliance with Law................36
6.4. Corporate Power; Authorization;
Enforceable Obligations............................37
6.5. No Legal Bar............................................37
6.6. No Material Litigation..................................37
6.7. No Default..............................................37
6.8. Ownership of Property; Liens............................37
6.9. Intellectual Property...................................37
6.10. Taxes...................................................38
6.11. Federal Regulations.....................................38
6.12. ERISA...................................................38
6.13. Investment Company Act; Other Regulations...............39
6.14. Subsidiaries............................................39
6.15. Purpose of Loans and Letters of Credit..................39
6.16. Accuracy and Completeness of Information................39
6.17. Environmental Matters...................................39
SECTION 7. CONDITIONS PRECEDENT..................................40
7.1. Conditions to Initial Extensions of Credit..............40
7.2. Conditions to Each Extension of Credit..................41
SECTION 8. AFFIRMATIVE COVENANTS.................................42
8.1. Financial Statements....................................42
8.2. Certificates; Other Information.........................42
8.3. Payment of Obligations..................................43
8.4. Conduct of Business and Maintenance of Existence........43
8.5. Maintenance of Property; Insurance......................44
8.6. Inspection of Property; Books and Records; Discussions..44
8.7. Notices.................................................44
8.8. Environmental Laws......................................45
SECTION 9. NEGATIVE COVENANTS....................................45
9.1. Financial Condition Covenants...........................45
9.2. Limitation on Indebtedness of Restricted Subsidiaries...45
9.3. Limitation on Liens.....................................46
9.4. Limitation on Fundamental Changes.......................48
-ii-
Page
9.5. Limitation on Sale of Assets............................48
9.6. Limitation on Dividends.................................49
9.7. Limitation on Investments, Loans and Advances...........49
9.8. Limitation on Optional Payments of Subordinated
Debt and Modifications of Subordination Provisions......50
9.9. Limitation on Transactions with Affiliates..............50
9.10. Limitation on Sales and Leasebacks......................50
9.11. Limitation on Changes in Fiscal Year....................51
9.12. Limitation on Guarantee Obligations in respect of
Indebtedness of Subsidiaries other than
Restricted Subsidiaries............................51
9.13. Limitation on Subsidiaries other than
Restricted Subsidiaries............................51
9.14. Limitation on Guarantee Obligations.....................51
SECTION 10. EVENTS OF DEFAULT...................................51
SECTION 11. THE ADMINISTRATIVE AGENT AND THE ARRANGER...........53
11.1. Appointment............................................53
11.2. Delegation of Duties...................................54
11.3. Exculpatory Provisions.................................54
11.4. Reliance by Administrative Agent.......................54
11.5. Notice of Default......................................54
11.6. Non-Reliance on Administrative Agent and
Other Lenders....................................55
11.7. Indemnification........................................55
11.8. Administrative Agent in Its Individual Capacity........56
11.9. Successor Administrative Agent.........................56
11.10. The Arranger...........................................56
SECTION 12. MISCELLANEOUS........................................56
12.1. Amendments and Waivers Generally;
Amendments to Schedules...........................56
12.2. Notices................................................57
12.3. No Waiver; Cumulative Remedies.........................58
12.4. Survival of Representations and Warranties.............58
12.5. Payment of Expenses and Taxes..........................58
12.6. Successors and Assigns; Participations and Assignments.59
12.7. Adjustments; Set-off...................................61
12.8. Judgment...............................................62
12.9. Counterparts...........................................62
12.10. Severability...........................................62
12.11. Integration............................................62
12.12. GOVERNING LAW..........................................62
12.13. Submission To Jurisdiction; Waivers....................62
12.14. Acknowledgements.......................................63
12.15. WAIVERS OF JURY TRIAL..................................63
12.16. Confidentiality........................................63
12.17. Termination of Existing Credit Agreement...............64
-iii-
SCHEDULES
Schedule I: Lenders and Commitments
Schedule II: Administrative Schedule
Schedule III: Material Debt Instruments
Schedule IV: Restricted Subsidiaries
Schedule V: Issuing Banks
Schedule 6.14: Subsidiaries
Schedule 9.2: Existing Indebtedness and Liens
EXHIBITS
Exhibit A: Schedule Amendment
Exhibit B: Form of Borrowing Certificate
Exhibit C: Assignment and Acceptance
Exhibit D-1: Opinion of Jones, Day, Reavis & Pogue
Exhibit D-2: Opinion of General Counsel
Exhibit E: New Lender Supplement
Exhibit F: Commitment Increase Supplement
Exhibit G: Form of Exemption Certificate
-iv-
MULTI-CURRENCY, MULTI-OPTION CREDIT AGREEMENT, dated as of
August 14, 2002, among:
(i) HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED, a Delaware
corporation (the "Company");
(ii) the several banks and other financial institutions from time
to time parties to this Agreement (each, a "Lender"; and
collectively, the "Lenders");
(iii) the Bank of Nova Scotia as the Documentation Agent (the
"Documentation Agent"); and
(iv) JPMORGAN CHASE BANK, as Arranger (the "Arranger") and as
administrative agent for the Lenders hereunder (and its successors
in such capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Lenders to make available
a credit facility pursuant to which (i) the Company may borrow revolving
credit loans at committed interest rates and short-term loans at interest
rates determined by a competitive bidding process to be conducted by the
Company and (ii) one or more Issuing Banks (as hereinafter defined)will
issue letters of credit for the account of the Company and each of the
Lenders will acquire a participating interest in each such letter of
credit;
WHEREAS, the Company has requested that the loans made, and letters of
credit issued, under this Agreement be denominated, at the option of the
Company in United States Dollars or Available Foreign Currencies (as
hereinafter defined); and
WHEREAS, the Lenders are willing to make such credit facility available;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein contained, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the following
terms shall have the following meanings:
"ABR": for any day, a rate per annum equal to the greatest of
(a)the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate
in effect on such day plus one and a half of 1%. Any change in the ABR
due to a change in the Prime Rate, the Base CD Rate or the Federal Funds
Effective Rate shall be effective from and including the effective
date of such change in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans": Loans in Dollars bearing interest based upon
the ABR.
"Adjusted Eurocurrency Rate": with respect to any
Eurocurrency Loan for any Interest Period, an interest rate per
annum (rounded upwards, if necessary, to the next
1
1/100 of 1%)equal to (a) the Eurocurrency Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Schedule": Schedule II to this Agreement,
which contains interest rate definitions and administrative
information in respect of each Currency and each Type of Loan.
"Affiliate": as to any Person, any other Person (other than
a Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, "control" of a Person means the power,
directly or indirectly, either to (a) vote 10% or more of the
securities having ordinary voting power for the election of
directors of such Person or (b) direct or cause the direction of
the management and policies of such Person, whether by contract or
otherwise.
"Agreement": this Multi-Currency, Multi-Option Credit
Agreement, as amended, supplemented or otherwise modified from
time to time.
"Agreement Currency": as defined in subsection 12.8(b).
"Applicable Margin": for each day during each Interest Period
in respect of any Eurocurrency Loan, the margin per annum set forth
below opposite the Interest Coverage Ratio (in the applicable
Ratings category) shown on the last Interest Coverage Ratio
Certificate delivered pursuant to subsection 8.2(c) prior to such day:
Interest Coverage Ratio Applicable Margin
(basis points)
If Ratings are at BBB or Baa2 or
--------------------------------
higher:
------
Interest Coverage Ratio at any level: 80.0
If Ratings are BBB- or Baa3:
Less than 5.00 100.0
Greater than or equal to 5.00 and less
than 6.25 95.0
Greater than or equal to 6.25 and less
than 7.5 92.5
Greater than or equal to 7.5 90.0
2
If Ratings are at or below BB+ or
---------------------------------
Bal or unrated:
---------------
Less than 5.00 125.0
Greater than or equal to 5.00 and less
than 6.25 107.5
Greater than or equal to 6.25 and less
than 7.5 105.0
Greater than or equal to 7.5 100.0;
provided, however, that, (i) in the event that no Interest Coverage
Ratio Certificate has been delivered for a fiscal quarter prior to
the last date on which it can be delivered without violation of
subsection 8.2(c), the Applicable Margin from such date until such
Interest Coverage Ratio Certificate is actually delivered shall be
that applicable when the Interest Coverage Ratio is less than 5.00
at the lowest Rating level and (ii) in the event of a split Rating,
the pricing applicable to the highest Rating shall apply unless the
two Ratings are more than one level apart, in which case the
pricing applicable to the level one level above the lowest Rating
shall apply. Any change in the Applicable Margin resulting from a
change in Ratings shall become effective on the date on which change
is announced by the applicable ratings agency. Notwithstanding the
foregoing, until delivery to the Lenders of the Company's financial
statements, and related Interest Coverage Ratio Certificate, for the
second full fiscal quarter after the Closing Date, the Applicable
Margin shall be 95.0 basis points.
"Application": in respect of each Letter of Credit issued by an
Issuing Bank, an application, in such form as such Issuing Bank may
specify from time to time, requesting issuance of such Letter of
Credit.
"Assessment Rate": for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance
Fund classified as "well-capitalized" and within supervisory subgroup
"B" (or a comparable successor risk classification) within the meaning
of 12 C.F.R. Part 327 (or any successor provision) to the Federal
Deposit Insurance Corporation for insurance by such Corporation of
time deposits made in dollars at the offices of such member in the
United States; provided that if, as a result of any change in any
law, rule or regulation, it is no longer possible to determine the
Assessment Rate as aforesaid, then the Assessment Rate shall be such
annual rate as shall be determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"Assignee": as defined in subsection 12.6(c).
"Assignment and Acceptance": such Assignment and Acceptance,
substantially in the form of Exhibit C, executed and delivered pursuant
to subsection 12.6(c).
3
"Available Foreign Currencies": euro, Pounds Sterling,
Danish Kroner, Japanese Yen, Swedish Krona, Swiss Francs, Hong Kong
Dollars, Canadian Dollars, Singapore Dollars, and any other available
and freely-convertible foreign currency selected by the Company and
approved by the Administrative Agent in the manner described in
subsection 12.1(b).
"Base CD Rate": the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the
Assessment Rate.
"Borrowing Date": any Business Day on which a Loan is to be
made at the request of the Company under this Agreement.
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Business": as defined in subsection 6.17.
"Business Day": (a) when such term is used in respect of any
amount denominated or to be denominated in (i) any Available Foreign
Currency, a London Banking Day which is also a day on which banks are
open for general banking business in (x) the city which is the
principal financial center of the country of issuance of such
Available Foreign Currency, (y) in the case of euro only, Frankfurt
am Main, Germany (or such other principal financial center as the
Administrative Agent may from time to time nominate for this purpose)
and (z) New York City and (ii) Dollars, (x) in the case of a
Eurocurrency Loan, a London Banking Day which is also a day other
than a Saturday or Sunday on which banks are open for general banking
business in New York City, and (y) in the case of an ABR Loan, a day
other than a Saturday or Sunday on which banks are open for general
banking business in New York City, (b) when such term is used for
the purpose of determining the date on which the Eurocurrency Rate
is determined under this Agreement for any Loan denominated in euro
for any Interest Period therefor and for purposes of determining the
first and last day of any Interest Period, references in this
Agreement to Business Days shall be deemed to be references to Target
Operating Days and (c) when such term is used to describe a day on
which a request is to be made to an Issuing Bank for issuance of a
Letter of Credit or on which a Letter of Credit is to be issued,
such term shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in the city in which such Issuing
Bank's Issuing Office is located.
"Capital Stock": any and all shares, interests, participations
or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants or
options to purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed
or insured by the United States Government or any agency thereof;
(b) marketable general obligations issued by any state of the
United States of America or any political subdivision of any such
state or any public instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the time of
4
acquisition, having one of the two highest credit ratings from
either Standard & Poor's Corporation or Moody's Investors Service,
Inc.; (c) certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits, bankers' acceptances and
repurchase agreements having maturities of one year or less from the
date of acquisition issued, and money market deposit accounts issued
or offered by any Lender or by any commercial bank organized under
the laws of the United States of America or any state thereof having
combined capital and surplus of not less than $100,000,000; and (d)
commercial paper of an issuer rated at least A-2 by Standard & Poor's
Corporation or P-2 by Moody's Investors Service, Inc., or carrying
an equivalent rating by a nationally recognized rating agency, if
both of the two named rating agencies cease publishing ratings of
investments, and, in either case, maturing within one year from the
date of acquisition.
"C/D Assessment Rate": for any day, the annual assessment rate
in effect on such day which is payable by a member of the Bank
Insurance Fund maintained by the Federal Deposit Insurance
Corporation(the "FDIC") classified as well-capitalized and within
supervisory subgroup "B" (or a comparable successor assessment risk
classification)within the meaning of 12 C.F.R. 327.3(d) (or any
successor provision)to the FDIC (or any successor) for the FDIC's
(or such successor's)insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day, that percentage
(expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve
requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal time
deposits in Dollars having a maturity of 30 days or more.
"Change of Control": an event or series of events by which
(i) any "person" or "group" (as such terms are defined in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended),
other than the Permitted Investor, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has the
right to acquire without condition, other than passage of time,
whether such right is exercisable immediately or only after the
passage of time), directly or indirectly, of more than 50% of the
total voting power of the then outstanding Voting Stock of the
Company, (ii)(A) the Company consolidates with or merges into another
corporation or conveys, transfers or leases all or substantially all
of its properties and assets (determined on a consolidated basis for
the Company and its Subsidiaries taken as a whole) to any Person,
or (B) any corporation consolidates with or merges into the
Company or a Subsidiary of the Company in a transaction in which
the outstanding Voting Stock of the Company is changed into or
exchanged for cash, securities or other property, other than a
transaction solely between the Company and a Subsidiary of the
Company or (iii) during any period of two consecutive years,
individuals who at the beginning of such period constituted the Board
of Directors of the Company (together with any new directors
whose election by such Board of Directors or whose nomination for
election by the shareholders of the Company was approved by a
5
vote of 66 2/3% of the directors then still in office who were
either 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 Board of Directors of the
Company then in office; provided, however, that notwithstanding
anything to the contrary in this definition, transfer of beneficial
ownership of shares held by the Permitted Investor upon the death
of the Permitted Investor to the heirs and devisees of the
Permitted Investor shall not constitute a Change of Control.
"Closing Date": the date on or before August 14, 2002 on
which the conditions precedent set forth in subsection 7.1 shall
be satisfied.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commercial Letter of Credit": as defined in subsection 4.1(b).
"Commitment": as to any Lender, the obligation of such
Lender to make and/or acquire participating interests in Loans
and issue and/or acquire participating interests in Letters of
Credit hereunder in an aggregate Dollar Equivalent Amount at
any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I, as such amount may be
changed from time to time in accordance with the provisions of
this Agreement.
"Commitment Increase Notice": as defined in subsection 2.10(a).
"Commitment Percentage": as to any Lender at any time, the
percentage which such Lender's Commitment then constitutes of the
aggregate Commitments (or, at any time after the Commitments shall
have expired or terminated, the percentage which the amount of such
Lender's Exposure then outstanding constitutes of the aggregate amount
of the Exposure of all the Lenders then outstanding).
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date or such earlier date on
which the Commitments shall terminate as provided herein.
"Committed Rate Loan": as defined in subsection 2.1; a Committed
Rate Loan bearing interest based upon the ABR shall be a "Committed Rate
ABR Loan", and a Committed Rate Loan bearing interest based upon the
Eurocurrency Rate shall be a "Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA or is part of a group which
includes the Company and which is treated as a single employer under
Section 414(b),(c), (m) or (o) of the Code.
"Company Obligations": the unpaid principal of and interest on the
Loans made to the Company, all Reimbursement Obligations in respect of
Letters of Credit issued for the account of the Company and all other
obligations and liabilities of the Company to the Administrative Agent,
any Issuing Bank or any Lender (including, without limitation, interest
accruing after the maturity or earlier acceleration of the Loans and
6
interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding,
relating to the Company, whether or not a claim for post-filing or post
petition interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in connection with,
this Agreement, the Loans, the Letters of Credit, or any other document
made, delivered or given in connection therewith, in each case whether
on account of principal,interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees
and disbursements of counsel to the Administrative Agent, any Issuing
Bank or any Lender) or otherwise.
"Competitive Advance Loan": as defined in subsection 3.1.
"Consolidated Capitalization": at any date, the sum of
(i) shareholders' equity of the Company and (without duplication) its
consolidated Subsidiaries, determined on a consolidated basis in
accordance with GAAP, and (ii) Consolidated Total Debt.
"Consolidated EBITDA": for any period, Consolidated Net Income
for such period, plus the amount of taxes, interest, depreciation and
amortization deducted from earnings in determining such Consolidated Net
Income.
"Consolidated Interest Expense": for any period, the amount of
interest expense deducted from earnings of the Company and its
consolidated Subsidiaries in determining Consolidated Net Income for
such period in accordance with GAAP.
"Consolidated Net Income": for any period, the net income of the
Company and its Subsidiaries, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Senior Debt": at any date, Consolidated Total Debt
less the outstanding principal amount of Subordinated Debt.
"Consolidated Total Assets": at any date, the aggregate amount of
the assets of the Company and its consolidated Subsidiaries, determined
on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt": at any date, without duplication, the
aggregate of all Indebtedness (including the current portion thereof) of
the Company and its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any material agreement, instrument
or other undertaking to which such Person is a party or by which it or
any of its property is bound.
"Credit Re-Allocation Date": as defined in subsection 2.10(d).
"Currencies": the collective reference to Dollars and the Available
Foreign Currencies.
"Default": any event or condition that upon notice, the lapse of
time, or both, would constitute an Event of Default.
7
"Dollar Equivalent Amount": with respect to the amount of any
Available Foreign Currency on any date, the equivalent amount in Dollars
of such amount of Available Foreign Currency, as determined by the
Administrative Agent using the Exchange Rate.
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Environmental Laws": any and all applicable material, foreign,
Federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, enforceable requirements of any
Governmental Authority or other Requirements of Law (including common
law)regulating, relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as now or may
at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"euro": the single currency of participating member states of the
European Union.
"Eurocurrency Loan": any Loan bearing interest based upon a
Eurocurrency Rate.
"Eurocurrency Rate": in respect of each Currency, the rate
determined as the Eurocurrency Rate for such Currency in the manner set
forth in the Administrative Schedule.
"Event of Default": any of the events specified in Section 10,
provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Exchange Rate": with respect to any Available Foreign Currency
on any date, the rate at which such Available Foreign Currency may be
exchanged into Dollars, as set forth on such date on the relevant Reuters
currency page at or about 11:00 A.M. London time on such date. In the
event that such rate does not appear on any Reuters currency page, the
"Exchange Rate" with respect to such Available Foreign Currency shall be
determined by reference to such other publicly available service for
displaying exchange rates as may be agreed upon by the Administrative
Agent and the Company or, in the absence of such agreement, such
"Exchange Rate" shall instead be the Administrative Agent's spot rate of
exchange in the interbank market where its foreign currency exchange
operations in respect of such Available Foreign Currency are then being
conducted, at or about 10:00 A.M., local time, at such date for the
purchase of Dollars with such Available Foreign Currency, for delivery
two Business Days later; provided, that if at the time of any such
determination, no such spot rate can reasonably be quoted, the
Administrative Agent may use any reasonable method as it deems applicable
to determine such rate, and such determination shall be conclusive absent
manifest error.
"Exposure": at any date, the aggregate Dollar Equivalent Amount of
(a) all Loans then outstanding and (b) all L/C Obligations then
outstanding.
8
"Extensions of Credit": the collective reference to Loans made and
Letters of Credit issued under this Agreement.
"Facility Fee Rate": for each day during each fiscal quarter of the
Company, the rate per annum set forth below opposite the Interest
Coverage Ratio in the applicable Ratings category shown on the Interest
Coverage Ratio Certificate required pursuant to subsection 8.2(c) to be
delivered for the immediately preceding fiscal quarter:
Interest Coverage Ratio Facility Fee
(basis points)
If Ratings are at BBB or Baa2 or
--------------------------------
higher:
------
Interest Coverage Ratio at any
level: 20.0
If Ratings are BBB- or Baa3:
Less than 5.00 37.5
Greater than or equal to 5.00 and
less than 6.25 30.0
Greater than or equal to 6.25 and
less than 7.5 27.5
Greater than or equal to 7.5 25.0
If Ratings are at or below BB+ or
Bal (or unrated):
Less than 5.00 50.0
Greater than or equal to 5.00 and
less than 6.25 42.5
Greater than or equal to 6.25 and
less than 7.5 40.0
Greater than or equal to 7.5 37.5;
provided, however, that, (i) in the event that no Interest Coverage
Ratio Certificate has been delivered for a fiscal quarter prior to the
last day of the next succeeding fiscal quarter, the Facility Fee Rate
during such next succeeding fiscal quarter shall be that applicable when
the Interest Coverage Ratio is less than 5.0 at the lowest Rating level
and (ii) in the event of a split Rating, the pricing applicable to the
highest Rating shall apply unless the two Ratings are more than one
level apart, in which case the pricing applicable
9
to the level one level above the lowest Rating shall apply. Any
change in the Facility Fee Rate resulting from a change in Ratings
shall become effective on the date on which such change is announced
by the applicable ratings agency. Notwithstanding the foregoing,
until delivery to the Lender of the Company's financial statements,
and related Interest Coverage Ratio Certificate for the second full
fiscal quarter after the Closing Date, the applicable Facility Fee
shall be 30.0 basis points.
"Federal Funds Effective Rate": the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a
Business Day, the average (rounded upwards, if necessary, to the next
1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers
of recognized standing selected by it.
"Fee Letter": the letter agreement, dated June 14, 2002, between
the Company and JPMorgan Chase.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Funding Office": for each Type of Loan and each Currency, the
Funding Office set forth in respect thereof in the Administrative
Schedule.
"Funding Time": for each Type of Loan and each Currency, the
Funding Time set forth in respect thereof in the Administrative Schedule.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising applicable
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another
Person (including, without limitation, any bank under any letter of
credit) to induce the creation of which the guaranteeing person has
issued a reimbursement, counterindemnity or similar obligation, in
either case guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations(the "primary obligations") of any
other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working
capital or equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring
the owner of any such primary
10
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall
not include (x) endorsements of instruments for deposit or collection
in the ordinary course of business or (y) obligations of the Company
or any of its Subsidiaries under arrangements entered into in the
ordinary course of business whereby the Company or such Subsidiary
sells inventory to other Persons under agreements obligating the Company
or such Subsidiary to repurchase such inventory, at a price not exceeding
the original sale price, upon the occurrence of certain specified events.
The amount of any Guarantee Obligation of any guaranteeing person shall
be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and
the maximum amount for which such guaranteeing person may be liable are
not stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Company
in good faith.
"Indebtedness": of any Person at any date, all indebtedness or
obligations of such Person (other than current trade liabilities incurred
in the ordinary course of business and payable in accordance with
customary practices), as reflected on the balance sheet of such Person
prepared in accordance with GAAP.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": as defined in subsection 6.9.
"Interest Coverage Ratio": for any period of four consecutive fiscal
quarters, Consolidated EBITDA divided by Consolidated Interest Expense for
such period.
"Interest Coverage Ratio Certificate": as defined in
subsection 8.2(c).
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is
outstanding, and on the Termination Date (b) as to any Committed Rate
Eurocurrency Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Committed Rate
Eurocurrency Loan having an Interest Period longer than three months,
each day which is three months after the first day of such Interest
Period and the last day of such Interest Period and (d) as to any
Competitive Advance Loan, the date or dates agreed upon by the Company
and the Lender at the time the terms of such Competitive Advance Loan are
determined as provided in Section 3.
"Interest Period": with respect to any Committed Rate Eurocurrency
Loan:
11
(i) initially, the period commencing on the borrowing,
continuation or conversion date, as the case may be, with respect to such
Eurocurrency Loan and ending one, two, three or six months thereafter, as
selected by the Company in its Notice of Borrowing, Notice of Continuation
or Notice of Conversion, as the case may be, given with respect thereto;
and
(ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurocurrency
Loan and ending one, two, three or six months thereafter, as
selected by the Company by a Notice of Continuation with respect
thereto;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month
in which event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(3) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Investment Grade": the Company shall be deemed to be Investment
Grade when its Rating is at least BBB- by Standard & Poor's Corporation
and at least Baa3 by Moody's Investors Service, Inc.
"Issuing Bank": each Lender listed as an Issuing Bank in Schedule V.
"Issuing Office": in respect of each Issuing Bank, the Issuing
Office set forth for such Issuing Bank in Schedule V.
"JPMorgan Chase": JPMorgan Chase Bank.
"Judgment Currency": as defined in subsection 12.8(b).
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then
outstanding Letters of Credit, (b) the aggregate amount of drawings under
Letters of Credit which have not then been reimbursed pursuant to
subsection 4.5(a) and (c) Time Drafts.
"L/C Participant": in respect of each Letter of Credit, each
Lender (other than the Issuing Bank in respect of such Letter of Credit)
in its capacity as the holder of a participating interest in such
Letter of Credit.
12
"Letter of Credit": as defined in subsection 5.1.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic
effect as any of the foregoing).
"Loan": any Committed Rate Loan or Competitive Advance Loan made
by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement and each Application.
"London Banking Day": any day on which banks in London are open for
general banking business, including dealings in foreign currency and
exchange.
"Majority Lenders": at any time, Lenders the Commitment Percentages
of which aggregate more than 50%.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of
the Company and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this or any of the other Loan Documents or the rights
or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"Material Debt Instrument": those agreements and other instruments
of Indebtedness listed on Schedule III, which list shall include any such
instrument under which the Company is an obligor and under which the
outstanding amount and/or available commitment to extend credit
exceeds $10,000,000.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products
or any hazardous or toxic substances, materials or wastes, defined or
regulated as such in or under any Environmental Law, including, without
limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"New Lender": as defined in subsection 2.10(b).
"Non-Excluded Taxes": as defined in subsection 5.5(a).
"Non-U.S. Lender": as defined in subsection 5.5(b)
"Notice of Borrowing": with respect to a Loan of any Type in any
Currency, a notice from the Company in respect of such Loan, containing
the information in respect of such Loan and delivered to the Person,
in the manner and by the time specified for a
13
Notice of Borrowing in respect of such Currency and such Type of Loan
in the Administrative Schedule.
"Notice of Competitive Advance Loan": with respect to each
Competitive Advance Loan in any Currency, a notice from the Lender in
respect of such Loan, containing the information in respect of such
Loan and delivered to the Person, in the manner and by the time specified
for a Notice of Competitive Advance Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed Rate Loan
in any Currency, a notice from the Company in respect of such Loan,
containing the information in respect of such Loan and delivered to the
Person, in the manner and by the time specified for a Notice of
Continuation in respect of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate Loan
in Dollars which the Company wishes to convert from a Eurocurrency Loan
to an ABR Loan, or from an ABR Loan to a Eurocurrency Loan, as the case
may be, a notice from the Company setting forth the amount of such
Loan to be converted, the date of such conversion (which, in the case
of conversions of Eurocurrency Loans to ABR Loans, shall be the last day
of an Interest Period applicable to such Eurocurrency Loans) and, in the
case of conversions of ABR Loans to Eurocurrency Loans, the length of
the initial Interest Period applicable thereto. Each Notice of
Conversion shall be delivered to the Administrative Agent at its address
set forth in subsection 12.2 and shall be delivered before 11:00 A.M.,
New York City time, one Business Day before the requested conversion in
the case of conversions to ABR Loans, and before 11:00 A.M., New York
City time, three Business Days before the requested conversion in the
case of conversions to Eurocurrency Loans.
"Offered Increase Amount": as defined in subsection 2.10(a).
"Participant": as defined in subsection 12.6(b).
"Payment Office": for each Type of Loan and each Currency,
the Payment Office set forth in respect thereof in the Administrative
Schedule.
"Payment Time": for each Type of Loan and each Currency, the
Payment Time set forth in respect thereof in the Administrative Schedule.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Business Acquisitions": acquisitions of all or
substantially all of the assets of, or all of the shares or other
equity interests in, a Person or division or line of business of a
Person engaged in the same business as the Company and its
Subsidiaries or in a related business if immediately after giving
effect thereto: (i) no Default or Event of Default shall have occurred
and be continuing after giving effect to such acquisition, (ii) all
transactions related thereto shall be consummated in accordance with
applicable laws, (iii) 75% of the outstanding capital stock or other
ownership interests of any acquired or newly formed corporation or
other entity must be owned directly by the Company or a
14
Restricted Subsidiary and such corporation or entity shall become a
Restricted Subsidiary hereunder, (iv) in the case of an acquisition
of Capital Stock, the board of directors (or equivalent governing body)
of the target company shall have approved such transaction, and (v) the
Company shall be in compliance, on a pro forma basis, with the covenants
contained in subsection 9.1 recomputed as at the last day of the most
recently ended fiscal quarter of the Company, and the Company shall
have delivered to the Administrative Agent an officers' certificate to
such effect, together with all relevant financial information for such
acquired corporation, entity or assets.
"Permitted Investor": Sidney Harman, Executive Chairman and
Chairman of the Board of Directors of the Company on the date hereof.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
overnmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prime Rate": the rate of interest per annum publicly announced
from time to time by JPMorgan Chase as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced
as being effective.
"Properties": as defined in subsection 6.17.
"Quotation Day": in respect of the determination of the Eurocurrency
Rate for any Interest Period for loans in any Available Foreign Currency,
the day on which quotations would ordinarily be given by prime banks in
the London interbank market for deposits in such Available Foreign
Currency for delivery on the first day of such Interest Period; provided,
that if quotations would ordinarily be given on more than one date, the
Quotation Day for such Interest Period shall be the last of such dates.
On the date hereof, the Quotation Day in respect of any Interest Period for
any Available Foreign Currency (other than the euro) is customarily the
last London Banking Day prior to the beginning of such Interest Period
which is (i) at least two London Banking Days prior to the beginning of
such Interest Period and (ii) a day on which banks are open for general
banking business in the city which is the principal financial center of
the country of such Available Foreign Currency; and the Quotation Day in
respect of any Interest Period for the euro is the day which is two
Target Operating Days prior to the first day of such Interest Period.
"Ratings": the actual senior unsecured non-credit enhanced debt
ratings of the Company in effect from time to time by Moody's or
Standard & Poor's Corporation, as the case may be.
"Register": as defined in subsection 12.6(d).
15
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": in respect of each Letter of Credit,
the obligation of the account party thereunder to reimburse the Issuing
Bank for all drawings made thereunder in accordance with Section 5 and
the Application related to such Letter of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day
notice period is waived under subsections .27, .28, .29, .30, .31, .32,
.34 or .35 of PBGC Reg. 4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents
of such Person, and any material law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental Authority,
in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer": the chief executive officer, the president,
or the chief financial officer of the Company.
"Restricted Subsidiary": any Subsidiary listed in Schedule IV.
"Sale and Lease-Back Transaction": as defined in subsection 9.10.
"Schedule Amendment": each Schedule Amendment, substantially in
the form of Exhibit A, executed and delivered pursuant to subsection 12.1.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Special Non-Cash Charge": any non-cash, non recurring
restructuring charges in accordance with GAAP and non-cash charges
relating to the implementation of Financial Accounting Standard
Board No. 142 Goodwill and Other Intangible Assets.
"Standby Letter of Credit": as defined in subsection 4.1(b).
"Statutory Reserve Rate": a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is
the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves)
expressed as a decimal established by the Board to which the
Administrative Agent is subject (a) with respect to the Base CD Rate,
for new negotiable nonpersonal time deposits in dollars of over $100,000
with maturities approximately equal to three months and (b) with respect
to the Adjusted Eurocurrency Rate, for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board).
Such reserve percentages shall include those imposed
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pursuant to such Regulation D. Eurocurrency Loans shall be deemed
to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any Lender
under such Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Debt": any unsecured Indebtedness of the Company
(other than Indebtedness outstanding on the date hereof and described on
Schedule 9.2) no part of the principal of which is required to be paid
(whether by way of mandatory sinking fund, mandatory redemption or
mandatory prepayment or otherwise) prior to the Termination Date, and
the payment of the principal of and interest on which and any other
obligations of the Company in respect thereof is subordinated to the
prior payment in full of the principal of and interest (including
post-petition interest) on the Loans and all other Company Obligations
hereunder on terms and conditions that are reasonably acceptable to the
Majority Lenders.
"Subsidiary": as to any Person, a corporation, partnership or
other entity of which shares of stock or other ownership interests
having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the
time owned, or the management of which is otherwise controlled, directly
or indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"Target Operating Day": any day that is not (a) a Saturday or
Sunday, (b) Christmas Day or New Year's Day or (c) any other day on
which the Trans-European Real-time Gross Settlement Operating System
(or any successor settlement system) is not operating (as determined
by the Administrative Agent).
"Termination Date": August 14, 2005.
"Three-Month Secondary CD Rate": for any day, the secondary market
rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding
Business Day) by the Board through the public information telephone line
of the Federal Reserve Bank of New York (which rate will, under the
current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day) or,
if such rate is not so reported on such day or such next preceding
Business Day, the average of the secondary market quotations for three-
month certificates of deposit of major money center banks in New York
City received at approximately 10:00 a.m., New York City time, on such
day (or, if such day is not a Business Day, on the next preceding Business
Day) by the Administrative Agent from three negotiable certificate of
deposit dealers of recognized standing selected by it.
"Time Draft": as defined in subsection 4.9.
17
"Tranche": the collective reference to Committed Rate Eurocurrency
Loans in any Currency the then current Interest Periods with respect
to all of which begin on the same date and end on the same later
date (whether or not such Loans shall originally have been made on
the same day).
"Transferee": as defined in subsection 12.6(f).
"Type": in respect of any Loan, its character as a Committed
Rate Loan or Competitive Advance Loan, as the case may be.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended, supplemented
or otherwise modified from time to time.
"Value": with respect to a Sale and Lease-Back Transaction,
as of any particular time, the amount equal to the greater of
(i) the net proceeds of the sale or transfer of the property
leased pursuant to such Sale and Lease-Back Transaction or
(ii) the fair market value of such property at the time of entering
into such Sale and Lease-Back Transaction, in either case,
divided first by the number of full years of the term of the lease
and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal
or extension options contained in the lease.
"Voting Stock": stock of the class or classes pursuant to
which the holders thereof have the general voting power under
ordinary circumstances to elect at least a majority of the Board of
Directors of the Company (irrespective of whether or not at the
time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
1.2. Other Definitional Provisions. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms relating to the
Company and its Subsidiaries not defined in subsection 1.1 and
accounting terms partly defined in subsection 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of this
Agreement, and Section, subsection, Schedule and Exhibit references
are to this Agreement unless otherwise specified. References to
Schedules to this Agreement are references to such Schedules as the
same may from time to time be amended or otherwise modified in
accordance with the terms hereof.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
18
SECTION 2. THE COMMITTED RATE LOANS
2.1. Committed Rate Loans. (a) Subject to the terms and
conditions hereof, each Lender severally agrees to make loans on a
revolving credit basis ("Committed Rate Loans") to the Company from
time to time during the Commitment Period; provided, that no Committed
Rate Loan shall be made if, after giving effect to the making of such
Loan and the simultaneous application of the proceeds thereof, the amount
of the Exposure would exceed the aggregate amount of the Commitments.
During the Commitment Period the Company may use the Commitments
by borrowing, prepaying the Committed Rate Loans in whole or in part,
and reborrowing, all in accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be made in Dollars or any
Available Foreign Currency and may from time to time be (i) Committed
Rate Eurocurrency Loans, (ii) in the case of Committed Rate Loans in
Dollars only, Committed Rate ABR Loans or (iii) a combination thereof,
as determined by the Company and set forth in the Notice of Borrowing
or Notice of Conversion with respect thereto; provided, that no
Committed Rate Eurocurrency Loan shall be made after the day that is
one month prior to the Termination Date.
2.2. Procedure for Committed Rate Loan Borrowing. The
Company may request the Lenders to make Committed Rate Loans on any
Business Day during the Commitment Period by delivering a Notice of
Borrowing. Each borrowing of Committed Rate Loans shall be in an amount
equal to (a) in the case of ABR Loans, $1,000,000 or a whole multiple
thereof (or, if the then aggregate undrawn amount of the Commitments
is less than $1,000,000, such lesser amount) and (b) in the case of
Eurocurrency Loans, (i) if in Dollars, $2,000,000 or increments of
$500,000 thereafter, and (ii) if in any Available Foreign Currency,
an amount in such Available Foreign Currency of which the Dollar
Equivalent Amount is at least $2,000,000. Upon receipt of any such
Notice of Borrowing from the Company, the Administrative Agent shall
promptly notify each Lender thereof. Subject to the terms and conditions
hereof, each Lender will make the amount of its pro rata share of each
such borrowing available to the Administrative Agent for the account
of the Company at the Funding Office, and at or prior to the Funding
Time, for the Currency of such Loan in funds immediately available to
the Administrative Agent. Such borrowing will then be made available
to the Company at the Funding Office, in like funds as received by
the Administrative Agent.
2.3. Repayment of Committed Rate Loans; Evidence of Debt.
(a) The Company hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender on the Termination
Date (or such earlier date on which the Loans become due and payable
pursuant to Section 10), the then unpaid principal amount of each
Committed Rate Loan made by such Lender. The Company hereby further
agrees to pay interest on the unpaid principal amount of the
Committed Rate Loans made to the Company from time to time
outstanding from the date hereof until payment in full thereof at the
rates per annum, and on the dates, set forth in subsection 2.8.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
the Company to such Lender resulting from each Committed Rate Loan
of such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time
under this Agreement.
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(c) The Administrative Agent shall maintain the Register
pursuant to subsection 12.6(d), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Committed
Rate Loan made hereunder and each Interest Period applicable thereto,
(ii) the amount of any principal or interest due and payable or to
become due and payable from the Company to each Lender under the
Committed Rate Loans and (iii) the amount of any sum received by the
Administrative Agent from the Company in respect of Committed Rate Loans,
and the amount of each Lender's share thereof.
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to subsection 2.3(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of the Company therein
recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation
of the Company to repay (with applicable interest) the Committed Rate
Loans made to the Company by such Lender in accordance with the terms
of this Agreement.
2.4. Termination or Reduction of Commitments. The Company
shall have the right, upon not less than four Business Days' notice to
the Administrative Agent, to terminate the Commitments or, from time
to time, to reduce the amount of the Commitments. Any such reduction
shall be in an amount equal to $5,000,000 or a whole multiple thereof
and shall reduce permanently the Commitments then in effect.
2.5. Optional Prepayments. The Company may, at any time
and from time to time, prepay the Committed Rate Loans made to the
Company, in whole or in part, without premium or penalty, upon at
least four Business Days' irrevocable notice to the Administrative
Agent, specifying the date and amount of prepayment, the Currency
of the Committed Rate Loans to be prepaid and whether the prepayment
is of Eurocurrency Loans, ABR Loans (in the case of Committed Rate
Loans in Dollars) or a combination thereof, and, if of a combination
thereof, the amount allocable to each. Upon receipt of any such notice
the Administrative Agent shall promptly notify each Lender thereof.
If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with any
amounts payable pursuant to subsection 5.6. Partial prepayments shall
be in an aggregate principal amount of at least $1,000.000.
2.6. Conversion and Continuation Options. (a) By giving
a Notice of Conversion, the Company may elect from time to time (i) to
convert the Company's Eurocurrency Loans in Dollars to ABR Loans or
(ii) to convert the Company's ABR Loans to Eurocurrency Loans in
Dollars; provided, that any such conversion of Eurocurrency Loans may
only be made on the last day of an Interest Period with respect thereto.
Upon receipt of any Notice of Conversion the Administrative Agent shall
promptly notify each Lender thereof. All or any part of Eurocurrency
Loans outstanding in Dollars or ABR Loans may be converted as provided
herein, provided that (i) no ABR Loan may be converted into a
Eurocurrency Loan when any Event of Default has occurred and is
continuing and the Administrative Agent has or the Majority
Lenders have determined that such a conversion is not appropriate
and (ii) no ABR Loan may be converted into a Eurocurrency Loan after
the date that is one month prior to the Termination Date.
20
(b) By giving a Notice of Continuation, the Company may
continue any of its Eurocurrency Loans as Eurocurrency Loans in the
same Currency for additional Interest Periods.
(c) The Company may convert Committed Rate Loans
outstanding in one Currency to Committed Rate Loans of a different
Currency by repaying such Loans in the first Currency and
borrowing Loans of such different Currency in accordance with the
applicable provisions of this Agreement.
(d) If the Company shall fail to timely give a Notice
of Continuation or a Notice of Conversion in respect of any of the
Company's Eurocurrency Loans with respect to which an Interest
Period is expiring, such Eurocurrency Loans shall become due and
payable on the last day of such expiring Interest Period; provided,
that the Company may, in accordance with and subject to the terms
and conditions of this Agreement refinance such maturing
Eurocurrency Loans on such maturity date with Competitive
Advance Loans.
2.7. Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Committed Rate Loans and all
selections of Interest Periods shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Loans comprising (i) each Tranche
in Dollars shall be not less than $2,000,000 and (ii) each Tranche
in any Available Foreign Currency shall be not less than the Dollar
Equivalent Amount in such Currency of $2,000,000.
2.8. Interest Rates and Payment Dates for Committed
Rate Loans. (a) Each Committed Rate Eurocurrency Loan shall bear
interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate for
such Interest Period plus the Applicable Margin.
(b) Each Committed Rate ABR Loan shall bear interest at a
rate per annum equal to the ABR.
(c) If all or a portion of (i) the principal amount of any
Committed Rate Loan or (ii) any interest payable thereon shall not be
paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per
annum which is (x) in the case of overdue principal, the rate that
would otherwise be applicable thereto pursuant to the foregoing
provisions of this subsection plus 2% or (y) in the case of overdue
interest, the rate described in paragraph (b) of this subsection
plus 2%, in each case from the date of such non-payment until such
amount is paid in full (as well after as before judgment).
(d) Interest on Committed Rate Loans shall be payable
in arrears on each Interest Payment Date; provided, that interest
accruing pursuant to paragraph (c) of this subsection shall be
payable from time to time on demand.
2.9. Inability to Determine Interest Rate. If on or
prior to the Quotation Day for any Interest Period in respect of
any Eurocurrency Loan in any Currency:
21
(a) the Administrative Agent shall have determined
which determination shall be conclusive absent manifest error)
that, by reason of circumstances affecting the relevant market
generally, adequate and reasonable means do not exist for
ascertaining the Eurocurrency Rate for such affected Currency
or such affected Interest Period, or
(b) the Administrative Agent shall have received notice
from Lenders having Commitments comprising at least 25% of the
aggregate amount of the Commitments that the Eurocurrency Rate
determined or to be determined for such affected Interest Period
will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Committed Rate Loans during such affected Interest
Period,
the Administrative Agent shall give telecopy or telephonic notice thereof
to the Company and the Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurocurrency Loans requested to be made in such
affected Currency on the first day of such affected Interest Period shall be
made as ABR Loans in Dollars in a Dollar Equivalent Amount, (y)any Committed
Rate Loans that were to have been converted on the first day of such affected
Interest Period from ABR Loans, to Eurocurrency Loans in such affected
Currency, shall be continued as ABR Loans and (z) any Eurocurrency Loans in
such affected Currency that were to have been continued as such shall be
converted, on the first day of such Interest Period, to ABR Loans in Dollars
in a Dollar Equivalent Amount. Until such notice has been withdrawn by the
Administrative Agent, no further Eurocurrency Loans in such affected
Currency shall be made or continued as such.
2.10. Commitment Increases. (a) In the event that the Company
wishes to increase the total Commitment at any time when no Default or Event
of Default has occurred and is continuing, it shall notify the Administrative
Agent in writing of the amount (the "Offered Increase Amount") of such
proposed increase (such notice, a "Commitment Increase Notice") in a
minimum amount equal to $5,000,000. The Company may, at its election, (i)
offer one or more of the Lenders the opportunity to provide all or a portion
of the Offered Increase Amount pursuant to paragraph (c) below and/or (ii)
with the consent of the Administrative Agent and each Issuing Bank (each
such consent shall not be unreasonably withheld), offer one or more
additional banks, financial institutions or other entities the opportunity
to provide all or a portion of the Offered Increase Amount pursuant to
paragraph (b) below. The Commitment Increase Notice shall specify which
Lenders and/or banks, financial institutions or other entities the Company
desires to provide such Offered Increase Amount. The Company or, if requested
by the Company, the Administrative Agent will notify such Lenders,
and/or banks, financial institutions or other entities of such offer.
(b) Any additional bank, financial institution or other entity
which the Company selects to offer participation in the increased Commitments
and which elects to become a party to this Agreement and obtain a Commitment
in an amount so offered and accepted by it pursuant to Section 2.10(a)(ii)
shall execute a New Lender Supplement with the Company and the Administrative
Agent, substantially in the form of Exhibit E, whereupon such bank, financial
institution or other entity (herein called a "New Lender") shall become a
Lender for all purposes and to the same extent as if originally a party
hereto and shall be bound by and entitled to the benefits of this Agreement,
provided that the Commitment of any such New Lender shall be in an amount not
less than $5,000,000.
22
(c) Any Lender which accepts an offer to it by the Company
to increase its Commitment pursuant to Section 2.10(a)(i) shall, in each
case, execute a Commitment Increase Supplement with the Company, the Issuing
Bank and the Administrative Agent, substantially in the form of Exhibit F,
whereupon such Lender shall be bound by and entitled to the benefits of
this Agreement with respect to the full amount of its Commitment as so
increased.
(d) If any bank, financial institution or other entity
becomes a New Lender pursuant to Section 2.10(b) or any Lender's
Commitment is increased pursuant to Section 2.10(c), additional
Commitment Rate Loans made on or after the effectiveness thereof (the
"Credit Re-Allocation Date") shall be made pro rata based on the
Commitment Percentages in effect on and after such Credit
Re-Allocation Date (except to the extent that any such pro rata
borrowings would result in any Lender making an aggregate principal
amount of Committed Rate Loans in excess of its Commitment, in which
case such excess amount will be allocated to, and made by, such New
Lenders and/or Lenders with such increased Commitments to the extent
of, and pro rata based upon, their respective Commitments otherwise
available for Loans), and continuations of Eurocurrency Loans
outstanding on such Credit Re-Allocation Date shall be effected by
repayment of such Eurocurrency Loans on the last day of the Interest
Period applicable thereto and the making of new Eurocurrency Loans
pro rata based on such new Commitment Percentages. In the event
that on any such Credit Re-Allocation Date there is an unpaid
principal amount of ABR Loans, the Company shall make prepayments
thereof and borrowings of ABR Loans so that, after giving effect
thereto, the ABR Loans outstanding are held pro rata based on such
new Commitment Percentages. In the event that on any such Revolving
Credit Re-Allocation Date there is an unpaid principal amount of
Eurocurrency Loans, such Eurocurrency Loans shall remain outstanding
with the respective holders thereof until the expiration of their
respective Interest Periods (unless the Company elects to prepay any
thereof in accordance with the applicable provisions of this
Agreement), and interest on and repayments of such Eurodollar Loans will
be paid thereon to the respective Lenders holding such Eurocurrency Loans
pro rata based on the respective principal amounts thereof outstanding.
(e) Notwithstanding anything to the contrary in this
Section 2.10, (i) in no event shall any transaction effected pursuant to
this Section 2.10 cause the total Commitments to exceed $150,000,000,
(ii) in no event may the Company deliver more than one Commitment
Increase Notice and (iii) no Lender shall have any obligation to
increase its Commitment unless it agrees to do so in its sole discretion.
(f) It shall be a condition precedent to an increase in the
Commitments pursuant to this Section 2.10 that the Administrative Agent
shall have received on or prior to the Credit Re-Allocation Date,
for the benefit of the Lenders, (i) legal opinions of counsel to the
Company covering such matters as are customary for transactions of
this type and such other matters as may be reasonably requested by the
Administrative Agent and (ii) certified copies of resolutions of the
Company authorizing the Offered Increase Amount.
(g) The Administrative Agent will notify all Lenders of
each increase in Commitments pursuant to this Section.
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SECTION 3. THE COMPETITIVE ADVANCE LOANS
3.1. Competitive Advance Loans. (a) Subject to the terms
and conditions hereof, the Company may, from time to time during the
Commitment Period, request one or more Lenders to offer bids, and any
such Lender may, in its sole discretion, offer such bids, to make
competitive advance loans ("Competitive Advance Loans") to the Company
on the terms and conditions set forth in such bids. Each Competitive
Advance Loan shall bear interest at the rates, payable on the dates,
and shall mature on the date, agreed between the Company and Lender at
the time such Competitive Advance Loan is made; provided, that (i) each
Competitive Advance Loan shall mature not earlier than 1 day and not
later than 180 days, after the date such Competitive Advance Loan is
made and (ii) no Competitive Advance Loan shall mature after the
Termination Date. During the Commitment Period the Company may accept
bids from Lenders from time to time for Competitive Advance Loans, and
borrow and repay Competitive Advance Loans, all in accordance with
the terms and conditions hereof; provided, that no Competitive Advance
Loan shall be made if, after giving effect to the making of such Loan and
the simultaneous application of the proceeds thereof, the aggregate amount
of the Exposure would exceed the aggregate amount of the Commitments;
and provided further that the aggregate amount of Competitive Advance
Loans of the Company at any time outstanding shall not exceed
$25,000,000. Subject to the foregoing, any Lender may, in its sole
discretion, make Competitive Advance Loans in an aggregate outstanding
amount exceeding the amount of such Lender's Commitment.
(b) The Competitive Advance Loans may be made in Dollars
or any Available Foreign Currency, as agreed between the Company and
Lender in respect thereof at the time such Competitive Advance
Loan is made.
3.2. Procedure for Competitive Advance Loan Borrowing.
(a) The Company may request one or more Lenders to make bids to make
Committed Rate Loans in such manner and at such time as shall be
agreed by the Company and such Lenders. The proceeds of each
Competitive Advance Loan will be made available to the Company in
respect thereof in the manner agreed between the Company and the
relevant Lender at the time such Competitive Advance Loan is made.
(b) Each Lender that makes a Competitive Advance Loan
shall deliver a Notice of Competitive Advance Loan to the
Administrative Agent on the Thursday (or, if such Thursday is
not a Business Day, on the next Business Day following such Thursday)
immediately following the making of such Competitive Advance Loan.
3.3. Repayment of Competitive Advance Loans; Evidence of
Debt. (a) The Company hereby unconditionally promises to pay to the
Lender that made such Competitive Advance Loan on the maturity date, as
agreed by the Company and Lender at the time such Competitive Advance
Loan is made (or such earlier date on which all the Loans become due and
payable pursuant to Section 10), the then unpaid principal amount of such
Competitive Advance Loan. The Company hereby further agrees to pay
interest on the unpaid principal amount of the Competitive Advance
Loans made by any Lender from time to time outstanding from the date
thereof until payment in full thereof at the rate per annum, and on the
dates, agreed by the Company and Lender at the time such Competitive
Advance Loan is made. All payments in respect of Competitive Advance
Loans shall be made by the Company to its Competitive Advance Loan
Lender at the address separately agreed to between the Company and
such Competitive Advance Loan Lender.
24
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Company
to such Lender resulting from each Competitive Advance Loan of such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time in respect
of Competitive Advance Loans. The entries made in the accounts of
each Lender maintained pursuant to this subsection 3.3(b) shall,
to the extent permitted by applicable law, be prima facie evidence
of the existence and amounts of the obligations of the Company
therein recorded, absent manifest error; provided, however, that the
failure of any Lender to maintain any such account, or any error
therein, shall not in any manner affect the obligation of the
Company to repay (with applicable interest) the Competitive Advance
Loans made to the Company by such Lender in accordance with the
terms of this Agreement.
3.4. Prepayments. Unless otherwise agreed by the Lender
making a Competitive Advance Loan, such Competitive Advance Loan
may not be optionally prepaid prior to the scheduled maturity date
thereof.
SECTION 4. THE LETTERS OF CREDIT
4.1. L/C Commitment. (a) Subject to the terms and
conditions hereof, each Issuing Bank agrees to issue letters of credit
(including Letters of Credit payable by acceptance of a Time Draft as
described in subsection 4.9) ("Letters of Credit", which shall include
the letters of credit issued by JP Morgan Chase Bank on August 8, 2002
in the amount of $7,298,767.12 and on August 13, 2002 in the amount of
$3,600,000.00) for the account of the Company on any Business Day during
the Commitment Period in such form as shall be reasonably acceptable
to such Issuing Bank; provided, that no Letter of Credit shall be issued
if, after giving effect thereto (i) the aggregate amount of the Exposure
would exceed the aggregate amount of the Commitments or (ii) the
aggregate amount of the L/C Obligations would exceed $25,000,000.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars or an Available Foreign
Currency and shall be either (A) a standby letter of credit issued
to support obligations of the Company, contingent or otherwise, to
provide credit support for workers' compensation, other insurance
programs and other lawful corporate purposes (a "Standby Letter of
Credit") or (B) a commercial letter of credit issued in respect of
the purchase of goods and services in the ordinary course of
business of the Company and its Subsidiaries (a "Commercial Letter
of Credit"; together with the Standby Letters of Credit, the
"Letters of Credit") and,
(ii) expire no later than the earlier of (A) one year after
its date of issuance and (B) 5 Business Days prior to the Termination
Date; provided that any Letter of Credit with a one-year tenor may
provide for the renewal thereof for additional one-year periods
(which shall in no event extend beyond the date referred to in clause
(B) above).
(c) No Issuing Bank shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause
such Issuing Bank or any Lender to exceed any limits imposed by, any
applicable Requirement of Law.
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4.2. Procedure for Issuance of Letters of Credit under this
Agreement. The Company may from time to time request that an Issuing Bank
issue a Letter of Credit by delivering to such Issuing Bank at its Issuing
Office an Application therefor, completed to the satisfaction of the Issuing
Bank, and such other certificates, documents and other papers and information
as such Issuing Bank may reasonably request. Upon receipt by an Issuing Bank
of any Application, such Issuing Bank will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
any Issuing Bank be required to issue any Letter of Credit earlier than five
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or
as otherwise may be agreed by such Issuing Bank and the Company. Such Issuing
Bank shall promptly (and in no event later than the Business Day following its
issuance of any Letter of Credit) advise the Administrative Agent of the terms
of such Letter of Credit (or provide the Administrative Agent with a copy of
such Letter of Credit), and each Lender shall be entitled to receive from the
Administrative Agent, following such Lender's request therefor, any materials
so provided to the Administrative Agent.
4.3. Fees, Commissions and Other Charges. (a) The Company shall
pay to the Administrative Agent, for the account of the Lenders (including the
Issuing Bank) pro rata according to their Commitment Percentages, a letter of
credit commission with respect to each Letter of Credit, computed at a rate
equal to the then Applicable Margin for Eurocurrency Loans on the daily
average undrawn face amount of such Letter of Credit. Such commissions shall
be payable in arrears on the last Business Day of each March, June, September
and December to occur after the date of issuance of each Letter of Credit and
on the expiration date of such Letter of Credit and shall be nonrefundable.
In addition to the foregoing fees, the Company shall pay to each Issuing Bank
for its own account a fronting fee of 0.125% per annum on the aggregate
drawable amount of all outstanding Letters of Credit issued by such Issuing
Bank. Such fronting fees shall be paid quarterly in arrears and shall be
nonrefundable.
(b) In addition to the foregoing fees and commissions, the Company
shall pay or reimburse the relevant Issuing Bank for such normal and customary
costs and expenses as are incurred or charged by such Issuing Bank in issuing,
effecting payment under, amending or otherwise administering such Letter of
Credit.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Bank and the Lenders all fees
and commissions received by the Administrative Agent for their
respective accounts pursuant to this subsection.
4.4. L/C Participations. (a) Each Issuing Bank irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce
the Issuing Bank to issue Letters of Credit hereunder, each L/C
Participant irrevocably agrees to accept and purchase and hereby accepts
and purchases from such Issuing Bank, on the terms and conditions
hereinafter stated, for such L/C Participant's own account and risk, an
undivided interest equal to such L/C Participant's Commitment Percentage
in such Issuing Bank's obligations and rights under each Letter of
Credit issued by such Issuing Bank hereunder and the amount of each
draft paid by such Issuing Bank thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Bank that,
26
if a draft is paid under any Letter of Credit issued by such Issuing Bank for
which such Issuing Bank is not reimbursed in full by the Company which is the
account party thereunder in accordance with the terms of this Agreement, such
L/C Participant shall pay to such Issuing Bank upon demand at such Issuing
Bank's Issuing Office an amount equal to such L/C Participant's Commitment
Percentage of the amount of such draft, or any part thereof, which is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant to any
Issuing Bank pursuant to subsection 4.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Bank under any Letter of Credit
is not paid to such Issuing Bank on the date such payment is due from such
L/C Participant, such L/C Participant shall pay to such Issuing Bank on demand
an amount equal to the product of (i) such amount, times (ii) (A) in the case
of any such payment obligation denominated in Dollars, the daily average
Federal funds rate, as quoted by such Issuing Bank, or (B) in the case of any
such payment obligation denominated in an Available Foreign Currency, the
rate customary in such Currency for settlement of similar inter-bank
obligations, as quoted by such Issuing Bank, in each case during the period
from and including the date such payment is required to the date on which
such payment is immediately available to the Issuing Bank, times (iii) a
fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of an Issuing Bank
submitted to any L/C Participant with respect to any amounts owing under this
subsection shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after an Issuing Bank has made payment
under any Letter of Credit and has received from any L/C Participant its pro
rata share of such payment in accordance with subsection 4.4(a) the Issuing
Bank receives any payment related to such Letter of Credit (whether directly
from the account party or otherwise, including by way of set-off or proceeds
of collateral applied thereto by such Issuing Bank), or any payment of interest
on account thereof, such Issuing Bank will distribute to such L/C Participant
its pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Bank shall be required to be returned by the
Issuing Bank, such L/C Participant shall return to such Issuing Bank the
portion thereof previously distributed by such Issuing Bank to it.
4.5. Reimbursement Obligation of the Company. (a) The Company
agrees to reimburse the Issuing Bank in respect of such Letter of Credit on
the same Business Day on which such Issuing Bank notifies the Company of the
date and amount of a draft presented under such Letter of Credit and paid by
such Issuing Bank for the amount of (i) such draft so paid and (ii) any taxes,
fees, charges or other costs or expenses incurred by such Issuing Bank in
connection with such payment. Each such payment shall be made to such Issuing
Bank at its Issuing Office in the Currency in which payment of such draft was
made and in immediately available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Company under this subsection from the date such amounts become
payable (whether at stated maturity, by acceleration or otherwise) until
payment in full at the rate which is (i) in the case of such amounts payable
in Dollars, 2% above the ABR from time to time and (ii) in the case of such
amounts payable in any other currency, 2% above the rate reasonably determined
by the Issuing Bank as the cost of funding such overdue amount from time to
time on an overnight basis.
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4.6. Obligations Absolute. (a) The obligations of the Company
under this Section 4 shall be absolute and unconditional under any and all
circumstances and irrespective of any set-off, counterclaim or defense to
payment which the Company may have or have had against the Issuing Bank or
any beneficiary of a Letter of Credit.
(b) The Company also agrees with the Issuing Bank in respect of
such Letter of Credit that such Issuing Bank shall not be responsible for,
and the Company's Reimbursement Obligations under subsection 4.5(a) shall
not be affected by, among other things, (i) the validity or genuineness of
documents or of any endorsements thereon, even though such documents shall
in fact prove to be invalid, fraudulent or forged, provided, that reliance
upon such documents by such Issuing Bank shall not have constituted gross
negligence or willful misconduct of such Issuing Bank or (ii) any dispute
between or among the Company and any beneficiary of any Letter of Credit or
any other party to which such Letter of Credit may be transferred or (iii)
any claims whatsoever of the Company against any beneficiary of such Letter
of Credit or any such transferee.
(c) The Issuing Banks shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit, except
for errors or omissions caused by such Issuing Bank's gross negligence or
willful misconduct.
(d) The Company agrees that any action taken or omitted by any
Issuing Bank under or in connection with any Letter of Credit or the related
drafts or documents, if done in the absence of gross negligence or willful
misconduct and in accordance with the standards of care specified in the
Uniform Customs, shall be binding on the Company and shall not result in any
liability of such Issuing Bank to the Company.
4.7. Letter of Credit Payments. If any draft shall be presented
for payment to an Issuing Bank under any Letter of Credit, such Issuing Bank
shall promptly notify the account party of the date and amount thereof. The
responsibility of the Issuing Bank to the account party in connection with
any draft presented for payment under any Letter of Credit shall, in addition
to any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered
under such Letter of Credit in connection with such presentment are in
conformity with such Letter of Credit.
4.8. Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the
provisions of this Section 4, the provisions of this Section 4 shall apply.
4.9. Issuance of Letters of Credit Priority for Acceptance of
Time Drafts. Notwithstanding anything to the contrary contained in this
Section 4, the Company may request that any Letter of Credit permit drawings
thereunder to be by means of acceptance by the Issuing Bank of a time draft
(a "Time Draft") rather than by payment of a sight draft. Each Time Draft
shall (in addition to satisfying all of the provisions set forth in this
Section 4, except to the extent such provisions conflict with the provisions
in this subsection 4.9 (in which case this subsection 4.9 shall be
controlling)) expire no later than the earliest of (i) 90 days following the
acceptance of such Time Draft by the related Issuing Bank, (ii) 5 Business Days
prior to the Termination Date and (iii) 180 days after the issuance of the
Commercial Letter of Credit pursuant to which such Time Draft is made.
Notwithstanding anything to the contrary in this Agreement:
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(a) in calculating the outstanding amount of L/C Obligations for
purpose of determining the amount of the Commitments available for usage
as Letters of Credit under subsection 4.1(a), the face amount of each
outstanding and accepted Time Draft shall be deemed to constitute L/C
Obligations;
(b) in calculating the undrawn face amount of any Letter of Credit
for purposes of determining the amount of Letter of Credit commission
payable pursuant to subsection 4.3(a), each Letter of Credit under which
a Time Draft has been issued and accepted shall be deemed undrawn to the
extent of the face amount of such Time Draft until such Time Draft has
been paid; and
(c) each L/C Participant shall be deemed to have an undivided
interest equal to such L/C Participant's Commitment Percentage in the
Issuing Bank's rights and obligations under any Time Draft accepted by
such Issuing Bank under any Letter of Credit.
SECTION 5. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND
LETTERS OF CREDIT
5.1. Facility Fee. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee for the
period from and including the Closing Date to, but excluding, the later of the
Termination Date or the date on which the Company Obligations are paid in full,
computed at the Facility Fee Rate in effect from time to time on the average
daily amount of the Commitment (used and unused) of such Lender during the
period for which payment is made (or after the Termination Date on the average
daily amount of the Exposure), payable quarterly in arrears on the last day of
each March, June, September and December and on the Termination Date or such
earlier date on which the Commitments shall terminate as provided herein and
thereafter upon demand, commencing on the first of such dates to occur after
the date hereof.
(b) The Company agrees to pay to the Administrative Agent, for its
own account, the administrative agent's fee, to the Administrative Agent, for
the account of the Lenders, the upfront fee, and to JPMorgan Chase, for its
own account, such other fees, in the amounts and on the dates set forth in the
Fee Letter.
5.2. Computation of Interest and Fees. (a) Facility fees and,
whenever it is calculated on the basis of the Prime Rate, interest shall be
calculated on the basis of a 365- (or 366-, as the case may be) day year for
the actual days elapsed; and, otherwise, interest and Letter of Credit
commissions shall be calculated on the basis of a 360-day year for the actual
days elapsed. The Administrative Agent shall as soon as practicable notify
the Company and the Lenders of each determination of a Eurocurrency Rate.
Any change in the ABR due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective as
of the opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively. The Administrative Agent shall as soon as practicable notify
the Company and the Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Company and the Lenders in the absence of manifest error.
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5.3. Pro Rata Treatment and Payments. (a) Each borrowing by the
Company of Committed Rate Loans, each payment by the Company on account of any
facility fee hereunder and any reduction of the Commitments of the Lenders
shall be made pro rata according to the respective Commitment Percentages of
the Lenders. Each payment (including each prepayment) by the Company on
account of principal of and interest on any Loans shall be made pro rata
according to the respective principal amounts of the Loans of the Company then
due and owing to the Lenders. All payments (including prepayments) to be made
by the Company hereunder, whether on account of principal, interest, fees,
Reimbursement Obligations or otherwise, shall be made without set off or
counterclaim. All payments in respect of Committed Rate Loans in any Currency
shall be made in such Currency and in immediately available funds at the
Payment Office, and at or prior to the Payment Time, for such Type of Loans
and such Currency, on the due date thereof. The Administrative Agent shall
distribute to the Lenders any payments received by the Administrative Agent
promptly upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day, and, with respect to
payments of principal, interest thereon shall be payable at the then
applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a Borrowing Date in respect of Committed Rate
Loans that such Lender will not make the amount that would constitute its
Commitment Percentage of such borrowing available to the Administrative
Agent, the Administrative Agent may assume that such Lender is making such
amount available to the Administrative Agent, and the Administrative Agent
may, in reliance upon such assumption, make available to the Company a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor,
such Lender shall pay to the Administrative Agent, on demand, such amount
with interest thereon at a rate equal to (A) in the case of any such
Committed Rate Loans denominated in Dollars, the daily average Federal funds
rate, as quoted by the Administrative Agent, or (B) in the case of any
Committed Rate Loans denominated in an Available Foreign Currency, the rate
customary in such Currency for settlement of similar inter-bank obligations,
as quoted by the Administrative Agent, in each case for the period until
such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender
with respect to any amounts owing under this subsection shall be conclusive
in the absence of manifest error. If such Lender's Commitment Percentage
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon
at the rate per annum applicable to Committed Rate Loans in such Currency
hereunder, on demand, from the Company.
5.4. Requirements of Law. (a) If after the date hereof the
adoption of or any change in any Requirement of Law or in the interpretation
thereof by any Governmental Authority charged with the administration or
interpretation thereof or compliance by any Lender with any request or
directive (whether or not having the force of law) applicable generally in the
jurisdiction of such Lender to banking institutions of the same type as such
Lender:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Eurocurrency Loan made by it to the
Company or any Extension of Credit to the Company, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by subsection 6.6 and changes in the rate or
other basis of tax on the overall net income of such Lender);
30
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender which is not otherwise included in the
determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other condition affecting
Eurocurrency Loans made by such Lender to the Company, or Extensions of
Credit by such Lender to the Company;
and the result of any of the foregoing is to increase the cost to such
Lender, by an amount which such Lender deems to be material, of making,
converting into, continuing or maintaining Eurocurrency Loans or making
or maintaining Extensions of Credit to the Company or to reduce any amount
receivable hereunder in respect thereof, and such Lender has no reasonable
means (as it shall determine in its sole discretion) to avoid such costs or
reductions, then, in any such case, the Company shall promptly pay such
Lender following receipt of a certificate of such Lender in accordance
with subsection 5.4(d) such additional amount or amounts as will compensate
such Lender for such increased cost or reduction suffered.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law)
made subsequent to the date hereof shall have the effect of reducing the
rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change or compliance (taking into consideration such Lender's or such
corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, the Company
shall promptly pay to such Lender following receipt of a certificate of
such Lender in accordance with subsection 5.4(d) such additional amount or
amounts as will compensate such Lender for any such reduction suffered.
Notwithstanding any other provision in this paragraph (b), no Lender
shall be entitled to demand compensation pursuant to this paragraph (b)
if it shall not then be the general practice of such Lender to demand such
compensation in similar circumstances under comparable provisions of other
comparable credit agreements.
(c) In addition to, and without duplication of, amounts which may
become payable from time to time pursuant to paragraphs (a) and (b) of this
subsection 5.4, the Company agrees to pay to each Lender which requests
compensation under this paragraph (c) by notice to the Company, on the last
day of each Interest Period with respect to any Committed Rate Eurocurrency
Loan made by such Lender to the Company, at any time when such Lender shall
be required to maintain reserves against "Eurocurrency liabilities" under
Regulation D of the Board (or, at any time when such Lender may be required
by the Board or by any other Governmental Authority, whether within the United
States or in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference to which
the Eurocurrency Rate is determined as provided in this Agreement or against
any category of extensions of credit or other assets of such Lender which
includes any such Committed Rate Eurocurrency Loans), an additional amount
(determined by such Lender's calculation or, if an accurate calculation is
31
impracticable, reasonable estimate using such reasonable means of allocation
as such Lender shall determine) equal to the actual costs, if any, incurred
by such Lender during such Interest Period as a result of the applicability
of the foregoing reserves to such Committed Rate Eurocurrency Loans.
(d) A certificate of each Lender setting forth such amount or
amounts as shall be necessary to compensate such Lender as specified in
paragraph (a), (b) or (c) above, as the case may be, and setting forth in
reasonable detail an explanation of the basis of requesting such compensation
in accordance with paragraph (a) or (b) above, including calculations in
detail comparable to the detail set forth in Certificates delivered to such
Lender in similar circumstances under comparable provisions of other
comparable credit agreements, shall be delivered to the Company and shall
be conclusive absent manifest error. The Company shall pay each Lender the
amount shown as due on any such certificate delivered to it within 10 days
after its receipt of the same.
(e) Failure on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or
reduction in return on capital with respect to any period shall not constitute
a waiver of such Lender's right to demand compensation with respect to such
period or any other period, except that no Lender shall be entitled to
compensation under this subsection 5.4 for any costs incurred or reduction
suffered with respect to any date unless such Lender shall have notified the
Company that it will demand compensation for such costs or reductions under
paragraph (d) above, not more than six months after the later of (i) such date
and (ii) the date on which such Lender as applicable, shall have become aware
of such costs or reductions. The protection of this subsection 6.5 shall be
available to each Lender regardless of any possible contention of the
invalidity or inapplicability of the law, rule, regulation, guideline or
other change or condition that shall have occurred or been imposed.
(f) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
5.5. Taxes. (a) All payments made by the Company under this
Agreement shall be made free and clear of, and without deduction or
withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding net income taxes
and franchise taxes and other similar taxes (imposed in lieu of net
income taxes) imposed on the Administrative Agent or any Lender as a
result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority thereof
or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement)
provided, however, that the Lender shall have complied with the relevant
provisions of this subsection 5.5. If any such non-excluded taxes, levies,
imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes")are required to be withheld from any amounts payable to the
Administrative Agent or any Lender hereunder, the amounts so payable to the
Administrative Agent or such Lender shall be increased to the extent necessary
to yield to the Administrative Agent or such Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder
32
at the rates or in the amounts specified in this Agreement. Whenever any
Non-Excluded Taxes are payable by the Company, as promptly as possible
thereafter the Company shall timely pay such Non-Excluded Taxes and shall send
to the Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original official receipt
received by the Company showing payment thereof. If the Company fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Company shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Administrative Agent or any Lender as a result of any such
failure. Notwithstanding the foregoing, the Company shall be required to make
any payments in respect of Non-Excluded Taxes to any Lender that has changed
the Funding Office at which it maintains the Extensions of Credit to which
such Non-Excluded Taxes relate (other than any such change in Funding Office
made by such Lender pursuant to subsection 5.7 to avoid or minimize the
application or effects of subsection 5.4 or 5.5) in an amount greater than
the Company would have been required to pay pursuant to this subsection 5.5
if no such change in Funding Office had occurred. The agreements in this
subsection shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(b) Each Lender that is not incorporated, created or organized
under the laws of the United States of America or a state or political
subdivision thereof (a "Non-U.S. Lender") shall:
(i) deliver to the Company and the Administrative Agent (A) two
duly completed copies of either United States Internal Revenue Service
Form W-8BEN (with respect to entitlement to treaty benefits) or W-8ECI,
or successor applicable form, as applicable, and (B) in the case of a
Non-U.S. Lender claiming exemption from U.S. Federal withholdings tax
under Section 871(b) or 881(c) of the Code with respect to payments of
"portfolio interests," a statement substantially in the form of Exhibit G
and a Form W-8BEN, or applicable successor form, in each case,
demonstrating such Non-U.S. Lender's entitlement to a complete exemption
from U.S. Federal withholding tax on all payments by the Company under
this Agreement,
(ii) deliver to the Company and the Administrative Agent two
further current copies of any such form or certification on or before the
date that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Company; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by the Company or
the Administrative Agent;
unless in any such case 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 so advises the Company and the
Administrative Agent or the legal basis therefor. Each Person that shall
become a Lender or a Participant pursuant to subsection 12.6 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms
and statements required pursuant to this subsection, provided that in the case
of a Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
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5.6. Indemnity. The Company agrees to indemnify each Lender
and to hold each Lender harmless from any loss or reasonable expense which
such Lender may sustain or incur as a consequence of (a) default by the
Company in making a borrowing of, conversion into or continuation of a
Loan after the Company has given a notice requesting the same in accordance
with the provisions of this Agreement, (b) default by the Company in making
any prepayment after the Company has given a notice thereof in accordance
with the provisions of this Agreement or (c) the making by the Company of a
prepayment of Eurocurrency Loans or Competitive Advance Loans on a day which
is not the last day of an Interest Period or the maturity date, as the case
may be, with respect thereto. Such loss or reasonable expense shall be
equal to the sum of (a) such Lender's actual costs and expenses incurred
(other than any lost profits) in connection with, or by reason of, any of
the foregoing events and (b) an amount equal to the excess, if any, as
reasonably determined by such Lender of (i) its cost of obtaining the
funds for the Loan being paid, prepaid, converted or continued (assumed
to be the Eurocurrency Rate applicable thereto) for the period from and
including the date for such payment, prepayment, conversion or continuation
to but excluding the last day of the Interest Period for such Loan over
(ii) the amount of interest (as reasonably determined by such Lender)
that would be realized by such Lender in reemploying the funds so paid,
prepaid, converted or continued for such period or Interest Period, as
the case may be. A certificate of any Lender setting forth any amount
or amounts, including calculations in reasonable detail, that such
Lender is entitled to receive pursuant to this subsection 5.6 shall be
delivered to the Company and shall be conclusive absent manifest
error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
5.7. Change of Lending Office. (a) Each Lender agrees that
upon the occurrence of any event giving rise to the operation of subsection
5.4 or 5.5, it will use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document requested by
the Company or designate a different lending office for Extensions of
Credit affected by such event with the object of avoiding or minimizing
the consequences of such event; provided, that such filing or designation
is made on terms that, in the sole judgment of such Lender, cause such
Lender and its lending office(s) to suffer no material economic, legal
or regulatory disadvantage; and, provided, further, that nothing in
this subsection 5.7 shall affect or postpone any of the obligations of
the Company or the rights of any Lender pursuant to subsection 5.4 or 5.5.
(b) In the event that any Lender shall have delivered a notice
or certificate pursuant to subsection 5.4 or 5.5, the Company shall have
the right, but not the obligation, at their own expense, upon notice
to such Lender and the Administrative Agent, to replace such Lender
with an assignee (in accordance with and subject to the restrictions
contained in subsection 12.6) approved by the Administrative Agent
(which approval shall not be unreasonably withheld), and such Lender
hereby agrees to transfer and assign without recourse (in accordance
with and subject to the restrictions contained in subsection 12.6) all
its interests, rights and obligations under this Agreement to such
assignee; provided, however, that no Lender shall be obligated to make any
such assignment unless (i) such assignment shall not conflict with any
Requirement of Law, (ii) such assignee shall pay to the affected Lender in
immediately available funds on the date of such assignment the principal of
34
the Loans made by such Lender hereunder and (iii) the Company shall pay
to the affected Lender in immediately available funds on the date of such
assignment the interest accrued to the date of payment on the Loans made by
such Lender hereunder and all other amounts accrued for such Lender's
account or owed to it hereunder (including any amount that would be
payable to such Lender pursuant to subsection 5.6 if such assignment were,
instead, a prepayment).
5.8. Company Controls on Exposure; Calculation of Exposure;
Prepayment if Exposure exceeds Commitments. (a) The Company will monitor
the borrowings and repayments of Loans by the Company and the issuance of
and drawings under Letters of Credit and Time Drafts, with the object of
preventing any request for an Extension of Credit that would result in the
aggregate amount of the Exposure being in excess of the Commitments and of
promptly identifying and remedying any circumstance where, by reason of
changes in exchange rates, the aggregate amount of the Exposure does exceed
the Commitments. In the event that at any time the Company determines that
the aggregate amount of the Exposure exceeds the aggregate amount of the
Commitments by more that 5%, the Company will, as soon as practicable but in
any event within five Business Days of making such determination, make such
repayments or prepayments of Loans as shall be necessary to cause the aggregate
amount of the Exposure to no longer exceed the Commitments.
(b) The Administrative Agent will calculate the aggregate amount of
the Exposure (including the aggregate amount of L/C Obligations) from time to
time, and in any event not less frequently than once during each calendar
week. In making such calculations, the Administrative Agent will rely on the
information most recently received by it from Lenders in respect of outstanding
Competitive Advance Loans and from Issuing Banks in respect of outstanding
Letters of Credit(including, with respect to such Issuing Banks, the conversion
ratios in respect of the non-Dollar denominated Letters of Credit provided to
the Administrative Agent by such Issuing Banks on the fifteenth day and the end
of each month (or on the Business Day next succeeding such days)). Upon making
each such calculation, the Administrative Agent will inform the Company of the
results thereof and, upon the request of any Lender, inform such Lender of
the results thereof.
(c) In the event that on any date the Administrative Agent
calculates that the aggregate amount of the Exposure exceeds the aggregate
amount of the Commitments by more than 5%, the Administrative Agent will
give notice to such effect to the Company. Within five Business Days after
receipt of any such notice, the Company will, as soon as practicable but in
any event within five Business Days of receipt of such notice, make such
repayments or prepayments of Loans as shall be necessary to cause the aggregate
amount of the Exposure to no longer exceed the Commitments.
(d) Any prepayment required to be made pursuant to this subsection
5.8 shall be accompanied by payment of amounts payable, if any, pursuant to
subsection 5.6 in respect of the amount so prepaid.
35
SECTION 6. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement, to make the Loans and to issue and/or participate in the
Letters of Credit, the Company hereby represents and warrants to the
Administrative Agent and each Lender that:
6.1. Financial Condition. The consolidated balance sheet of the
Company and its consolidated Subsidiaries as at June 30, 2001 and the related
consolidated statements of income and of cash flows for the fiscal year ended
on such date, reported on by KMPG LLP, copies of which have heretofore been
furnished to each Lender, are complete and correct and present fairly the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their
operations and their consolidated cash flows for the fiscal year then ended.
The unaudited consolidated balance sheet of the Company and its consolidated
Subsidiaries as of March 31, 2002 and the related unaudited consolidated
statements of income and cash flows for the nine-month period ended on
such date, present fairly the consolidated financial condition of the
Company and its consolidated Subsidiaries as of such date, and the
consolidated results of their operations and their consolidated cash flows
for the nine-month period then ended (subject to normal year-end audit
adjustments). All such financial statements, including the related schedules
and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). Neither the Company nor any of its consolidated Subsidiaries
had, at the date of the most recent balance sheet referred to above,
any material Guarantee Obligation, contingent liability or liability for
taxes, or any long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency swap
or exchange transaction, which is not reflected in the foregoing statements
or in the notes thereto, except for such transactions disclosed in writing
to the Administrative Agent prior to the Closing Date. During the period
from June 30, 2001 to and including the date hereof there has been no sale,
transfer or other disposition by the Company or any of its consolidated
Subsidiaries of any material part of its business or property and no
purchase or other acquisition of any business or property (including
any capital stock of any other Person) material in relation to the
consolidated financial condition of the Company and its consolidated
Subsidiaries at June 30, 2001.
6.2. No Change. Since June 30, 2001 there has been no
development or event which has had or is reasonably expected to have a
Material Adverse Effect.
6.3. Corporate Existence; Compliance with Law. Each of the
Company and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, except
to the extent, with respect to a Subsidiary, where failure to maintain
existence or good standing would not have a Material Adverse Effect,
(b) has the corporate or other power and authority to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a
foreign corporation or other entity under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the failure to
so qualify is not reasonably expected to have a Material Adverse Effect
and (d) is in compliance with all Requirements of Law except to the extent
that the failure to comply therewith is not reasonably expected to have
a Material Adverse Effect.
36
6.4. Corporate Power; Authorization; Enforceable Obligations.
The Company has the corporate power and authority to make, deliver and perform
the Loan Documents to which it is a party and to borrow hereunder and has taken
all necessary corporate action to authorize the borrowings on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of the Loan Documents to which it is a party. No consent
or authorization of, filing with, notice to or other act by or in respect
of, any Governmental Authority or any other Person is required in connection
with the borrowings hereunder or with the execution, delivery, performance,
validity or enforceability of the Loan Documents to which the Company is
a party. This Agreement has been, and each other Loan Document to which
it is a party will be, duly executed and delivered on behalf of the Company.
This Agreement constitutes, and each other Loan Document to which it is a party
when executed and delivered will constitute, a valid and binding obligation
of the Company enforceable against it in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles (whether enforcement is sought by proceedings in equity or at law).
6.5. No Legal Bar. The execution, delivery and performance of
the Loan Documents to which the Company is a party, the borrowings hereunder
and the use of the proceeds thereof will not (a) violate any Requirement of
Law or Contractual Obligation of the Company or of any of its Subsidiaries
except where any such violation is not reasonably expected to result in a
Material Adverse Effect or (b) result in the creation or imposition of any
Lien on any of its or their respective properties or revenues pursuant to any
such Requirement of Law or Contractual Obligation except where any such
creation or imposition of any Lien is not reasonably expected to result in
a Material Adverse Effect.
6.6. No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Company, threatened by or against the Company or
any of its Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) which is reasonably
expected to have a Material Adverse Effect.
6.7. No Default. Neither the Company nor any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in
any respect which could reasonably be expected to have a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
6.8. Ownership of Property; Liens. Each of the Company and its
Subsidiaries has good and marketable title to, or valid leasehold interests
in, all its material real property, except for minor defects in title that
do not interfere in any material respect with its ability to conduct its
business as presently conducted. All such material properties are free
and clear of all Liens, other than Liens permitted by subsection 9.3.
6.9. Intellectual Property. The Company and each of its
Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
copyrights, technology, know-how and processes necessary for the conduct
of its business as currently conducted except for those failures to own
or license which are not reasonably expected to have a Material Adverse
37
Effect (the "Intellectual Property"). No claim has been asserted against
the Company or any Subsidiary and is pending by any Person challenging or
questioning the use by the Company or any Subsidiary of any such Intellectual
Property or the validity or effectiveness of any such Intellectual Property,
nor does the Company know of any valid basis for any such claim, except, in
each case, for claims that could not reasonably be expected to have a Material
Adverse Effect. To the best knowledge of the Company, the use of such
Intellectual Property by the Company and its Subsidiaries does not infringe on
the rights of any Person, except for such claims and infringements that, in
the aggregate, are not reasonably expected to have a Material Adverse Effect.
6.10. Taxes. Each of the Company and its Subsidiaries has filed
or caused to be filed all tax returns which, to the knowledge of the Company,
are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property
and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any amount the validity
of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the Company or its Subsidiaries, as the
case may be) except where such failure to file or pay is not reasonably
expected to result in a Material Adverse Effect; no tax Lien has been
filed in respect of any material amount of unpaid taxes, and, to the
knowledge of the Company, no claim is being asserted, with respect to
any such tax, fee or other charge except where such claim is not
reasonably expected to result in a Material Adverse Effect.
6.11. Federal Regulations. No part of the proceeds of any
Loans will be used for "purchasing" or "carrying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U
of the Board as now and from time to time hereafter in effect. If
requested by any Lender or the Administrative Agent, the Company will
furnish to the Administrative Agent and each Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or
FR Form U-1 referred to in said Regulation U.
6.12. ERISA. Neither a Reportable Event nor an "accumulated
funding deficiency" (within the meaning of Section 412 of the Code or
Section 302 of ERISA) has occurred during the five-year period prior
to the date on which this representation is made or deemed made on the
date of any Extension of Credit with respect to any Single Employer Plan
or, to the Company's knowledge, Multiemployer Plan, and each Plan (such
representation in respect of any Multiemployer Plan being made to the
Company's knowledge) has complied in all material respects with the
applicable provisions of ERISA and the Code. No termination of a Single
Employer Plan has occurred, and no Lien on assets of the Company or any
Commonly Controlled Entity in favor of the PBGC or a Plan has arisen,
during such five-year period. The present value of all accrued benefits
under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to
the date on which this representation is made or deemed made on the date
of any Extension of Credit, exceed the value of the assets of such Plan
allocable to such accrued benefits. Neither the Company nor any Commonly
Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Company nor any Commonly Controlled
Entity would become subject to any liability under ERISA that could
reasonably be expected to have a Material Adverse Effect if the Company
or any such Commonly Controlled Entity were to withdraw completely from
38
all Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. To the
Company's knowledge, no such Multiemployer Plan is in Reorganization or
Insolvent. The present value (determined using actuarial and other
assumptions which are reasonable in respect of the benefits provided and the
employees participating) of the liability of the Company and each Commonly
Controlled Entity for post retirement benefits to be provided to their current
and former employees under Plans which are welfare benefit plans (as defined
in Section 3(1) of ERISA) does not, in the aggregate, exceed the assets
under all such Plans allocable to such benefits by an amount in excess
of $10,000,000.
6.13. Investment Company Act; Other Regulations. The Company is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended. The Company is not subject to regulation under any Federal or
State statute or regulation (other than Regulation X of the Board of
Governors of the Federal Reserve System) which limits its ability to incur
Indebtedness.
6.14. Subsidiaries. Schedule 6.14 lists all the Subsidiaries of
the Company at the date hereof.
6.15. Purpose of Loans and Letters of Credit. The proceeds of
the Loans and the Letters of Credit shall be used by the Company to
refinance existing bank lines and for general corporate purposes including,
without limitation, working capital, letters of credit, repayment, prepayment
or purchase of long-term indebtedness and acquisitions.
6.16. Accuracy and Completeness of Information. All written
information heretofore furnished by the Company to the Lenders for purposes
of or in connection with this Agreement, and all such information hereafter
furnished by the Company to any Lender for purposes of this Agreement,
will not, at the time delivered, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements made or to be made, in the light of the circumstances under which
they were or will be made, not misleading. Prior to the date hereof, the
Company has disclosed to the Lenders in writing any and all facts which
materially and adversely affect (to the extent the Company can as of the date
hereof reasonably foresee), the business, operations or financial condition of
the Company and its Subsidiaries taken as a whole, or the ability of the
Company to perform its obligations under this Agreement.
6.17. Environmental Matters. Except to the extent that all
of the following are not reasonably expected to have a Material Adverse Effect:
(a) The facilities and properties owned, leased or operated by
the Company or any of its Subsidiaries (the "Properties") do not contain,
and to the knowledge of the Company during its period of ownership,
lease or operation of the Properties, have not previously contained,
any Materials of Environmental Concern in amounts or concentrations
which (i) constitute a violation of, or (ii) are reasonably expected to
give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties are
in compliance, and have in the last five years been in compliance,
in all material respects with all applicable Environmental Laws,
and there is no contamination at, under or about the Properties or
39
violation of any Environmental Law with respect to the Properties or
the business operated by the Company or any of its Subsidiaries
(the "Business") which could materially interfere with the continued
operation of the Properties or materially impair the fair saleable
value thereof.
(c) Neither the Company nor any of its Subsidiaries has
received any written notice of violation, alleged violation, non-
compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Properties or the Business, nor does the Company have knowledge or reason
to believe that any such notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been transported
or disposed of from the Properties in violation of any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could reasonably be expected to give rise to
liability under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Company, threatened, under any
Environmental Law to which the Company or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with respect
to the Properties or the Business.
(f) There has been no release of Materials of Environmental Concern
at or from the Properties, or arising from or related to the operations
of the Company or any Subsidiary in connection with the Properties or
otherwise in connection with the Business, in violation of or in
amounts or in a manner that could reasonably be expected to give rise
to liability under Environmental Laws.
SECTION 7. CONDITIONS PRECEDENT
7.1. Conditions to Initial Extensions of Credit. The agreement of
each Lender to make the initial Extension of Credit requested to be made by it
is subject to the satisfaction, immediately prior to or concurrently with the
making of such Extension of Credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement. The Administrative Agent shall have
received this Agreement, executed and delivered by each Lender and by
the Company.
(b) Related Agreements. The Administrative Agent shall have
received, with a copy for each Lender, true and correct copies, certified
as to authenticity by the Company, of any Material Debt Instrument.
(c) Borrowing Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a certificate of the
Company, dated the Closing Date, substantially in the form of Exhibit B,
with appropriate insertions and attachments, satisfactory in form and
substance to the Administrative Agent, executed by the President or
any Vice President and the Secretary or any Assistant Secretary of
40
the Company. There shall be attached to such certificate (i) a copy of
the resolutions, in form and substance satisfactory to the Administrative
Agent, of the Board of Directors of the Company authorizing the execution,
delivery and performance of this Agreement and (ii) specimen signatures
of officers of the Company authorized to execute this Agreement and
related documents as of the date hereof.
(d) Corporate Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies
of the certificate of incorporation and by-laws of the Company,
certified as of the Closing Date as complete and correct copies
thereof by the Secretary or an Assistant Secretary of the Company.
(e) Consents, Licenses and Approvals. The Administrative Agent
shall have received, with a counterpart for each Lender, a certificate
of a Responsible Officer of the Company (i) attaching copies of all
consents, authorizations and filings, if any, referred to in subsection
6.4, and (ii) stating that such consents, authorizations and filings are
in full force and effect, and each such consent, authorization and filing
shall be in form and substance satisfactory to the Administrative Agent.
(f) Fees. The Administrative Agent shall have received the
fees to be received on the Closing Date referred to in subsection 5.1(b).
(g) Financial Statements. The Administrative Agent shall have
received, with a copy for each Lender the financial statements described
in subsection 6.1.
(h) Legal Opinions. The Administrative Agent shall have received,
with a counterpart for each Lender, the following executed legal
opinions:
(i) the executed legal opinion of Jones, Day, Reavis & Pogue,
counsel to the Company, substantially in the form of Exhibit D-1;
and
(ii) the executed legal opinion of the general counsel
of the Company, substantially in the form of Exhibit D-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent
may reasonably require.
(i) Prior Credit Agreement. All amounts outstanding under
the Company's Multi-Currency, Multi-Option Credit Agreement dated as
of September 30, 1994, as amended, shall have been repaid, and all
commitments to extend credit thereunder shall have been terminated.
7.2. Conditions to Each Extension of Credit. The agreement of each
Lender to make any Extension of Credit requested to be made by it on any date
(including, without limitation, its initial Extension of Credit) is subject to
the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations
and warranties made by the Company in or pursuant to this Agreement
shall be true and correct in all material respects on and as of such
date as if made on and as of such date.
41
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
Extensions of Credit requested to be made on such date.
(c) Additional Matters. All corporate and other proceedings,
and all documents, instruments and other legal matters in connection
with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Administrative Agent.
Each request by the Company for an Extension of Credit hereunder
shall constitute a representation and warranty by the Company as of the
date on which such Extension of Credit is to be made that the conditions
contained in this subsection have been satisfied.
SECTION 8. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain
in effect or any amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Company shall and (except in
the case of delivery of financial information, certifications, reports and
notices) shall cause each of its Subsidiaries to:
8.1. Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its consolidated Subsidiaries as at
the end of such year and the related consolidated statements of income
and retained earnings and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by KPMG LLP
or other independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each
fiscal year of the Company, the unaudited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of
income and retained earnings and of cash flows of the Company and its
consolidated Subsidiaries for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
8.2. Certificates; Other Information. Furnish to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in subsection 8.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
42
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default, except as specified in
such certificate;
(b) concurrently with the delivery of the financial statements
referred to in subsections 8.1(a) and (b), a certificate of a Responsible
Officer stating that, to the best of such Officer's knowledge, the
Company during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Loan Documents to be observed,
performed or satisfied by it, and that such Officer has obtained no
knowledge of any Default or Event of Default except as specified
in such certificate;
(c) within 45 days after the end of each of the first three
fiscal quarters in each fiscal year of the Company, and within 90 days
after the end of each fiscal year of the Company, a certificate of
the principal financial officer of the Company showing in detail the
computations necessary to calculate the (i) Applicable Margin and
Facility Fee Rate (an "Interest Coverage Ratio Certificate") and
(ii) ratio set forth in subsection 9.1(a);
(d) not later than ten Business Days following approval by the
Board of Directors of the Company (and in any event at least once
in each fiscal year), a copy of the Company's final business plan
as approved by the Directors;
(e) within five days after the same are sent, copies of all
financial statements and reports which the Company sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and periodic reports which the Company may
make to, or file with, the Securities and Exchange Commission or any
successor or analogous Governmental Authority; and
(f) promptly, such additional financial and other information as
any Lender may from time to time reasonably request (including, but not
limited to, annual consolidating financial statements not later than
150 days after the end of each fiscal year).
8.3. Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be,
all its obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided
on the books of the Company or its Subsidiaries, as the case may be or to the
extent that the failure to so pay, discharge or satisfy would not be
reasonably expected to have a Material Adverse Effect.
8.4. Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it and
preserve, renew and keep in full force and effect its corporate existence
and take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business
except as otherwise permitted pursuant to subsection 9.4; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not be reasonably expected to have
a Material Adverse Effect.
43
8.5. Maintenance of Property; Insurance. Keep all property useful
and necessary in its business in good working order and condition (ordinary
wear and tear excepted) except for failures to so maintain property that
would not have a Material Adverse Effect; maintain with financially sound
and reputable insurance companies insurance on all its property on an
"all risk" basis; and furnish to each Lender, upon written request, full
information as to the insurance carried.
8.6. Inspection of Property; Books and Records; Discussions.
Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made
of all dealings and transactions in relation to its business and activities;
and permit representatives of the Lenders to visit and inspect any of its
properties and examine and make abstracts from any of its books and records
at any reasonable time, upon reasonable prior notice and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and with its
independent certified public accountants; provided that all such visits shall
be coordinated by the Lenders with the Administrative Agent, and by the
Administrative Agent with the Company, in order to minimize disruption of
the Company's business.
8.7. Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Company or any of its Subsidiaries and any Governmental Authority,
which in either case could reasonably be expected to have a Material
Adverse Effect;
(c) any litigation or proceeding affecting the Company or any of
its Subsidiaries (i) in which the amount involved is $10,000,000 or
more and not covered by insurance unless the Company has determined in
good faith, after consultation with and based upon advice of counsel
acting for the Company or such Subsidiary in such litigation or
proceeding, that it could not be reasonably expected that such litigation
or proceeding would result in a final judgment against the Company or
such Subsidiary in an amount greater than $10,000,000; or (ii) in which
injunctive or similar relief is sought that could reasonably be expected
to have a Material Adverse Effect;
(d) the following events, as soon as possible, and in any event
within 30 days after the Company knows or has reason to know thereof:
(i) the occurrence or expected occurrence of any Reportable Event with
respect to any Single Employer Plan or Multiemployer Plan, a failure of
the Company or a Commonly Controlled Entity to make any required
contribution to a Plan, the creation of any Lien on the assets of the
Company or any Commonly Controlled Entity in favor of the PBGC or a Plan
or any withdrawal of the Company or a Commonly Controlled Entity from, or
the termination, Reorganization or Insolvency of, any Multiemployer Plan
or (ii) the institution of proceedings or the taking of any other action
by the PBGC or the Company or any Commonly Controlled Entity or any
44
Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Single Employer Plan
or Multiemployer Plan; and
(e) any development or event which could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Company proposes to take with respect
thereto.
8.8. Environmental Laws. (a) Comply with, and ensure compliance
by all tenants and subtenants, if any, with, all applicable Environmental
Laws and obtain and comply in all material respects with and maintain, and
ensure that all tenants and subtenants obtain and comply in all material
respects with and maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws except to
the extent that failure to do so could not be reasonably expected to have
a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws except to the extent that the same (i) are being contested
in good faith by appropriate proceedings and could not be reasonably expected
to have a Material Adverse Effect or (ii) could not be reasonably expected to
have a Material Adverse Effect.
SECTION 9. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Company shall not, directly
or indirectly:
9.1. Financial Condition Covenants.
(a) Consolidated Total Debt to Consolidated Capitalization. Permit
the ratio of Consolidated Total Debt to Consolidated Capitalization at
any time to be greater than 55%.
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio
for any period of four consecutive fiscal quarters to be less than 3.5
to 1.0; provided that for purposes of this computation, Consolidated
EBITDA shall include an addback for the relevant period of
(i) $8,300,000 for a special charge taken in the quarter ended
December 31, 2001 and (ii) the amount of any Special Non-Cash Charges.
9.2. Limitation on Indebtedness of Restricted Subsidiaries. Permit
any Restricted Subsidiary to create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under this Agreement;
(b) Indebtedness listed on Schedule 9.2 (a portion of which
Indebtedness will be repaid at the time set forth in Part II of
such Schedule);
45
(c) Indebtedness of a corporation or other entity which becomes
a Restricted Subsidiary after the date hereof, provided that (i) such
indebtedness existed at the time such corporation or other entity became
a Subsidiary and was not created in anticipation thereof and (ii)
immediately after giving effect to the acquisition of such corporation or
other entity by the Company no Default or Event of Default shall have
occurred and be continuing;
(d) Indebtedness secured by any Lien permitted by subsection 9.3(g);
(e) Indebtedness of the Company's Subsidiary or Subsidiaries in
Denmark in an aggregate principal amount not exceeding $2,000,000 (or
its equivalent in Danish Kroner) at any time outstanding;
(f) additional Indebtedness not exceeding $50,000,000 in aggregate
principal amount at any one time outstanding (as to all such Restricted
Subsidiaries);
(g) additional Indebtedness that is subordinate in right of payment
to the Company Obligations on terms reasonably satisfactory to the
Administrative Agent; and
(h) any extension, renewal, refinancing or replacement (or
successive extensions, renewals, refinancings or replacements), as a
whole or in part, of any Indebtedness referred to in the foregoing
clauses (b), (c) and (d) (other than such Indebtedness described in
Part II of Schedule 9.2); provided that no such extension, renewal,
refinancing or replacement shall result in an increase in such
Indebtedness.
9.3. Limitation on Liens. Create, incur, assume or suffer to exist,
or permit any Restricted Subsidiary to create, incur, assume or suffer to
exist, any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired, except for:
(a) Liens for taxes not yet due or which are being contested in
good faith by appropriate proceedings, provided that adequate reserves
with respect thereto are maintained on the books of the Company or its
Restricted Subsidiaries, as the case may be, in conformity with GAAP
(or, in the case of Foreign Subsidiaries, generally accepted accounting
principles in effect from time to time in their respective jurisdictions
of incorporation);
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
which are not overdue for a period of more than 60 days or which are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and
deposits securing liability to insurance carriers under insurance or
self-insurance arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
46
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount and which do not in any
case materially detract from the value of the property subject thereto
or materially interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary;
(f) Liens in existence on the date hereof listed on Schedule 9.2,
provided that no such Lien is spread to cover any additional property
after the Closing Date and that the amount of Indebtedness secured thereby
is not increased;
(g) Liens securing Indebtedness or other obligations of the Company
or such Restricted Subsidiaries incurred to finance the acquisition or
leasing of fixed or capital assets, provided that (i) such Liens shall
be created substantially simultaneously with the acquisition or leasing
of such fixed or capital assets, (ii) such Liens do not at any time
encumber any property other than the property financed by such
Indebtedness or other obligations (and the proceeds thereof and contract
rights, subleases and other rights related thereto), and (iii) the amount
of Indebtedness secured thereby is not increased;
(h) Liens on the property or assets of a corporation or other
entity which becomes a Restricted Subsidiary after the date hereof
securing Indebtedness in existence at the time such corporation or other
entity became a Subsidiary, provided that (i) such Liens existed at the
time such corporation or other entity became a Subsidiary and were not
created in anticipation thereof, (ii) any such Lien is not spread to
cover any property or assets of such corporation or other entity after
the time such corporation becomes a Subsidiary, and (iii) the amount of
Indebtedness secured thereby is not increased;
(i) Liens on the property or assets of a corporation or other
entity existing at the time such corporation or other entity is merged or
consolidated with or into the Company or a Restricted Subsidiary or at
the time of a sale of the properties and assets of such corporation
or other entity as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary, and Liens on property or assets first
acquired by the Company or a Restricted Subsidiary after the date of this
Agreement, provided that (A) no such Lien shall extend to or cover any
property other than the property initially subject thereto and
improvements thereto, and (B) the Indebtedness secured by each such Lien
is then permitted by this Agreement;
(j) Liens on inventory acquired by the Company or a Restricted
Subsidiary in the ordinary course of business securing the payment to
the seller of such inventory of the purchase price thereof, provided,
that such Liens encumber only the inventory to which such purchase price
relates and such purchase price is payable in accordance with customary
trade terms;
(k) Liens arising in connection with trade letters of credit issued
for the account of the Company or a Restricted Subsidiary securing the
reimbursement obligations in respect of such letters of credit, provided,
that such Liens encumber only the property being acquired through payments
made under such letters of credit or the documents of title and shipping
and insurance documents relating to such property;
47
(l) Liens on intellectual property acquired by the Company or a
Restricted Subsidiary (such as software) securing the obligation of the
Company or such Restricted Subsidiary to make royalty or similar payments
to the seller of such intellectual property, provided, that such Liens
encumber only the intellectual property to which such payments relate;
(m) Liens (not otherwise permitted hereunder) which secure
obligations not exceeding (as to the Company and all Restricted
Subsidiaries) $25,000,000; and
(n) any extension, renewal, refinancing or replacement (or
successive extensions, renewals, refinancings or replacements), as a
whole or in part, of any Lien referred to in the foregoing clauses (f)
through (n), inclusive; provided that (i) no such extension, renewal,
refinancing or replacement shall result in an increase in the liabilities
secured thereby and (ii) such extension, renewal, refinancing or
replacement Lien shall be limited to all or a part of the same property
that secured the Lien so extended, renewed, refinanced or replaced (plus
additions, accessions, replacements and improvements to such property).
9.4. Limitation on Fundamental Changes. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets, or make any material change in its present method of
conducting business, or permit any Restricted Subsidiary to do any of the
foregoing, except:
(a) any Restricted Subsidiary of the Company may be merged or
consolidated with or into the Company (provided that the Company shall
be the continuing or surviving corporation) or with or into any one or
more wholly owned Restricted Subsidiaries of the Company (provided
that the wholly owned Restricted Subsidiary or Restricted Subsidiaries
shall be the continuing or surviving corporation);
(b) any Restricted Subsidiary may sell, lease, transfer or otherwise
dispose of any or all of its assets (upon voluntary liquidation or
otherwise) to the Company or any other wholly owned Restricted Subsidiary
of the Company; and
(c) the Company and its Restricted Subsidiaries may consummate
the transactions permitted by subsection 9.5.
9.5. Limitation on Sale of Assets. Convey, sell, lease, assign,
transfer or otherwise dispose of, or permit any Restricted Subsidiary to
convey, sell, lease, assign, transfer or otherwise dispose of, any of
its respective property, business or assets (including, without
limitation, receivables and leasehold interests), whether now owned or
hereafter acquired, or permit any Restricted Subsidiary to issue or sell
any shares of such Restricted Subsidiary's Capital Stock to any
Person other than the Company or any wholly owned Restricted Subsidiary,
except:
(a) the sale or other disposition of obsolete or worn out property
in the ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
48
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(d) the sale or other disposition of any other property in the
ordinary course of business, provided that (i) the aggregate book value
of all assets so sold or disposed of in any period of twelve
consecutive months shall not exceed 15% of Consolidated Total Assets
as at the beginning of such twelve-month period and (ii) the aggregate
book value of all assets so sold or disposed of between
August 14, 2002 and the date of any determination thereof shall not
exceed 25% of Consolidated Total Assets as at the end of the fiscal year
of the Company most recently ended prior to such date of determination;
(e) the Company or any Restricted Subsidiary may sell or otherwise
dispose of any Subsidiary other than a Restricted Subsidiary;
(f) any Restricted Subsidiary may sell, lease, transfer or
otherwise dispose of any or all of its assets (upon voluntary liquidation
or otherwise)to the Company or any other wholly owned Restricted
Subsidiary of the Company;
(g) the sale or discount of accounts receivable (as to the
Company and all Restricted Subsidiaries) in an outstanding principal
amount not exceeding $50,000,000 at any time;
(h) licenses and sublicenses by the Company and the Restricted
Subsidiaries of intellectual property in the ordinary course of
business; and
(i) the issuance or series of issuances of Capital Stock of
any Restricted Subsidiary with a value, in the aggregate for all such
issuances by all Restricted Subsidiaries, not exceeding 10% of
Consolidated Total Assets.
9.6. Limitation on Dividends. Declare or pay any dividend (other
than dividends payable solely in common stock of the Company) on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Company or
any warrants or options to purchase any such Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either
directly or indirectly, whether in cash or property or in obligations of
the Company or any Subsidiary, except that, so long as no Event of Default
has occurred and is continuing, or would be continuing after giving effect
thereto, the Company may pay dividends on its Capital Stock and purchase
or repurchase shares of its Capital Stock in an aggregate amount not
exceeding the sum of (i) $50,000,000 in any fiscal year (with 50% of any
unused portion of this amount being permitted to be carried forward on a
cumulative basis to subsequent fiscal years) plus (ii) an amount equal to
the net cash proceeds received by the Company from any issuance and sale by
the Company of the capital stock of the Company after June 30, 2002.
9.7. Limitation on Investments, Loans and Advances. Make any
advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person,
or permit any Restricted Subsidiary to do any of the foregoing, except:
49
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) Permitted Business Acquisitions;
(d) loans and advances to employees of the Company or its
Subsidiaries for travel, entertainment and relocation expenses in the
ordinary course of business in an aggregate amount for the Company
and its Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(e) investments by the Company in its Restricted Subsidiaries
and investments by Restricted Subsidiaries in the Company and in
other Restricted Subsidiaries; and
(f) investments by the Company or any Restricted Subsidiary in
any Subsidiary other than a Restricted Subsidiary so long as after
giving effect thereto there is no violation of subsection 9.13.
9.8. Limitation on Optional Payments of Subordinated Debt and
Modifications of Subordination Provisions. At any time when the Company is
not considered Investment Grade (a) agree to any amendment or other
modification to any Subordinated Debt that would shorten the maturity
thereof, (b) amend the subordination provisions of any Subordinated Debt or
(c) make any optional payment or prepayment on or redemption or purchase
of any Subordinated Debt unless, after giving effect to such payment,
prepayment, redemption or purchase, the ratio of Consolidated Senior
Debt to Consolidated Capitalization is not greater than 35%.
9.9. Limitation on Transactions with Affiliates. Enter into,
or permit any Restricted Subsidiary to enter into, any transaction,
including, without limitation, any purchase, sale, lease or exchange
of property or the rendering of any service, with any Affiliate (other than
the Company or another Restricted Subsidiary), unless such transaction
is (a) otherwise permitted under this Agreement, (b) in the ordinary
course of the Company's or such Restricted Subsidiary's business and
(c) upon fair and reasonable terms no less favorable to the Company
or such Restricted Subsidiary, as the case may be, than it would obtain
in a comparable arm's length transaction with a Person which is not
an Affiliate.
9.10. Limitation on Sales and Leasebacks. Enter into, or
permit any Restricted Subsidiary to enter into, any arrangement with any
Person (other than the Company or another Restricted Subsidiary) providing
for the leasing by the Company or such Restricted Subsidiary of real or
personal property which is to be sold or transferred by the Company or
such Restricted Subsidiary to such Person or to any other Person to whom
funds have been or are to be advanced by such Person on the security of
such property or rental obligations of the Company or such Restricted
Subsidiary (a "Sale and Lease-Back Transaction"), except for (i) Sale and
Lease-Back Transactions having an aggregate Value not exceeding $25,000,000,
(ii) Sale and Lease-Back Transactions in respect of assets acquired by the
Company or a Restricted Subsidiary after August 14, 2002, provided, that
such Sale and Lease-Back Transaction is consummated within 180 days after
the acquisition by the Company or a Restricted Subsidiary of the asset
subject thereto or (iii) Sale and Lease-Back Transactions between the
Company and any Restricted Subsidiary or between Restricted Subsidiaries.
50
9.11. Limitation on Changes in Fiscal Year. Permit the fiscal
year of the Company to end on a day other than June 30.
9.12. Limitation on Guarantee Obligations in respect of
Indebtedness of Subsidiaries other than Restricted Subsidiaries. Create,
incur or permit to exist, or permit any Restricted Subsidiary to create,
incur or permit to exist, any material Guarantee Obligation in respect
of any Indebtedness of any Subsidiary other than a Restricted Subsidiary.
9.13. Limitation on Subsidiaries other than Restricted
Subsidiaries. Permit at any time more than 10% of consolidated assets of
the Company and its Subsidiaries to be held by any Person other than the
Company and the Restricted Subsidiaries, or permit for any fiscal year
more than the greater of (a) $10,000,000 and (b) 15% of Consolidated Net
Income, to be attributable to the earnings of any Person other than the
Company and the Restricted Subsidiaries.
9.14. Limitation on Guarantee Obligations. Permit the
aggregate outstanding amount of Guarantee Obligations of the Company and
its Subsidiaries, determined on a consolidated basis (other than
Guarantee Obligations not prohibited pursuant to subsection 9.12),
to exceed, at any time, $25,000,000.
SECTION 10. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Company shall fail to pay any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms thereof
or hereof; or the Company shall fail to pay any interest on any Loan,
or any other amount payable hereunder, within five days after any
such interest or other amount becomes due in accordance with the
terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Company herein or in any other Loan Document or which is contained
in any certificate, document or financial or other written statement
furnished by it at any time under or in connection with this Agreement
shall prove to have been incorrect in any material respect on or as of
the date made or deemed made; or
(c) The Company shall default in the observance or performance
of any agreement contained in Section 9, other than Section 9.7
and 9.13; or
(d) The Company shall default in the observance or performance
of any other agreement contained in this Agreement or any other Loan
Document (other than as provided in paragraphs (a) through (c) of this
Section), and such default shall continue unremedied for a period of
30 days; or
(e) The Company or any of its Restricted Subsidiaries
shall (i) default in any payment of principal of or interest on any
Indebtedness (other than the Loans) or in the payment of any Guarantee
Obligation, beyond the period of grace (not to exceed 30 days), if any,
provided in the instrument or agreement under which such Indebtedness or
Guarantee Obligation was created, if the aggregate amount of the
Indebtedness and/or Guarantee Obligations in respect of which such
51
default or defaults shall have occurred is at least $10,000,000;
or (ii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or Guarantee Obligation
or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Indebtedness or beneficiary
or beneficiaries of such Guarantee Obligation (or a trustee or agent
on behalf of such holder or holders or beneficiary or beneficiaries)
to cause, with the giving of notice if required, such Indebtedness
to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(f) (i) The Company or any of its Restricted Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all
or any substantial part of its assets, or the Company or any of its
Restricted Subsidiaries shall make a general assignment for the benefit
of its creditors; or (ii) there shall be commenced against the
Company or any of its Restricted Subsidiaries any case, proceeding
or other action of a nature referred to in clause (i) above which (A)
results in the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against the
Company or any of its Restricted Subsidiaries any case, proceeding or
other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets which results in the entry of an order for any such relief which
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) the Company shall
take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) the Company shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA), whether or not waived, shall exist
with respect to any Plan or any Lien in favor of the PBGC or a Plan
shall arise on the assets of the Company or any Commonly Controlled
Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer
Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Majority
Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Company or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
52
Majority Lenders is likely to, incur any liability in connection with
a withdrawal from, or the Insolvency or Reorganization of, a
Multiemployer Plan or (vi) any other event or condition shall occur or
exist with respect to a Plan; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other
such events or conditions, if any, could reasonably be expected to
have a Material Adverse Effect; or
(h) One or more final judgments or decrees of a court shall be
entered against the Company or any of its Restricted Subsidiaries for
the payment of money in an aggregate amount (to the extent not
adequately covered by insurance) of $10,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed
or bonded pending appeal within 60 days from the entry thereof; or
(i) Any Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) of this Section with
respect to the Company, automatically the Commitments shall immediately
terminate and the Loans hereunder (with accrued interest thereon) and all
other amounts owing under this Agreement (including, without limitation,
all amounts of L/C Obligations, whether or not the beneficiaries of the
then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Company declare the Commitments
to be terminated forthwith, whereupon the Commitments shall immediately
terminate; and (ii) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders,
the Administrative Agent shall, by notice to the Company, declare the
Loans hereunder (with accrued interest thereon) and all other amounts
owing under this Agreement (including, without limitation, all amounts
of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable.
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.
SECTION 11. THE ADMINISTRATIVE AGENT AND THE ARRANGER
11.1. Appointment. Each Lender hereby irrevocably designates
and appoints the Administrative Agent as the agent of such Lender under
this Agreement and the other Loan Documents, and each Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action
on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the
contrary elsewhere in this Agreement, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise
exist against the Administrative Agent.
53
11.2. Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to such
duties. The Administrative Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by
it with reasonable care.
11.3. Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates shall be (i) liable for any action lawfully taken or omitted
to be taken by it or such Person under or in connection with this Agreement
or any other Loan Document (except for its or such Person's own gross
negligence or willful misconduct) or (ii) responsible in any manner to
any of the Lenders for any recitals, statements, representations or
warranties made by the Company or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report,
statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement
or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document or for any failure of the Company to perform its
obligations hereunder or thereunder. The Administrative Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of the Company.
11.4. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying,
upon any Note, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype 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 the Company), independent accountants and other experts selected
by the Administrative Agent. The Administrative Agent may deem and treat
the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have
been filed with the Administrative Agent. The Administrative Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Lenders as it deems appropriate 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 Administrative Agent
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in accordance
with a request of the Majority Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
11.5. Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or
Event of Default hereunder unless the Administrative Agent has received
notice from a Lender or the Company 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 Administrative Agent receives such a
54
notice, the Administrative Agent shall give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Majority
Lenders; provided that unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable
in the best interests of the Lenders.
11.6. Non-Reliance on Administrative Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact
or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter taken, including
any review of the affairs of the Company, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender.
Each Lender represents to the Administrative Agent that it has, independently
and without reliance upon the Administrative 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 business, operations,
property, financial and other condition and creditworthiness of the
Company and made its own decision to make its Loans hereunder and enter
into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent 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 analysis, appraisals
and decisions in taking or not taking action under this Agreement and the
other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and
other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any
credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness
of the Company which may come into the possession of the Administrative
Agent or any of its officers, directors, employees, agents, attorneys-
in-fact or Affiliates.
11.7. Indemnification. The Lenders agree to indemnify the
Administrative Agent and the Arranger in their capacity as such (to the
extent not reimbursed by the Company and without limiting the obligation
of the Company to do so), ratably according to their respective Commitment
Percentages in effect on the date on which indemnification is sought
(or, if indemnification is sought after the date upon which the Commitments
shall have terminated and the Loans shall have been paid in full, ratably
in accordance with their Commitment Percentages immediately prior to such
date), from and against any and all liabilities, obligations, losses, damages,
claims, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time (including, without limitation,
at any time following the payment of the Loans) be imposed on, incurred by
or asserted against the Administrative Agent in any way relating to or
arising out of, the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative 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, claims,
55
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the payment of
the Loans and all other amounts payable hereunder.
11.8. Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to, accept
deposits from and generally engage in any kind of business with the Company
as though the Administrative Agent were not the Administrative Agent
hereunder and under the other Loan Documents. With respect to the Loans
made by it, the Administrative Agent shall have the same rights and powers
under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
11.9. Successor Administrative Agent. The Administrative Agent
may resign as Administrative Agent upon 10 days' notice to the Lenders.
If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Majority Lenders
shall appoint from among the Lenders a successor agent for the Lenders,
which successor agent shall, unless an Event of Default shall be
outstanding, be approved by the Company (such approval not to be unreasonably
withheld), whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall mean such successor agent effective upon such appointment and
approval, and the former Administrative Agent's rights, powers and duties
as Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Administrative Agent or any of the
parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as Administrative Agent, the provisions
of this Section 11 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Loan Documents.
11.10. The Arranger. The Arranger, in such capacity, shall
have no duties or responsibilities, and shall incur no obligations or
liabilities, under this Agreement or the other Loan Documents but
shall nevertheless be entitled to all of the indemnities and other
protections afforded to the Administrative Agent under this Section 11.
SECTION 12. MISCELLANEOUS
12.1. Amendments and Waivers Generally; Amendments to Schedules.
(a) Neither this Agreement nor any other Loan Document, nor any terms
hereof or thereof may be amended, supplemented or modified except in
accordance with the provisions of this subsection. The Majority Lenders may,
or, with the written consent of the Majority Lenders, the Administrative
Agent may, from time to time, (i) enter into with the Company written
amendments, supplements or modifications hereto and to the other Loan
Documents for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the Lenders
or of the Company or (ii) waive, on such terms and conditions as the
Majority Lenders or the Administrative Agent, as the case may be, may specify
in such instrument, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its consequences;
provided, however, that no such waiver and no such amendment, supplement
or modification shall (A) reduce the amount or extend the scheduled date
of maturity of any Loan or of any installment thereof, or reduce the stated
56
rate of any interest or fee payable hereunder or extend the scheduled date
of any payment thereof or increase the amount or extend the expiration date
of any Lender's Commitments, in each case without the consent of each Lender
directly affected thereby, or (B) amend, modify or waive any provision of
this subsection or reduce the percentage specified in the definition of
Majority Lenders, or consent to the assignment or transfer by the Company
of any of its rights and obligations under this Agreement and the other Loan
Documents or (C) amend, modify or waive any provision of Section 11 without
the written consent of the then Administrative Agent. Any such waiver and
any such amendment, supplement or modification shall apply equally to each
of the Lenders and shall be binding upon the Company, the Lenders, the
Administrative Agent and all future holders of the Loans. In the case of
any waiver, the Company, the Lenders and the Administrative Agent shall be
restored to their former positions and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; no such waiver shall extend to any subsequent
or other Default or Event of Default or impair any right consequent thereon.
(b) Schedules II and V may be amended as follows:
(i) Schedule II will be amended to change administrative
information contained therein (other than any interest rate definition,
Funding Time, Payment Time or notice time contained therein), upon
execution and delivery by the Company and the Administrative Agent of
a Schedule Amendment providing for such amendment.
(ii) Schedule II will be amended to conform any Funding Time,
Payment Time or notice time contained therein to then-prevailing market
practices, upon execution and delivery by the Company, the Majority
Lenders and the Administrative Agent of a Schedule Amendment providing
for such amendment.
(iii) Schedule II will be amended to change any interest rate
definition contained therein or to add additional Available Foreign
Currencies (and related interest rate definitions and administrative
information), upon execution and delivery by the Company, all the
Lenders and the Administrative Agent of a Schedule Amendment providing
for such amendment.
(iv) Schedule V will be amended to designate other Lenders as
additional Issuing Banks, and add administrative information with
respect thereto, upon execution and delivery by the Company, the
Administrative Agent and such additional Issuing Bank of a Schedule
Amendment providing for such amendment.
(v) Schedule V will be amended to change administrative
information with respect to Issuing Banks, upon execution and
delivery by the Company, the Administrative Agent and such
Issuing Bank, as the case may be, of a Schedule Amendment providing
for such amendment.
12.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission), and, unless otherwise expressly provided herein,
shall be deemed to have been duly given or made when delivered, or 5 days
after being deposited in the mail, postage prepaid, or, in the case of
telecopy notice, when received, addressed as follows in the case of the
Company and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto:
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The Company: Harman International
Industries, Incorporated
1101 Pennsylvania Avenue, N.W.
Suite 1010
Washington, D.C. 20004
Attention: Greg Henry, Treasurer
Fax: 202-393-3064
Attention: Ed Summers, General Counsel
Fax: 818-920-0677
The Administrative Agent: JPMorgan Chase Bank
270 Park Avenue
New York, NY 10017
Attention: Doris Mesa
Fax: 212-552-5650
provided that any Notice of Borrowing, Notice of Competitive Advance
Loan, Notice of Continuation, Notice of Conversion, or any notice pursuant
to subsections 2.4, 2.5 or 4.2 shall not be effective until received.
12.3. No Waiver; Cumulative Remedies. No failure to exercise
and no delay in exercising, on the part of the Administrative Agent or any
Lender, any right, remedy, power or privilege hereunder or under the other
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges
herein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by law.
12.4. Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents
and in any document, certificate or statement delivered pursuant hereto
or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans hereunder.
12.5. Payment of Expenses and Taxes. The Company agrees
(a) to pay or reimburse the Administrative Agent for all its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of, and any amendment, supplement or modification
to, this Agreement and the other Loan Documents and any other documents
prepared in connection herewith or therewith, and the consummation and
administration of the transactions contemplated hereby and thereby,
including, without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent, (b) to pay or reimburse each Lender
and the Administrative Agent for all its costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any such other documents, including,
without limitation, the fees and disbursements of counsel to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, and
hold each Lender and the Administrative Agent harmless from, any and all
recording and filing fees and any and all liabilities with respect to, or
resulting from any delay in paying, stamp, excise and other taxes, if any,
which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation or administration of any of the
transactions contemplated by, or any amendment, supplement or modification of,
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or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify,
and hold the Administrative Agent, the Arranger and each Lender, their
respective affiliates, and their respective officers, directors, trustees,
advisors and controlling persons, (each, an "indemnified person") harmless
from and against any and all liabilities, obligations, losses, damages,
judgments, claims, penalties, costs, expenses or disbursements of any
kind or nature whatsoever arising out of claims, actions, suits or
proceedings brought by third parties with respect to the execution,
delivery, enforcement, performance and administration of this Agreement
or the use of the proceeds of the Extensions of Credit (all the foregoing,
collectively, the "indemnified liabilities"), provided, that the Company
shall have no obligation hereunder to any indemnified person with respect
to indemnified liabilities arising from (i) the gross negligence or willful
misconduct of such indemnified person or (ii) legal proceedings commenced
against such indemnified person 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. The agreements in this subsection
shall survive repayment of the Loans and all other amounts payable hereunder.
12.6. Successors and Assigns; Participations and Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Company may not assign or transfer
any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to
one or more banks or other entities ("Participants") participating interests
in any Loan owing to such Lender, any Commitment of such Lender or any
other interest of such Lender hereunder and under the other Loan Documents.
In the event of any such sale by a Lender of a participating interest to
a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain
the holder of any such Extension of Credit for all purposes under this
Agreement and the other Loan Documents, and the Company and the
Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant
under any such participation have any right to approve any amendment or
waiver of any provision of any Loan Document, or any consent to any
departure by the Company therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or
interest on, the Loans or any fees payable hereunder, or postpone the
date of the final maturity of the Loans, in each case to the extent
subject to such participation. The Company agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an
Event of Default, each Participant shall, to the maximum extent permitted
by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in
purchasing such participating interest, such Participant shall be deemed
to have agreed to share with the Lenders the proceeds thereof as provided
in subsection 12.7(a) as fully as if it were a Lender hereunder.
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The Company also agrees that each Participant shall be entitled to the
benefits of subsections 5.4, 5.5 and 5.6 with respect to its participation
in the Commitments and the Loans outstanding from time to time as if
it were a Lender; and provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such subsection
than the transferor Lender would have been entitled to receive in respect
of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and
from time to time assign to any Lender or any affiliate thereof or, with
the consent of the Company and the Administrative Agent (which in each case
shall not be unreasonably withheld), to an additional bank or financial
institution ("an Assignee") all or any part of its rights and obligations
under this Agreement and the other Loan Documents pursuant to an Assignment
and Acceptance executed by such Assignee, such assigning Lender (and, in
the case of an Assignee that is not then a Lender or an affiliate thereof,
by the Company and the Administrative Agent) and delivered to the
Administrative Agent for its acceptance and recording in the Register,
provided that, in the case of any such assignment to an additional bank
or financial institution, the aggregate amount of the Commitment being
assigned and, if such assignment is of less than all of the rights and
obligations of the assigning Lender, the aggregate amount of the Commitment
remaining with the assigning Lender are each not less than $5,000,000
(or such lesser amount as may be agreed to by the Company and the
Administrative Agent). Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have
the rights and obligations of a Lender hereunder with a Commitment as set
forth therein, and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding any provision of this paragraph (c) and
paragraph (e) of this subsection, the consent of the Company shall not be
required for any assignment which occurs at any time when any of the events
described in Section 10(f) shall have occurred and be continuing.
(d) The Administrative Agent shall, on behalf of the Company,
maintain at the address of the Administrative Agent referred to in
subsection 12.2 a copy of each Assignment and Acceptance delivered to it
and a register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal amounts
of the Committed Rate Loans owing by the Company to, each Lender from
time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Company, the Administrative Agent and
the Lenders shall treat each Person whose name is recorded in the Register
as the owner of a Committed Rate Loan or other obligation hereunder as the
owner thereof for all purposes of this Agreement and the other
Loan Documents, notwithstanding any notice to the contrary. Any assignment
of any Committed Rate Loan or other obligation hereunder shall be
effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the
Company or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
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(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an Assignee (and, in the case of an Assignee
that is not then a Lender or an affiliate thereof, by the Company and the
Administrative Agent) together with payment to the Administrative Agent
of a registration and processing fee of $3,500, the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information
contained therein in the Register and give notice of such acceptance
and recordation to the Lenders and the Company.
(f) The Company authorizes each Lender to disclose to any
Participant or Assignee (each, a "Transferee") and any prospective
Transferee, subject to the provisions of subsection 12.16, any and all
financial information in such Lender's possession concerning the Company
and its Affiliates which has been delivered to such Lender by or on behalf
of the Company pursuant to this Agreement or which has been delivered to
such Lender by or on behalf of the Company in connection with such
Lender's credit evaluation of the Company and its Affiliates prior to
becoming a party to this Agreement, provided, that the Lenders shall
take such steps as reasonably necessary to ensure that confidential
information will be treated in a confidential manner as required by
subsection 12.16.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments
of Loans relate only to absolute assignments and that such provisions do
not prohibit assignments creating security interests, including, without
limitation, any pledge or assignment by a Lender of any Loan to any Federal
Reserve Bank in accordance with applicable law.
12.7. Adjustments; Set-off. (a) If any Lender (a "benefitted
Lender") shall at any time receive any payment of all or part of its
Loans or other Company Obligations then due and owing, or interest thereon,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the
nature referred to in Section 10(f), or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender,
if any, in respect of such other Lender's Loans or other Company Obligations
then due and owing, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans or other Company Obligations,
or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such benefitted Lender, such purchase shall be rescinded,
and the purchase price and benefits returned, to the extent of such recovery,
but without interest.
(b) If an Event of Default shall have occurred and be continuing,
each Lender shall have the right, without prior notice to the Company, any
such notice being expressly waived by the Company to the extent permitted
by applicable law, upon any amount becoming due and payable by the Company
hereunder (whether at the stated maturity, by acceleration or otherwise)
to set-off and appropriate and apply against such amount any and all deposits
(general or special, time or demand, provisional or final), in any currency,
and any other credits, indebtedness or claims, in any currency, in each
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case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of the Company.
Each Lender agrees promptly to notify the Company and the Administrative Agent
after any such set-off and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of such
set-off and application.
12.8. Judgment. (a) If for the purpose of obtaining judgment
in any court it is necessary to convert a sum due hereunder in one currency
into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, that the rate of exchange used shall be
that at which in accordance with normal banking procedures the Administrative
Agent could purchase the first currency with such other currency on the
Business Day preceding the day on which final judgment is given.
(b) The obligation of the Company in respect of any sum due
to any Lender or the Administrative Agent hereunder shall, notwithstanding
any judgment in a currency (the "Judgment Currency") other than that
in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged
only to the extent that on the Business Day following receipt by such
Lender or the Administrative Agent (as the case may be) of any sum adjudged
to be so due in the Judgment Currency such Lender or the Administrative
Agent (as the case may be) may in accordance with normal banking
procedures purchase the Agreement Currency with the Judgment Currency;
if the amount of the Agreement Currency so purchased is less than the sum
originally due to such Lender or the Administrative Agent (as the case
may be)in the Agreement Currency, the Company agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such
Lender or the Administrative Agent (as the case may be) against such
loss, and if the amount of the Agreement Currency so purchased exceeds
the sum originally due to any Lender or the Administrative Agent
(as the case may be), such Lender or the Administrative Agent
(as the case may be) agrees to remit to the Company such excess.
12.9. Counterparts. This Agreement may be executed by one
or more of the parties to this Agreement on any number of separate
counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Company and the Administrative Agent.
12.10. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
12.11. Integration. This Agreement and the other Loan Documents
represent the agreement of the Company, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or
any Lender relative to the subject matter hereof not expressly set forth
or referred to herein or in the other Loan Documents.
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12.12. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12.13. Submission To Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court
or that such action or proceeding was brought in an inconvenient court
and agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to the Company at its address set forth in subsection 12.2 or
at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding
referred to in this subsection any special, exemplary, punitive or
consequential damages.
12.14. Acknowledgements. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to the Company arising out of
or in connection with this Agreement or any of the other Loan
Documents, and the relationship between Administrative Agent and
Lenders, on one hand, and the Company, on the other hand, in
connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Company and the
Lenders.
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12.15. WAIVERS OF JURY TRIAL. THE COMPANY, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.16. Confidentiality. Each Lender agrees to keep confidential
all non-public information provided to it by the Company pursuant to this
Agreement that is designated by the Company in writing as confidential;
provided that nothing herein shall prevent any Lender from disclosing any
such information (i) to the Administrative Agent or any other Lender,
(ii) to any Transferee or prospective Transferee which agrees to be
bound by the provisions of this Section 12.16 or substantially
equivalent provision, (iii) to its employees, directors, agents,
attorneys, accountants and other professional advisors, (iv) upon the
request or demand of any Governmental Authority having jurisdiction
over such Lender, (v) in response to any order of any court or other
Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (vi) which has been publicly disclosed other than
in breach of this Agreement, or (vii) in connection with the exercise
of any remedy hereunder.
12.17. Termination of Existing Credit Agreement. On the
Closing Date, all Commitments under (and as defined in) the Company's
Multi-Currency, Multi-Option Credit Agreement, dated as of
September 30, 1994, as amended, shall terminate, and each Lender
hereunder that is also a Lender under (and as defined in) such Agreement
agrees to waive any provision of such Agreement that would require
prior notice of such termination.
64
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
By:/s/ Frank Meredith
-------------------------
Name: Frank Meredith
Title: Executive Vice President
and CFO
JPMORGAN CHASE BANK,
as Lead Arranger, Administrative Agent
and Lender
By:/s/ James Maron
-----------------------
Name: James Maron
Title: Vice President
THE BANK OF NOVA SCOTIA, as Documentation
Agent and Lender
By:/s/ Todd S. Meller
-----------------------
Name: Todd S. Meller
Title: Managing Director
HSBC BANK USA
By:/s/ Diane M. Zieske
-----------------------
Name: Diane M. Zieske
Title: First Vice President
DANSKE BANK A/S
By:/s/ John A. O'Neill
-----------------------
Name: John A. O'Neill
Title: Assistant General Manager
By:/s/ Peter L. Hargraves
-----------------------
Name: Peter L. Hargraves
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By:/s/ Robert Hetu
-----------------------
Name: Robert Hetu
Title: Director
By:/s/Guy M. Baron
-----------------------
Name: Guy M. Baron
Title: Associate
65
BAYERISCHE HYPO-UND VEREINSBANK,AG
By:/s/ Ken Hamilton
-----------------------
Name: Ken Hamilton
Title: Director
By:/s/ Laura DePersis
-----------------------
Name: Laura DePersis
Title: Director
CITIBANK, N.A.
By:/s/ David L. Harris
-----------------------
Name: David L. Harris
Title: Vice President
BANK OF TOKYO-MITSUBUSHI TRUST
COMPANY
By:/s/ Spencer Hughes
-----------------------
Name: Spencer Hughes
Title: Vice President
ISRAEL DISCOUNT BANK OF NEW YORK
By:/s/ Andrew Ackerman
-----------------------
Name: Andrew Ackerman
Title: First Vice President
By:/s/ Scott Fishbein
-----------------------
Name: Scott Fishbein
Title: First Vice President
66
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-13
<SEQUENCE>4
<FILENAME>mda10k02.txt
<DESCRIPTION>MANAGEMENT'S DISCUSSION AND ANALYSIS
<TEXT>
Management's Discussion and Analysis of Financial Condition and
Results of Operations
Overview
Harman International Industries, Inc. designs, manufactures and markets high
quality audio and video products for the consumer and professional markets.
The Company is organized into segments based on the end-user markets they
serve. The Consumer Systems Group designs, manufactures and markets
loudspeakers, audio electronics and infotainment systems for vehicles and
designs, manufactures and markets loudspeakers and electronics for home
audio, video and computer applications. The Professional Group designs,
manufactures and markets loudspeakers and electronics used by audio
professionals in concert halls, stadiums, airports and other buildings
and recording, broadcast, cinema and music reproduction applications.
The Company's primary manufacturing facilities in the U.S. are located in
California, Indiana, Kentucky and Utah. The Company's primary international
manufacturing facilities are located in Germany, Austria, the United Kingdom,
Mexico, France, Sweden, China and Hungary. The Company's products are sold
worldwide with the largest markets being the U.S. and Germany.
The Company experiences seasonal fluctuations in sales and earnings.
The first fiscal quarter is generally the weakest due to automotive model
changeovers and the summer holidays in Europe. Variations in seasonal
demand among end-user markets may also cause operating results to vary
from quarter to quarter.
Sales
Net sales for the Company increased 6 percent in fiscal 2002 to $1.826
billion, compared to $1.717 billion in fiscal 2001 and $1.678 billion
in fiscal 2000.
Presented below is a summary of sales by business segment:
(in thousands) 2002 2001 2000
$ % $ % $ %
----------- ---- ----------- ---- ----------- ----
Consumer Systems
Group $ 1,401,446 77% $ 1,267,358 74% $ 1,228,030 73%
Professional Group 424,742 23% 449,189 26% 449,909 27%
----------- ---- ----------- ---- ----------- ----
Total $ 1,826,188 100% $ 1,716,547 100% $ 1,677,939 100%
----------- ---- ----------- ---- ----------- ----
Consumer Systems Group - The Consumer Systems Group reported sales of $1.401
billion in fiscal 2002 compared to sales of $1.267 billion in fiscal 2001,
representing an increase of $134 million or 11 percent. In fiscal 2002, the
foreign currency impact on sales was minimal versus fiscal 2001. The
increase was due to higher sales of audio and infotainment systems to
automotive customers of $138 million partially offset by modest sales
declines in home audio products. Sales to the automotive customers increased
in fiscal 2002 driven by new audio and infotainment systems for the BMW 7
Series and Mercedes-Benz E Class and increased branded audio systems for
Toyota and Lexus. Sales to Chrysler in the U.S. declined in fiscal 2002
versus fiscal 2001.
17
Consumer Systems Group sales increased 3 percent to $1.267 billion in fiscal
2001, compared to $1.228 billion in fiscal 2000. Exclusive of currency
effects, the Group's sales increased 9 percent in fiscal 2001 compared to
fiscal 2000. Sales to automobile manufacturers were higher by $64.9 million
due to increased audio system shipments to Toyota and higher shipments of
radio and navigation units to Mercedes Benz and the European aftermarket.
Sales of home speakers and electronics were lower by $15.2 million due to
economic conditions in the U.S. and Europe, and sales to personal computer
manufacturers were lower by $10.4 million in fiscal 2001 compared to fiscal
2000.
Professional Group - Professional Group sales for fiscal 2002 were $424.7
million compared with $449.2 million in fiscal 2001. In fiscal 2002, the
foreign currency impact on sales was minimal versus fiscal 2001. The
decrease in sales was due in part to the sale of a business unit in the
fourth quarter of fiscal 2001. This business unit accounted for
approximately $11 million of sales in the prior year. Lower sales of
transducers to the telecommunications industry and the discontinuance of
certain broadcast and recording products in Europe also affected sales.
Professional Group sales of $449.2 million in fiscal 2001 approximated
fiscal 2000 sales of $449.9 million. Excluding currency effects, sales
were 4 percent higher in fiscal 2001. Sales increased due to the
acquisition of Crown and higher AKG shipments to General Motors' OnStar
program. These increases were offset by lower sales to mobile phone
manufacturers and the disposition of Orban in May 2000.
Gross Profit
The consolidated gross profit percentage was 27.4 percent in fiscal 2002,
compared to 26.1 percent in fiscal 2001 or 26.9 percent excluding special
charges. The increased gross profit margin was due to a shift in product
mix as a greater percentage of the Company's sales in fiscal 2002 were to
automotive customers. Productivity enhancements at factories in the United
States also contributed.
The consolidated gross profit percentage was 26.1 percent in fiscal 2001,
compared to 28.0 percent in fiscal 2000. Fiscal 2001 gross profit was
reduced by inventory write-downs totaling $8.6 million and other charges
of $5.3 million as discussed below. Excluding those charges, the fiscal
2001 gross profit percentage was 26.9 percent. Lower margins were realized
for consumer audio products as the Company sought to decrease inventory
levels while implementing a direct to retailer distribution system in
Europe. The implementation of the new distribution system has been
completed. The Professional Group experienced lower margins in fiscal
2001 due to softness in the cinema business and inventory reduction
initiatives at Studer.
18
The Company reported a $36.3 million pretax special charge in the third
quarter of fiscal 2001. This charge included non-cash charges of $18.5
million and cash charges of $17.8 million. The amount of special charges
recorded to cost of sales was $13.9 million. The charge resulted primarily
from the Company's decision to move to a direct to retailer distribution
model in its European consumer business, to consolidate its consumer and
professional loudspeaker manufacturing operations in Northridge, California,
to close or otherwise downsize certain other manufacturing operations, and
to discontinue product lines. The items included in the charge were $6.4
million to terminate distributors; $8.6 million and $5.7 million for
inventory and other impaired asset write-downs, respectively; $5.9
million for factory closures in the U.K. and Argentina; and $9.7 million
for severance and other costs.
Selling, General and Administrative Expenses
Selling, general and administrative expenses as a percentage of sales were
21.7 percent in fiscal 2002 compared with 20.6 percent in fiscal 2001,
excluding special charges. The increase in these costs as a percentage of
sales was primarily due to increased research and development costs to
support the development of new automotive products in the Consumer Systems
Group. Also included in selling, general and administrative expenses was
an $8.3 million legal charge paid during the year. Selling, general and
administrative expenses in the Professional Group were approximately equal
to the prior year. Research and development expenses were $109.9 million,
or 6.0 percent of sales, in fiscal 2002 compared with $88.7 million, or 5.2
percent of sales, in fiscal 2001.
We expect selling, general and administrative expenses to be approximately
21 percent of sales in fiscal 2003. However, new automotive contract awards
may require the Company to fund additional non-reimbursable research and
development initiatives, which would have an impact on these costs as a
percent of sales.
In fiscal 2001, selling, general and administrative expenses as a percentage
of sales were 22.0 percent, compared to 20.7 percent in fiscal 2000. In
fiscal 2001, these expenses included $22.4 million in special charges to
terminate distributors in the U.K. and Germany, to cover severance costs
for 250 employees, to write-off impaired assets, and to close factories in
the U.K. and Argentina. At June 30, 2002, the unutilized portion of the
fiscal 2001 special charge was $0.3 million reserved for a lease liability
in the U.K. and unpaid severance in Switzerland. Excluding the special
charges, selling, general and administrative expenses as a percentage of
sales were 20.6 percent, approximately the same percentage as fiscal 2000.
Higher selling costs and a $12.5 million increase in engineering and
development expenses were partially offset by overhead cost reductions.
Operating Income
Fiscal 2002 operating income was 5.7 percent of sales compared with 6.3
percent in fiscal 2001, excluding special charges. The decrease was due
to the increase in selling, general and administrative expenses as a
percentage of sales at the Consumer Systems Group as a result of increased
research and development costs to support future automotive programs.
19
Fiscal 2001 operating income was 4.1 percent of sales, compared to 7.3
percent in fiscal 2000. Excluding the special charges totaling $36.3
million, fiscal 2001 operating income was 6.3 percent of sales. Consumer
Systems Group operating income decreased primarily due to higher costs to
implement changes in the consumer international distribution system and
lower operating margins on sales to Chrysler in North America, partially
offset by higher operating margins from domestic home speaker and
electronic sales. Consumer International's operating loss was $18.9
million before special charges and $28.6 million after the charges.
In fiscal 2001, the Professional Group operating income, excluding special
charges, approximated the fiscal 2000 level.
Interest Expense
Interest expense was $22.4 million in fiscal 2002 compared with $25.0 million
in fiscal 2001. Interest expense decreased in fiscal 2002 primarily due to
lower average interest rates and the Company's use of interest rate swaps to
convert a portion of its fixed rate debt into floating rate debt, offset by
higher average borrowings. Interest expense in fiscal 2001 was $25.0
million compared to $18.5 million in fiscal 2000. Fiscal 2001 interest
expense increased over fiscal 2000 levels due to increased interest rates,
higher borrowings as a result of the Company's share repurchase program,
capital expenditures and higher working capital levels.
The weighted average interest rate in fiscal 2002 was 5.0 percent, compared
to 6.3 percent in fiscal 2001 and 5.7 percent in fiscal 2000. The weighted
average borrowings were $451.9 million, $397.2 million and $325.4 million
for fiscal years ended 2002, 2001 and 2000, respectively. The decrease in
rates in fiscal 2002 was due to lower interest rates and an increased
percentage of debt bearing floating rates due to the effect of converting
fixed rate debt to variable rate debt using interest rate swaps. The
increase in average interest rates in fiscal 2001 was due to higher average
interest rates and the conversion of the Deutschmark term loan to U.S.
dollars during fiscal 2001.
Miscellaneous Expenses
Miscellaneous expenses were $0.6 million in fiscal 2002 compared to $1.2
million in fiscal 2001 and $0.4 million in fiscal 2000. Foreign currency
losses of $0.2 million were included in miscellaneous expenses in fiscal
2002 and foreign currency gains of $1.1 million and $0.8 million were
included in miscellaneous expenses for fiscal years 2001 and 2000,
respectively.
Income Before Taxes and Minority Interest
In fiscal 2002, the Company reported income before income taxes and
minority interest of $80.2 million. In fiscal 2001, the Company reported
income before income taxes and minority interest of $45.1 million, or
$81.4 million excluding the special charges described above, compared to
$102.8 million in fiscal 2000.
20
Income Taxes
In fiscal 2002, the Company reported income tax expense of $22.6 million,
an effective tax rate of 28.2 percent compared with income tax expense of
$12.7 million, an effective tax rate of 28.2 percent in fiscal 2001, and
$29.9 million, an effective tax rate of 29.1 percent in fiscal 2000. The
effective tax rates for fiscal years 2002, 2001, and 2000 were below the
U.S. statutory rate due to utilization of tax credits, realization of tax
benefits for United States exports and the utilization of tax loss
carryforwards at certain foreign subsidiaries.
Net Income
Net income for fiscal 2002 was $57.5 million, compared with net income
of $32.4 million in fiscal 2001. Excluding the special charges described
above, net income for fiscal 2001 was $58.2 million compared with $72.8
million in fiscal 2000.
Liquidity and Capital Resources
Harman International primarily finances its working capital requirements
through cash generated by operations, cash borrowings and normal trade
credit.
The Company's debt at June 30, 2002, was comprised primarily of $300 million
of 7.125 percent senior notes, issued in fiscal 2002 and due February 15,
2007, and $150 million of 7.32 percent senior notes due July 1, 2007. In
addition, at June 30, 2002, the Company had a $125 million revolving credit
facility that was scheduled to expire in September 2002. There were no
borrowings under the revolving credit facility at June 30, 2002. The rates
for borrowings under the revolving credit facility float with base rates.
The Company also has mortgages, capital leases and other long-term borrowings
of $16.6 million at June 30, 2002.
The 7.125 percent senior notes were issued in February 2002. The net
proceeds from this $300 million note issuance were used to repay debt,
including funds drawn under an existing term loan and the revolving credit
facility maturing in August and September 2002, respectively. The remaining
balance was held in cash and short-term investments. At June 30, 2002,
cash and short-term investments were $116.3 million. The Company reduced the
amount of its revolving credit facility from $275 million to $125 million
concurrent with the completion of the senior note offering. At June 30,
2002, the Company had no borrowings under its revolving credit facility and
outstanding letters of credit of $10.9 million. Unused availability under
the revolving credit facility was $114.1 million at June 30, 2002. In
August 2002, the Company entered into a new multi-currency revolving credit
facility with a group of eight banks, which committed $150 million to the
Company for cash borrowings and letters of credit through August 14, 2005.
It replaced the existing credit facility that was scheduled to expire in
September 2002.
21
At June 30, 2001, the Company had outstanding indebtedness under its
revolving credit facility of $111.6 million, outstanding letters of credit
of $7.3 million and unused credit thereunder of $156.1 million. The
indebtedness at June 30, 2001, consisted of committed rate loans, which
bear interest at London Interbank Offered Rate (LIBOR) plus 0.25 percent,
and swing line borrowings, which bear interest at base rates. In fiscal
2001, the Company and certain subsidiaries had a term loan with a group
of banks committing $73.4 million to the Company for cash borrowings through
August 30, 2002, bearing interest at LIBOR plus 0.60, equal to 4.7 percent
at June 30, 2001. In addition, at June 30, 2001, certain international
subsidiaries of the Company maintained unsecured short-term lines of credit
of $23.2 million and had outstanding indebtedness thereunder of approximately
$15.9 million.
Capital expenditures, net of lease financing and acquisitions, were $104.5
million in fiscal 2002 compared to $88.1 million in fiscal 2001 and $80.4
million in fiscal 2000. Expenditures in fiscal years 2002, 2001 and 2000
were for equipment and facilities required to increase capacity and efficiency,
primarily in our divisions that supply the automotive industry, and new product
tooling.
The Company anticipates capital expenditures of approximately $125 to $130
million during fiscal 2003. We believe future capital expenditures will be
approximately 6 percent of sales. Firm commitments of approximately $31.4
million existed as of June 30, 2002, for capital expenditures during fiscal
2003.
The Company utilizes operating lease financing for certain machinery and
equipment. The amounts financed under operating leases were $17.1 million,
$34.6 million and $57.4 million in fiscal years 2002, 2001 and 2000,
respectively.
Net working capital excluding short-term debt and cash was $331.3 million at
June 30, 2002, compared with working capital of $380.9 million at June 30,
2001. The decrease primarily resulted from higher accounts payable and
accrual balances offset by modest increases in inventories and accounts
receivable, due to currency translation effects. Excluding currency
translation effects, inventories and accounts receivable at June 30, 2002
decreased $16.0 million compared to June 30, 2001.
Excess of cost over fair value of assets acquired was $199.2 million
at June 30, 2002, compared with $145.3 million at June 30, 2001.
The increase is due primarily to the acquisitions of CAA AG (CAA) and
TEMIC SDS GmbH (TEMIC) during fiscal 2002 for which a total of $50.5
million in excess of cost over fair value of assets was recorded.
Excess of cost over fair value of assets was also increased due to
foreign currency translation, offset by amortization of $7.7 million
during fiscal 2002.
Total shareholders' equity was $526.6 million at June 30, 2002 compared
with $422.9 million at June 30, 2001 and $486.3 million at June 30, 2000.
The increase in fiscal 2002 is primarily due to net income of $57.5 million
and positive foreign currency translation of $47.6 million primarily due to
the strengthening of the Euro versus the U.S. dollar. The decrease in fiscal
2001 resulted from net income offset by common stock repurchases totaling
$67.0 million and negative foreign currency translation totaling $33.2
million due primarily to the weakening of the Euro against the U.S. dollar.
22
Since the share repurchase program began in 1998, the Board of Directors
has authorized the repurchase of a total of 7.0 million shares. In fiscal
2002, the Company acquired 118,000 shares at a cost of $3.7 million.
From the inception of the share repurchase program through June 30, 2002,
the Company has acquired and placed in treasury 5,807,300 shares of its
common stock at a total cost of $140.6 million. Future share repurchases
are expected to be funded with cash generated by operations.
The Company will continue to have cash requirements to support seasonal
working capital needs, capital expenditures, interest and principal payments,
dividends and share repurchases. The Company intends to use cash on hand,
cash generated by operations and borrowings under its existing revolving
credit facility to meet these needs. The Company believes that cash from
these sources will be adequate to meet its cash requirements over the next
12 months.
The Company has dividend restrictions under its revolving credit agreement
and the indenture under which the Company's 7.32 percent senior notes due
July 2007 were issued. The most restrictive of these covenants limits the
Company to dividend payments and purchases of capital stock of $50 million
annually. Neither the credit agreement nor the indentures for the senior
notes restrict the Company from transferring assets to or from its
subsidiaries in the form of loans, advances or cash dividends.
The Company is subject to various risks, including dependence on key
customers, economic conditions affecting disposable consumer income and
fluctuations in currency exchange rates. A disruption in the operations
of one of our key customers, such as an automotive strike, could have a
material adverse effect on the Company. In fiscal 2002, sales to
DaimlerChrysler accounted for 20.6 percent of the Company's sales and
accounts receivable due from DaimlerChrysler accounted for 19 percent of
total consolidated accounts receivable at June 30, 2002.
The following table provides a summary of the Company's contractual
financing obligations by due date:
<1 1-2 3-5 >5
(dollars in thousands) Year Years Years Years Total
Senior notes(a) $ - - 297,815 150,000 447,815
Other long-term obligations (a) 4,114 1,377 769 8,927 15,187
Mortgages (a) 141 297 262 695 1,395
Non-cancelable operating leases(b) 59,281 82,660 51,099 46,946 239,986
------- ------ ------- ------- -------
Total contractual cash obligations $63,536 84,334 349,945 206,568 704,383
------- ------ ------- ------- -------
(a) As described in Note 5 to the Consolidated Financial Statements.
(b) As described in Note 6 to the Consolidated Financial Statements.
23
Interest Rate Sensitivity
The following table provides information as of June 30, 2002 about the
Company's derivative financial instruments and other financial instruments
that are sensitive to changes in interest rates, including interest rate
swaps and debt obligations. For debt obligations, the table presents
principal cash flows and related average interest rates by contractual
maturity dates. For interest rate swaps, the table presents notional
principal amounts and weighted average interest rates by contractual
maturity dates. Notional amounts are used to calculate the contractual
payments to be exchanged under the interest rate swaps. Weighted average
variable rates are generally based on LIBOR as of the reset dates.
Unless otherwise indicated, the information is presented in U.S. dollar
equivalents as of June 30, 2002.
Principal Payments and Interest Rates by Contractual Maturity Dates
- -------------------------------------------------------------------------------
Fair
Value
FiscalYear (Assets)/
($millions) 2003 2004 2005 2006 2007 Thereafter Total Liabilities
- -------------------------------------------------------------------------------
Liabilities:
Fixed Rate
debt(US$) $-- $-- $-- $-- $300.0 $157.2 $457.2 $467.5
Average
interest
rate 7.13% 7.06%
Interest Rate
Derivatives:
Fixed to Variable
Interest Rate
Swaps (US$) $-- $-- $-- $-- $200.0 $150.0 $350.0 $(10.3)
Average pay
rate (a) 3.39% 4.01%
Average
receive
rate 7.13% 7.32%
(a)The average pay rate is based on $175.0 million set at 3-month LIBOR set
in arrears plus 1.62% and $175.0 million set at 6-month LIBOR set in arrears
plus 1.88%.
Foreign Currency
The Company maintains significant operations in Germany, the United Kingdom,
France, Austria, Hungary, Switzerland, Mexico, China and Sweden. As a result,
exposure to foreign currency gains and losses exists. A portion of foreign
currency exposure is hedged by incurring liabilities, including loans,
denominated in the local currency where subsidiaries are located.
24
The subsidiaries of the Company purchase products and raw materials in various
currencies. As a result, the Company may be exposed to cost increases relative
to local currencies in the markets to which it sells. To mitigate such adverse
trends, the Company enters into foreign exchange contracts and other hedging
activities. Also, foreign currency positions are partially offsetting and are
netted against one another to reduce exposure.
Some products made in the U.S. are sold abroad. Sales of such products are
affected by the value of the U.S. dollar relative to other currencies. Any
long-term strengthening of the U.S. dollar could depress these sales.
Competitive conditions in the Company's markets may limit its ability to
increase product pricing in the face of adverse currency movements. However,
due to the multiple currencies involved in the Company's business and the
netting effect of various simultaneous transactions, the Company's foreign
currency positions are partially offsetting.
As discussed above, the Company is exposed to market risks arising from
changes in foreign exchange rates, principally the change in the value of
the euro versus the U.S. dollar.
The Company estimates the effect on projected fiscal 2003 net income, based
upon a recent estimate of foreign exchange transactional exposure, of a
uniform strengthening or uniform weakening of the transaction currency
pairs of 10 percent will decrease net income $9 million or will increase
net income $9 million. As of June 30, 2002, the Company had hedged a
portion of its estimated foreign currency transactions using forward
exchange contracts.
The Company estimates the effect on projected fiscal 2003 net income,
based upon a recent estimate of foreign exchange translation exposure
(translating the operating performance of our foreign subsidiaries into
U.S. dollars) of a uniform strengthening or weakening of the U.S. dollar
by 10 percent to decrease net income $5.9 million or to increase net
income $5.9 million.
Critical Accounting Policies
The Company's accounting policies are described in Note 1 of the Notes
to Consolidated Financial Statements. The preparation of financial
statements in conformity with generally accepted accounting principles
requires management to make estimates and assumptions about the future
that may affect the amounts reported in the financial statements. Future
events cannot be determined with certainty. Therefore, the use of estimates
requires the exercise of judgment. Actual results may differ from those
estimates and such differences may be material to the financial statements.
Impact of New Accounting Pronouncements
Recent accounting pronouncements are discussed in Note 1 of the Consolidated
Financial Statements, Summary of Significant Accounting Policies.
25
Forward Looking Statements
This report contains forward-looking statements within the meaning of Section
27A of the Securities Act and 21E of the Exchange Act of 1934. You should not
place undue reliance on these statements. Forward-looking statements include
information concerning possible or assumed future results of operations,
capital expenditures, the outcome of pending legal proceedings and claims,
including environmental matters, goals and objectives for future operations,
including descriptions of our business strategies and purchase commitments from
customers, among other things. These statements are typically identified by
words such as "believe," "anticipate," "expect," "plan," "intend," "estimate,"
and similar expressions. We base these statements on particular assumptions
that we have made in light of our industry experience, as well as our
perception of historical trends, current conditions, expected future
developments and other factors that we believe are appropriate under the
circumstances. As you read and consider the information in this report, you
should understand that these statements are not guarantees of performance or
results. They involve risks, uncertainties and assumptions.
Although we believe that these forward-looking statements are based on
reasonable assumptions, you should be aware that many factors could affect our
actual financial results or results of operations and could cause actual
results to differ materially from those expressed in the forward-looking
statements. These factors include, among other things:
- - changes in consumer confidence and spending;
- - automobile industry sales and production rates and the willingness of
automobile purchasers to pay for the option of a premium branded audio system
and/or a multi-functional infotainment system;
- - model-year changeovers in the automotive industry;
- - the ability to satisfy contract performance criteria, including technical
specifications and due dates;
- - competition in the consumer and/or professional markets in which we operate;
- - the outcome of pending or future litigation and administrative claims,
including patent and environmental matters;
- - work stoppages at one or more of our facilities or at a facility of one of
our significant customers;
- - the loss of one or more significant customers, including our automotive
manufacturer customers;
- - the ability to adapt to technological advances and innovation on a cost-
effective and timely basis; and
- - general economic conditions.
In light of these risks and uncertainties, there can be no assurance that
the results and events contemplated by the forward-looking statements
contained in this report will in fact transpire.
26
Statement of Management Responsibility
The consolidated financial statements accompanying information were prepared
by, and are the responsibility of, the management of Harman International
Industries, Incorporated. The statements were prepared in conformity with
accounting principles generally accepted in the United States of America and,
as such, include amounts that are based on management's best estimates and
judgments.
The Company's internal control systems are designed to provide reliable
financial information for the preparation of financial statements, to
safeguard assets against loss or unauthorized use and to ensure that
transactions are executed consistent with Company policies and procedures.
Management believes that existing internal accounting control systems are
achieving their objectives and that they provide reasonable assurance
concerning the accuracy of financial statements.
Oversight of management's financial reporting and internal accounting
control responsibilities is exercised by the Board of Directors through
the audit committee which consists solely of outside directors. The
committee meets periodically with financial management and the independent
auditors to ensure that each is meetings its responsibilities and to discuss
matters concerning auditing, accounting control and financial reporting.
The independent auditors have free access to meet with the audit committee
without management's presence.
/s/ Bernard A. Girod
- -----------------------
Bernard A. Girod
Vice Chairman and
Chief Executive Officer
/s/ Frank Meredith
- ----------------------------
Frank Meredith
Executive Vice President and
Chief Financial Officer
27
Independent Auditors' Report
The Board of Directors and Shareholders of
Harman International Industries, Incorporated:
We have audited the accompanying consolidated balance sheets of Harman
International Industries, Incorporated and subsidiaries as of June 30, 2002
and 2001 and the related consolidated statements of operations, cash flows
and shareholders' equity for each of the years in the three-year people
ended June 30, 2002. These consolidated financial statements are the
responsibility of the Company's management. Our responsibility is to
express and opinion on these consolidated financial statements based on
our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. These standards require that we
plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on the test basis, evidence supporting the amounts and disclosures
in the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Harman
International Industries, Incorporated and subsidiaries as of June 30, 2002
and 2001 and the results of their operations and their cash flows for each
of the years in the three-year period ended June 30, 2002 in conformity with
accounting principles generally accepted in the United States of America.
/s/ KPMG LLP
- --------------------
August 14, 2002
28
Consolidated Balance Sheets
Harman International Industries, Incorporated and Subsidiaries
June 30, 2002 and 2001
($000s omitted except share amounts)
Assets 2002 2001
----------- ----------
Current assets
Cash and cash equivalents $ 116,253 2,748
Receivables (less allowance for doubtful
accounts of $18,211 in 2002 and
$14,457 in 2001) 335,019 312,817
Inventories (note 2) 329,935 317,500
Other current assets 95,556 72,806
----------- ----------
Total current assets 876,763 705,871
Property, plant and equipment,
net (notes 3, 5 and 6) 325,812 264,136
Excess of cost over fair value of net assets
acquired (less accumulated amortization
of $48,329 in 2002 and $40,645 in 2001) 199,239 145,258
Other assets 78,466 44,120
----------- ----------
Total assets $ 1,480,280 1,159,385
----------- ----------
Liabilities and Shareholders' Equity
Current liabilities
Short-term borrowings (notes 4 and 5) $ -- 19,394
Current portion of long-term debt (note 5) 4,255 5,544
Accounts payable 193,110 151,478
Accrued liabilities 236,106 170,739
----------- ----------
Total current liabilities 433,471 347,155
Borrowings under revolving credit
facility (note 5) -- 108,072
Senior long-term debt (note 5) 470,424 235,750
Other non-current liabilities 47,523 44,537
Minority interest 2,233 929
Shareholders' equity (notes 5 and 7)
Preferred stock, $.01 par value. Authorized
5,000,000 shares; none issued and outstanding -- --
Common stock, $.01 par value. Authorized
100,000,000 shares; issued 38,330,490 shares
in 2002 and 37,749,931 shares in 2001 383 377
Additional paid-in capital 310,166 297,515
Accumulated other comprehensive income:
Unrealized gain (loss) on hedging
derivatives (1,499) 2,785
Minimum pension liability adjustment (2,907) --
Equity adjustment from foreign currency
translation (44,686) (92,288)
Retained earnings 405,811 351,525
Less common stock held in treasury
(5,807,300 shares in 2002 and
5,689,300 shares in 2001) (140,639) (136,972)
----------- ----------
Total shareholders' equity 526,629 422,942
----------- ----------
Commitments and contingencies
(notes 6, 10 and 12)
Total liabilities and shareholders' equity $ 1,480,280 1,159,385
----------- ----------
See accompanying notes to consolidated financial statements.
29
Consolidated Statements of Operations
Harman International Industries, Incorporated and Subsidiaries
Years Ended June 30, 2002, 2001 and 2000
($000s omitted except per share amounts)
2002 2001 2000
----------- ----------- -----------
Net sales $ 1,826,188 1,716,547 1,677,939
Cost of sales 1,326,317 1,268,512 1,208,603
----------- ----------- -----------
Gross profit 499,871 448,035 469,336
Selling, general and
administrative expenses 396,650 376,807 347,614
----------- ----------- -----------
Operating income 103,221 71,228 121,722
Other expenses
Interest expense 22,406 24,950 18,507
Miscellaneous, net 638 1,179 386
----------- ----------- -----------
Income before income
taxes and minority
interest 80,177 45,099 102,829
Income tax expense 22,602 12,703 29,923
Minority interest 62 32 68
----------- ----------- -----------
Net income $ 57,513 32,364 72,838
Basic EPS $ 1.78 1.00 2.11
----------- ----------- -----------
Diluted EPS $ 1.70 0.96 2.06
----------- ----------- -----------
Weighted average shares
outstanding - basic 32,261 32,296 34,452
Weighted average shares
outstanding - diluted 33,903 33,737 35,300
See accompanying notes to consolidated financial statements.
30
Consolidated Statements of Cash Flows
Harman International Industries, Incorporated and Subsidiaries
Years Ended June 30, 2002, 2001 and 2000
($000s omitted)
2002 2001 2000
---------- ---------- ----------
Cash flows from operating
activities:
Net income $ 57,513 32,364 72,838
Adjustments to reconcile
net income to net cash
provided by operating
activities:
Depreciation 59,504 52,168 53,487
Amortization of
intangible assets 18,580 15,033 11,131
Deferred income taxes (12,379) 12,480 4,512
Loss on disposition
of assets 6,897 2,226 3,117
Tax benefit attributable
to stock options 4,169 1,008 137
Change in working capital,
net of acquisition/
disposition effects:
Decrease (increase) in:
Receivables 6,339 (25,174) (4,945)
Inventories 13,047 (37,342) (20,557)
Other current assets 2,588 3,161 (63)
Increase (decrease) in:
Accounts payable 25,689 (1,699) 40,283
Accrued liabilities
and income taxes payable 15,448 695 31,278
Other operating activities (11,065) (977) 3,347
---------- ---------- ----------
Net cash provided by
operating activities $ 186,330 53,943 194,565
---------- ---------- ----------
Cash flows from investing
activities:
Payment for purchase of
companies, net of cash
acquired $ (29,366) -- (49,683)
Proceeds from asset
dispositions 5,526 4,135 16,690
Capital expenditures (113,973) (88,083) (80,355)
Purchased and capitalized
software expenditure (20,617) (17,681) (16,306)
Collection (issuance) of
loans, net -- 12,259 (645)
Other items, net (164) 105 356
---------- ---------- ----------
Net cash used in investing
activities $(158,594) (89,265) (129,943)
---------- ---------- ----------
Cash flows from financing
activities:
Net borrowings (repayments)
under lines of credit $ (20,605) 4,826 (3,240)
Proceeds from issuance of
long-term debt 341,940 106,418 11,740
Repayments of long-term debt (238,961) (9,426) (33,568)
Debt issuance costs (778) (1,179) --
Repurchase of common stock (3,667) (66,968) (36,027)
Dividends paid to
shareholders (3,227) (3,222) (3,444)
Exercise of stock options and
restricted stock granted 8,488 3,799 1,888
---------- ---------- ----------
Net cash flow provided by
(used in) financing
activities $ 83,190 34,248 (62,651)
---------- ---------- ----------
Effect of exchange rate changes
on cash 2,579 (543) (569)
---------- ---------- ----------
Net increase (decrease) in
cash and cash equivalents 113,505 (1,617) 1,402
Cash and cash equivalents at
beginning of year 2,748 4,365 2,963
---------- ---------- ----------
Cash and cash equivalents at
end of year $ 116,253 2,748 4,365
Supplemental schedule of non-cash
investing activities:
Fair value of assets acquired $ 61,666 -- 78,084
Cash paid for the capital stock 29,366 -- 49,683
---------- ---------- ----------
Liabilities assumed $ 32,300 -- 28,401
---------- ---------- ----------
See accompanying notes to consolidated financial statements.
31
Consolidated Statements of Shareholders' Equity
Harman International Industries, Incorporated and Subsidiaries
<TABLE>
<CAPTION>
Years Ended June 30, 2002, 2001 and 2000
($000s omitted)
Accumulated
-- Common Stock -- Additional Other Total Share-
Number of $.01 paid-in Comprehensive Retained Treasury holders'
Shares Par value capital Income Earnings stock equity
----------- ---------- ---------- ------------- ----------- ---------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, June 30, 1999 17,757,335 $ 187 290,873 (41,885) 252,989 (33,977) 468,187
----------- ---------- ---------- ------------- ----------- ---------- ------------
Comprehensive income:
Net income -- -- -- -- 72,838 -- 72,838
Foreign currency
translation adjustment -- -- -- (17,246) -- -- (17,246)
----------- ---------- ---------- ------------- ----------- ---------- ------------
Total comprehensive income -- -- -- (17,246) 72,838 -- 55,592
----------- ---------- ---------- ------------- ----------- ---------- ------------
Exercise of stock options 52,569 1 1,887 -- -- -- 1,888
Tax benefit attributable
to stock options -- -- 137 -- -- -- 137
Treasury shares purchased (778,600) -- -- -- -- (36,027) (36,027)
Dividends ($.20 per share) -- -- -- -- (3,444) -- (3,444)
----------- ---------- ---------- ------------- ----------- ---------- ------------
Balance, June 30, 2000 17,031,304 $ 188 292,897 (59,131) 322,383 (70,004) 486,333
----------- ---------- ---------- ------------- ----------- ---------- ------------
Comprehensive income:
Net income -- -- -- -- 32,364 -- 32,364
Foreign currency
translation adjustment -- -- -- (33,157) -- -- (33,157)
Unrealized gain (loss)
on hedging derivatives -- -- -- 2,785 -- -- 2,785
----------- ---------- ---------- ------------- ----------- ---------- ------------
Total comprehensive income -- -- -- (30,372) 32,364 -- 1,992
----------- ---------- ---------- ------------- ----------- ---------- ------------
Stock split adjustment 17,031,304 188 (188) -- -- -- --
Exercise of stock options 199,323 1 3,798 -- -- -- 3,799
Tax benefit attributable
to stock options -- 1,008 -- -- -- 1,008
Treasury shares purchased (2,201,300) -- -- -- -- (66,968) (66,968)
Dividends ($.10 per share) -- -- -- -- (3,222) -- (3,222)
----------- ---------- ---------- ------------- ----------- ---------- ------------
Balance, June 30, 2001 32,060,631 $ 377 297,515 (89,503) 351,525 (136,972) 422,942
----------- ---------- ---------- ------------- ----------- ---------- ------------
Comprehensive income:
Net income -- -- -- -- 57,513 -- 57,513
Foreign currency
translation adjustment -- -- -- 47,602 -- -- 47,602
Unrealized gain (loss)
on hedging derivatives -- -- -- (4,284) -- -- (4,284)
Minimum pension
liability adjustment -- -- -- (2,907) -- -- (2,907)
----------- ---------- ---------- ------------- ----------- ---------- ------------
Total comprehensive income -- -- -- 40,411 57,513 -- 97,924
----------- ---------- ---------- ------------- ----------- ---------- ------------
Exercise of stock options and
restricted stock granted 580,559 6 8,482 -- -- -- 8,488
Tax benefit attributable
to stock options -- -- 4,169 -- -- -- 4,169
Treasury shares purchased (118,000) -- -- -- -- (3,667) (3,667)
Dividends ($.10 per share) -- -- -- -- (3,227) -- (3,227)
----------- ---------- ---------- ------------- ----------- ---------- ------------
Balance, June 30, 2002 32,523,190 $ 383 310,166 (49,092) 405,811 (140,639) 526,629
----------- ---------- ---------- ------------- ----------- ---------- ------------
</TABLE>
See accompanying notes to consolidated financial statements.
32
Notes to Consolidated Financial Statements
Harman International Industries, Incorporated and Subsidiaries
1. Summary of Significant Accounting Policies
Principles of Consolidation: The consolidated financial statements include the
accounts of the Company and subsidiaries after the elimination of significant
intercompany transactions and accounts.
Reclassifications: Where necessary, prior years' information has been
reclassified to conform to the 2002 consolidated financial statement
presentation.
Use of Estimates: The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results may differ from those
estimates, and the differences may be material to the consolidated financial
statements.
Among the most significant estimates used in the preparation of the Company's
financial statements are estimates associated with the depreciable lives of
fixed assets, the evaluation of net assets acquired and allocation of related
purchase prices for corporate acquisitions, the evaluation of the
recoverability of goodwill, evaluation of the recoverability of unbilled costs,
warranty liability, litigation, product liability, taxation and environmental
matters. In addition, estimates form the basis for the Company's reserves for
sales discounts, sales allowances, accounts receivable, inventory, post
retirement benefits and employee benefits. Various assumptions go into the
determination of these estimates. The process of determining significant
estimates requires consideration of factors such as historical experience,
current and expected economic conditions, and actuarial methods. The Company
re-evaluates these significant factors and makes changes and adjustments
where facts and circumstances indicate that changes are necessary.
Revenue Recognition: Revenue is recognized from product sales upon shipment
of goods when passage of title to goods transfer to the customer.
Substantially all revenue transactions involve the delivery of a physical
product. The Company does not have multiple element arrangements that contain
undelivered products or services at shipment.
Sales Discounts: The Company offers product discounts and sales incentives
including prompt payment discounts, volume incentive programs, rebates and
dealer order incentives. The Company reports revenues net of discounts and
other sales incentives in accordance with Emerging Issues Task Force (EITF)
Issue No. 01-09.
Cost of Sales: Cost of sales includes material, labor and overhead for products
manufactured by the Company and cost of goods produced for the Company on a
contract basis. Expenses incurred for manufacturing depreciation and
engineering, warehousing, shipping and handling, sales commissions, and
customer service, are also included in cost of sales.
33
Selling, General and Administrative Expenses: Selling, general and
administrative expenses include non-manufacturing salaries and benefits,
occupancy costs, professional fees, research and development costs,
amortization of intangibles, advertising and marketing costs and other
operating expenses.
Advertising Costs: The Company expenses advertising costs as incurred. When
production costs are incurred for future advertising, these costs are recorded
as an asset and subsequently expensed when the advertisement is first put into
service.
Amortization of intangibles: Amortization of intangibles primarily includes
amortization of goodwill and intangible assets, amortization of capitalized
software costs, and amortization of costs, other than interest costs,
associated with debt issuance.
Research and Development: Research and development costs are expensed as
incurred. The Company's expenditures for research and development were $109.9
million, $88.7 million and $76.2 million for the fiscal years ending June 30,
2002, 2001 and 2000,respectively.
Interest Expense: Interest expense includes interest expense and amortization
of original issue discount on notes.
Cash and Cash Equivalents: Cash and cash equivalents includes cash on hand and
short-term investments with original maturities of less than three months.
Inventories: Inventories are stated at the lower of cost or market. Cost is
determined principally by the first-in, first-out method.
Property, Plant and Equipment: Property, plant and equipment is stated at
cost or, in the case of capitalized leases, at the present value of the
future minimum lease payments. Depreciation and amortization of property,
plant and equipment is computed primarily using the straight-line method
over useful lives estimated from 3 to 50 years. Buildings and improvements
are depreciated over 3 to 50 years or over the term of the lease, whichever
is shorter. Machinery and equipment are depreciated over 5 to 10 years and
furniture and fixtures are depreciated over 3 years.
Purchased and Deferred Software Costs: Software costs that are related to
conceptual formulation and incurred prior to the establishment of technological
feasibility are expensed as incurred. Costs incurred to purchase software to
be sold as an integral component of a product are deferred. Software costs
incurred subsequent to establishment of technological feasibility and which
are considered recoverable by management are deferred in compliance with
Statement of Financial Accounting Standards (SFAS) 86 and amortized over
the product's life, usually three years. At June 30, 2002, deferred costs
were $13.2 million, net of accumulated amortization of $18.8 million. At
June 30, 2001, deferred costs were $28.2 million, net of accumulated
amortization of $9.9 million. Deferred costs, net, are included in other
assets on the balance sheet. Deferred costs are principally comprised of
costs to acquire or develop automotive navigation, telecommunications and
networking software.
34
Income Taxes: The deferred income tax asset or liability is determined by
applying currently enacted tax laws and rates to the expected reversal of
the cumulative temporary differences between the carrying value of assets
and liabilities for financial statement and income tax purposes. Deferred
income tax expense is measured by the change in the net deferred income tax
asset or liability during the year. The Company has not provided U.S. federal
or foreign withholding taxes on foreign subsidiary undistributed earnings as
of June 30,
2002, because such earnings are intended to be permanently invested. It is not
practicable to determine the U.S. Federal income tax liability, if any, that
would be payable if such earnings were not reinvested indefinitely.
Excess of Cost over Fair Value of Assets Acquired: During fiscal 2002, the net
excess of cost over fair value of assets acquired prior to fiscal 2002
continued to be amortized over periods from 3 to 40 years, using the
straight-line method. The Company evaluates net realizable value by
comparisons of projected undiscounted cash flows to the asset balances.
In the fiscal year beginning July 1, 2002, the Company will implement SFAS
142 that will no longer allow the amortization of goodwill and intangible
assets with indefinite useful lives. The acquisitions of CAA and TEMIC by
the Company during fiscal 2002 were accounted for under the provisions of
SFAS 141 and 142.
Unbilled Costs: The Company incurs pre-production and development costs related
to products developed for automobile manufacturers pursuant to long-term supply
agreements. The Company records costs incurred pursuant to these agreements as
unbilled costs in accordance with EITF Issue No. 99-5. The amount of
reimbursement of these costs can be objectively measured and verified. At
June 30, 2002 unbilled costs reimbursable in the next 12 months are $13.5
million and are recorded in other current assets and unbilled costs
reimbursable in subsequent years total $27.1 million and are recorded in
other assets. No unbilled costs were recorded at June 30, 2001.
Foreign Currency Translation: The financial statements of subsidiaries
located outside of the United States generally are measured using the local
currency as the functional currency. Assets, including goodwill, and
liabilities of these subsidiaries are translated at the rates of exchange
at the balance sheet date. The resulting translation adjustments are
included in accumulated other comprehensive income. In fiscal 2002, the
foreign currency translation adjustment was a positive $47.6 million compared
with a negative foreign currency translation adjustment of $33.2 million in
fiscal 2001. Income and expense items are translated at average monthly
exchange rates. Gains and losses from foreign currency transactions of
these subsidiaries are included in net income.
Derivative Financial Instruments: The Company is exposed to market risks
arising from changes in interest rates, commodity prices and foreign
currency exchange rates. The Company uses derivatives in its management
of interest rate and foreign currency exposure. The Company does not
utilize derivatives that contain leverage features. On the date that the
Company enters into a derivative, the derivative is designated as a hedge
of the identified exposure. The Company documents all relationships
between hedging instruments and hedged items and measures the effectiveness
of its hedges at inception and on an ongoing basis.
35
For each derivative instrument that is designated and qualifies as a fair value
hedge, the gain or loss on the derivative instrument as well as the offsetting
loss or gain on the hedged item attributable to the hedged risk are recognized
in current earnings during the period of the change in fair values. For each
derivative instrument that is designated and qualifies as a cash flow hedge,
the effective portion of the gain or loss on the derivative instrument is
reported as a component of other comprehensive income and reclassified into
earnings in the period during which the hedged transaction affects earnings.
For derivatives that are designated and qualify as hedges of net investments
in subsidiaries located outside the United States, the gain or loss is
reported in other comprehensive income as a part of the cumulative translation
adjustment if the derivative is effective. For derivative instruments not
designed as hedging instruments, the gain or loss is recognized in current
earnings during the period of change.
Interest Rate Management: The Company has in place interest rate swaps, which
are designated as fair value hedges of the underlying fixed rate obligations.
The fair value of the interest rate swaps is recorded in other assets or other
long-term liabilities with a corresponding increase or decrease in the fixed
rate obligation. The changes in the fair value of the interest rate swaps and
the underlying fixed rate obligations are recorded as equal and offsetting
unrealized gains and losses in interest expense in the Consolidated Statement
of Operations.
Foreign Currency Management: The fair value of foreign currency related
derivatives is generally included in the Consolidated Balance Sheet in other
current assets and accrued liabilities. The earnings impact of cash flow
hedges relating to forecasted purchases of inventory is generally reported
in cost of sales to match the underlying transaction being hedged. Unrealized
gains and losses on these instruments are deferred in other comprehensive
income until the underlying transaction is recognized in earnings. The
earnings impact of cash flow hedges relating to the variability in cash
flows associated with foreign currency denominated assets and liabilities
is reported in cost of sales or other expense depending on the nature of
the assets or liabilities being hedged. The amounts deferred in other
comprehensive income associated with these instruments generally relate to
foreign currency spot-rate to forward-rate differentials that are recognized
in earnings over the term of the hedge. The discount or premium relating to
cash flow hedges associated with foreign currency denominated assets and
liabilities is recognized in net interest expense over the life of the hedge.
Stock Based Compensation: Pursuant to SFAS 123, Accounting for Stock-Based
Compensation, the Company elected to continue to apply the provisions of
APB Opinion No. 25 for stock-based compensation accounting and reporting.
The Company provides disclosure of pro forma net income and pro forma earnings
per share for grants made in 1995 and future years as if the fair-value based
method defined in SFAS 123 had been applied.
The Company will adopt the fair value method of SFAS 123 effective July 1,
2002, applying it to all new options granted after that date and recognizing
expense over the vesting period of those options.
36
Recent Accounting Pronouncements: In July 2001, the FASB issued SFAS 141,
Business Combinations, and SFAS 142, Goodwill and Other Intangible Assets.
SFAS 141 requires that the purchase method of accounting be used for all
business combinations initiated after June 30, 2001 as well as all purchase
method business combinations completed after June 30, 2001. SFAS 141 also
specifies criteria intangible assets acquired in a purchase method business
combination must meet to be recognized and reported apart from goodwill.
SFAS 142 requires that goodwill and intangible assets with indefinite useful
lives no longer be amortized, but instead be tested for impairment at least
annually in accordance with the provisions of SFAS 142. SFAS 142 also
requires that intangible assets with definite useful lives be amortized over
their estimated useful lives to their estimated residual values, and reviewed
for impairment in accordance with SFAS 121, Accounting for the Impairment of
Long-Lived Assets and for Long-Lived Assets to Be Disposed Of.
The Company will adopt SFAS 142 effective July 1, 2002. Application of the
non-amortization provisions of SFAS 142 is expected to result in an increase
in pretax earnings of approximately $7.4 million in fiscal 2003. The Company
will perform the first of the required impairment tests of goodwill using the
methodology prescribed by SFAS 142 as of July 1, 2002. The Company does not
expect that goodwill will be impaired upon the initial application of SFAS
142's required impairment test.
In June 2001, the Financial Accounting Standards Boards (FASB) issued SFAS
143, Accounting for Asset Retirement Obligations. SFAS 143 requires the
Company to record the fair value of an asset retirement obligation as a
liability in the period in which it incurs a legal obligation associated
with the retirement of tangible long-lived assets that result from the
acquisition, construction, development and/or normal use of the assets.
The Company also records a corresponding asset that is depreciated over the
life of the asset. Subsequent to the initial measurement of the asset
retirement obligation, the obligation will be adjusted at the end of each
period to reflect the passage of time and changes in the estimated future
cash flows underlying the obligation. The Company will adopt SFAS 143 on
July 1, 2002. The Company does not expect that the adoption of SFAS 143
will have a material impact on its financial position or results of
operations.
In August 2001, the FASB issued SFAS 144, Accounting for the Impairment or
Disposal of Long-Lived Assets. SFAS 144 addresses financial accounting and
reporting for the impairment or disposal of long-lived assets. This Statement
requires that long-lived assets be reviewed for impairment whenever events or
changes in circumstances indicate that the carrying amount of an asset may not
be recoverable. Recoverability of assets to be held and used is measured by a
comparison of the carrying amount of an asset to future net cash flows expected
to be generated by the asset. If the carrying amount of an asset exceeds its
estimated future cash flows, an impairment charge is recognized by the amount
by which the carrying amount of the asset exceeds the fair value of the asset.
SFAS No. 144 requires companies to separately report discontinued operations
and extends that reporting to a component of an entity that either has been
disposed of (by sale, abandonment, or in a distribution to owners) or is
classified as held for sale. Assets to be disposed of are reported at the
lower of the carrying amount or fair value less costs to sell. The Company will
adopt SFAS 144 on July 1, 2002. The Company does not expect that the adoption
of SFAS 144 will have a material impact on its financial position or results of
operations.
37
In November 2001, the EITF reached consensus on Issue No. 01-09, Accounting for
Consideration Given by a Vendor to a Customer or a Reseller of the Vendor's
Products (EITF 01-09). Upon adoption of this consensus, certain payments that
had formerly been classified as selling, general and administrative expenses
were reclassified to a reduction of sales. The Company adopted EITF 01-09 in
the quarter ended December 31, 2001. The effect of adopting EITF 01-09 was not
material to the Company.
In July 2002, the FASB issued SFAS 146, Accounting for Costs Associated with
Exit or Disposal Activities. SFAS 146 nullifies EITF Issue No. 94-3, Liability
Recognition for Certain Employee Termination Benefits and Other Costs to Exit
an Activity (including Certain Costs Incurred in a Restructuring). SFAS 146
requires that a liability be recognized for those costs only when the liability
is incurred, that is, when it meets the definition of a liability in the FASB's
conceptual framework. SFAS 146 also establishes fair value as the objective for
initial measurement of liabilities related to exit or disposal activities.
SFAS 146 is effective for exit or disposal activities that are initiated after
December 31, 2002, with earlier adoption encouraged. The Company does not
expect that the adoption of SFAS 146 will have a material impact on its
financial position or results of operations.
2. Inventories
Inventories consist of the following:
June 30 ($000s omitted) 2002 2001
----------------------------------------------
Finished goods $133,685 145,349
Work in process 54,132 38,572
Raw materials 142,118 133,579
-------- --------
Total $329,935 317,500
-------- --------
The Company calculates inventory reserves using a combination of lower of cost
or market analysis and analysis of usage data. Lower of cost or market
analysis is typically applied to those units that represent a high portion
of the total value on-hand. In some cases, lower of cost or market analysis
is applied to a broader population of similar inventory items. The
high-value units typically represent a small percentage of the total
inventory, so identification of obsolescence or valuation reserve requirements
for the balance of the inventory on-hand is accomplished using either historic
or forecast usage data to identify slow-moving or obsolete units.
In fiscal 2001, the Company recorded special charges totaling $8.6 million to
reduce inventory carrying values to net realizable value resulting from
decisions to discontinue various product lines, change manufacturing processes
and terminate certain European distributors in connection with the transition
of the Company's international consumer business to a direct to retailer
model. These charges were recorded as a component of cost of sales.
38
3. Property, Plant and Equipment
Property, plant and equipment are composed of the following:
June 30 ($000s omitted) 2002 2001
-------------------------------------------------
Land $ 7,907 6,899
Buildings and improvements 155,199 117,801
Machinery and equipment 386,642 327,175
Furniture and fixtures 51,151 37,959
-------- --------
600,899 489,834
Less accumulated depreciation
and amortization (275,087) (225,698)
-------- --------
Property, plant and
equipment, net $ 325,812 264,136
-------- --------
In fiscal 2001, the Company recorded special charges of $4.9 million for
property, plant and equipment write-downs for closed facilities in the U.K.
and Argentina.
4. Short-Term Borrowings
At June 30, 2002, the Company had no outstanding short-term borrowings. The
Company did have short-term borrowings outstanding during fiscal 2002 that were
repaid with a portion of the net proceeds from the issuance of $300 million of
unsecured senior notes in February 2002. At June 30, 2001, the Company had
outstanding borrowings of $15.9 million with interest rates based on various
indices ranging from 4.9 percent to 8.8 percent.
5. Long-Term Debt
On February 19, 2002, the Company sold $300 million of five-year unsecured
senior notes bearing interest at 7.125 percent to be paid semiannually. The
notes mature on February 15, 2007, and were sold at an offering price of 99.214
percent of the principal amount. After repaying swing line, competitive
advance, revolving credit and term credit borrowings and reinvesting in certain
foreign operations, the Company had cash and cash equivalents on hand of $116.3
million at June 30, 2002.
At June 30, 2002, the Company and certain subsidiaries had a five-year multi-
currency unsecured revolving credit facility with a group of eleven banks
committing $125 million to the Company for cash borrowings and letters of
credit through September 30, 2002. At June 30, 2002, the Company had no
borrowings under the revolving credit facility and outstanding letters of
credit of $10.9 million. The Company is required under the revolving credit
agreement to maintain certain financial ratios and meet certain net worth and
indebtedness tests. The Company was in compliance with such covenants at
June 30, 2002 and 2001. In August 2002, this revolving credit line was
replaced with a new $150 million unsecured revolving credit facility that
expires in August 2005. The Company pays an annual facility fee ranging
from 20 to 50 basis points on the notional amount of the facility.
39
The Company's other long-term debt agreements contain covenants that, among
other things, limit the ability of the Company and its subsidiaries to incur
additional indebtedness, create restrictions on subsidiary dividends and
distributions, limit the Company's ability to encumber certain assets and
restrict the Company's ability to issue capital stock of its subsidiaries. The
Company was in compliance with the terms of its long-term debt agreements at
June 30, 2002 and 2001. The most restrictive provisions limit the Company's
ability to make dividend payments and purchases of capital stock to $50 million
annually.
The Company's weighted average borrowings were $451.9 million, $397.2 million
and $325.4 million for fiscal years ended 2002, 2001 and 2000, respectively.
The weighted average interest rate in fiscal 2002 was 5.0 percent, compared to
6.3 percent in fiscal 2001 and 5.7 percent in fiscal 2000.
Cash paid for interest for both short- and long-term borrowings was
$23,273,000, $24,873,000, and $20,472,000 during the fiscal years ended
June 30, 2002, 2001 and 2000, respectively.
Long-term debt is composed of the following:
June 30 ($000s omitted) 2002 2001
---------------------------------------------------------
Senior notes, unsecured,
due February 15, 2007, interest
due semiannually at 7.13% $ 297,815 --
Senior notes, unsecured,
due July 1, 2007, interest
due semiannually at 7.32% 150,000 150,000
Carrying value of interest rate hedge 10,282 --
Borrowings under revolving
credit facility, due September
30, 2002 at June 30, 2001 -- 108,072
Borrowings under Commerzbank term
facility, due August 30, 2002;
variable rate was 4.7% at
June 30, 2001 -- 73,403
Obligations under
capital leases (note 6) 4,579 4,561
Other unsubordinated loans
due in installments through
2030, some of which vary
with the prime rate, bearing
interest at an average
effective rate of 5.15%
at June 30, 2002 12,003 13,330
-------- --------
Total 474,679 349,366
Less current installments (4,255) (5,544)
-------- --------
Long-term debt $470,424 343,822
-------- --------
40
Long-term debt, including obligations under capital leases, maturing in each
of the next five fiscal years ($000s omitted) is as follows:
------------------------------------
2003 $ 4,255
2004 809
2005 866
2006 575
2007 305,408
Thereafter 162,766
------------------------------------
6. Leases
The following analysis represents property under capital leases:
June 30 ($000s omitted) 2002 2001
-----------------------------------------------------
Capital lease assets $ 10,506 10,254
Less accumulated amortization (3,537) (2,392)
--------- --------
Net $ 6,969 7,862
--------- --------
No new capital lease obligations were incurred in fiscal years 2002 and 2001.
At June 30, 2002, the Company is obligated for the following minimum lease
commitments under terms of noncancelable lease agreements:
Capital Operating
($000s omitted) Leases Leases
---------------------------------------------------
2003 $ 983 $ 59,281
2004 889 48,181
2005 887 34,479
2006 554 28,209
2007 440 22,890
Thereafter 1,813 46,946
-------- --------
Total minimum lease payments 5,566 $239,986
less interest (987) --------
--------
Present value of minimum
lease payments $ 4,579
--------
Operating lease expense net of subrental income under operating
leases having noncancelable terms of greater than one year for the
years ended June 30, 2002, 2001 and 2000 was $60,681,000,
$53,649,000, and $43,731,000, respectively.
41
7. Stock Option Plan
The 1992 Incentive Plan (the 1992 Plan) provides for the grant of stock
options, stock appreciation rights in tandem with options, restricted stock
and performance units to officers, key employees and consultants of the
Company and its subsidiaries. In addition, the 1992 Plan provides for
the automatic annual grant of options to the non-officer directors of
the Company and for a further automatic grant to such non-officer directors
each year in which the Company achieves a specified level of return on
consolidated equity.
The 1992 Plan replaced the Company's 1987 Plan and added an automatic
grant feature for non-officer directors. The 1987 Plan has been terminated;
however, options previously granted pursuant to this Plan remain
outstanding and will be exercisable in accordance with the terms of the
1987 Plan. The 1992 Plan expires on November 9, 2002.
Stock appreciation rights allow the holders to receive a predetermined
percentage of the spread between the option price and the current value
of the shares. A grant of restricted stock involves the immediate transfer
to a participant of ownership of a specified number of shares of Common
Stock in consideration of the performance of services. The participant is
entitled immediately to voting, dividend and other share ownership rights.
A transfer of restricted stock may be made without consideration or in
consideration of a payment by the participant that is less than current
market value, as the Compensation and Option Committee may determine.
A performance unit is the equivalent of $100 and is granted for the
achievement of specified management objectives.
No stock appreciation right, restricted stock or performance unit grants
have been made under the 1992 Plan through June 30, 2002. Options to
purchase shares of Common Stock have been granted under both the 1987
and 1992 Plans. However, no grants have been made to consultants of the
Company. Options granted are at prices not less than market value on
the date of grant and, under the terms of the 1992 Plan, may not be
repriced. Options granted pursuant to the 1987 and 1992 Plans generally
vest over five years and expire ten years from the date of grant.
In August 2001, an employee received 10,000 shares of restricted stock
not covered by the 1992 Plan.
The fair value of each option granted has been estimated on the date of
grant using the Black-Scholes option-pricing model, with the following
assumptions for grants in fiscal 2002, fiscal 2001 and fiscal 2000:
annual dividends consistent with the Company's current dividend policy,
which resulted in payments of $0.10 per share in the last three years;
expected volatility of 60 percent in fiscal 2002, 56 percent in fiscal
2001 and 33 percent in fiscal 2000; risk free interest rate of 4.0 percent
in fiscal 2002, 3.9 percent in fiscal 2001 and 6.4 percent in fiscal 2000;
and weighted average expected life of 5.4 years in fiscal years 2002,
2001 and 2000. The weighted average fair value of options granted was
$20.51 in fiscal 2002, $14.81 in fiscal 2001 and $19.11 in fiscal 2000.
Pro forma compensation cost for grants under the stock option program
since July 1, 1995, recognized in accordance with SFAS No. 123, would
reduce the Company's net income from $57.5 million (diluted EPS of $1.70)
to $51.5 million (diluted EPS of $1.52) in fiscal 2002, from $32.4 million
(diluted EPS of $0.96) to $27.3 million (diluted EPS of $0.81) in fiscal 2001,
and from $72.8 million (diluted EPS of $2.06) to $68.6 million
(diluted EPS of $1.94) in fiscal 2000.
At June 30, 2002, a total of 1,742,310 shares of Common Stock were reserved
for issuance under the 1992 Plan. 42
Stock Option Activity Summary: Years ended June 30
Weighted
Average
Shares Exercise Price
---------------------------------------------------
Balance at June 30, 1999 3,628,662 $ 18.48
---------
Granted 968,000 $ 22.86
Canceled (133,250) $ 17.96
Exercised (105,138) $ 21.06
---------
Balance at June 30, 2000 4,358,274 $ 19.38
---------
Granted 855,900 $ 28.49
Canceled ( 69,850) $ 20.71
Exercised (202,725) $ 19.28
---------
Balance at June 30, 2001 4,941,599 $ 20.95
---------
Granted 323,500 $ 37.00
Canceled (704,020) $ 20.26
Exercised (635,379) $ 16.80
---------
Balance at June 30, 2002 3,925,700 $ 23.04
---------
Options Outstanding at June 30, 2002
Weighted
average Weighted
Range of Number of remaining average
exercise prices options life in years exercise price
---------------------------------------------------------
$ 5.65-5.65 16,800 0.36 $ 5.65
$ 9.88-14.00 442,914 1.32 $ 12.51
$ 15.09-22.00 1,700,534 4.81 $ 20.18
$ 22.59-33.50 1,414,952 7.58 $ 26.41
$ 34.80-45.00 350,000 9.07 $ 37.36
$ 48.26-48.26 500 9.67 $ 48.26
------------- ---------
$ 5.65-48.26 3,925,700 5.78 $ 23.04
------------- ---------
43
Options Exercisable at June 30, 2002
Weighted
Range of Number of average
exercise prices options exercise price
------------------------------------------
$ 5.65-5.65 16,800 $ 5.65
$ 9.88-14.00 442,914 $ 12.51
$ 15.09-22.00 1,235,804 $ 19.59
$ 22.59-33.50 457,352 $ 25.94
$ 34.80-45.00 5,400 $ 42.01
$ 48.26-48.26 0 $ 0.00
------------- ---------
$ 5.65-48.26 2,158,270 $ 19.43
------------- ---------
At June 30, 2001, options with an average exercise price of $17.98 were
exercisable on 2,764,669 shares. At June 30, 2000, options with an average
exercise price of $16.88 were exercisable on 2,163,304 shares.
In August 1998, the Company granted 600,000 performance-based stock options
to a group of executive officers that only vested as Harman's common stock
price achieved specified target levels and the average closing stock price
remained at or above those levels for at least 30 consecutive calendar days.
The Company measured the cost of these performance-based options as the
difference between the exercise price and market price and recognized this
expense over the period to the estimated vesting dates and in full for
options that had vested. The Company recognized $8.6 million and $2.0
million in fiscal years 2001 and 2000, respectively, in compensation
expense for the performance-based options. In September 2001, the Company
repurchased these options for an amount equal to $18.125 per option,
representing the difference between $38.00 and the $19.875 exercise
price of the options and the options were canceled.
44
8. Income Taxes
The tax provisions and analysis of effective income tax rates are
comprised of the following items:
Years Ended June 30
($000s omitted) 2002 2001 2000
- -----------------------------------------------------------
Provision for Federal income
taxes before credits
at statutory rate $ 28,062 15,785 35,990
State income taxes 344 314 276
Difference between Federal
statutory rate and foreign
effective rate 526 1,086 (384)
Permanent differences
between financial and
tax accounting income 226 683 624
Tax benefit from
export sales (3,242) (1,336) (1,139)
Change in valuation
allowance (541) (2,927) (2,422)
Change in other
tax liabilities (925) (1,325) (1,257)
Losses without
income tax benefit -- 2,419 673
Federal income
tax credits (2,000) (2,000) (1,875)
Other 152 4 (563)
-------- ------- -------
Total $ 22,602 12,703 29,923
-------- ------- -------
Income tax expense (benefit) consists of the following:
Years Ended June 30
($000s omitted) 2002 2001 2000
--------------------------------------------------
Current:
Federal $ 9,158 (1,247) 10,158
State 380 209 368
Foreign 24,371 1,261 21,528
-------- ------- -------
33,909 223 32,054
-------- ------- -------
Deferred:
Federal (3,454) (216) (2,039)
State (36) 146 (92)
Foreign (7,817) 12,550 --
-------- ------- -------
(11,307) 12,480 (2,131)
-------- ------- -------
Total $ 22,602 12,703 29,923
-------- ------- -------
45
Deferred taxes are recorded based upon differences between the financial
statement and tax basis of assets and liabilities and available tax loss
carry-forwards.
The following deferred taxes are recorded:
Assets/(liabilities)
June 30 ($000s omitted) 2002 2001
- -----------------------------------------------------
Federal tax credits $ 7,612 5,228
Inventory costing differences 5,948 7,485
Foreign net operating loss 17,649 7,343
Valuations and other allowances 13,594 9,381
-------- -------
Total gross deferred tax asset $ 44,803 29,437
Less valuation allowance (11,559) (3,640)
-------- -------
Deferred tax asset $ 33,244 25,797
Total gross deferred tax liability
from fixed asset depreciation $(13,335) (12,906)
Foreign statutory accounting (10,937) (16,253)
-------- -------
Total gross deferred tax liability $(24,272) (29,159)
-------- -------
Net deferred tax asset (liability) $ 8,972 (3,362)
-------- -------
The deferred taxes schedule reflects an asset valued at $8.5 million for
acquired tax loss carryforwards relating to the fiscal 2002 acquisition of
CAA. This asset is offset with a 100% valuation allowance and any
utilization of this asset will reduce goodwill. The Company has a Federal
research credit carryforward valued at $7.0 million and an alternative minimum
tax credit valued at $0.6 million. The research credit will expire beginning
in 2019. The alternative minimum tax credit does not expire.
Management believes the results of future operations will generate
sufficient taxable income to realize the net deferred tax asset.
Cash paid for Federal, state and foreign income taxes was $6.2 million,
$13.2 million, and $2.3 million, during fiscal years ended June 30, 2002,
2001 and 2000, respectively.
Accrued income taxes were $37.9 million and $11.3 million as of
June 30, 2002 and 2001, respectively. These balances are included in
accrued liabilities.
Income before income tax of the Company's foreign operations totaled
$44.6 million for the year ended June 30, 2002.
46
9. Business Segment Data
The Company designs, manufactures and markets high quality audio products and
electronic systems for the consumer and professional markets. The Company is
organized into segments by the end-user markets they serve - consumer and
professional.
The Consumer Systems Group designs, manufactures and markets audio and
infotainment systems for vehicles and designs, manufactures and markets
loudspeakers and electronics for home audio, video and computer applications.
Consumer products are marketed worldwide under brand names including JBL,
Harman Kardon, Infinity, Revel, Lexicon, Mark Levinson and Proceed. In the
consumer segment, sales to DaimlerChrysler accounted for approximately
20.6%, 20.5% and 22.3% of consolidated net sales for the years ended
June 30, 2002, 2001 and 2000, respectively. Accounts receivable due from
DaimlerChrysler accounted for 19% and 17% of total consolidated accounts
receivable at June 30, 2002 and 2001, respectively.
The Professional Group designs, manufactures and markets loudspeakers
and electronics used by audio professionals in concert halls, stadiums,
airports and other buildings and recording, broadcast, cinema and music
reproduction applications. Professional products are marketed worldwide
under brand names including JBL, AKG, Crown, Studer, Soundcraft, DOD,
Digitech and dbx.
47
The following table reports external sales, operating income (loss),
assets, capital expenditures and depreciation and amortization by segment.
Segmentation
Years ended June 30
($000s omitted) 2002 2001 2000
- -----------------------------------------------------------------
External sales:
Consumer Systems $ 1,401,446 1,267,358 1,228,030
Professional 424,742 449,189 449,909
Other -- -- --
----------- ---------- ----------
Total $ 1,826,188 1,716,547 1,677,939
----------- ---------- ----------
Operating income (loss):
Consumer Systems $ 110,445 94,517 112,211
Professional 16,802 1,948 21,504
Other (24,026) (25,237) (11,993)
----------- ---------- ----------
Total $ 103,221 71,228 121,722
----------- ---------- ----------
Assets:
Consumer Systems $ 1,023,623 803,435 745,971
Professional 295,534 315,265 349,206
Other 161,123 40,685 39,328
----------- ---------- ----------
Total $ 1,480,280 1,159,385 1,134,505
----------- ---------- ----------
Capital expenditures:
Consumer Systems $ 97,673 69,908 64,679
Professional 13,636 17,147 15,259
Other 2,664 1,028 417
----------- ---------- ----------
Total $ 113,973 88,083 80,355
----------- ---------- ----------
Depreciation and
amortization:
Consumer Systems $ 61,357 45,795 46,011
Professional 14,552 17,213 17,056
Other 2,175 4,193 1,551
----------- ---------- ----------
Total $ 78,084 67,201 64,618
----------- ---------- ----------
The results for a manufacturing facility that principally produced
professional products in fiscal 2002 has been reclassified from Consumer
Systems to Professional in fiscal years 2001 and 2000, respectively, to
conform to fiscal 2002 presentation.
48
Net sales, long-lived assets and net assets by geographic area for the
years ended June 30, 2002, 2001 and 2000 were as follows.
Years Ended June 30
($000s omitted) 2002 2001 2000
- -----------------------------------------------------------------
Net sales:
U.S. $ 714,774 715,449 786,296
Germany 459,042 372,320 340,205
Other Europe 289,711 293,101 312,090
Other 362,661 335,677 239,348
----------- ---------- ----------
Total $ 1,826,188 1,716,547 1,677,939
----------- ---------- ----------
Long-lived assets:
U.S. $ 176,924 170,139 211,212
Germany 260,515 147,823 129,418
Other Europe 128,445 85,074 94,393
Other 37,633 44,337 8,072
----------- ---------- ----------
Total $ 603,517 447,373 443,095
----------- ---------- ----------
Net assets:
U.S. $ 253,551 202,498 286,096
Germany 208,483 166,265 147,126
Other Europe 39,315 49,872 45,062
Other 25,280 4,307 8,049
----------- ---------- ----------
Total $ 526,629 422,942 486,333
----------- ---------- ----------
49
10. Commitments and Contingencies
In fiscal 2002, the Company recorded and paid $8.3 million as the result of a
judgment on appeal in a lawsuit. The Company and its subsidiaries are also
involved in several other legal actions. The outcome cannot be predicted with
certainty; however, management, based upon advice from legal counsel, believes
such actions are either without merit or will not have a material adverse
effect on the Company's financial position or results of operations.
Harman's Board of Directors has authorized the repurchase a total of 7.0
million shares. Through June 30, 2002, the Company has acquired and placed
in treasury 5,807,300 shares of its common stock at a total cost of
$140.6 million. Future repurchases are expected to be funded with
operating cash flow.
11. Employee Benefit Plans
Under the Retirement Savings Plan, domestic employees may contribute up
to 50.0% of their pretax compensation. Each division will make a safe
harbor non-elective contribution in an amount equal to 3.0% of a
participant's eligible contribution. With the approval of the Board
of Directors, each division may make a basic contribution equal to 3.0%
of a participant's eligible compensation; a matching contribution of up
to 3.0% (50.0% on the first 6.0% of an employee's tax-deferred contribution);
and a profit sharing contribution. Profit sharing and matching contributions
vest at a rate of 25.0% for each year of service with the employer,
beginning with the second year of service. Expenses related to the
Retirement Savings Plan for the years ended June 30, 2002, 2001 and 2000
totaled $8,480,000, $6,740,000 and $5,818,000, respectively.
The Company also has a Supplemental Executive Retirement Plan(SERP) that
provides normal retirement, pre-retirement and termination benefits, as
defined, to certain key executives designated by the Board of Directors.
Expenses related to the SERP for the years ended June 30, 2002, 2001 and
2000 were $1,996,000, $2,067,000 and $1,887,000, respectively.
Additionally, certain non-domestic subsidiaries maintain defined benefit
pension plans. These plans are not material to the accompanying
consolidated financial statements.
12. Fair Value of Financial Instruments
The estimated fair value of the Company's financial instruments was determined
using market information and valuation methodologies. In the measurement of the
fair value of certain financial instruments, quoted market prices were
unavailable and other valuation techniques were utilized. These derived fair
value estimates are significantly affected by the assumptions used.
The fair values of cash and cash equivalents, receivables, accounts payable and
accrued liabilities approximate their carrying values due to the short-term
nature of these items.
Long-Term Debt. Fair values of long-term debt are based on market prices where
available. When quoted market prices are not available, fair values are
estimated using discounted cash flow analysis, based on the Company's current
incremental borrowing rates for similar types of borrowing arrangements.
50
The Company used current market pricing models to estimate fair value of
financial instruments. The carrying value and fair value of long-term debt
were $474.7 million and $477.5 million, respectively, at June 30, 2002.
13. Derivatives
The Company uses foreign currency forward contracts to hedge a portion of its
forecasted transactions. These forward contracts are designated as foreign
currency cash flow hedges and recorded at fair value in the statement of
financial position. The recorded fair value is balanced by an entry to other
comprehensive income (loss) in the statement of financial position until the
underlying forecasted foreign currency transaction occurs. When the
transaction occurs, the gain or loss from the derivative designated as a hedge
of the transaction is reclassified from accumulated other comprehensive income
(loss) to the same income statement line item in which the foreign currency
gain or loss on the underlying hedged transaction is recorded. If the
underlying forecasted transaction does not occur, the amount recorded in
accumulated other comprehensive income (loss) is reclassified to the
miscellaneous, net line of the income statement in the then-current period.
Because the amounts and the maturities of the derivatives approximate those of
the forecasted exposures, changes in the fair value of the derivatives are
highly effective in offsetting changes in the cash flows of the hedged items.
Any ineffective portion of the derivatives is recognized in current earnings.
The ineffective portion of the derivatives, which was immaterial for all
periods presented, primarily results from discounts or premiums on forward
contracts.
As of June 30, 2002, the Company has contracts maturing through December 2002
to purchase and sell the equivalent of approximately $6.0 million of various
currencies to hedge future foreign currency purchases and sales. The Company
recorded approximately $0.2 million in net gains from cash flow hedges of
forecasted foreign currency transactions in the year ended June 30, 2002.
These gains were offset by equivalent losses on the underlying hedged items.
The amount as of June 30, 2002, that will be reclassified from accumulated
other comprehensive income (loss) to earnings within the next twelve months
that is associated with these hedges is a gain of $0.9 million.
The Company has entered into cross currency swaps to hedge future cash flows
due from foreign consolidated subsidiaries under operating lease agreements.
As of June 30, 2002, the Company had such contracts in place to purchase and
sell the equivalent of approximately $47.7 million in various currencies to
hedge quarterly lease commitments through March 2006. The Company recorded
$0.2 million in net gains from cash flow hedges related to these forward
contracts in the year ended June 30, 2002. These gains were offset by
equivalent losses on the underlying hedged items. The amount as of June 30,
2002 that will be reclassified from accumulated other comprehensive income
(loss) to earnings within the next twelve months that is associated with these
hedges is a loss of $0.6 million.
51
The Company entered into swap contracts in August 2001 and October 2001 to
convert interest on $150 million principal amount of its 7.32 percent senior
notes due July 1, 2007, from a fixed rate to a floating rate. The Company
also entered into swap contracts in March 2002 and April 2002 to convert
interest on $200 million of the $300 million principal amount of its 7.125
percent senior notes due February 15, 2007, from a fixed rate to a floating
rate. The objective of these interest rate swap contracts is to offset
changes in the fair value of the Company's fixed rate debt caused by
interest rate fluctuations. The interest rate swap contracts are carried
at fair value in the Company's consolidated balance sheet and the related
hedged portion of fixed-rate debt is carried at remaining principal due net
of the valuation adjustment for the change in fair value of the debt
obligation attributable to the hedged risk. This valuation adjustment as
of June 30, 2002, was $10.3 million.
Changes in the fair value of the interest rate swaps and the offsetting
changes in the carrying value of the hedged fixed-rate debt are recognized
in interest expense in the Company's consolidated statement of operations.
As of June 30, 2002, the Company had contracts maturing through August 2002
to purchase and sell the equivalent of $177.0 million of various currencies
to hedge foreign currency denominated loans to foreign subsidiaries. These
loans are of a long-term investment nature. Therefore, foreign currency
gains and losses on these loans are not included in the determination of net
income, but are reported in the same manner as translation adjustments.
Adjustments to the carrying value of the foreign currency forward contracts
offset the gains and losses on the underlying loans and are also recorded
as translation adjustments. The translation adjustment on these contracts
was a negative $6.6 million at June 30, 2002, and is included in equity
adjustment from foreign currency translation on the balance sheet.
14. Acquisitions
In October 2001, the Company acquired 26 percent of CAA which is based in
Filderstadt, Germany. The Company subsequently increased its ownership to
95 percent at June 30, 2002. CAA develops software platforms and provides
services to enable and facilitate system integration in customer service
functions. The Company recorded $20.1 million of goodwill at June 30, 2002
related to this acquisition.
The Company acquired the TEMIC speech recognition and processing business
from DaimlerChrysler in April 2002. This acquisition is expected to expand
the Company's infotainment systems' capabilities to include full-integrated
voice-activated solutions. At June 30, 2002, the Company recorded goodwill
in the amount of $30.4 million related to the TEMIC acquisition.
52
15. Earnings Per Share Information
<TABLE>
<CAPTION>
Years Ended June 30
(000s omitted except
per share amounts) 2002 2001 2000
------------------------------------------------------------------------------------------
Basic Diluted Basic Diluted Basic Diluted
-------- ------- ------- ------- ------- -------
<C> <S> <S> <S> <S> <S> <S>
Net income $ 57,513 57,513 32,364 32,364 72,838 72,838
-------- ------- ------- ------- ------- -------
Shares of Harman
common stock
outstanding 32,261 32,261 32,296 32,296 34,452 34,452
Employee stock
options -- 1,642 -- 1,441 -- 848
-------- ------- ------- ------- ------- -------
Total average
equivalent shares 32,261 33,903 32,296 33,737 34,452 35,300
-------- ------- ------- ------- ------- -------
Earnings per share $ 1.78 1.70 1.00 0.96 2.11 2.06
-------- ------- ------- ------- ------- -------
</TABLE>
Options to purchase 18,167, 12,419 and 25,500 shares of common stock at prices
ranging from $45.00 to $48.26 and $36.10 to $45.00 at June 30, 2002 and 2001,
respectively, and $26.63 at June 30, 2000, were not included in the computation
of diluted earnings per share because the options' exercise prices were greater
than the average market price of the share of common stock and, therefore, such
options would be anti-dilutive.
16. Quarterly Summary of Operations (unaudited)
The following is a summary of operations by quarter for fiscal 2002 and 2001:
Three months ended: ($000s omitted except per share amounts)
Fiscal 2002 SEPT 30 DEC 31 MAR 31 JUN 30
- -------------------------------------------------------------------------------
Net sales $ 399,009 467,432 458,310 501,437
Gross profit $ 103,721 127,438 123,482 145,230
Net income $ 5,031 11,730 14,648 26,104
EPS - basic * $ 0.16 0.37 .45 0.80
EPS - diluted * $ 0.15 0.35 .43 0.76
Fiscal 2001
Net sales $ 394,976 438,176 435,658 447,737
Gross profit $ 109,710 121,593 96,342 120,390
Net income $ 7,245 24,154 (18,392) 19,357
EPS - basic * $ 0.22 0.75 (0.57) 0.60
EPS - diluted * $ 0.21 0.72 (0.57) 0.58
Note: The quarter ended March 31, 2001, included special charges totaling
$36.3 million, or $0.76 per diluted share.
*Quarters do not add to full year due to changes in shares outstanding.
53
Shareholder Information
Harman International Industries, Incorporated and Subsidiaries
<TABLE>
<CAPTION>
Market Price Fiscal 2002 Fiscal 2001 Fiscal 2000
- ----------------------------------------------------------------------------------------------
High Low High Low High Low
<C> <S> <S> <S> <S> <S> <S>
First quarter ended September 30 $41.710 30.890 $41.375 30.250 $23.594 20.469
Second quarter ended December 31 46.270 31.230 48.000 32.300 28.063 18.375
Third quarter ended March 31 51.460 42.600 37.050 24.900 31.875 27.500
Fourth quarter ended June 30 60.650 48.950 39.730 24.800 34.250 28.000
</TABLE>
The Common Stock of the Company is listed on the New York Stock
Exchange and is reported on the New York Stock Exchange Composite
Tape under the symbol HAR. As of June 30, 2002, the Company's
Common Stock was held by approximately 184 record holders.
The table above sets forth the reported high and low sales prices at the
market close of the Company's Common Stock, as reported on the New York Stock
Exchange, for each quarterly period for fiscal years ended June
30, 2002, 2001, and 2000.
The Company paid dividends during fiscal years 2002, 2001 and 2000
of $.10 per share, with a dividend of $.025 per share paid in each of the four
quarters.
54
</TEXT>
</DOCUMENT>
</SEC-DOCUMENT>
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