UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the Quarterly Period Ended March 31, 1999
or
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the transition period from
____________________ to______________________.
Commission File Number: 0-22737
Advanced Communication Systems, Inc.
(Exact name of registrant as specified in its charter)
Delaware 54-1421222
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
10089 Lee Highway, Fairfax, Virginia 22030
(Address of principal executive office and zip code)
(703) 934-8130
Registrant's telephone number, including area code:
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 [ ]
As of the close of business on April 30, 1999, the registrant had outstanding
8,683,986 shares of Common Stock, par value $.01 per share.
<PAGE>
ADVANCED COMMUNICATION SYSTEMS, INC.
QUARTERLY REPORT ON FORM 10-Q
INDEX
PAGE
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets as of March 31, 1999
and September 30, 1998 3
Condensed Consolidated Statements of Operations for the Three
Months and Six Months Ended March 31, 1999 and 1998 4
Condensed Consolidated Statements of Cash Flows for the Six
Months Ended March 31, 1999 and 1998 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition 7
and Results of Operations
Item 3. Quantitative and Qualitative Disclosures About Market Risk 14
PART II.OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders 14
Item 6. Exhibits and Reports on Form 8-K 15
<PAGE>
ADVANCED COMMUNICATION SYSTEMS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share data)
(Unaudited)
March 31 September 30
1999 1998
-------- ---------
ASSETS
Current assets:
Cash and cash equivalents...................... $751 $2,457
Contract receivables........................... 65,143 54,059
Other receivables.............................. 268 286
Prepaid expenses............................... 1,751 958
Inventories.................................... 790 583
-------- --------
Total current assets........................ 68,703 58,343
-------- --------
Property and equipment, net.................... 8,226 8,044
Other assets:
Other related party receivables................ 87 88
Software development costs, net................ 3,848 3,186
Intangibles, net (principally goodwill)........ 54,182 49,726
Other non-current assets....................... 442 348
-------- --------
Total other assets.......................... 58,559 53,348
-------- --------
Total assets............................. $135,488 $119,735
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt.............. $93 $87
Obligations under capital lease................ 696 1,100
Accounts payable............................... 4,775 9,577
Accrued expenses and other current liabilities. 25,586 22,772
Billings in excess of revenue.................. 1,328 1,208
Income taxes payable........................... 1,346 1,104
Deferred income tax liability.................. 1,389 1,059
-------- --------
Total current liabilities................... 35,213 36,907
Obligations under capital lease - long-term.... 52 523
Deferred income tax liability - long-term...... 1,520 858
Long-term debt................................. 50,141 36,564
-------- --------
Total liabilities........................... 86,926 74,852
Stockholders' equity:
Preferred stock, $.01 par value, 1,000,000
shares authorized, no shares issued
and outstanding.............................. - -
Common stock, $.01 par value, 40,000,000 shares
authorized,11,450,000 shares issued at
March 31, 1999 and September 30, 1998........ 115 115
Paid-in-capital................................ 41,843 41,105
Retained earnings.............................. 6,921 3,991
Less - Treasury stock, 2,766,014 shares at
March 31, 1999 and 2,854,887 shares at
September 30, 1998........................... (317) (328)
-------- --------
Total stockholders' equity.................. 48,562 44,883
-------- --------
Total liabilities and stockholders' equity. $135,488 $119,735
========= ========
The accompanying notes are an integral part of these condensed consolidated
financial statements.
<PAGE>
ADVANCED COMMUNICATION SYSTEMS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
March 31 March 31
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues......................................... $51,312 $18,380 $98,836 $32,550
Direct costs..................................... 34,057 11,859 66,252 20,990
Indirect, general and
administrative expenses......................... 13,451 4,888 25,824 8,821
-------- -------- -------- --------
Income from operations........................... 3,804 1,633 6,760 2,739
Interest expense, net............................ (1,092) (285) (1,939) (363)
-------- -------- -------- --------
Income before taxes.............................. 2,712 1,348 4,821 2,376
Income tax expense............................... 1,065 505 1,901 879
-------- -------- -------- --------
Net income....................................... $1,647 $843 $2,920 $1,497
======== ======== ======== ========
Net income per share - basic..................... $0.19 $0.13 $0.34 $0.23
======== ======== ======== ========
Net income per share - diluted................... $0.19 $0.13 $0.33 $0.23
======== ======== ======== ========
Weighted average shares outstanding - basic...... 8,669 6,524 8,644 6,438
======== ======== ======== ========
Weighted average shares outstanding - diluted.... 8,831 6,636 8,758 6,558
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these condensed
consolidated financial statements.
<PAGE>
ADVANCED COMMUNICATION SYSTEMS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(Unaudited)
Six Months Ended
March 31
1999 1998
------ ------
Cash flow from operating activities:
Net income............................................. $2,920 $1,497
Adjustments to reconcile net income to net cash used
in operating activities-
Depreciation and amortization........................ 1,771 549
Deferred tax provision............................... 992 147
Changes in assets and liabilities:
Contract receivables............................. (11,084) (2,249)
Other receivables................................ 18 (406)
Prepaid expenses................................. (793) (94)
Inventories...................................... (207) (133)
Other related party receivables.................. 1 (66)
Other assets..................................... (94) (27)
Accounts payable................................. (4,802) (2,083)
Accrued expenses and other current liabilities... 2,814 (1,010)
Billings in excess of revenue.................... 120 20
Income taxes payable............................. 348 579
--------- ---------
Net cash used in operating activities.......... (7,996) (3,276)
Cash flows from investing activities:
Acquisitions, net of cash acquired..................... - (19,748)
Purchases of property and equipment.................... (1,214) (765)
Capitalized software development costs................. (662) (686)
Increase in intangible assets, primarily acquisition
earnouts............................................. (5,185) (101)
--------- ---------
Net cash used in investing activities.......... (7,061) (21,300)
--------- ---------
Cash flows from financing activities:
Net costs incurred in sale of common stock............. (5) (13)
Net borrowings repaid.................................. (17) (866)
Net borrowings under line of credit.................... 13,600 23,261
Net repayments of obligations under capital leases..... (875) -
Sale of treasury stock................................. 648 252
--------- ---------
Net cash provided by financing activities...... 13,351 22,634
--------- ---------
Net decrease in cash................................... (1,706) (1,942)
Cash and cash equivalents, beginning of period......... 2,457 2,744
--------- ---------
Cash and cash equivalents, end of period............... $751 $802
========= =========
Income taxes paid...................................... $556 $155
========= =========
Interest paid.......................................... $2,027 $352
========= =========
The accompanying notes are an integral part of these condensed
consolidated financial statements.
<PAGE>
ADVANCED COMMUNICATION SYSTEMS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 1999
(Unaudited)
1. Basis of Presentation
The accompanying condensed consolidated balance sheet as of March 31, 1999 and
the statements of operations and cash flows for all periods presented have been
prepared by Advanced Communication Systems, Inc. ("the Company"), and have not
been audited. These financial statements, in the opinion of management, include
all adjustments, consisting of normal recurring adjustments, necessary for a
fair presentation of the financial position, results of operations and cash
flows for all periods presented. These condensed consolidated financial
statements should be read in conjunction with the financial statements and notes
thereto for the fiscal year ended September 30, 1998 included in the Company's
Annual Report on Form 10-K. Interim operating results are not necessarily
indicative of operating results for the full year.
2. Management's 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 reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
3. Acquisition
In June 1998, the Company acquired all the outstanding shares of SEMCOR, Inc.
("SEMCOR") for a preliminary purchase price of $38.1 million in cash and
additional contingent payments, up to a maximum of $5.0 million for the
six-month period ended December 31, 1998, and up to a maximum of $10.0 million
for the twelve-month period ending December 31, 1999, based on the achievement
of certain financial goals. SEMCOR successfully achieved the financial goals for
the six-month period ended December 31, 1998 as outlined in the stock purchase
agreement, and accordingly the selling shareholders were paid the maximum of
$5.0 million in February 1999. Such amount is being carried as intangible assets
(goodwill).
4. Long-Term Debt
Notes payable and line of credit consist of the following:
<TABLE>
<CAPTION>
March 31, September 30,
1999 1998
----------- -----------
(Unaudited)
<S> <C> <C>
Line of credit:
$60,000,000 line of credit with a commercial bank ($45,000,000
at September 30, 1998) expiring February 28, 2002.................... $48,600 $35,000
Notes payable:
Note payable to bank, interest at 9.9%, due February
2005, secured by a First Deed of Trust on an office building......... 957 964
Note payable to Urban Business Development Corporation, interest
at 8.575%, due January 2015, guaranteed by the Small
Business Administration and secured by a Second Deed of Trust
on an office building................................................ 677 687
----------- ------------
50,234 36,651
Less current maturities............................................... 93 87
----------- ------------
$50,141 $36,564
=========== ============
</TABLE>
As discussed in Item 2 below, the Company's line of credit arrangement with a
commercial bank, consisting of two credit facilities, was increased in February
1999 from $50 million to $60 million. The first facility, in an amount up to $30
million, may be used to finance acquisitions, working capital, and other
corporate purposes, and bears interest at either the bank's prime rate or at a
London interbank offered rate ("LIBOR") for one, two or three month periods,
plus a percentage, not more than 2.2%, which depends on the Company's
historical performance. The second facility, in an amount up to $30 million, may
be used to finance acquisitions and for other corporate purposes approved by the
lender, and bears interest at either the bank's prime rate or at a LIBOR rate
plus a percentage, not more than 2.45%, which depends on the Company's
historical financial performance. Each facility expires on February 28, 2002.
The credit agreement contains various covenants requiring the Company and its
subsidiaries, on a consolidated basis, to maintain certain financial ratios,
including debt to cash flow, fixed charge coverage and minimum net worth. The
credit agreement also prohibits the payment of dividends.
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following Management's Discussion and Analysis of Financial Condition and
Results of Operations contains forward-looking statements based on management's
current expectations, estimates and projections about the Company's industry,
management's beliefs and certain assumptions made by management. These
forward-looking statements involve risks and uncertainties, and actual results
may differ materially from those anticipated or expressed in such statements.
Potential risks and uncertainties include, among others, those set forth herein
and in the Company's annual report on Form 10-K, as filed with the Securities
and Exchange Commission. Except as required by law, the Company undertakes no
obligation to update any forward-looking statement, whether as a result of new
information, future events or otherwise.
Overview
The Company provides communications, information systems and applied technology
services and solutions, predominately to U.S. government agencies and to a
lesser extent commercial and international customers. The Company's two
significant U.S. Navy communication services contracts and programs accounted
for 18.0% of the revenues for the six-month period ended March 31, 1999.
Although the Company intends to expand its commercial and international sales, a
relatively small number of contracts are likely to continue to account for a
significant portion of the Company's future revenues.
Many of the Company's contracts are funded from year to year, based primarily on
the procuring agency's fiscal requirements. There can be no assurance that
Congress will appropriate funds or that procuring agencies will commit funds to
the Company's contracts for their anticipated terms. The Company's business,
financial condition and results of operations could be materially affected by
changes in procurement policies, a reduction in funds available for the services
provided by it and other risks generally associated with federal government
contracts.
The Company's contracts with the government and its subcontracts with government
prime contractors are subject to termination for the convenience of the
government; termination, reduction or modification in the event of change in the
government's requirements or budgetary constraints; and, when it participates as
a subcontractor, termination for the failure or inability of the prime
contractor to perform its prime contract. In addition, most of the Company's
government contracts have a base term of one year and a number of option years,
and there can be no assurance that the government will extend a contract through
its option years. Termination of any of the Company's large government
contracts, or failure of the government to extend such contracts, could have a
material adverse effect on the Company's business, financial condition and
results of operations.
Many of the Company's large contracts require the Company to supply services
upon request, and the Company receives no payments under these contracts until
such services are requested and performed. There can be no assurance that
cancellations or scope adjustments of these contracts might not occur or that
the Company's services under these contracts will be requested at the
anticipated levels in the future.
Results of Operations
The following table sets forth certain statement of operations data as a
percentage of revenues for the periods indicated:
<TABLE>
<CAPTION>
Three Months Six Months
Ended March 31, Ended March 31,
------------------------- --------------------------
1999 1998 1999 1998
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Revenues.............................. 100.0% 100.0% 100.0% 100.0%
Direct costs.......................... 66.4 64.5 67.0 64.5
Indirect, general and administrative.. 26.2 26.6 26.1 27.1
---------- ---------- ---------- ----------
Income from operations................ 7.4 8.9 6.9 8.4
Interest expense, net................. (2.1) (1.6) (2.0) (1.1)
---------- ---------- ------------ ------------
Income before taxes................... 5.3 7.3 4.9 7.3
Provision for income taxes............ 2.1 2.7 1.9 2.7
---------- ---------- ------------ ------------
Net income............................ 3.2% 4.6% 3.0% 4.6%
========== ========== ============ ============
</TABLE>
Three Months Ended March 31, 1999 Compared to Three Months Ended March 31, 1998
Revenues increased 179.2%, or $32.9 million, to $51.3 million for the three
months ended March 31, 1999, from $18.4 million for the same period in 1998. The
increase was principally due to an increase in revenues resulting from the
Company's acquisition of SEMCOR and an increase in systems integration and
communication services revenues, partially offset by a decrease in information
technology services revenues from federal agency information technology
customers.
Direct costs include labor costs, related fringe benefits, subcontract costs,
material costs and other non-overhead costs directly related to a contract.
Direct costs increased to $34.1 million for the three months ended March 31,
1999 from $11.9 million for the same period in 1998 due primarily to increased
revenues from the acquisition of SEMCOR. Direct costs, expressed as a percentage
of revenues, increased to 66.4% for the three months ended March 31, 1999 from
64.5% for the same period in 1998, primarily due to an increase in the
proportion of revenues resulting from systems integration services. These
services have higher direct costs than the other services the Company provides
because the contracts generally require the Company to purchase hardware
components as part of the services.
Indirect, general and administrative expenses include fringe benefits, overhead,
selling and administrative costs, depreciation and amortization, bid and
proposal costs and research and development expenses. Indirect expenses
increased to $13.5 million for the three months ended March 31, 1999, from $4.9
million for the same period in 1998. The increase was due primarily to the
higher level of revenues discussed above. Indirect expenses, expressed as a
percentage of revenues, decreased to 26.2% from 26.6% for the three months ended
March 31, 1999 and 1998 respectively, due to the higher proportion of systems
integration revenues, which typically have lower associated indirect expenses,
partially offest by an increase in the amortization of intangible assets,
principally goodwill, resulting from the acquisition of SEMCOR.
Income from operations increased 132.9%, to $3.8 million for the three months
ended March 31, 1999, from $1.6 million for the same period in 1998, primarily
due to increased communication systems revenues and applied technology services
revenues from the acquisition of SEMCOR and an increase in systems integration
revenues. As a percentage of revenues, income from operations decreased to 7.4%
for the three months ended March 31, 1999, from 8.9% for the comparable period
in the prior year, principally attributable to the traditionally lower operating
margins experienced by SEMCOR, the lower margins from federal agency information
technology customers and from the amortization of intangible assets resulting
from the Company's acquisitions.
Interest expense, net, consists of interest expense resulting from the debt
incurred to fund the Company's acquisitions, offset in part by interest income
from short-term deposits of cash and other sources of non-operating income.
Interest expense was $1.1 million and $289,000 for the three-month periods ended
March 31, 1999 and 1998, respectively. Interest and other non-operating income
was $51,000 and $4,000 for the three months ended March 31, 1999 and 1998,
respectively.
The Company's effective income tax rate was 39.3% and 37.5% for the three months
ended March 31, 1999 and 1998, respectively. This increase was primarily due to
higher effective state tax rates.
Six Months Ended March 31, 1999 Compared to Six Months Ended March 31, 1998
Revenues increased 203.6%, or $66.3 million, to $98.8 million for the six months
ended March 31, 1999, from $32.6 million for the same period in 1998. The
increase was principally due to an increase in revenues resulting from the
Company's acquisition of SEMCOR, and an increase in systems integration and
communication services revenues, partially offset by a decrease in information
technology services from federal agency information technology customers.
Direct costs increased to $66.3 million for the six months ended March 31, 1999,
from $21.0 million for the same period in 1998 due primarily to increased
revenues from the Company's acquisition of SEMCOR. Direct costs, expressed as a
percentage of revenues, increased to 67.0% for the six months ended March 31,
1999, from 64.5% for the same period in 1998, primarily due to an increase in
the proportion of revenues derived from systems integration services. These
services have higher direct costs than other services the Company provides
because the contracts generally require the Company to purchase hardware
components as part of the services.
Indirect expenses increased to $25.8 million for the six months ended March 31,
1999 from $8.8 million for the same period in 1998. The increase was due
primarily to the higher level of revenues discussed above. Indirect expenses,
expressed as a percentage of revenues, decreased to 26.1% for the six months
ended March 31, 1999, from 27.1% for the comparable period last year, due to the
higher proportion of systems integration revenues, that typically have lower
associated indirect expenses, partially offset by an increase in the
amortization of intangible assets, principally goodwill, resulting from the
acquisition of SEMCOR.
Income from operations increased 146.8%, to $6.8 million for the six months
ended March 31, 1999, from $2.7 million for the same period in 1998, primarily
due to increased operating results from communication systems and applied
technology revenues from the acquisition of SEMCOR and from the increase in
systems integration operating results. As a percentage of revenues, income from
operations decreased to 6.9% for the six months ended March 31, 1999, from 8.4%
for the comparable period in the prior year, principally attributable to the
traditionally lower operating margins experienced by SEMCOR, the lower margins
from federal agency information technology customers and from the amortization
of intangible assets resulting from the Company's acquisitions.
Interest expense, net, consists of interest expense resulting from the debt
incurred to fund the Company's acquisitions, offset in part by interest income
from short-term deposits of cash and other sources of non-operating income.
Interest expense was $2.0 million and $378,000 for the six-month periods ended
March 31, 1999 and 1998, respectively. Interest and other sources of
non-operating income was $89,000 and $15,000 for the six months ended March 31,
1999 and 1998, respectively.
The Company's effective tax rate was 39.4% and 37.0% for the six months ended
March 31, 1999 and 1998, respectively. This increase was primarily due to higher
effective state income tax rates.
Liquidity and Capital Resources
The Company used cash from operating activities of $8.0 million for the six
months ended March 31, 1999, resulting primarily from net income, increases in
contract receivables and decreases in accounts payable, partially offset by an
increase in accrued expenses. The increase in contract receivables was due to an
increase in revenues recognized for the period. Included in contract receivables
at March 31, 1999, is a contractual obligation of the Australian Navy in the
amount of $1.7 million. The Australian Navy is contesting this obligation and
the Company continues to vigorously pursue all available remedies to enforce
payment of such amount. For the six months ended March 31, 1998, the Company
used cash from operating activities of $3.3 million resulting primarily from net
income, increases in contract receivables and decreases in accounts payable and
accrued expenses.
The principal use of cash for investing activities has been for the purchases of
computers and equipment, the investment in software development costs and for an
earnout payment of $5.0 million to the former shareholders of SEMCOR based on
SEMCOR's achievement of certain financial goals for the six-month period ended
December 31, 1998. The purchases of computers and equipment totaled $1.2 million
and $765,000 for the six-month period ended March 31, 1999 and 1998,
respectively. Further the Company invested $662,000 and $686,000 in software
development costs in the six months ended March 31, 1999 and 1998, respectively.
During the six-month period ended March 31, 1998, the Company used cash from
investing activities for the acquisition of Advanced Management, Incorporated
for $19.7 million.
In February 1999, the Company's line of credit arrangement with a
commercial bank, consisting of two credit facilities, was increased from $50
million to $60 million. The first facility, in an amount up to $30 million, may
be used to finance acquisitions, working capital, and other corporate purposes,
and bears interest at either the bank's prime rate or at LIBOR for one, two or
three month periods, plus a percentage, not more than 2.2%, which depends on the
Company's historical performance. The second facility, in an amount up to $30
million, may be used to finance acquisitions and for other corporate purposes
approved by the lender, and bears interest at either the bank's prime rate or at
a LIBOR rate plus a percentage, not more than 2.45%, which depends on the
Company's historical financial performance. Each facility expires on February
28, 2002. The credit agreement contains various covenants requiring the Company
and its subsidiaries, on a consolidated basis, to maintain certain financial
ratios, including debt to cash flow, fixed charge coverage and minimum net
worth. The credit agreement also prohibits the payment of dividends. As of March
31, 1999 the outstanding balance on the Company's credit facilities was $48.6
million.
The Company currently anticipates that its current cash balances, amounts
available under its credit facilities and net cash provided by operating
activities will be sufficient to meet its working capital and capital
expenditure requirements for at least the next twelve months. Inflation did not
have a material impact on the Company's revenues or income from operations for
the six months ended March 31, 1999 or 1998.
YEAR 2000 Disclosure
Overview
As is true for most companies, the Year 2000 computer problem creates a risk for
the Company. If systems do not correctly recognize the date information when the
year changes to 2000, there could be an adverse impact on the Company's
operations. The risk exists primarily in four areas; the Company's internal
systems, third parties with which the Company has a material relationship,
Company products and Company Year 2000 services. In response to the Year 2000
problem and the associated risks, the Company has developed a comprehensive
compliance program to evaluate, address and remedy the date related problems
with respect to the Company's internal systems, third party relationships,
Company products and services. The compliance program is managed by the
Company's Chief Technical Officer, and is tailored after the guidance
promulgated by the General Accounting Office ("GAO") in their publication, "Year
2000 Computing Crisis: An Assessment Guide" and by the Department of the Navy
Year 2000 Action Plan. The Company has adopted the following five-phase approach
that was endorsed by the GAO and recognized by the U.S. Congress:
Awareness Phase. The Company's management is familiarized with the scope of the
Year 2000 impact, the problem is defined, compliance standards are established
and an overall strategy is developed. A Year 2000 program team is formed to
organize and implement the Company's Year 2000 compliance program.
Assessment Phase. The Year 2000 team determines the impact on the Company's
systems, tools, products and contracts. The team creates an inventory and
evaluation of systems that support the core business sectors. Third party
service providers are contacted concerning their compliance with the Year 2000
problem with regard to the products and services they provide. The team then
prioritizes the conversion or replacement of existing systems that are confirmed
to be Year 2000 non-compliant.
Renovation Phase. The Year 2000 program team rectifies the problems discovered
in the assessment phase by modifying or replacing systems that are Year 2000
non-compliant.
Validation Phase. The renovated or replaced systems, applications and databases
are tested and certified as Year 2000 compliant.
Implementation Phase. The renovated or replaced systems are fully implemented
and extensive testing is performed to insure coordination with other systems and
databases. Backup and recovery plans are put in place.
The Company anticipates that it will have all internal mission critical Year
2000 solutions in place by July 1, 1999. Internal mission critical solutions
include local and wide area networks, financial systems and embedded
micro-controllers within facility, security, telephone and other systems.
The Company is also confirming that Company vendors and suppliers of essential
hardware, software and services are Year 2000 compliant.
The Company is assessing the status of its products and Year 2000-related
services. The Company also performs Year 2000-related services for both
government and industry and is assessing the potential risk to the Company of
performing these services and is taking action to mitigate these risks as they
are identified.
Cost for Year 2000 Compliance
The Company has budgeted $550,000 for Year 2000 compliance. To date, the Company
has spent approximately $239,000.
Year 2000 Risks
The Company believes that its Year 2000 compliance plan is a comprehensive one.
The Company, however, may not be able to identify or remedy all Year 2000
compliance issues with respect to its internal systems, suppliers, customers,
products and services. Company customers may choose to fund Year 2000 compliance
efforts in lieu of contracting services to the Company. As a result, the Year
2000 problem could have a materially adverse effect on the Company's financial
condition or results of operations.
Contingency Plans
The Company currently is developing contingency plans. The Company will continue
to develop contingency plans as required to mitigate the effects of delays, if
any, in internal systems compliance, third party business interruption,
non-compliant Company products and risks associated with providing Year
2000-related services.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
Not applicable.
PART II - OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security Holders
(a) The Company held its Annual Meeting of Stockholders on February 25, 1999.
(b) The matters voted upon at the meeting and the votes cast with respect
thereto were as follows:
(1) Election of Directors
Votes Votes
Nominee for Director Cast For Withheld
------------------------ ----------------- ----------------
George A. Robinson.... 7,434,989 16,395
Charles G. Martinache.. 7,395,289 56,095
Thomas A. Costello..... 7,435,189 16,195
Wayne Shelton.......... 7,433,789 17,595
Charles R. Collins...... 7,432,839 18,545
Vincent G. Vidas........ 7,433,989 17,395
(2) The amendment to the Company's 1997 Stock Incentive Plan that
provides for automatic increases in the number of shares
reserved for issuance thereunder by the lesser (i) of 2% of
the total number of shares of the Company's common stock
issued and outstanding on the last trading day of the
preceding December or (ii) 400,000 shares was approved with
3,988,470 votes in favor, 787,457 votes against and 28,977
abstentions.
(3) The Company's Employee Stock Purchase Plan was approved with
4,681,335 votes in favor, 100,305 votes against and 23,264
abstentions.
(4) The ratification of the appointment of Arthur Andersen LLP as
the Company's independent accountants for the current fiscal
year ending September 30, 1999 was ratified with 7,430,450
votes in favor, 10,840 votes against and 10,094 abstentions.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibit 10.1 Amended and Restated Credit Agreement, dated as
of February 3, 1999, between the Company and NationsBank, N.A.
Exhibit 11.1 Statement Regarding Computation of Per Share
Earnings
Exhibit 27.1 Financial Data Schedule
(b) Reports on Form-8K -None
<PAGE>
SIGNATURES
Pursuant to the requirements 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.
Date: May 14, 1999 ADVANCED COMMUNICATION SYSTEMS, INC.
/S/ George A. Robinson
---------------------------------------
George A. Robinson
Chairman, President
and Chief Executive Officer
/S/ Dev Ganesan
---------------------------------------
Dev Ganesan
Executive Vice President, Chief
Financial Officer and Treasurer
Exhibit 10.1
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of February 3, 1999, among:
(a) ADVANCED COMMUNICATION SYSTEMS, INC., ADVANCED MANAGEMENT, INC., INTEGRATED
SYSTEMS CONTROL, INC., RF MICROSYSTEMS, INC. and SEMCOR, INC. (together with any
other Person that has become a borrower hereto as provided herein, collectively,
the "Borrowers" and individually, each a "Borrower");
(b) the banks and other financial institutions from time to time parties to this
Agreement (the "Lenders"); and
(c) NATIONSBANK, N.A., as agent (in such capacity, the "Agent") for the Lenders
hereunder.
WITNESSETH:
WHEREAS, the Borrowers, the Lenders and the Agent are parties
to the Credit Agreement dated as of February 17, 1998 (as amended, supplemented
or otherwise modified from time to time prior to the date hereof, the "Existing
Credit Agreement");
WHEREAS, the Borrowers have requested that the Existing Credit
Agreement be amended and restated in its entirety and the Lenders have agreed
(subject to the terms of this Agreement) to amend and restate the Existing
Credit Agreement in its entirety to read as set forth in this Agreement, it
being the intention of the parties hereto that any loans and extensions of
credit under the Existing Credit Agreement shall not be deemed repaid or
canceled hereby, but shall be deemed to be continued as loans and extensions of
credit hereunder;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, 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:
"Acquired Business": any Person, or a business unit or other asset group of a
Person, that has been acquired by ACS Inc. or its Subsidiaries in a manner
permitted hereunder. "Additional Borrower": as defined in subsection 7.12(c).
"ACS Inc." Advanced Communication Systems, Inc., a Delaware corporation of which
each other Borrower is directly or indirectly a wholly owned Subsidiary.
"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 5% 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.
"Agent": as defined in the preamble to this Agreement.
"Aggregate Outstanding Extensions of Credit": as to any Lender, at any time, its
Facility A Aggregate Extensions of Credit and/or its Facility B Aggregate
Extensions of Credit, as the context may require.
"Agreement": this Amended and Restated Credit Agreement, as amended,
supplemented or otherwise modified from time to time. "AMI": Advanced
Management, Inc., a Virginia corporation.
"AMI Stock Purchase Agreement": the Stock Purchase Agreement between ACS Inc.
and John Lin, effective as of January 31, 1998
"Applicable Margin": for each Type of Loan outstanding under each Facility, the
rate per annum set forth below opposite the quarterly ratio of Borrowers'
(a) Debt to (b) EBITDA: for Facility A:
Debt/EBITDA Prime Eurodollar
> 3.50 0% 2.20%
< 3.50 but >2.50 0% 2.00%
-
< 2.50 but >2.00 0% 1.65%
-
< 2.00 0% 1.25%
-
for Facility B and Swing Line Facility:
Debt/EBITDA Prime Eurodollar
> 3.50 0% 2.45%
< 3.50 > 2.50 0% 2.25%
-
< 2.50 > 2.00 0% 1.90%
-
< 2.00 0% 1.50%
-
The Applicable Margin shall, in each case, be determined and adjusted quarterly
on the date that is the first (1st) Business Day of the month immediately
following the date by which the Borrowers' are required to provide quarterly
financial information in accordance with the provisions of subsection 7.1(b)
(each, an "Interest Determination Date") provided that in the event that the
financial statements required to be delivered pursuant to subsection 7.1(b) and
the related certificates required pursuant to 7.2 (b) are not delivered when
due, then, during the period from the date upon which such financial statements
are required to be delivered until one (1) Business Day following the date upon
which they actually are delivered, the highest rate shall be determined to be in
effect for the purposes of determining Applicable Margins during such period.
Such Applicable Margins shall be effective from such Interest Determination Date
until the next such Interest Determination Date. Notwithstanding the foregoing,
the initial Applicable Margin shall be determined as if the ratio of the
Borrowers' (a) Debt to (b) EBITDA is greater than 3.50. "Application": an
application, in such form as the relevant Issuing Bank may specify from time to
time, requesting such Issuing Bank
to open a Letter of Credit.
"Assignee": as defined in subsection 11.8(c).
"Available Facility A Commitment": as to any Lender at any time, an amount equal
to the excess, if any, of (a) the lesser of (i) Facility A Commitment and (ii)
the Lender's Facility A Commitment Percentage of the Loan Value minus (b) the
Facility A Aggregate Outstanding Extensions of Credit of such Lender. "Available
Facility B Commitment": as to any Lender at any time, an amount equal to the
excess, if any, of the Facility B Commitment
minus the Facility B Aggregate Outstanding Extensions of Credit of such Lender.
"Bank Default": means (i) the refusal (which has not been retracted) of a Lender
(other than a Swing Line Lender) to make available an amount equal to its
Lender's Commitment Percentage of any borrowing or its Lender's Commitment
Percentage of any L/C Participation or (ii) a Lender (other than a Swing Line
Lender) having notified the Agent and/or the Borrowers that such Lender (other
than a Swing Line Lender) does not intend to comply with the obligations under
subsections 2.1(a) or 2.1(b), in the case of either (i) or (ii) above including
as a result of the appointment of a receiver or conservator with respect to such
Lender at the direction or request of any regulatory agency or authority.
"Borrowing Base Certificate": a certificate in form and substance similar to the
form of Exhibit E hereto, duly completed and certified by a Responsible Officer
of ACS Inc.
"Business": as defined in subsection 5.16(a).
"Business Day": a day other than a Saturday, Sunday or other day on which
commercial banks in Charlotte, North Carolina are authorized or required by law
to close; provided that, with respect to matters relating to Eurodollar Loans,
the term "Business Day" shall mean a day other than a Saturday, Sunday or other
day on which commercial banks in London, England are authorized or required by
law to close. "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 (1) year or
less from the date of acquisition issued or fully guaranteed
or insured by the United States Government or any agency thereof, (b)
certificates of deposit and eurodollar time deposits with maturities of one (1)
year or less from the date of acquisition and overnight bank deposits of any
Lender or of any commercial bank having capital and surplus in excess of
$500,000,000, (c) repurchase obligations of any Lender or of any commercial bank
or investment bank satisfying the requirements of clause (b) of this definition,
having a term of not more than thirty (30) days with respect to securities
issued or fully guaranteed or insured by the United States Government or any
agency thereof, (d) commercial paper issued in the United States which is rated
at least A-2 by S&P or P-2 by Moody's, (e) securities with maturities of one (1)
year or less from the date of acquisition issued or fully guaranteed by any
state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or
by any foreign government, the securities of which state, commonwealth,
territory, political subdivision, taxing authority or foreign government are
rated at least A by S&P or A by Moody's, (f) securities with maturities of one
(1) year or less from the date of acquisition backed by standby letters of
credit issued by any Lender or any commercial bank satisfying the requirements
of clause (b) of this definition or (g) shares of money market mutual or similar
funds which invest substantially exclusively in assets satisfying the
requirements of clauses (a) through (f) of this definition. "Change in Control":
(a) the failure of ACS Inc. to continue to own, directly or indirectly, free and
clear of all Liens except for Liens in favor of the Agent, one hundred percent
(100%) of the Capital Stock of
the Subsidiaries or (b) (i) any Person shall have acquired beneficial ownership
of twenty percent (20%) or more of any outstanding Capital Stock having ordinary
voting power in the election of directors of ACS Inc. or (ii) the Board of
Directors of ACS Inc. shall not consist of a majority of Continuing Directors.
"Closing Date": the date on which the conditions precedent set forth in
subsection 6.1 shall be satisfied but in any event no later
than February 3, 1999.
"Code": the Internal Revenue Code of 1986, as amended from time to time.
"Collateral": all assets of the Loan Parties (including but not limited to the
following tangible and intangible assets of each Borrower and any of its
Subsidiaries: accounts receivable, chattel paper, inventory, fixed assets,
equipment, investments and general intangibles), now owned or hereinafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Commercial Letter of Credit": as defined in subsection 3.1(b)(i)(B).
"Commitment": as to any Lender, its Facility A Commitment, its Facility B
Commitment or its Swing Line Commitment, as the context shall require;
collectively the "Commitments". "Commitment Fee": with respect to the
Commitments, for any period, a fee equal to the result of (a) the average daily
amount of the Commitments during such period less the average daily balance of
the Aggregate Outstanding Extensions of Credit for all Lenders during such
period, multiplied by (b) the applicable per annum rate set forth below opposite
from the ratio of the Borrowers' (a) Debt to (b) EBITDA, provided that in the
event that the financial statements required to be delivered pursuant to
subsection 7.1 and the related certificates required pursuant to subsection 8.2
are not delivered when due, then, during the period from the date upon which
such financial statements were required to be delivered until (1) Business Day
following the date upon which they actually are delivered, the highest fee shall
be determined to be in effect for the purposes of determining the Commitment Fee
during such period: Debt/EBITDA Commitment Fee
>3.50 0.35%
<= 3.50 but > 2.50 0.30%
<= 2.50 but > 2.00 0.25%
<= 2.00 0.20%
"Commitment Percentage": as to any Lender at any time, its Facility A Commitment
Percentage or its Facility B Commitment Percentage, as the context shall
require. "Commitment Period": the Facility A Commitment Period, the Swing Line
Commitment Period or the Facility B Commitment Period, as the
context shall require.
"Commonly Controlled Entity": an entity, whether or not incorporated, which is
under common control with any Borrower within the meaning of Section 4001 of
ERISA or is part of a group which includes any Borrower and which is treated as
a single employer under Section 414 of the Code. "Consolidated Charges": for any
fiscal period, the sum of the following, determined on a consolidated basis in
accordance with GAAP:
(a) the amount of interest expense, both expensed and capitalized, for such
period on the aggregate principal amount of the consolidated Indebtedness of ACS
Inc. and its Subsidiaries owed with respect to such Indebtedness during such
period plus (b) the amount of scheduled principal payments of Indebtedness of
such ACS Inc. and its Subsidiaries for such period plus (c) the amount of the
Facility B Aggregate Amount of Outstanding Extensions of Credit for such period
divided by six plus (d) the aggregate amount of cash dividends, payments or
distributions made with respect to the Capital Stock of ACS Inc. and its
Subsidiaries. "Consolidated Lease and Rental Expense": for any fiscal period,
the aggregate amount of fixed and contingent rentals payable by ACS Inc. and its
Subsidiaries with respect to leases of real property and operating leases of
personal property, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income" or "Consolidated Net Loss": for any fiscal period, the
amount which, in conformity with GAAP, would be set forth opposite the caption
"net income" (or any like caption) or "net loss" (or any like caption), as the
case may be, on a consolidated statement of earnings of ACS Inc. and its
Subsidiaries for such fiscal period.
"Consolidated Net Worth": for any fiscal period, the sum of (a) Capital Stock
and additional paid-in capital plus (b) retained earnings (or minus accumulated
deficits) of ACS Inc. and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Continuing Directors": the directors of ACS Inc. on the date hereof and each
other director, if such director's nomination for election to the Board of
Directors is recommended by a majority of the then Continuing Directors.
"Contractual Obligation": as to any Person, any provision of any security issued
by such Person or of any agreement, instrument or other undertaking to which
such Person is a party or by which it or any of its property is bound.
"Debt": of any Person, at any date, without duplication, (a) all indebtedness of
such Person for borrowed money, (b) the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (c) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar instrument, (d) aggregate outstanding Deferred Purchase Consideration,
provided that, for any fiscal period, only seventy-five percent (75%) of
deferred purchase price of property or services with respect to AMI for such
period shall be included in the calculation of Debt, if as of September 30, 1998
and/or the last day of any fiscal quarter thereafter, the EBITDA of AMI would on
an annualized pro forma basis equal the Initial Earn Out Period EBITDA (as
defined in the AMI Stock Purchase Agreement) or the Second Earn Out Period
EBITDA (as defined in the AMI Stock Purchase Agreement) then one hundred percent
(100%) of the deferred purchase price of property or services with respect to
AMI for each such period thereafter shall be included in the calculation of
Debt, and provided further that, for any fiscal period, only seventy-five
percent (75%) of deferred purchase price of property or services with respect to
SEMCOR for such period shall be included in the calculation of Debt, if as of
March 31, 1999 and/or the last day of any fiscal quarter thereafter, the EBITDA
of SEMCOR would on an annualized pro forma basis equal EBITDA as of the Initial
Earn Out Period (as defined in the SEMCOR Stock Purchase Agreement) or EBITDA as
of the Second Earn Out Period (as defined in the SEMCOR Stock Purchase
Agreement) then one hundred percent (100%) of the deferred purchase price of
property or services with respect to SEMCOR for each such period thereafter
shall be included in the calculation of Debt(e) all Indebtedness of the types
referred to in clauses (a) through (c) above which is guaranteed directly or
indirectly by such Person. "Default": any of the events specified in Section 9,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied. "Defaulting Lender": any
Lender with respect to which a Bank Default is in effect.
"Deferred Purchase Consideration": with respect to the Acquisition of any
Acquired Business, the amount contractually agreed by any Borrower or one of its
Subsidiaries to be paid to the sellers of such Acquired Business after the
closing of the acquisition thereof, provided that all Deferred Purchase
Consideration (other than any such Deferred Purchase Consideration paid by ACS
Inc. and its Subsidiaries pursuant to ACS Inc.'s acquisition of Advanced
Management, Inc.) shall be subordinated to the obligations of the Loan Parties
hereunder on terms and pursuant to documentation containing other terms
(including interest, amortization, covenants and events of default) in form and
substance satisfactory to the Agent. Deferred Purchase Consideration shall not
include purchase price adjustments based on net working capital or net book
value required or permitted to be made within six months of the acquisition of
an Acquired Business by the agreements governing such acquisition. "Dollars" and
"$": dollars in lawful currency of the United States of America.
"Domestic Subsidiary": any Subsidiary of a Borrower organized under the laws of
any jurisdiction within the United States.
"EBITDA": for any fiscal period for any Person, the Consolidated Net Income or
Consolidated Net Loss, as the case may be, for such fiscal period, after
excluding therefrom amounts included therein on account of extraordinary gain
and restoring thereto (a) depreciation and amortization (including write-offs or
write-downs of amortizable and depreciable items), (b) the amount of interest
expense of such Person, determined on a consolidated basis in accordance with
GAAP, for such period on the aggregate principal amount of its consolidated
Indebtedness, (c) the amount of tax expense of such Person, determined on a
consolidated basis in accordance with GAAP, for such period, (d) with respect to
any fiscal period from September 30, 1997 until and including September 30,
1998, the amount attributable to RF Microsystems, Inc., which in conformity with
GAAP, would be set forth opposite the caption "acquired in process research and
development cost" (or any like caption) on the consolidating income statement of
ACS Inc. for such period and (e) for any fiscal period until and including March
31, 1999 (i) the amount attributable to payments to a former shareholder of
SEMCOR which is set forth opposite the caption "payments to former stockholder"
(or any like caption) on the consolidating income statement of ACS Inc., to the
extent such amount is incurred prior to June 10, 1998, and (ii) the amount
attributable to SEMCOR owners' salaries in excess of the DCAA allowable amount
which is set forth opposite the caption "amount paid to owners over DCAA
allowable" (or any like caption) on the consolidating income statement of ACS
Inc., to the extent such amount is incurred prior to the June 10, 1998.
"Eligible Receivables": means any Receivables owned by the Borrowers or any
Subsidiaries free and clear of all Liens (other than the Liens permitted herein
and Liens in favor of the Agent securing the Secured Obligations) other than the
following: (a) Receivables that do not arise out of sales of goods or rendering
of services in the ordinary course of the business of a Borrower or its
Subsidiaries;
Receivables on terms other than those normal or customary in a Borrower's
business; Receivables owing from any Person that is an Affiliate or a Subsidiary
of a Borrower; Receivables more than ninety (90) days past original invoice
date; Receivables owing from any Person other than the United States Government
or any department, agency or instrumentality or agents thereof or any state or
local government or any department, agency or instrumentality or agent thereof
from which an aggregate amount of more than fifty percent (50%) of the
Receivables owing from such Person are more than ninety (90) days past original
invoice date; Receivables owing from any Person that has asserted any claim,
demand or liability, by action, suit, counterclaim or other judicial or
arbitrable proceeding with respect to such Receivable;
Receivables owing from any Person that shall have taken or be the subject of any
action or proceeding of a type described in subsection 9(f); Receivables (i)
owing from any Person (other than the United States Government or any
department, agency or instrumentality thereof) that is also a supplier to or
creditor of a Borrower (to the extent such Person has any right of setoff but
only to the extent of such setoff) unless such Person has waived any right of
set-off in a manner acceptable to the Lenders or (ii) representing any
manufacturer's or supplier's credits, discounts, incentive plans or similar
arrangements entitling a Borrower to discounts on future purchase therefrom;
Receivables arising out of sales to account debtors outside the United States
other than those Receivables arising out of sales to account debtors approved by
the Agent in its sole discretion and other than those Receivables backed by a
letter of credit issued by a financial institution organized under the laws of
the United States which is rated at least A-2 by S&P or P-2 by Moody's or other
credit support otherwise satisfactory in form and substance satisfactory to the
Agent; Receivables arising out of sales on a bill-and-hold, guaranteed sale,
sale-or-return, sale on approval or consignment basis or subject to any right of
return, set-off or charge-back to the extent of such right of return, set-off or
charge-back; Receivables in respect of which the Security Agreement, after
giving effect to the related filings of financing statements that have then been
made, if any, does not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Lenders, as secured parties,
securing the Secured Obligations or as to which any other Lien exists, other
than liens permitted herein; Receivables due in a currency other than U.S.
dollars other than those non-U.S. dollar Receivables approved by the Agent in
its sole discretion; Receivables determined in whole or in part by the Agent to
be unacceptable, doubtful or impaired in accordance with the Agent's standard
practices for the evaluation of Receivables; Unless otherwise approved by the
Agent, Receivables with respect to any contract with the United States
Government or any department, agency or instrumentality or agents thereof or any
state or local government or any department, agency or instrumentality or agent
thereof if more than fifty percent (50%) of the Receivables owing under such
contract are more than ninety (90) days past original invoice date; and
Receivables which are final invoices.
The value of such Eligible Receivables shall be their book value determined in
accordance with GAAP unless valued at a lower value as provided above.
"Environmental Laws": as may be applicable to any Borrower or any Loan Party,
any and all foreign, Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees or other Requirements of Law
regulating, relating to or imposing liability or standards of conduct concerning
pollution or protection of the environment (including protection of human health
from environmental hazards), 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. "Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System. "Eurodollar Base Rate": with respect to any
Eurodollar Loan for any Interest Period, the rate per annum determined by the
Agent to be the average of the respective rates per annum posted by each of the
principal London office of banks posting rates as displayed on the Telerate
screen, page 3750 or such other page as may replace such page on such service
for the purpose of displaying the London interbank offered rate of major banks
for deposits in US dollars at approximately 11:00 A.M. (London Time) two (2)
Business Days prior to the beginning of such Interest Period, as specified in
the Notice of Borrowing (and rounded, if necessary, upward to the next whole
multiple of 1/16 of 1%); provided that, to the extent an interest rate is not
ascertainable pursuant to the foregoing provisions of this definition, the
"Eurodollar Base Rate" shall be the interest rate per annum determined by the
Agent to be the average (rounded, if necessary, upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not such a multiple) of the
rates per annum at which deposits in Dollars are offered for such relevant
Interest Period to major banks in the London interbank market in London, England
by such other major banks in the London interbank market in London, England at
approximately 11:00 a.m. (London time) on the date which is two (2) Business
Days prior to the beginning of such Interest Period. "Eurodollar Loans": Loans
the rate of interest applicable to which is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded, if necessary, upward to the
nearest whole multiple of 1/16th of 1%).
Eurodollar Base Rate
--------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9, provided that any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied. "Existing Credit Agreement": as defined in the
preamble to this Agreement.
"Facility": Facility A, Facility B or Swing Line Facility, as the context shall
require.
"Facility A": the revolving credit facility provided for in Section 2 hereof.
"Facility A Aggregate Outstanding Extensions of Credit": as to any Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Facility A Loans made by such Lender then outstanding, (b) Swing Line Aggregate
Outstanding Extensions of Credit and (c) such Lender's Commitment Percentage of
the aggregate amount of all L/C Obligations then outstanding.
"Facility A Commitment": as to any Lender, the obligation of such Lender to make
Loans to the Borrowers hereunder in an aggregate principal amount not to exceed
the amount set forth opposite such Lender's name on Schedule II; as the same may
be reduced from time
to time pursuant to subsection 4.4 and 4.5 as to all Lenders collectively, the
"Facility A Commitments."
"Facility A Commitment Percentage": as to any Lender at any date, the percentage
which such Lender's Facility A Commitment then constitutes of the aggregate
Facility A Commitments or, at any time after the Facility A Commitments shall
have expired or terminated, the percentage which the Facility A Aggregate
Outstanding Extensions of Credit of such Lender then constitutes of the Facility
A Aggregate Outstanding Extensions of Credit of all Lenders.
"Facility A Commitment Period": the period from and including the date hereof
but not including the Maturity Date or such earlier date on which the Facility A
Commitments shall terminate as provided herein.
"Facility A Loans": as defined in subsection 2.1(a).
"Facility A Note": as defined in subsection 4.1(e).
"Facility B": the revolving credit facility provided for in Section 2 hereof.
"Facility B Aggregate Outstanding Extensions of Credit": as to any Lender at any
time, an amount equal to the sum of the aggregate principal amount of all
Facility B Loans made by such Lender then outstanding.
"Facility B Commitment": as to any Lender, the obligation of such Lender to make
Loans to the Borrowers hereunder in an aggregate principal amount not to exceed
the amount set forth opposite such Lender's name on Schedule II; as the same may
be reduced from time to time pursuant to subsection 4.4 and 4.5; as to all
Lenders collectively, the "Facility B Commitments."
"Facility B Commitment Percentage": as to any Lender at any date, the percentage
which such Lender's Facility B Commitment then constitutes of the aggregate
Facility B Commitments or, at any time after the Facility B Commitments shall
have expired or terminated, the percentage which the Facility B Aggregate
Outstanding Extensions of Credit of such Lender then constitutes of the Facility
B Aggregate Outstanding Extensions of Credit of all Lenders.
"Facility B Commitment Period": the period from and including the date hereof
but not including the Maturity Date or such earlier date on which the Facility B
Commitments shall terminate as provided herein.
"Facility B Loans": as defined in subsection 2.1(b).
"Facility B Notes": as defined in subsection 4.1(e).
"Facility Fee": a fee of .50% of the aggregate initial Commitments.
"Federal Funds Effective Rate": for any day, the weighted average 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 which is a Business Day, the average of the quotations for
the day of such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"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.
"Foreign Subsidiary": any Subsidiary of a Borrower organized under the laws of
any jurisdiction outside the United States of America.
"GAAP": generally accepted accounting principles in the United States of America
as in effect from time to time.
"Government Contract": as defined in the Security Agreement.
"Government Receivables": all Receivables arising under any Government Contract
"Governmental Authority": any nation or government, any state or other political
subdivision thereof and any entity exercising 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, counter indemnity
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 incurred for the purpose of providing credit support,
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 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
endorsements of instruments for deposit or collection in the ordinary course of
business and guarantees by any Borrower or any Subsidiary of obligations of a
Borrower or a Subsidiary to suppliers, licensers or lessors to the extent the
underlying obligation is incurred in the ordinary course of business and
otherwise permitted hereunder. 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 Agent in good faith. "Indebtedness": of any Person,
at any date, without duplication, (a) all indebtedness of such Person for
borrowed money, (b) the deferred purchase price of property or services (other
than current trade liabilities incurred in the ordinary course of business and
payable in accordance with customary practices), (c) any other indebtedness of
such Person which is evidenced by a note, bond, debenture or similar instrument,
(d) all obligations of such Person under Financing Leases, (e) all obligations
of such Person in respect of letters of credit and acceptances and letters of
credit issued or created for the account of such Person (including without
limitation all issued and outstanding Letters of Credit), (f) all liabilities
secured by any Lien on any property owned by such Person even though such Person
has not assumed or otherwise become liable for the payment thereof, (g) all
Indebtedness of the types referred to in clauses (a) through (f) above which is
guaranteed directly or indirectly by such Person.
"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.
"Interest Payment Date": as to any Loan, the last Business Day of each month.
"Interest Period": with respect to any Eurodollar Loan: (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two or three months thereafter,
as selected by a Borrower in its notice of borrowing or notice of conversion, as
the case may be, given with respect thereto and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan and ending one, two or three months thereafter, as selected
by a Borrower in a Notice of Borrowing delivered to the Agent by 10:00 A.M.,
Charlotte, North Carolina time, not less than three (3) Business Days prior to
the last day of the then current Interest Period with respect thereto; provided
that, all of the foregoing provisions relating to Interest Periods are subject
to the following:
if any Interest Period pertaining to a Eurodollar Loan 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; any
Interest Period that would otherwise extend beyond the Maturity Date shall end
on the Maturity Date or such date of final payment, as the case may be; any
Interest Period pertaining to a Eurodollar Loan 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. the Borrowers shall
select Interest Periods so as not to require a payment or prepayment of any
Eurodollar Loan during an Interest Period for such Loan.
"Issuing Bank": with respect to any Letter of Credit, NationsBank, N.A. (or any
affiliate thereof) upon its agreement to serve in such capacity with respect to
such Letter of Credit.
"Joinder Agreement": the Joinder Agreement to be executed and delivered by each
Person that, subsequent to the Closing Date, becomes a Domestic Subsidiary,
substantially in the form of Exhibit D, as the same may be amended, supplemented
or otherwise modified from time to time.
"L/C Collateral Account": the "Collateral Account", as defined in the Security
Agreement.
"L/C Commitment": $1,000,000.
"L/C Fee Payment Date": the last Business Day of each June, September, December
and March.
"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 and
(b) the aggregate amount of drawings under Letters of Credit which have not then
been reimbursed pursuant to subsection 3.4(a).
"L/C Participants": with respect to each Letter of Credit, the collective
reference to all the Lenders other than the Issuing Bank with respect thereto.
"Letter of Credit": a Commercial Letter of Credit or a Standby Letter of Credit,
as the context shall require; collectively, the "Letters of Credit".
"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 Leases having
substantially the same economic effect as any of the foregoing).
"Loan": a Facility A Loan, a Facility B Loan or a Swing Line Loan, as the
context shall require; collectively, the "Loans".
"Loan Documents": this Agreement, the Notes, the Applications, and the Security
Documents and any other documents or instruments now or hereafter evidencing or
securing any Loans.
"Loan Parties": ACS Inc. and its Subsidiaries.
"Loan Value": means with respect to Eligible Receivables, the sum of (i) ninety
percent (90%) of billed Government Receivables plus (ii) eighty-five percent
(85%) of billed commercial accounts receivables plus (iii) fifty percent (50%)
of amounts that would but for the delivery of an invoice for work performed
within thirty (30) days of the date of calculation of Loan Value, otherwise be
considered Eligible Receivables, provided, that the amount described in clause
(iii) (fifty percent (50%) of amounts that would but for the delivery of an
invoice for work performed within thirty (30) days of the date of calculation of
Loan Value, otherwise be considered Eligible Receivables) shall not exceed
$6,000,000, each of (i), (ii) and (iii) as determined based on the most recent
Borrowing Base Certificate delivered to the Agent hereunder, provided; however,
that the Agent in its reasonable discretion based on an analysis of changes in
the Borrowers' credit and collection experience arising after the date hereof,
may dilute the value of the Borrowers' Eligible Receivables that shall be used
in determining Loan Value.
"Majority Lenders": at any time the Lenders having Commitments (or if
Commitments have terminated, Aggregate Outstanding Extensions of Credit) which
aggregate more than sixty-six and sixty-seven hundredths of one percent (66.67%)
of the sum of the Commitments of the Non-Defaulting Lenders (or Aggregate
Outstanding Extensions of Credit of the Non-Defaulting Lenders as the case may
be) then in effect, provided that, if at any time, there are two or more Lenders
hereunder, any action required by Majority Lenders shall require the consent of
not less than two Lenders.
"Management Change": (a) George A. Robinson or (b) any two or more of the
following individuals Vincent G. Vidas, Thomas A. Costello and Dev Ganesan,
ceasing to be active full time in the management of ACS Inc. and such Person or
such Persons not being replaced to the reasonable satisfaction of the Majority
Lenders within ninety (90) days of any such Person ceasing to be so active.
"Material Adverse Amount": an amount payable by ACS Inc. and/or its Subsidiaries
in excess of $500,000 for remedial costs, non-routine compliance costs,
compensatory damages, punitive damages, fines, penalties or any combination
thereof.
"Material Adverse Effect": a material adverse effect on (a) the business,
operations, property, financial condition or prospects of a Borrower and its
Subsidiaries taken as a whole, (b) the validity or enforceability of this or any
of the other Loan Documents or (c) the rights or remedies of the Agent or the
Lenders hereunder or under any of the other Loan Documents.
"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.
"Maturity Date": February 28, 2002.
"Moody's": Moody's Investors Service, Inc.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Net Proceeds": with respect to any Net Proceeds Event, (a) the gross cash
consideration, and all cash proceeds (as and when received) of non-cash
consideration (including, without limitation, any such cash proceeds in the
nature of principal and interest payments on account of promissory notes or
similar obligations), received by a Borrower and its Subsidiaries in connection
with such Net Proceeds Event, minus the sum, without duplication, of (i) any
taxes which are paid or actually payable to any federal, state, local or foreign
taxing authority by a Borrower and its Subsidiaries and are directly
attributable to the receipt of such Net Proceeds, (ii) the amount of fees and
commissions (including reasonable investment banking fees), legal, accounting,
consulting, survey, title and recording tax expenses and other costs and
expenses directly incident to such Net Proceeds Event which are paid or payable
by a Borrower and its Subsidiaries to unrelated and unaffiliated third parties,
(iii) the amount of any reserve reasonably maintained by a Borrower and its
Subsidiaries with respect to indemnification obligations owing pursuant to the
definitive documentation pursuant to which the Net Proceeds Event is consummated
(with any unused portion of such reserve to constitute Net Proceeds on the date
upon which the indemnification obligations terminates) and (iv) the amount of
Indebtedness (other than intercompany Indebtedness), if any, which is required
to be repaid at the time or as a result of such Net Proceeds Event out of the
proceeds thereof.
"Net Proceeds Event": (a) the incurrence by a Borrower or any of its
Subsidiaries of any Indebtedness (other than Indebtedness permitted pursuant to
clauses (a) through (h) of subsection 8.2); (b) the issuance or sale of any
equity securities by a Borrower or any of its Subsidiaries to any Person, other
than (i) the issuance or sale of any such equity securities to a Borrower or any
of its Subsidiaries, (ii) the issuance of Capital Stock upon the sale or
exercise of stock options, (iii) the issuance and sale of Capital Stock under
employee stock purchase plans, (iv) the issuance and sale of Capital Stock
and/or stock options under employee stock ownership and incentive plans and
similar programs or individual arrangements, (v) the issuance and sale of
Capital Stock in connection with an acquisition permitted pursuant to subsection
8.9(f); (c) the sale, transfer or other disposition by a Borrower or any of its
Subsidiaries of any real or personal, tangible or intangible, property
(including, without limitation, any capital stock, but other than inventory
sold, transferred or otherwise disposed of in the ordinary course of business)
of a Borrower or such Subsidiary to any Person (other than any such sale,
transfer or disposition permitted pursuant to subsection 8.6); and (d) the
recovery by a Borrower of amounts owing to it under property insurance policies.
"Non-Defaulting Lender": any lender other than a Defaulting Lender.
"Non-Excluded Taxes": as defined in subsection 4.16(a).
"Notes": the collective reference to the Facility A Notes, the Facility B Notes
and the Swing Line Note.
"Notice of Borrowing": means (a) with respect to a request for a borrowing
(other than a Swing Line Loan borrowing)hereunder, a request in the form of
Exhibit H-1 hereto, (b) with respect to a request for continuation of a
Eurodollar Loan hereunder, a request in the form of Exhibit H-2 hereto, (c) with
respect to a request for conversion of or to a Eurodollar Loan hereunder, a
request in the form of Exhibit H-3 hereto and (d) with respect to a request for
a borrowing of a Swing Line Loan hereunder, a request in the form of Exhibit H-4
hereto, in each case delivered by a Responsible Officer of a Borrower to any
such Lender hereunder.
"Participant": as defined in subsection 11.8(b).
"PBGC": the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust, joint stock
company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan or other plan
established, maintained or contributed to by any Borrower or a Commonly
Controlled Entity that is covered by Title IV of ERISA.
"Prime Rate": the rate of interest per annum publicly announced from time to
time by the Agent at its principal office in the State of North Carolina as its
prime rate on a particular day in effect for domestic (United States) commercial
loans; such rate is not necessarily intended to be the lowest rate of interest
charged by the Lenders in connection with extensions of credit. Each change in
the Prime Rate shall be effective on the date such change is publicly announced.
"Prime Rate Loans": Loans the rate of interest applicable to which is based upon
the Prime Rate.
"Properties": as defined in subsection 5.16(a).
"Receivables": means all Receivables referred to in Section 7 of the Security
Agreement.
"Refunded Swing Line Loans": as defined in subsection 2.1(a)(ii).
"Regulation U": Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.
"Reimbursement Obligation": with respect to any Letter of Credit, the joint and
several obligation of the Borrowers to reimburse the Lenders with respect
thereto pursuant to subsection 3.5(a) for amounts drawn thereunder.
"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(c) of ERISA,
other than those events as to which the thirty (30) day notice period is waived
under subsections .22, .25, .27 or .28 of PBGC Reg. ss.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
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, the executive
vice president, the chief financial officer or the treasurer of a Borrower.
"Restricted Payment": as defined in subsection 8.7.
"SEC": the United States Securities and Exchange Commission and any Governmental
Authority succeeding to any of its principal functions.
"S&P": Standard and Poor's Ratings Group, a division of McGraw Hill Companies
Inc.
"Secured Obligations": as defined in the Security Documents.
"Security Agreement": the Security Agreement to be executed and delivered by the
Borrowers, substantially in the form of Exhibit C, as the same may be amended,
supplemented or otherwise modified from time to time.
"Security Documents": the collective reference to the Security Agreement and the
Joinder Agreement, and all other security documents hereafter delivered to the
Lenders granting a Lien on any asset or assets of any Person to secure the
obligations and liabilities of any Borrower hereunder or under any of the other
Loan Documents or to secure any guarantee of any such obligations and
liabilities. "SEMCOR": SEMCOR, Inc., a New Jersey corporation.
"SEMCOR Stock Purchase Agreement": the Stock Purchase Agreement effective as of
June 10, 1998, among ACS Inc. as buyer, and Vincent G. Vidas and John S. Degnan
as sellers.
"Single Employer Plan": any Plan which is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Standby Letter of Credit": as defined in paragraph 3.1(b)(i)(1).
"Subordinated Indebtedness": any debt for which any Borrower is liable that is
subordinated to the obligations of the Loan Parties hereunder on terms and
pursuant to documentation containing other terms (including interest,
amortization, covenants and events of default) in form and substance
satisfactory to the Agent.
"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 Borrowers.
"Swing Line Aggregate Outstanding Extensions of Credit": as to any Lender at any
time, an amount equal to the sum of the aggregate principal amount of all Swing
Line Loans made by such Lender then outstanding.
"Swing Line Commitment": Swing Line Lender's obligation to make Swing Line Loans
to the Borrowers hereunder in an aggregate principal amount not to exceed
$5,000,000.00, as same may be reduced from time to time pursuant to subsection
4.4 and 4.5. "Swing Line Commitment Period": the period from and including the
date hereof to but not including the fifth (5) Business Day prior to the
Maturity Date or such earlier date on which the Facility A Commitments shall
terminate as provided herein. "Swing Line Facility": the swing line facility
provided for in Section 2 hereof.
"Swing Line Lender": NationsBank, N.A.
"Swing Line Loan": as defined in subsection 2.1(c).
"Swing Line Note": as defined in subsection 4.1(e).
"Swing Line Loan Termination Date": the fifth (5) Business Day prior to the
Maturity Date or such earlier date on which the Facility A Commitments shall
terminate as provided herein.
"Tranche": the collective reference to Eurodollar Loans having then current
Interest Periods which began 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 11.8(f).
"Type": as to any Loan, its nature as a Prime Rate Loan or a Eurodollar Loan.
"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 from time to time.
Other Definitional Provisions
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in any Notes or any certificate or other
document made or delivered pursuant hereto. Unless otherwise specified herein,
all accounting terms used herein (and in any other Loan Document and any
certificate or other document made or delivered pursuant hereto or thereto)
shall be interpreted, all accounting determinations shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time. 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. In the computation of periods of time
from a specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but excluding". Periods
of days referred to in this Agreement shall be counted in calendar days unless
Business Days are expressly prescribed. Any period determined hereunder by
reference to a month or months or year or years shall end on the day in the
relevant calendar month in the relevant year, if applicable, immediately
preceding the date numerically corresponding to the first day of such period,
provided, that if such period commences on the last day of a calendar month (or
on a day for which there is no numerically corresponding day in the calendar
month during which such period is to end), such period shall, unless otherwise
expressly required by the other provisions of this Agreement, end on the last
day of the calendar month. The meanings given to terms defined herein shall be
equally applicable to both
the singular and plural forms of such terms.
AMOUNT AND TERMS OF COMMITMENTS
Commitments.
Subject to the terms and conditions hereof, each Lender severally agrees to make
revolving credit loans (the "Facility A Loans") immediately available to the
Borrowers from time to time during the Facility A Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender's Facility A Commitment Percentage of the sum of the then outstanding (x)
L/C Obligations and (y) Swing Line Aggregate Outstanding Extensions of Credit
does not exceed such Lender's Facility A Commitment provided; that such Lender
shall have no obligation to make any Facility A Loan in excess of the Available
Facility A Commitment. During the Facility A Commitment Period the Borrowers may
use the Facility A Commitments by borrowing, prepaying the Facility A Loans in
whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof.
Subject to the terms and conditions hereof, each Lender severally agrees to make
revolving credit loans (the "Facility B Loans") immediately available to the
Borrowers from time to time during the Facility B Commitment Period in an
aggregate principal amount at any one time outstanding not to exceed such
Lender's Facility B Commitment as the same may be reduced from time to time
pursuant to 4.5(b) provided; that such Lender shall have no obligation to make
any Facility B Loan in excess of the Available Facility B Commitment. During the
Facility B Commitment Period the Borrowers may use the Facility B Commitments by
borrowing, prepaying the Facility B Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof.
(i) Subject to the terms and conditions hereof, the Swing Line Lender may, but
shall not be obligated to, make swing line loans (the "Swing Line Loans") to the
Borrowers from time to time during the Swing Line Loan Commitment Period, in an
aggregate principal amount at any one time outstanding not to exceed
$5,000,000.00, provided that at no time may the sum of the aggregate outstanding
principal amount of the Swing Line Loans and the Facility A Aggregate
Outstanding Extensions of Credit exceed the Facility A Commitments. During the
Swing Line Commitment Period the Borrowers may use the Swing Line Commitments by
borrowing, prepaying the Swing Line Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof.
(ii) The Swing Line Lender at any time and in its sole and absolute discretion
may, and on the last Business Day of each month shall, on behalf of the
Borrowers (which hereby irrevocably direct the Swing Line Lender to act on its
behalf) request each Lender, including the Swing Line Lender, to make and each
such Lender, including the Swing Line Lender, shall make a Facility A Loan in an
amount equal to such Lender's Facility A Loan Commitment Percentage of the
amount of the Swing Line Loans (the "Refunded Swing Line Loans") outstanding on
the date such notice is given. Each Lender shall make the proceeds of its
Facility A Loan available to the Swing Line Lender for the account of the Swing
Line Lender at the office of the Swing Line Lender specified in subsection 11.3
(or such other location as the Swing Line Lender may direct) prior to 12:00 P.M.
Charlotte, North Carolina time on the borrowing date, in funds immediately
available to the Swing Line Lender. The proceeds of such Facility A Loan shall
be immediately applied to repay the Refunded Swing Line Loans.
The Facility A Loans, Facility B Loans and Swing Line Loans may from time to
time be (i) Eurodollar Loans, (ii) Prime Rate Loans or (iii) a combination
thereof, as determined by the Borrowers and notified to the Agent in accordance
with subsections 2.2 and 4.8, provided that no Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Maturity Date.
Procedure for Borrowing. A Borrower may borrow under the Commitments during the
Commitment Period on any Business Day, provided that for any Loan other than a
Swing Line Loan, (i) such Borrower shall deliver to the Agent the Borrower's
irrevocable Notice of Borrowing which notice must be in writing or by telephone
promptly confirmed in writing prior to 10:00 A.M., Charlotte, North Carolina
time and (ii) the Agent shall deliver to the Lenders such notice prior to 10:15
A.M., Charlotte, North Carolina time, and for any Loan that is a Swing Line
Loan, such Borrower shall deliver to the Agent the Borrower's irrevocable Notice
of Borrowing which notice must be in writing or by telephone promptly confirmed
in writing prior to 12:00 P.M., Charlotte, North Carolina time (a) three (3)
Business Days prior to the requested borrowing date, if all or any part of the
requested Loans are to be initially Eurodollar Loans or (b) on the requested
borrowing date, otherwise. Upon receipt of any such Notice of Borrowing from a
Borrower, the Agent shall promptly notify each Lender thereof. Each Lender will
make the amount of its pro rata share of each borrowing available to the Agent
for the account of such Borrower at the office of the Agent specified in
subsection 11.3 prior to 12:00 P.M., Charlotte, North Carolina time on the
borrowing date, in funds immediately available to the Agent. Such borrowing will
then be made available to such Borrower by the Agent transferring to an account
(which shall be maintained for such purpose by the Agent) with the aggregate of
the amounts made available to the Agent by the Lenders and in like funds as
received by the Agent.
Use of Proceeds of Loans.
The proceeds of the Facility A Loans shall be utilized by the Borrowers (i) to
finance future acquisitions permitted hereunder, (ii) to provide working capital
and (iii) for other general corporate purposes.
The proceeds of the Facility B Loans shall be utilized by the Borrowers (i) to
finance future acquisitions permitted hereunder and (ii) for other general
corporate purposes approved by the Lenders.
The proceeds of the Swing Line Loans shall be utilized by the Borrowers for
general corporate purposes associated with their cash management requirements.
AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY
L/C Commitment.
Subject to the terms and conditions hereof, each Issuing Bank, in reliance on
the agreements of the other Lenders set forth in subsection 3.4(a) agrees to
issue any Letters of Credit requested to be issued by it and so issued by it for
the account of the Borrowers on any Business Day during the Facility A
Commitment Period in such form as may be approved from time to time by such
Issuing Bank; provided that such Issuing Bank shall have no obligation to issue
any Letter of Credit if, after giving effect to such issuance, such Issuing Bank
has knowledge that (i) the L/C Obligations would exceed the L/C Commitment, or
(ii) the Available Facility A Commitment would be less than zero.
Each Letter of Credit shall:
be either (A) a standby letter of credit issued to support obligations of the
Borrowers and the Subsidiaries, contingent or otherwise, for which Loans would
be available (a "Standby Letter of Credit"), or (B) a commercial letter of
credit issued in respect of the purchase of goods or services by the Borrowers
and the Subsidiaries in the ordinary course of business for which Loans would be
available (a "Commercial Letter of Credit"); be (A) issued from an office of the
Issuing Bank in the United States and (B) denominated in Dollars; and expire no
later than the earlier of (A) one (1) year following the date of issuance
thereof and (B) five (5) days prior to the Maturity Date; provided that any
Letter of Credit may provide for renewal thereof for additional one-year periods
on an "evergreen" basis (but not, in any event, beyond the date referred to in
clause (B) of this subparagraph (iii)). Each Letter of Credit shall be subject
to the Uniform Customs and, to the extent not inconsistent therewith, the laws
of the Commonwealth of Virginia. 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 L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
Procedure for Issuance of Letters of Credit. The Borrowers shall request that
such Issuing Bank issue a Letter of Credit by delivering to such Issuing Bank at
its address for notices specified herein an Application therefor, completed to
the satisfaction of the Issuing Bank, and such other certificates, documents and
other papers and information as the Issuing Bank may request. Upon receipt of
any Application, the 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 by issuing the original of
such Letter of Credit to the beneficiary thereof or as otherwise may be agreed
by the Issuing Bank and the Borrowers; provided that the Issuing Bank shall in
no event be required to issue any Letter of Credit earlier than three (3)
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto. In
the event that the Letter of Credit to be issued is a Standby Letter of Credit,
the Issuing Bank shall furnish a copy of such Standby Letter of Credit to each
of the Agent and the Borrowers promptly following the issuance thereof. Fees,
Commissions and Other Charges. The Borrowers, jointly and severally, shall pay
to the Agent, for the account of each Issuing Bank and the L/C Participants,
with respect to each Commercial Letter of Credit issued by such Issuing Bank a
fee in an amount equal to 1% per annum on the amount available to be drawn under
each Commercial Letter of Credit payable on the date of issuance of such
Commercial Letter of Credit and shall be nonrefundable.
The Borrowers, jointly and severally, shall pay to the Agent, for the account of
each Issuing Bank and the L/C Participants, a letter of credit commission with
respect to each Standby Letter of Credit issued by such Issuing Bank, computed
for each day during the period for which payment is due at the rate per annum
equal to the Applicable Margin for the Facility in effect for Eurodollar Loans
on such date (calculated on the basis of a 360 day year) times the aggregate
amount available to be drawn under such Standby Letter of Credit on such date.
Such commissions shall be payable quarterly, in advance, on each L/C Fee Payment
Date and shall be nonrefundable.
The Borrowers, jointly and severally, shall pay to the relevant Issuing Bank,
for its own account a fronting fee in the amount equal to 1/4 of 1% per annum on
the face amount of each Standby Letter of Credit issued by it. The fronting fee
shall be calculated on the basis of a 360 day year and shall be payable
quarterly, in advance, on each L/C Fee Payment Date.
In addition to the foregoing fees and commissions, the Borrowers, jointly and
severally, shall pay or reimburse each Issuing Bank for such normal and
customary costs and expenses as are incurred or charged by such Issuing Bank
issuing, effecting payment under, amending or otherwise administering any Letter
of Credit issued by it.
The Agent shall, promptly following its receipt thereof, distribute to the
relevant Issuing Bank and the L/C Participants all fees and commissions received
by the Agent for their respective accounts pursuant to this subsection 3.3.
L/C Participations.
Each Issuing Bank irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce such Issuing Bank to issue Letters of Credit
hereunder, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from the 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 the Issuing
Bank's obligations and rights under each Letter of Credit issued by it hereunder
and the amount of each draft paid by the Issuing Bank thereunder. Each L/C
Participant unconditionally and irrevocably agrees with such Issuing Bank that,
if a draft is paid under any Letter of Credit for which such Issuing Bank is not
reimbursed in full by the Borrowers in accordance with the terms of this
Agreement, such L/C Participant shall pay to such Issuing Bank (through the
Agent) upon demand 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.
If any amount required to be paid by any L/C Participant to an Issuing Bank
pursuant to paragraph 3.4(a) in respect of any unreimbursed portion of any
payment made by such Issuing Bank under any Letter of Credit issued by it is
paid to such Issuing Bank within three (3) Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Bank (through the
Agent) on demand an amount equal to the product of (i) such amount, times (ii)
the daily average Federal Funds Effective Rate, as quoted by such Issuing Bank,
during the period from and including the date such payment is required to the
date on which such payment is immediately available to such 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. If any such amount required to
be paid by any L/C Participant pursuant to paragraph 4.4(a) is not in fact made
available to such Issuing Bank by such L/C Participant within three (3) Business
Days after the date such payment is due, such Issuing Bank shall be entitled to
recover from such L/C Participant, on demand, such amount with interest thereon
calculated from such due date at the rate per annum applicable to Prime Rate
Loans hereunder. A certificate of such Issuing Bank submitted to any L/C
Participant (through the Agent) shall, to the extent permitted by applicable
law, be prima facie evidence of any amounts owing under this subsection 3.4.
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 3.4(a), such Issuing Bank receives any
payment related to such Letter of Credit (whether directly from the Borrowers or
otherwise, including proceeds of collateral applied thereto by such Issuing
Bank), or any payment of interest on account thereof, such Issuing Bank will
distribute to the Agent (for the account of such L/C Participant) such L/C
Participant's 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 such Issuing Bank, such L/C Participant shall return to such Issuing Bank
(through the Agent) the portion thereof previously distributed by such Issuing
Bank to it.
Reimbursement Obligation of the Borrowers.
The Borrowers, jointly and severally, agree to reimburse each Issuing Bank on
each date on which such Issuing Bank notifies the Borrowers of the date and
amount of a draft presented under any Letter of Credit issued by such Issuing
Bank 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 the Lenders
in connection with such payment. Each such payment shall be made to such Issuing
Bank at its address for notices specified herein in Dollars and in immediately
available funds.
Interest shall be payable on any and all amounts remaining unpaid by the
Borrowers under this subsection 3.5 from the date such amounts become payable
(whether at stated maturity, by acceleration or otherwise) until payment in full
at the rate which would be payable on any outstanding Prime Rate Loans which
were then overdue.
Each drawing under any Letter of Credit shall (unless it is reimbursed by the
Borrowers on the date of drawing) constitute a request by the Borrowers to the
Agent for a borrowing pursuant to subsection 2.2 of Prime Rate Loans under
Facility A in the amount of such drawing. The borrowing date with respect to
such borrowing shall be the date of such drawing.
Obligations Absolute.
The Borrowers' obligations under this Section 3 shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which any Borrower may have or have had
against any Issuing Bank or any beneficiary of a Letter of Credit.
The Borrowers also agree with each Issuing Bank that such Issuing Bank shall not
be responsible for, and the Borrowers' Reimbursement Obligations under
subsection 3.5(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, or (ii) any
dispute between or among any Borrower 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 any Borrower against any beneficiary of such
Letter of Credit or any such transferee.
No Issuing Bank shall 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 issued by such Issuing
Bank, except for errors or omissions caused by such Issuing Bank's gross
negligence or willful misconduct.
The Borrowers agree that any action taken or omitted by an 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 Commercial Code of the
Commonwealth of Virginia, shall be binding on the Borrowers and shall not result
in any liability of such Issuing Bank to the Borrowers.
Notwithstanding the foregoing, in the event a Bank Default exists, the Issuing
Bank shall not be required to issue any Letter of Credit unless the Issuing Bank
has entered into arrangements satisfactory to it and the Borrowers to eliminate
the Issuing Bank's additional risk with respect to the participation in the
Letters of Credit of the Defaulting Lender or Defaulting Lenders, including,
without limitation, by cash collateralizing such Defaulting Lender or Lender's
Commitment Percentage of the applicable outstanding L/C Obligations or by a
Non-Defaulting Lender or Non-Defaulting Lenders replacing such Defaulting Lender
or Defaulting Lenders with respect to such participation.
Letter of Credit Payments. The responsibility of each Issuing Bank to the
Borrowers 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. Application. To the
extent that any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Section 3, the provisions of this
Section 3 shall apply. PROVISIONS RELATING TO THE EXTENSIONS OF CREDIT; FEES AND
PAYMENTS Repayment of Loans; Evidence of Debt. The Borrowers, jointly and
severally, hereby unconditionally promise to pay to the Agent for the account of
each applicable Lender (i) the then unpaid principal amount of each Loan on the
Maturity Date (or such earlier date on which the Loans become due and payable
pursuant to Section 9). The Borrowers, jointly and severally, hereby further
agree to pay interest on the unpaid principal amount of the Loans 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 4.10.
Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing debt of the Borrowers to the Lender resulting from each 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.
The Agent shall maintain the Register pursuant to subsection 11.8(d) and a
subaccount therein for each Lender, in which shall be recorded (i) the amount of
each Facility A Loan and Facility B Loan made hereunder, the Type thereof 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 Borrowers to the
Lenders hereunder and (iii) the amount of any sum received by the Agent
hereunder from the Borrowers.
The entries made in the Register and the accounts of each Lender maintained
pursuant to subsection 11.8(d) shall, to the extent permitted by applicable law,
be prima facie evidence of the existence and amounts of the obligations of the
Borrowers therein recorded; provided, however, that the failure of any Lender or
the Agent to maintain the Register or any such account, or any error therein,
record or any error in any record shall not in any manner affect the obligation
of the Borrowers to repay (with applicable interest) the Loans made to the
Borrowers by the Lenders in accordance with the terms of this Agreement.
The Borrowers agree that, upon request of any Lender through the Agent, the
Borrowers will execute and deliver to such Lender (i) a promissory note of the
Borrowers evidencing the Facility A Loan of the Lender to the Borrowers,
substantially in the form of Exhibit A ("Facility A Note"), (ii) a promissory
note of the Borrowers evidencing the Swing Line Loan of the Lender to the
Borrowers, substantially in the form of Exhibit A-1 (the "Swing Line Note") and
(iii) a promissory note of the Borrowers evidencing the Facility B Loan of the
Lender to the Borrowers, substantially in the form of Exhibit B ("Facility B
Note").
Facility and Commitment Fees.
The Borrowers, jointly and severally, agree to pay to the Agent, for the account
of each Lender, on the Closing Date, the Facility Fee. (i) The Borrowers,
jointly and severally, agree to pay to the Agent, for the account of each Lender
the Commitment Fee. (ii) Such Commitment Fee shall be calculated on the basis of
a 365/366 day year as the case may be. (iii) Such Commitment Fee shall be
payable quarterly, in arrears, on the last Business Day of each June, September,
December and March and the Maturity Date or such earlier date as the Commitments
shall terminate as provided herein, commencing on June 30, 1999. Optional
Prepayments. The Borrowers may at any time and from time to time prepay the
Prime Rate Loans, in whole or in part, without premium or penalty, subject to
the provisions of 4.6.
The Borrowers, with the consent of the Agent (which in each case shall not be
unreasonably withheld), may at any time and from time to time prepay the
Eurodollar Loans, in whole or in part, without premium or penalty (subject to
the provisions of subsections 4.7 and 4.17), upon at least three (3) Business
Days' notice to the Agent (which notice must be received by the Agent prior to
11:00 A.M., Charlotte, North Carolina time, on the date upon which such notice
is due and shall be irrevocable by the Borrowers except in connection with
prepayments that are contingent on Net Proceeds to the extent of such
contingency) specifying the date and amount of prepayment. Upon receipt of any
such notice, the Agent shall promptly notify each Lender and the Borrowers of
its consent or its rejection thereof. If any such notice is given by the
Borrowers and not withdrawn as permitted hereunder or rejected prior to the date
upon which such payment is made, the amount specified in such notice shall be
due and payable on the date specified therein, together with any amounts payable
pursuant to subsection 4.17.
Partial prepayments shall be in an aggregate principal amount of $100,000 or an
integral multiple thereof or in the amount of the outstanding Loans.
For so long as no Default or Event of Default has occurred and is continuing,
the Borrowers may elect the application of prepayments to the Facilities made
pursuant to this subsection 4.3, provided that unless the Borrowers otherwise
elect, the application of prepayments under each Facility made pursuant to this
subsection 4.3 shall be made, first, to Prime Rate and second, to Eurodollar
Loans.
Optional Termination or Reduction of Commitments. The Borrowers shall have the
right, upon not less than three (3) Business Days' notice to the Agent, to
terminate the Commitments or, from time to time, to reduce the amount of the
Commitments; provided that with respect to either Facility A or Facility B, no
such termination or reduction shall be permitted with respect to the Commitments
of such Facility to the extent that after giving effect thereto and to any
prepayments of the Loans made thereunder on the effective date thereof, the
aggregate principal amount of such Loans then outstanding when added to the sum
of then outstanding (x) aggregate principal amount of the Swing Line Loans and
(y) L/C Obligations, would exceed the Commitments then in effect. Any such
reduction shall be in an amount equal to $100,000 or an integral multiple in
excess thereof and shall reduce permanently the affected Commitments then in
effect. Mandatory Reduction of Commitments and Prepayments. If at any time the
Facility A Aggregate Extensions of Credit for all Lenders exceed the lesser of
the Loan Value of Eligible Receivables and the aggregate Facility A Commitments,
the Borrowers, jointly and severally, shall immediately repay the aggregate
Facility A Loans, the Swing Line Loans and/or deposit in the L/C Collateral
Account an amount equal to the amount that may be drawn under outstanding
Letters of Credit (whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder), such
repayments and deposits to be in an aggregate amount equal to such excess.
The aggregate Facility B Commitment shall decrease by $5,000,000.00 on each of
June 30, 1999, June 30, 2000 and June 30, 2001, each decrease to be allocated to
the Lenders pro rata based on their respective Facility B Commitment.
If at any time the Facility B Aggregate Outstanding Extensions of Credit of all
Lenders exceed the aggregate Facility B Commitments, the Borrowers, jointly and
severally, shall immediately repay the Facility B Loans, such repayments to be
in an aggregate amount equal to such excess.
The Borrowers, jointly and severally, shall as promptly as is practicable (and,
in any event, within one (1) Business Day following the receipt thereof), repay
the Facility A Loans, repay the Swing Line Loans, repay the Facility B Loans and
reduce the Facility B Commitments by the amount equal to the aggregate amount of
Net Proceeds received from any Net Proceeds Event; provided that no such
repayment and reduction shall be due pursuant to this subsection 4.5(c) with
respect to any Net Proceeds Event on account of: the sale, transfer or other
disposition by a Borrower or any of its Subsidiaries of any real or personal,
tangible or intangible, property of a Borrower and its Subsidiaries, to the
extent that the Net Proceeds from such sale, transfer or other disposition (in
the aggregate with the Net Proceeds from all other sales, transfers and other
dispositions occurring during the fiscal year) is less than $250,000; or the
recovery by a Borrower of amounts owing to it under property insurance policies
except, to the extent that (1) such recoveries exceed the reasonably estimated
cost of replacing the property on account of which such amounts were paid to
such Borrower and its Subsidiaries or (2) such Borrower and its Subsidiaries do
not replace such property within one hundred eighty (180) days. Any payments of
the Loans and reductions of the Commitments made pursuant to subsection 4.5(c)
shall be applied, first, to repay the Swing Line Loans and to reduce the Swing
Line Commitments, second to repay the Facility B Loans and to reduce the
Facility B Commitments and third to repay the Facility A Loans. Unless the
Borrowers otherwise elect, the application of prepayments under each Facility
made pursuant to this subsection 4.5 shall be made, first, to Prime Rate Loans
and second, to Eurodollar Loans.
Application of Payments. Any payments of the Loans and reductions of the
Commitments made pursuant to subsections 4.3, 4.4 or 4.5 shall not be applied to
the prepayment of the Loans of a Defaulting Lender at any time under the
Facility when the aggregate amount of Loans of any Non-Defaulting Lender exceeds
such Non-Defaulting Lender's Commitment Percentage of all Loans then
outstanding. Prepayment Premium. If any Borrower prepays any portion of the
Loans with the proceeds of a loan from a commercial bank, finance company or
other lender of a type that is a competitor of the Agent, the Borrowers, jointly
and severally, shall pay to the Agent, not later than the next Business Day
after the date of such prepayment, a prepayment premium of 1% on any outstanding
obligations so repaid. The Agent shall distribute to the Lenders their pro rata
share of such prepayment premium.
Conversion and Continuation Options.
A Borrower may elect from time to time to convert Eurodollar Loans to Prime Rate
Loans by delivering to the Agent an irrevocable Notice of Borrowing by 10:00
A.M., Charlotte, North Carolina time, on the requested date of conversion;
provided that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. A Borrower may elect from
time to time to convert Prime Rate Loans to Eurodollar Loans by delivering to
the Agent an irrevocable Notice of Borrowing by 10:00 A.M., Charlotte, North
Carolina time, at least three (3) Business Days prior to the requested
conversion date. Any such Notice of Borrowing with respect to a conversion to
Eurodollar Loans shall specify the length of the initial Interest Period or
Interest Periods therefor. Upon receipt of any such Notice of Borrowing the
Agent shall promptly notify each Lender thereof. All or any part of outstanding
Eurodollar Loans and Prime Rate Loans may be converted as provided herein,
provided that (i) no Loan may be converted into a Eurodollar Loan when any
Default or Event of Default has occurred and is continuing and the Agent has or
the Majority Lenders have determined that such a conversion is not appropriate
and (ii) no Loan may be converted into a Eurodollar Loan after the date that is
one (1) month prior to the Maturity Date. Any Prime Rate Loan not converted to a
Eurodollar Loan hereunder shall continue as an Prime Rate Loan.
Any Eurodollar Loans may be continued as such upon the expiration of the then
current Interest Period with respect thereto by a Borrower delivering to the
Agent an irrevocable Notice of Borrowing, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of the
length of the next Interest Period to be applicable to such Loans, provided that
no Eurodollar Loan may be continued as such (i) when any Event of Default has
occurred and is continuing and the Agent has or the Majority Lenders have
determined that such a continuation is not appropriate or (ii) after the date
that is one (1) month prior to the Maturity Date, and provided, further, that if
a Borrower shall fail to give such notice or if such continuation is not
permitted such Loans shall be automatically converted to Prime Rate Loans on the
last day of such then expiring Interest Period. Upon receipt of any such Notice
of Borrowing the Agent shall promptly notify each Lender thereof.
Minimum Amounts and Maximum Number of Tranches.
All borrowings, conversions and continuations of Eurodollar Loans hereunder and
all selections of Interest Periods hereunder shall be in such amounts and be
made pursuant to such elections so that, after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Tranche shall
be equal to $100,000 or a whole multiple in excess thereof. In no event shall
there be more than ten (10) Tranches of Eurodollar Loans outstanding at any
time.
All borrowings and repayments of Prime Rate Loans hereunder shall be in such
amounts so that, after giving effect thereto, the aggregate principal amount of
the Prime Rate Loans shall be equal to $100,000 or a whole multiple in excess
thereof, or if less, the remaining available Commitments hereunder.
Interest Rates and Payment Dates.
Each Eurodollar Loan shall bear interest for each day during each Interest
Period with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus the Applicable Margin in effect for such day.
Each Prime Rate Loan shall bear interest for each day at a rate per annum equal
to the Prime Rate plus the Applicable Margin in effect for such day.
If all or a portion of any principal of any Loan shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such principal
amount of the Loan shall bear interest at a rate per annum which is the rate
that would otherwise be applicable thereto pursuant to the foregoing provisions
of this subsection 4.10(c) plus 2%.
Interest on each Loan shall be payable in arrears on each Interest Payment Date
provided that interest accruing pursuant to paragraph (c) of this subsection
4.10 shall be payable from time to time on demand.
Notwithstanding anything to the contrary contained herein, in no event shall the
Borrowers be obligated to pay interest in excess of the maximum amount which is
chargeable under applicable law.
Computation of Interest and Fees.
Fees shall be calculated in accordance with subsection 4.2. Interest shall be
calculated on the basis of a 360-day year for the actual days elapsed. The Agent
shall as soon as practicable notify the Borrowers and the Lenders of each
determination of a Eurodollar Rate. Any change in the interest rate on a Loan
resulting from a change in the Prime Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective.
Each determination of an interest rate by the Agent pursuant to any provision of
this Agreement shall be conclusive and binding on the Borrowers and the Lenders
in the absence of manifest error. The Agent shall, at the request of the
Borrowers, deliver to the Borrowers a statement showing the quotations used by
the Agent in determining any interest rate pursuant to subsection 4.10(a).
Inability to Determine Interest Rate. If prior to the first day of any Interest
Period: the Agent shall have determined (which determination shall be conclusive
and binding upon the Borrowers in the absence of manifest error) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the Eurodollar Rate for such Interest Period; or the
Agent shall have received notice from any Lender that the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to such Lender (as conclusively certified by such
Lender), of making or maintaining their affected Loans during such Interest
Period;
the Agent shall give telecopy or telephonic notice thereof to the Borrowers and
the Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as Prime Rate Loans and (y) any Loans that on the first day of
such Interest Period were to have been continued as, or converted to, Eurodollar
Loans shall be converted to or continued as Prime Rate Loans. Until such notice
has been withdrawn by the Agent, no further Eurodollar Loans shall be made, or
as of the first day of the immediately succeeding Interest Period, continued as
such, nor shall any Borrower have the right to convert Loans to Eurodollar
Loans.
Pro Rata Treatment and Payments.
Each borrowing by a Borrower from the Lenders hereunder, each payment by a
Borrower 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
relevant Commitment Percentages of the Lenders holding obligations in respect of
which such amounts were paid. Each payment (including each prepayment) by a
Borrower on account of principal of and (subject to the provisions of subsection
4.14) interest on the Loans shall be made pro rata according to the respective
outstanding principal amounts of such Loans then held by the Lenders. Except as
otherwise set forth herein, all payments (including prepayments) to be made by
the Borrowers hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without set off or counterclaim and shall be made prior
to 2:00 P.M., Charlotte, North Carolina time, on the due date thereof to the
Agent, for the account of the applicable Lenders, at the Agent's office
specified in subsection 11.3, in Dollars and in immediately available funds. The
Agent shall distribute such payments to the Lenders holding obligations on
account of which such amounts were paid 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.
Unless the Agent shall have been notified in writing by any Lender prior to a
borrowing that such Lender will not make the amount that would constitute its
relevant Commitment Percentage of such borrowing available to the Agent, the
Agent may assume that such Lender is making such amount available to the Agent,
and the Agent may, in reliance upon such assumption, make available to the
Borrowers a corresponding amount. If such amount is not made available to the
Agent by the required time on the borrowing date therefor, such Lender shall pay
to the Agent, on demand, such amount with interest thereon at a rate equal to
the daily average Federal Funds Effective Rate for the period until such Lender
makes such amount immediately available to the Agent. A certificate of the Agent
submitted to any Lender shall, to the extent permitted by applicable law, be
prima facie evidence of any amounts owing under this subsection 4.13. If such
Lender's relevant Commitment Percentage of such borrowing is not made available
to the Agent by such Lender within three (3) Business Days of such borrowing
date, the Agent shall also be entitled to recover such amount with interest
thereon at the rate per annum applicable to Prime Rate Loans hereunder, on
demand, jointly and severally, from the Borrowers.
Illegality. Notwithstanding any other provision herein, if the adoption of or
any change in any Requirement of Law or in the interpretation or application
thereof, in each case after the Closing Date, shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Agreement,
(a) the commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Prime Rate Loans to Eurodollar Loans shall
forthwith be suspended and (b) the Loans of such Lender then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Prime Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrowers, jointly and
severally, shall pay to such Lender such amounts, if any, as may be required
pursuant to subsection 4.17.
Requirements of Law.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority, in each case, made subsequent to the date
hereof: shall subject any Lender to any tax of any kind whatsoever with respect
to this Agreement, any Note, any Letter of Credit, any Application or any
Eurodollar Loan made by it, or change the basis of taxation of payments to such
Lender in respect thereof (except for Non-Excluded Taxes covered by subsection
4.16 and changes in the rate of net income taxes or franchise taxes (imposed in
lieu of net income taxes) of such Lender); 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 Eurodollar Rate hereunder; or shall impose on such Lender
any other condition; and the result of any of the foregoing is to increase the
cost to such Lender, by a material amount of making, converting into, continuing
or maintaining Eurodollar Loans or issuing or participating in Letters of Credit
or to reduce any amount receivable hereunder in respect thereof, then, in any
such case, the Borrowers, jointly and severally, shall promptly pay such Lender
within fifteen (15) days after written request therefor such additional amount
or amounts as will compensate such Lender for such increased cost or reduced
amount receivable.
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 or
application thereof, in each case, after the date hereof, or compliance by any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law, if compliance
therewith is a customary banking practice) from any Governmental Authority 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 or under any Letter of Credit to a level below that which
such Lender or such corporation could have achieved but for such adoption,
change or compliance by the Lender (taking into consideration such Lender's or
such corporation's policies with respect to capital adequacy) by a material
amount, then from time to time, the Borrowers, jointly and severally, shall pay
to such Lender such additional amount or amounts as will compensate such Lender
within fifteen (15) days after written request therefor for such reduction.
If any Lender becomes entitled to claim any additional amounts pursuant to this
subsection 4.15, such Lender shall promptly notify the Borrowers (with a copy to
the Agent) of the event by reason of which it has become so entitled. The
agreements in this subsection 4.15 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
Taxes.
All payments made by the Borrowers under this Agreement and any Notes 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 (imposed in lieu of net income taxes) imposed
on the Agent or any Lender as a result of a present or former connection between
the 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 Lenders having
executed, delivered or performed its obligations or received a payment under, or
enforced, this Agreement or any Note). 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 Agent or any
Lender hereunder or under any Note, the amounts so payable to the Agent or such
Lender shall be increased to the extent necessary to yield to the Agent or such
Lender (after payment of all Non-Excluded Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Non-Excluded Taxes are payable by any Borrower, as
promptly as possible thereafter the Borrowers shall send to the 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 Borrowers showing payment
thereof. If the Borrowers fail to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fail to remit to the Agent the required receipts
or other required documentary evidence, the Borrowers, jointly and severally,
shall indemnify the Agent and the Lenders for any incremental taxes, interest or
penalties that become payable by the Agent or any Lender as a result of any such
failure. The agreements in this subsection 4.16 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
Each Lender that is not incorporated under the laws of the United States of
America or a state thereof shall:
deliver to the Borrowers and the Agent (A) two duly completed copies of the
United States Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and (B) an Internal Revenue Service Form
W-8 or W-9, or successor applicable form, as the case may be; deliver to the
Borrowers and the Agent two further 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 Borrowers; and obtain such
extensions of time for filing and complete such forms or certifications as may
reasonably be requested by the Borrowers or the 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 Borrowers and the Agent. Such
Lender shall certify (i) in the case of a Form 1001 or 4224, that it is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes and (ii) in the case of Form W-8 or W-9, that
it is entitled to an exemption from United States backup withholding tax. Each
Person that shall become a Lender or a Participant pursuant to subsection 11.8
shall, upon the effectiveness of the related transfer, be required to provide
all of the forms and statements required pursuant to this subsection 4.16,
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.
If any Lender shall receive a credit or refund from a taxing authority with
respect to, and actually resulting from, an amount of Non-Excluded Taxes
actually paid to or on behalf of such Lender by the Borrowers (a "Tax Credit"),
such Lender shall promptly notify the Borrowers of such Tax Credit. If such Tax
Credit is received by such Lender in the form of cash, such Lender shall
promptly pay to the Borrowers the amount so received with respect to the Tax
Credit. If such Tax Credit is not received by such Lender in the form of cash,
such Lender shall pay the amount of such Tax Credit not later than the time
prescribed by applicable Law for filing the return (including extensions of
time) for such Lenders' taxable period which includes the period in which such
Lender receives the economic benefit of such Tax Credit. In any event, the
amount of any Tax Credit payable by a Lender to the Borrowers pursuant to this
clause (c) shall not exceed the actual amount of cash refunded to, or credits
received and usable (in accordance with the actual practices then in use by such
Lender) by, such Lender from a taxing authority. In determining the amount of
any Tax Credit, a Lender may use such apportionment and attribution rules as
such Lender customarily employs in allocating taxes among its various operations
and income sources and such determination shall be conclusive absent manifest
error. The Borrowers, jointly and severally, further agree promptly to return to
a Lender the amount paid to the Borrowers with respect to a Tax Credit by such
Lender if such Lender is required to repay, or is determined to be ineligible
for, a Tax Credit for such amount. Notwithstanding anything to the contrary
contained herein, the Borrowers hereby acknowledge and agree that (i) neither
the Agent nor any Lender shall be obligated to provide the Borrowers with
details of the tax position of the Agent or such Lender (as the case may be) and
(ii) the Borrowers shall have no right to inspect any records (including tax
returns) of the Agent or such Lender (as the case may be).
Indemnity. The Borrowers, jointly and severally, agree to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender
sustains or incurs as a consequence of (a) failure by a Borrower to make a
borrowing of, conversion into or continuation of Eurodollar Loans after such
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) failure by a Borrower to make any prepayment
after such Borrower has given a notice thereof in accordance with the provisions
of this Agreement or (c) the making of a prepayment or payment of the principal
amount of any Eurodollar Loans on a day which is not the last day of an Interest
Period with respect thereto as required under this Agreement. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. This covenant shall survive the termination of this Agreement and the
payment of the Loans and all other amounts payable hereunder. Change of Lending
Office. Each Lender agrees that if it makes any demand for payment under
subsection 4.15 or 4.16(a), or if any adoption or change of the type described
in subsection 4.14 shall occur with respect to it, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its good faith discretion) to designate a different lending office
if the making of such a designation would reduce or obviate the need for the
Borrowers to make payments under subsection 4.15 or 4.16(a), or would eliminate
or reduce the effect of any adoption or change described in subsection 4.14.
REPRESENTATIONS AND WARRANTIES To induce the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit the Borrowers hereby, jointly and severally, represent and warrant to the
Agent and each Lender that: Financial Condition. The consolidated balance sheet
of ACS Inc. and its consolidated Subsidiaries as at September 30, 1998, and the
related consolidated statements of income and cash flows for the fiscal year
ended on such date, as reported on by Arthur Andersen, LLP, a copy of which has
heretofore been furnished to the Agent, is complete and correct and presents
fairly in all material respects the consolidated financial condition of such
Borrower and its consolidated Subsidiaries as at such date, and the consolidated
results of their operations for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP. Neither ACS Inc. 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 to the extent permitted under this Agreement or as
disclosed to the Agent prior to the date hereof, or as otherwise separately
disclosed to the Agent in writing prior to the date hereof, there has been no
sale, transfer or other disposition by ACS Inc. or any of its consolidated
Subsidiaries of any part of its business or property (including any capital
stock of any other Person) material in relation to the consolidated financial
condition of ACS Inc. and its consolidated Subsidiaries at September 30, 1998
during the period from September 30, 1998 and including the date hereof. No
Change. Since September 30, 1998, there has been no development or event which
has had or could reasonably be expected to have a Material Adverse Effect.
Disclosure. No information, schedule, exhibit or report or other document
furnished by each Borrower or any of its Subsidiaries to the Agent or any Lender
in connection with the negotiation of this Agreement or any other Loan Document
(or pursuant to the terms hereof or thereof), as such information, schedule,
exhibit or report or other document has been amended, supplemented or superseded
by any other information, schedule, exhibit or report or other document later
delivered to the same parties receiving such information, schedule, exhibit or
report or other document, contained any material misstatement of fact or omitted
to state a material fact or any fact necessary to make the statements contained
therein, in light of the circumstances when made, not materially misleading. Any
projections so furnished by each Borrower or any of its Subsidiaries (the
"Projections") at the time delivered, were based on good faith estimates and
assumptions made by the management of such Borrower and, as of the date of their
delivery, management of such Borrower believed that the Projections were
reasonable, it being recognized, however, that projections as to future events
are not to be viewed as facts and that the actual results during the period or
periods covered by the Projections may differ from the projected results and
that the differences may be material. Corporate Existence; Compliance with Law.
Each of the Borrowers and each of its respective Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the corporate power and authority, and
the legal right, 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 and in good standing 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 all failures to be so qualified could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect and (d) is in compliance with all
Requirements of Law except to the extent that all failures to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect. Corporate Power, Authorization, Enforceable Obligations. Each Borrower
has the corporate power and authority, and the legal right, 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 any Notes 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
Borrower is a party (other than filings to perfect security interests granted
pursuant to the Security Agreements). This Agreement has been, and each other
Loan Document to which it is a party will be, duly executed and delivered on
behalf of each Borrower. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered will constitute, a
legal, valid and binding obligation of each Borrower enforceable against each
Borrower in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing. No Legal Bar. The execution,
delivery and performance of the Loan Documents to which each Borrower is a
party, the borrowings hereunder and the use of the proceeds thereof will not
violate any Requirement of Law or Contractual Obligation of such Borrower or of
any of its Subsidiaries, except any violation which would not have a Material
Adverse Effect and will not result in, or require, 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 other than any Lien which
would not have a Material Adverse Effect. No Material Litigation. Except as
otherwise disclosed to the Agent, as listed on Schedule IX, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of any Borrower, threatened by or
against any Borrower 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 could
reasonably be expected to have a Material Adverse Effect. No Default. Neither
any Borrower 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. Ownership of Property, Liens. Each of the Borrowers
and each of its respective Subsidiaries has good and marketable title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in all its other property, and none of
such property is subject to any Lien except as permitted by subsection 8.3.
Intellectual Property. Each of the Borrowers and each of its respective
Subsidiaries owns, or is licensed to use, all trademarks, trade names,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted, except for those for which the failure to own
or license which could not be expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted and is pending by any
Person challenging or questioning the use of any such Intellectual Property or
the validity or effectiveness of any such Intellectual Property which, if
accurate, could reasonably be expected to have a Material Adverse Effect nor
does any Borrower know of any valid basis for any such claim. To the best
knowledge of each Borrower, the use of such Intellectual Property by each
Borrower and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Taxes. Each of the
Borrowers and each of its respective Subsidiaries has filed or caused to be
filed all material tax returns which, to the knowledge of such Borrower, are
required to be filed and has paid all material 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 the amount or validity of which are
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 Borrower or its Subsidiaries, as the case may be and other than any
failure to pay of which would not have a Material Adverse Effect); no tax Lien
has been filed, other than Liens permitted by subsection 8.3, and, to the
knowledge of each Borrower, no claim is being asserted, with respect to any such
tax, fee or other charge. Federal Regulations. No part of the proceeds of any
Loans will be used in any manner which would violate, or result in the violation
of, Regulation D, Regulation G or Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in effect. If
requested by any Lender or the Agent, each Borrower will furnish to the 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, as
the case may be. 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 with respect to any Plan, and each Plan
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
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, exceed the value of the assets of such Plan allocable to such accrued
benefits. Neither any Borrower nor any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither any
Borrower nor any Commonly Controlled Entity would become subject to any
liability under ERISA if any such Borrower or any such Commonly Controlled
Entity were to withdraw completely from all Multiemployer Plans as of the
valuation date most closely preceding the date on which this representation is
made or deemed made. 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 each Borrower 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(l) of ERISA) does not, in the aggregate, exceed the assets under all such
Plans allocable to such benefits by an amount in excess of $100,000. Investment
Company Act; Other Regulations. No Borrower is an "investment company", or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended. No Borrower is 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. Subsidiaries. Schedule III hereto sets forth all of the
Subsidiaries of each Borrower at the date hereof, together with the ownership
and jurisdiction of each. Environmental Matters. The facilities and properties
owned, leased or operated by any Borrower or any of its Subsidiaries (the
"Properties") and all operations at the Properties are in compliance, and have
been in compliance, in all material respects, with all applicable Environmental
Laws, and there is no contamination at or under (or, to the knowledge of any
Borrower about) the Properties or violation of any Environmental Law with
respect to the Properties or the business operated by any Borrower or any of its
Subsidiaries (the "Business") except insofar as such violation or failure to be
in compliance or contamination, or any aggregation thereof, is not reasonably
likely to result in a payment of a Material Adverse Amount.
Neither any Borrower nor any of its Subsidiaries has received any notice of
violation, alleged violation, non-compliance, liability or potential liability
regarding compliance with Environmental Laws with regard to any of the
Properties or the Business, nor does any Borrower have knowledge that any such
notice will be received or is being threatened, except insofar as such notice or
threatened notice, or any aggregation thereof, does not involve a matter or
matters that is or are reasonably likely to result in the payment of a Material
Adverse Amount.
Materials of Environmental Concern have not been transported or disposed of from
the Properties in violation of, or in a manner or to a location which could
reasonably be expected to give rise to liability under, 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, except insofar as any such violation or liability
referred to in this paragraph, or any aggregation thereof, is not reasonably
likely to result in the payment of a Material Adverse Amount.
No judicial proceeding or governmental or administrative action is pending or,
to the knowledge of any Borrower, threatened, under any Environmental Law to
which any Borrower, any of its Subsidiaries 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
which are binding upon any Borrower or any of its Subsidiaries with respect to
the Properties or the Business, except insofar as such proceeding, action,
decree, order or other requirement, or any aggregation thereof, is not
reasonably likely to result in the payment of a Material Adverse Amount.
There has been no release or threat of release of Materials of Environmental
Concern at or from the Properties, or arising from or related to the operations
of any Borrower 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 give rise to liability under Environmental Laws, except
insofar as any such violation or liability referred to in this paragraph, or any
aggregation thereof, is not reasonably likely to result in a payment of a
Material Adverse Amount.
Security Agreements.
Each Security Agreement constitutes a legal, valid and binding obligation of the
grantor party thereto, enforceable against it in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
The security interests granted pursuant to the Security Agreements as listed on
Schedule IV constitute a valid, perfected first priority security interest on
the Collateral in which a security interest can be perfected by the filing of
financing statements (as described therein) enforceable as such against all
creditors of any grantor and any Persons purporting to purchase any such
Collateral from the Loan Party who is the grantor with respect thereto (except
purchasers of Inventory in the ordinary course of business).
Joinder Agreements. Each Joinder Agreement on and after the date of execution
thereof, constitutes a legal, valid and binding obligation of the Loan Party who
is a party thereto, enforceable against it in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and by general equitable principles. Solvency. The aggregate value of
all of the assets of ACS Inc. and its Subsidiaries on a consolidated basis, at a
fair valuation, exceeds the total liabilities of ACS Inc. and its Subsidiaries
on a consolidated basis (including contingent, subordinated, unmatured and
unliquidated liabilities). ACS Inc. and its Subsidiaries have the ability to pay
their respective debts as they mature and do not have unreasonably small capital
with which to conduct their respective businesses. For purposes of this
subsection 5.19, the "fair valuation" of such assets is the price at which the
assets would change hands between a willing buyer and a willing seller, both
being adequately informed of the relevant facts, and neither being under any
compulsion to buy or to sell. Year 2000 Compliance.. Each Borrower has (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by suppliers and
vendors) that could be adversely affected by the "Year 2000 Problem" (that is,
the risk that computer applications used by such Borrower or any of its
Subsidiaries (or its suppliers and vendors) may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to and
any date after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. The Borrower reasonably
believes that all computer applications (including those of its suppliers and
vendors) that are material to its or any of its Subsidiaries' business and
operations will on a timely basis be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year 2000
Compliant"), except to the extent that a failure to do so could not reasonably
be expected to have a Material Adverse Effect. CONDITIONS PRECEDENT Conditions
to Initial Extensions of Credit. The effectiveness of the amendment and
restatement of the Existing Credit Agreement to be effected hereby and the
agreement of each Lender to make the initial extension of credit requested to be
made by it hereunder are 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: Loan Documents. The Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of each Borrower and (ii) the Notes (to the extent so requested by any Lender),
executed and delivered by a duly authorized officer of the Borrower.
Agreements. The Agent shall have received true and correct copies, certified as
to authenticity by each Borrower, of such documents or instruments as may be
reasonably requested by the Agent.
Closing.Certificate of Borrowers. The Agent shall have received a certificate of
the President or any Vice President and the Secretary or an Assistant Secretary
of each Borrower, dated the Closing Date, (i) attaching the Charter and By-Laws
(of such Borrower), (ii) attaching the resolutions of the Board of Directors of
such Borrower with respect to the transactions contemplated hereby, (iii)
certifying that such resolutions have not been amended, modified, revoked or
rescinded as of the date of such certificate and (iv) certifying as to the
incumbency and signature of the officers of such Borrower executing any Loan
Document; such certificate (and the attachments thereto) shall be in form and
substance satisfactory to the Agent.
Fees. The Borrowers shall have paid the accrued fees and expenses owing
hereunder or in connection herewith (including, without limitation, the Facility
Fee and accrued fees and disbursements of counsel to the Agent), to the extent
that such fees and expenses have been presented for payment a reasonable time
prior to the Closing Date.
Legal Opinions. The Agent shall have received, with a counterpart for each
Lender, the executed legal opinion of Venable, Baetjer and Howard, LLP, counsel
to the Borrowers, substantially in the form of Exhibit F. Such legal opinion
shall cover such other matters incident to the transactions contemplated by this
Agreement as the Agent may reasonably require.
Borrowing Base Certificate. The Agent shall have received a current Borrowing
Base Certificate.
Additional Information. The Agent shall have received such additional
agreements, opinions, certifications, instruments, documents, orders, consents,
financing statements, reports, studies, audits and other information in form and
substance satisfactory to the Agent, as the Agent may reasonably request.
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:
Representations and Warranties. Each of the representations and warranties made
by each of the Borrowers and each other Loan Party in or pursuant to the Loan
Documents shall be true and correct in all material respects on and as of such
date as if made on and as of such date (unless stated to relate to a specific
earlier date, in which case, such representations and warranties shall be true
and correct in all material respects as of such earlier date).
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.
Conditions to Each Facility A Loan. The Agent shall have received a certificate,
in form and substance satisfactory to the Agent, duly executed and delivered by
a Responsible Officer of the Borrowers and dated no earlier than thirty (30)
days prior to the requested borrowing date (i) stating that, to the best of such
Officer's knowledge, after giving effect to the extensions of credit requested
to be made on such date, the Lenders' Aggregate Outstanding Extensions of Credit
shall not exceed the Loan Value of the Eligible Receivables and (ii) setting
forth on a Borrowing Base Certificate dated of even date therewith and attached
thereto, the computations used to determine the Loan Value. Such certificates
shall be in form and substance satisfactory to the Agent.
Conditions to Each Acquisition Loan. For each acquisition to be financed by the
Loans: (A) All of the Lenders shall have provided written approval of the
acquisition pursuant to subsection 8.9(f) (i) or (B) the conditions of
8.9(f)(ii) shall have been satisfied; and for each such acquisition to be
financed in whole or in part by Facility B Loans, the Agent shall have received,
in form and substance satisfactory to the Agent, a certificate duly executed and
delivered by a Responsible Officer of the Borrowers and dated as of the
requested borrowing date, stating that, to the best of such Officer's knowledge,
after giving effect to the acquisition of the Acquired Business, the Borrowers
shall be in compliance on a pro forma basis with the covenants of subsection 8.1
of this Agreement and setting forth the computations used to determine such
compliance. The determination of compliance on a pro forma basis with the
covenants of subsection 8.1 of this Agreement shall be made on a consolidated
basis for the twelve-month period ended on the date of acquisition of the
Acquired Business or, if such Business Day is not the last day of a calendar
month, on the last Business Day of the calendar month most recently ended prior
to such Business Day plus Debt of any Acquired Business determined pursuant to
financial information delivered to and approved by the Agent prior to the
consummation of the acquisition of such Acquired Business for the period
included in such twelve-month period ended prior to the Borrowers' acquisition
thereof. The Agent shall have received such other approvals, opinions or
documents as the Agent or the Majority Lenders through the Agent may reasonably
request.
Each borrowing by, and Letter of Credit issued on behalf of, each Borrower
hereunder shall constitute a joint and several representation and warranty by
the Borrowers as of the date thereof that the applicable conditions contained in
this subsection 6.2 have been satisfied. Anything contained in this Agreement to
the contrary notwithstanding, no assets or cashflows of the Acquired Business
shall be included in the foregoing calculation unless such Acquired Business
shall have executed and delivered the documents required under subsection
7.12(c) on or before the acquisition date of such Acquired Business. AFFIRMATIVE
COVENANTS The Borrowers hereby agree that, so long as the Commitments remain in
effect or any amount is owing to any Lender or the Agent hereunder or under any
other Loan Document, ACS Inc. shall and (except in the case of delivery of
financial information and reports and notices) shall cause each of its
Subsidiaries to: Financial Statements. Furnish to the Agent: as soon as
available, but in any event within one hundred twenty (120) days after the end
of each fiscal year of ACS Inc., a copy of the consolidated balance sheet of ACS
Inc. 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 an independent certified public accountants of nationally recognized
standing; as soon as available, but in any event within ninety-five (95) days
after the end of each fiscal year of ACS Inc., a copy of the unaudited
consolidating balance sheets of ACS Inc. and its consolidated Subsidiaries as at
the end of such fiscal year together with consolidating statements of income and
retained earnings and of cash flows of ACS Inc. and its consolidated
Subsidiaries for such fiscal year as customarily prepared by the management of
ACS Inc. for internal use, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end audit adjustments
and, in the case of interim financial statements, subject to year-end
adjustments and the absence of footnotes); as soon as available, but in any
event not later than fifty (50) days after the end of each fiscal quarter of ACS
Inc., the unaudited consolidated and consolidating balance sheets of ACS Inc.
and its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated and consolidating statements of income of ACS Inc. and
its consolidated Subsidiaries for such quarter and the portion of ACS Inc.'s
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 and, in the case of interim financial statements,
subject to year-end adjustments and the absence of footnotes); 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
ending after the Closing Date (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
Certificates; Other Information. Furnish to the Agent:
concurrently with the delivery of the financial statements referred to in
subsections 7.1(a) and (b), a certificate of a Responsible Officer (i) stating
that, to the best of such Officer's knowledge, during such period (A) if any
Subsidiary has been formed or acquired, the Borrowers have complied with the
requirements of subsection 7.12 with respect thereto, (B) neither any of the
Borrowers nor any of the Subsidiaries has changed its name, its principal place
of business, its chief executive office or the location of any material item of
tangible Collateral without complying with the requirements of this Agreement
and the Security Documents with respect thereto and (C) each of the Borrowers
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 and (ii) setting forth the computations used by ACS Inc. in
determining (as of the end of such fiscal period) compliance with the covenants
contained in subsection 8.1; as soon as available and in any event within twenty
(20) days after the end of each month, a Borrowing Base Certificate, an Accounts
Aging Schedule and an Unbilled Report Schedule as at the end of such month,
certified by a Responsible Officer of the Borrowers; as soon as available and in
any event within fifty (50) days after the end of each fiscal quarter, a
quarterly backlog report as of the end of such quarter, certified by a
Responsible Officer of the Borrowers; as soon as available and in any event,
within five (5) days after the same are sent, copies of all financial statements
and reports which ACS Inc. sends to its stockholders; as soon as available and
in any event, within one hundred twenty (120) days after the end of each fiscal
year of ACS Inc., a copy of all financial statements and regular, periodical or
special reports that ACS Inc. may make to, or file with the SEC on an annual
basis and (ii) within fifty days after the end of each fiscal quarter, a copy of
all financial statements and regular, periodical or special reports that the
Borrower may make to, or file with, the SEC on a quarterly basis; and promptly,
such additional financial and other information as any Lender may from time to
time reasonably request. Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity in accordance with customary terms or before they
become delinquent or in default, as the case may be, all of its material
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
any Borrower or its Subsidiaries, as the case may be. 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 (in the reasonable judgment of a
Borrower) desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 8.5; comply with all Contractual Obligations
and Requirements of Law except to the extent that failure to comply therewith
could not, in the aggregate, be reasonably expected to have a Material Adverse
Effect. Maintenance of Property; Insurance. Keep all material property useful
and necessary in its business in good working order and condition; Maintain with
financially sound and reputable insurance companies insurance policies insuring
all its tangible property (including, in any event, all material Collateral) and
business against loss by fire, explosion, theft and such other casualties as may
be reasonably satisfactory to the Agent, such policies to be in at least such
form, amounts and having coverage against at least such risks as are customarily
insured against in the same general area by companies engaged in the same or a
similar business as may be reasonably satisfactory to the Agent with losses
payable to the Borrowers and the Agent, as their respective interests may
appear; Each insurance policy described in subsection 7.5(a) shall (i) contain
endorsements, in form satisfactory to each Lender, (ii) name the Agent, as an
insured party, (iii) provide that no cancellation, material reduction in amount
or material change in coverage thereof shall be effective until at least thirty
(30) days after receipt by the Agent of written notice thereof and (iv) be
reasonably satisfactory in all other respect to the Agent. In the event of any
termination or notice of non-payment by any insurer with respect to any policy
or any lapse in the coverage thereunder, the Borrowers shall cause such insurer
to give prompt written notice to each Lender of the occurrence of such
termination, nonpayment or lapse. The Borrowers shall deliver to the Agent a
report of a reputable insurance broker with respect to such insurance in each
calendar year and such supplemental reports with respect thereto as the Agent
may from time to time reasonably request.
Inspection of Property; Books and Records; Discussions. Keep proper books of
records and accounts 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
Agent or any Lender (including independent certified public accountants selected
by the Agent or any Lender), accompanied by the Agent to visit and inspect any
of its properties, conduct field audits with respect to the Collateral and
examine and make abstracts from any of its books and records at any reasonable
time (upon reasonable advance notice when no Default or Event of Default has
occurred and is continuing) and, with respect to the Agent, as often as may
reasonably be desired or, with respect to any Lender other than the Agent, not
more than once per calendar year at the expense of the Borrowers (or, if an
Event of Default has occurred and is continuing, at any reasonable time and as
often as may be desired at the expense of the Borrowers), and to discuss the
business, operations, properties and financial and other condition of each
Borrower and its Subsidiaries with officers and employees of each Borrower and
its Subsidiaries and upon reasonable prior notice to provide the representatives
of each Borrower an opportunity to attend such discussions, with its independent
certified public accountants. Notices. Promptly give notice to the Agent (who
shall give prompt notice thereof to the Lenders) of:
the occurrence of any Default or Event of Default; any (i) default or event of
default under any Contractual Obligation of a Borrower or any of its
Subsidiaries or (ii) litigation, investigation or proceeding which may exist at
any time between any Borrower or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely determined, as the
case may be, could reasonably be expected to have a Material Adverse Effect; any
litigation or proceeding affecting any Borrower or any of its Subsidiaries in
which the amount involved is $250,000 or more and not covered by insurance or in
which injunctive or similar relief is sought which could have a Material Adverse
Effect; the following events, as soon as possible and in any event within thirty
(30) days after any Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan that is an employee pension benefit plan (as defined in Section 3(2) of
ERISA), a failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan that is an employee pension benefit plan
(as defined in Section 3(2) of ERISA) or any withdrawal 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 any
Borrower or any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan that is an employee pension benefit plan (as defined in Section
3(2) of ERISA); the acquisition or creation of any Subsidiary which has Capital
Stock that is directly or indirectly owned by a Borrower or any Subsidiary; any
Borrower is debarred, suspended or proposed for debarment or is declared
ineligible for the award of contracts by any Governmental Authority and such
debarment, suspension or proposed debarment or declaration is reasonably
expected to have a Material Adverse Effect on the business, operations,
property, financial condition or prospects of ACS Inc. and its Subsidiaries
taken as a whole; any Lien (other than security interests created by the
Security Agreement or Liens permitted under this Agreement) on any of the
Collateral and the occurrence of any other event which could reasonably be
expected to have a Material Adverse Effect on the aggregate value of the
Collateral or on the security interests created by the Security Agreement or
this Agreement; and the occurrence of (i) any material adverse change in the
business, operations, property, condition (financial or otherwise) or prospects
of a Borrower and its Subsidiaries taken as a whole or (ii) any development or
event which could reasonably be expected to have a Material Adverse Effect. Each
notice pursuant to this subsection 7.7 shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrowers propose to take with respect thereto.
Environmental Laws.
Comply with and use reasonable efforts to ensure compliance by all tenants and
subtenants, if any, with all applicable Environmental Laws and obtain and comply
with and maintain, and use reasonable efforts to ensure that all tenants and
subtenants obtain and comply 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. 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 are
being contested in good faith by appropriate proceedings and the pendency of
such proceedings, could not reasonably be expected to have a Material Adverse
Effect. Assignments of Government Receivables. Execute and deliver to the Agent,
for the benefit of the Lenders, within five (5) Business Days after entering
into or acquiring any Government Contract hereafter, all statements of
assignment and/or notification, in form and substance satisfactory to the Agent,
in connection with the assignment to the Agent of the Government Receivables of
a Borrower and its Subsidiaries, provided, however that such Borrower and its
Subsidiaries shall not be required to execute and deliver such statements of
assignment and/or notification with respect to Government Receivables that arise
(i) under a contract with a maximum ceiling value of $500,000 or less or (ii)
under a contract (including all options, extensions and other like provisions
with respect thereto) of six (6) months or less in duration. Maintenance of
Primary Deposit Account. Furnish to the Agent, the name of the Lender with whom
the Borrowers shall maintain a primary deposit account until the Maturity Date.
As soon as possible, but in any event not later than five (5) Business Days
after the date hereof, furnish to the Agent evidence in form and scope
satisfactory to the Agent of the establishment of the primary deposit account
with a Lender. Further Assurances. Upon the request of the Agent, promptly
perform or cause to be performed any and all acts and execute or cause to be
executed any and all documents (including, without limitation, financing
statements and continuation statements) for filing under the provisions of the
Uniform Commercial Code or any other Requirement of Law which are necessary or
reasonably advisable to maintain in favor of the Agent, for the benefit of the
Lenders, Liens on the Collateral that are duly perfected in accordance with all
applicable Requirements of Law. Upon request of the Agent, promptly provide such
documents and legal opinions in order to carry out the transactions contemplated
hereby as the Agent shall reasonably request.
Additional Collateral; Additional Subsidiaries.
With respect to any assets (other than assets having a de minimis value)
acquired after the Closing Date by any Borrower or any of its Subsidiaries that
are intended to be subject to the Lien created by any of the Security Documents
but which are not so subject (other than (y) any assets described in paragraph
(b) or (c) of this subsection 7.12 and (z) immaterial assets a Lien on which
cannot be perfected by filing UCC-1 financing statements), promptly (and in any
event within thirty (30) days after the acquisition thereof): (i) execute and
deliver to the Agent such amendments to the relevant Security Documents or such
other documents as the Agent may reasonably deem necessary or advisable to grant
to the Agent, for the benefit of the Lenders, a Lien on such assets, (ii) take
all actions necessary or advisable to cause such Lien to be duly perfected in
accordance with all applicable Requirements of Law, including, without
limitation, the filing of financing statements in such jurisdictions as may be
requested by the Agent, and (iii) if requested by the Agent, deliver to the
Agent legal opinions relating to the matters described in clauses (i) and (ii)
immediately preceding, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Agent. With respect to any Subsidiary
(other than a Foreign Subsidiary) created or acquired after the Closing Date by
any Borrower, (i) cause such Subsidiary to promptly become a party to the
Security Agreement pursuant to documentation to be in form and substance
reasonably satisfactory to the Agent, (ii) execute and deliver such amendments
to this Agreement requested by the Agent to reflect the existence of such new
Subsidiary and (iii) if so requested by the Agent, deliver to the Agent legal
opinions relating to the matters described in clauses (i), (ii) and (iii)
immediately preceding, which opinions shall be in form and substance, and from
counsel reasonably satisfactory to the Agent. With respect to any Subsidiary
(other than a Foreign Subsidiary) created or acquired after the Closing Date by
any Borrower, the Borrowers may from time to time, with the prior written
consent of the Agent (which shall not be unreasonably withheld) (i) designate
such Subsidiary as a Borrower hereunder (an "Additional Borrower"), (ii) cause
such Additional Borrower to promptly become a party to this Agreement pursuant
to documentation to be in form and substance reasonably satisfactory to the
Agent, (iii) execute and deliver such amendments to this Agreement and the other
Loan Documents (including without limitation, the Notes evidencing the Loans of
the Lenders) requested by the Agent to reflect the existence of such Additional
Borrower, (iv) execute and deliver such other approvals, certificates or
documents requested by the Agent in its reasonable discretion and (v) if so
requested by the Agent, deliver to the Agent legal opinions relating to the
matters described in clauses (i), (ii), (iii) and (iv) immediately preceding,
which opinions shall be in form and substance, and from counsel reasonably
satisfactory to the Agent.
NEGATIVE COVENANTS
The Borrowers hereby agree that, so long as the Commitments remain in effect or
any amount is owing to any Lender or the Agent hereunder or under any other Loan
Document, the Borrowers shall not, and (except with respect to subsection 8.1)
shall not permit any Subsidiaries to, directly or indirectly: Financial
Condition Covenants. Debt to EBITDA. Permit, for any period of four consecutive
fiscal quarters, ending on the last day of any fiscal quarter, the ratio of the
Debt of ACS Inc. and its Subsidiaries determined on a consolidated basis in
accordance with GAAP on such day to EBITDA to be greater than the ratio set
forth opposite such fiscal period below:
Fiscal Period Ratio
Fiscal period ending 12/31/98 4.25
01/01/99 to 12/30/99 3.75
12/31/99 and thereafter 3.25
EBITDA Coverage. Permit, for any period of four consecutive fiscal quarters,
ending on the last day of any fiscal quarter, the ratio of (x) of EBITDA minus
taxes actually paid plus Consolidated Lease and Rental Expense to (y) the sum of
Consolidated Charges and Consolidated Lease and Rental Expense to be less than
1.10 to 1.00.
Minimum Net Worth. Permit the Consolidated Net Worth to be less than $41,000,000
Limitation on Indebtedness and Preferred Stock. Create, incur, assume or suffer
to exist any Indebtedness or preferred stock (other than preferred stock which,
by its terms, does not (so long as any Loans or Commitments are outstanding)
require the payment of any cash dividends thereon or redemption/reimbursement
obligations or impose any cash penalties (other than accrual of dividends on
unpaid dividends) for the failure to declare cash dividends thereon), except:
Indebtedness of the Borrowers under this Agreement or any other Loan Document;
Indebtedness of any Subsidiary to a Borrower or any other Subsidiary, provided
that such other Subsidiary has become a party to the Security Agreement;
Indebtedness outstanding on the date hereof and listed on Schedule V and any
refinancings, refundings, renewals or extensions thereof in an amount not to
exceed the then current principal amount thereof; Indebtedness of a corporation
which becomes a Subsidiary, after the date hereof, provided that (i) such
Indebtedness existed at the time such corporation became a Subsidiary and was
not created in anticipation thereof and (ii) immediately after giving effect to
the acquisition of such corporation by any Borrower, no Default or Event of
Default shall have occurred and be continuing; additional Indebtedness not
exceeding in aggregate principal amount at any one time outstanding: $1,000,000;
Guarantee Obligations permitted pursuant to subsection 8.4; Subordinated
Indebtedness and Deferred Purchase Consideration incurred pursuant to any
acquisition permitted under subsection 8.9(f); and Indebtedness under interest
rate protection agreements entered into to protect any Borrower against
fluctuations in interest rates and otherwise acceptable to the Majority Lenders.
Indebtedness under a private placement of subordinated notes in an aggregate
amount of up to $50,000,000 (unless a greater amount is approved in writing by
the Lenders), provided that the terms and conditions of such private placement
are approved in writing by the Lenders. Limitation on Liens. 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: 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 a
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;
carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like
Liens arising in the ordinary course of business for sums which are not overdue
for a period of more than ninety (90) days or which are being contested in good
faith by appropriate proceedings; landlords or mortgages of landlords or other
like Liens arising by operation of law, in the ordinary course of business, for
sums which are not overdue for a period of more than ninety (90) days or which
are being contested in good faith by appropriate proceedings; 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; 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;
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 such Borrower or such Subsidiary; Liens in existence on the date
hereof listed on Schedule VI and other Liens, securing Indebtedness permitted by
subsection 8.2(c), provided that no such Lien is spread to cover any additional
property after the date hereof and that the amount of Indebtedness secured
thereby is not increased; Liens on the property or assets of a corporation which
becomes a Subsidiary after the date hereof securing Indebtedness permitted by
subsection 8.2(d), provided that (i) such Liens existed at the time such
corporation became a Subsidiary and were not created in anticipation thereof,
(ii) any such Lien is not spread to cover any additional property or assets of
such corporation after the time such corporation becomes a Subsidiary, and (iii)
the amount of Indebtedness secured thereby is not increased; Liens (not
otherwise permitted hereunder) which secure obligations not exceeding (as to ACS
Inc. and all Subsidiaries), in an aggregate amount, at any one time outstanding
of: $1,000,000. Notwithstanding the foregoing, in no event shall any Liens be
permitted on any receivables of any Borrower except as expressly permitted under
this Section 8.3.
Limitation on Guarantee Obligations. Create, incur, assume or suffer to exist
any Guarantee Obligation, except: Guarantee Obligations in existence on the date
hereof and listed on Schedule VII; Guarantee Obligations incurred after the date
hereof, in an aggregate amount not to exceed, at any one time outstanding:
$200,000; performance bonds and other obligations of a like nature incurred in
the ordinary course of business incurred after the date hereof, in an aggregate
amount not to exceed, at any one time outstanding $1,00,000; guarantees made by
a Loan Party of obligations of any of any other Loan Party, which obligations
are otherwise permitted under this Agreement; and guarantees made by
Subsidiaries of any Borrower of obligations of any Borrower or any other
Subsidiaries, which obligations are otherwise permitted under this Agreement.
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, except: any Subsidiary of any Borrower may be merged or consolidated
with or into any Borrower (provided that such Borrower shall be the continuing
or surviving corporation) or with or into any one or more wholly owned Domestic
Subsidiaries of any Borrower (provided that the wholly owned Domestic Subsidiary
or Domestic Subsidiaries shall be the continuing or surviving corporation); any
wholly owned Subsidiary may sell, lease, transfer or otherwise dispose of any or
all of its assets (upon voluntary liquidation or otherwise) to any Borrower or
any other wholly owned Domestic Subsidiary of any Borrower; any Borrower or any
Subsidiary may merge with another Person if (i) such merger is in connection
with a transaction permitted under subsection 8.9(f) hereof, (ii) in the case of
a Borrower, such Borrower is the entity surviving such merger, and in the case
of a Subsidiary, the requirements of subsection 7.12 have been satisfied and the
entity surviving such merger is, immediately after giving effect to such merger,
the wholly-owned subsidiary of a Borrower, (iii) immediately after giving effect
to such merger, no Default or Event of Default shall have occurred and be
continuing and (iv) the joint and several warranties of the Borrowers contained
in this Agreement shall be true and correct in all material respects as if made
immediately after such merger; and any Borrower or any Subsidiary may enter into
any transaction permitted by subsection 8.6 or 8.9. Limitation on Sale of
Assets. Convey, sell, lease, assign, transfer or otherwise dispose of any of its
property, business or assets (including, without limitation, receivables and
leasehold interests) whether now owned or hereafter acquired, or, in the case of
any Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to
any Person other than any Borrower or any wholly owned Domestic Subsidiary,
except: the sale or other disposition of obsolete or worn out property
(including, without limitation, any property which is no longer used or useful
in the business of a Borrower and its Subsidiaries) in the ordinary course of
business and for fair market value; the sale or other disposition of any
property, provided that the fair market value of all assets so sold or disposed
of (other than inventory) in any period of twelve consecutive months shall not
exceed $1,000,000; the sale of inventory (including, without limitation,
"out-of-date" and "less than first quality" inventory) in the ordinary course of
business; the sale or discount without recourse of accounts receivable arising
in the ordinary course of business in connection with the compromise or
collection thereof; liquidation of Cash Equivalents and other investments
permitted by this Agreement; and the sale of the ISC building, located in
Virginia Beach, Virginia. Limitation on Dividends. Declare or pay any dividend
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 any Borrower
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 Borrower or
any Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "Restricted Payments"), provided; however, that any Subsidiary may
declare, make or pay dividends, payments or other distributions to any Borrower.
Limitation on Capital Expenditures. Make or commit to make (by way of the
acquisition of securities of a Person or otherwise) any expenditure in respect
of the purchase or other acquisition of, excluding any such asset acquired in
connection with normal replacement and maintenance programs properly charged to
current operations, for any fiscal year, (i) fixed assets greater than
$3,200,000, (ii) capitalized leases greater than $1,700,000 and (iii)
capitalized software expenditures greater than $2,000,000 , except for:
expenditures made to repair or replace assets which are damaged or destroyed, in
an aggregate amount not to exceed the amount (if any) of any proceeds of
insurance received on account of such damage or destruction; and expenditures on
account of the making of any investment permitted pursuant to subsection 8.9;
and expenditures made in connection with the purchase of a consolidated back
office support system for ACS Inc. in an aggregate amount not to exceed
$500,000. 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, except: extensions of
trade credit in the ordinary course of business; investments in Cash
Equivalents; loans and advances to employees of a Borrower or its Subsidiaries
for travel, entertainment and relocation expenses in the ordinary course of
business in an aggregate amount not to exceed $1,000,000; investments in
existence on the date hereof which are described on Schedule VIII hereof;
investments by a Borrower in, and loans by a Borrower to, its Subsidiaries and
investments by such Subsidiaries in, and loans by Subsidiaries to other Domestic
Subsidiaries, in existence on the date hereof or hereafter acquired pursuant to
subsection 8.9(f); during such time as no Default or Event of Default has
occurred and is continuing or would result therefrom, investments (which
investments may be made by any Borrower or indirectly through one or more wholly
owned domestic Subsidiaries of such Borrower organized under the laws of any
jurisdiction within the United States, and which may occur as the result of a
merger of a Borrower or a Subsidiary) in Capital Stock or assets of an Acquired
Business whose principal office is located in (and in the case of an investment
in Capital Stock, in an entity organized under the laws of any jurisdiction
within) the United States, provided that any such investment shall (i) be
approved in writing by all Lenders (such approval to be in the Lenders' sole
discretion) or (ii) satisfy each of the following requirements: (i) the
investment is less than or equal to $5,000,000.00; (ii) the Available Facility A
Commitment on the acquisition date, after giving effect to such investment, is
greater than or equal to $5,000,000.00; (iii) on the acquisition date of any
Acquired Business, such Acquired Business has been in existence at least three
years and such Acquired Business has not had a Consolidated Net Loss in each of
the previous 12 fiscal quarters; (iv) ACS Inc. and its Subsidiaries shall be in
compliance on a pro forma basis (calculated in accordance with subsection
6.2(d)(ii)), with the covenants of subsection 8.1; (v) such Acquired Business is
engaged in the same businesses in which the Borrowers are engaged in on the date
of such acquisition or businesses of a similar, type; (vi) such Acquired
Business is organized under the laws of any jurisdiction within the United
States; and (vii) after the acquisition of such Acquired Business, the Capital
Stock of such Acquired Business shall constitute less than 10% of the Capital
Stock of ACS Inc. and its Subsidiaries, measured as of the acquisition date of
such Acquired Business; a Borrower may make intercompany loans and advances to
its wholly owned Domestic Subsidiaries and such Subsidiaries may make
intercompany loans and advances to the Borrower; (i) intercompany loans and
advances made by ACS Inc. to its present and future wholly owned Foreign
Subsidiary in an aggregate amount not to exceed $1,250,000,; Subordinated
Indebtedness permitted under section 8.2(g); and other advances, loans and
extensions of credit in an aggregate amount not to exceed: $250,000. Limitation
on Transactions with Affiliates. (a) Enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (i)
otherwise permitted under this Agreement, (ii) in the ordinary course of any
such Borrower's or any such Subsidiary's business and (iii) upon fair and
reasonable terms no less favorable to such Borrower or such 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; Limitation on Sales and Leasebacks. Enter
into any arrangement with any Person providing for the leasing by any Borrower
or any Subsidiary of real or personal property which has been or is to be sold
or transferred by such Borrower or such 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 such Borrower or such
Subsidiary in an aggregate amount not to exceed $1,500,000. Limitation on
Changes in Fiscal Year. Permit the fiscal year of any of the Borrowers to end on
a day other than September 30. Limitation on Negative Pledge Clauses. Enter into
with any Person any agreement, other than this Agreement, purchase money
mortgages, Financing Leases and other similar fixed asset financings permitted
by this Agreement (in which cases, any prohibition or limitation shall only be
effective against the assets financed thereby), which prohibits or limits the
ability of any Borrower or any Subsidiaries to create, incur, assume or suffer
to exist any Lien upon any of its property, assets or revenues, whether now
owned or hereafter acquired. Limitation on Lines of Business. Enter into any
business, either directly or through any Subsidiary, except for (a) the
businesses in which any Borrower and any Subsidiaries are engaged on the date
hereof and businesses of a similar type and (b) other activities relating
thereto. EVENTS OF DEFAULT If any of the following events shall occur and be
continuing: Any Borrower shall fail to pay (i) any principal of any Loan or any
Reimbursement Obligation when due in accordance with the terms hereof or any
other Loan Document; (ii) any interest on any Loan within five (5) Business Days
after any such interest comes due in accordance with the terms hereof or (iii)
any other amount payable hereunder or any other Loan Document within ten (10)
Business Days after any other amount becomes due in accordance with the terms
thereof or hereof; or Any representation or warranty made or deemed made by any
Borrower or any other Loan Party herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or Any Borrower or any other
Loan Party shall default in the observance or performance of any agreement
contained in Section 8 or any negative covenant contained in any other Loan
Document; or Any Borrower or any other Loan Party 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 9), and such default shall continue unremedied for a period of
thirty (30) days after the earlier of (i) the date upon which an executive
officer of any Borrower has actual knowledge thereof and (ii) the date upon
which the Agent or any Lender gives notice to the Borrowers thereof; or Any
Borrower or any of its Subsidiaries shall (i) default in any payment of
principal of or interest of any Indebtedness (other than the Loans) or in the
payment of any Guarantee Obligation, beyond the period of grace (not to exceed
sixty (60) days), if any, provided in the instrument or agreement under which
such Indebtedness or Guarantee Obligation was created; 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 or the passage of time if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; provided, however, that no Default or Event of
Default shall exist under this paragraph unless the aggregate amount of
Indebtedness and/or Guarantee Obligations in respect of which any default or
other event or condition referred to in this paragraph shall have occurred shall
be equal to at least $500,000; or (i) Any Borrower or any Subsidiary 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 any Borrower or any Subsidiary shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against any
Borrower or any Subsidiary 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 sixty (60) days; or (iii) there shall
be commenced against any Borrower or any Subsidiary 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 sixty (60) days
from the entry thereof, or (iv) any Borrower or any Subsidiary 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) such Borrower or any Subsidiary shall generally not, or shall be unable
to, or shall admit in writing its inability to, pay its debts as they become
due; or (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 any Borrower 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) any
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the 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 adverse 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 involve an aggregate amount of liability to any
Borrower or any Subsidiary in excess of (a) $500,000; or One or more judgments
or decrees shall be entered against any Borrower or any Subsidiaries involving
in the aggregate a liability (not paid or fully covered by insurance) of
$500,000 or more and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within sixty (60) days from the
entry thereof; or (i) any of the Security Documents shall cease, for any reason
to be in full force and effect, or any Borrower or any other Loan Party which is
a party to any of the Security Documents shall so assert or (ii) the Lien
created by any of the Security Documents shall cease to be enforceable and of
the same effect and priority purported to be created thereby except as permitted
by this Agreement or other Loan Documents; Any Change in Control or Management
Change shall occur; or any Borrower is debarred, suspended or proposed for
debarment or is declared ineligible for the award of contracts by any
Governmental Authority and such debarment, suspension or proposed debarment or
declaration is reasonably expected to have a Material Adverse Effect on the
business, operations, property, financial condition or prospects of ACS Inc. and
its Subsidiaries taken as a whole; then, and in any such event, (i) if such
event is an Event of Default specified in clause (i) or (ii) of paragraph (f) of
this Section 9 with respect to any Borrower, 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 (ii) if such event is
any other Event of Default, either or both of the following actions may be
taken: (A) with the consent of the Majority Lenders, the Agent may, or upon the
request of the Majority Lenders, the Agent shall, by notice to the Borrowers
declare the Commitments to be terminated forthwith, whereupon the Commitments
shall immediately terminate; and (B) with the consent of the Majority Lenders,
the Agent may, or upon the request of the Majority Lenders, the Agent shall, by
notice to the Borrowers, 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 9, presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrowers shall at such time deposit in the L/C
Collateral Account, opened by the Lenders hereunder) an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. Each
Borrower hereby grants to the Agent, for the benefit of the holders of the
Secured Obligations, the Issuing Banks and the L/C Participants, a security
interest in such cash collateral to secure the Secured Obligations and to secure
all other obligations of each Borrower under this Agreement and the other Loan
Documents. Amounts held in such cash collateral account shall be applied by the
Agent in accordance with the provisions of the Security Agreements. Each
Borrower shall execute and deliver to the Agent such further documents and
instruments as the Agent may request to evidence the creation and perfection of
its security interest in such cash collateral account. THE AGENT Appointment.
(a) Each Lender hereby irrevocably designates and appoints NationsBank, N.A. as
the Agent of such Lender under this Agreement and the other Loan Documents, and
each such Lender irrevocably authorizes the 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 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 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 Agent. Delegation of Duties. The 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 Agent shall not be
responsible for the negligence or misconduct of any Agents or attorneys-in-fact
selected by it with reasonable care. Exculpatory Provisions. Neither the 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 any Borrower 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 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 any Borrower to perform its obligations hereunder or
thereunder. The 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 Borrowers.
Reliance by Agent. The 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 any Borrower), independent accountants and other experts selected by the
Agent. Without limiting the foregoing or the obligation of each Borrower to
confirm in writing any telephonic notice permitted to be given hereunder, the
Agent may prior to receipt of written confirmation act without liability upon
the basis of such telephonic notice, believed by the Agent in good faith to be
from a Responsible Officer of any Borrower or any Subsidiary. The 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 Agent. The 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 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. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Agent has received notice from a Lender or a Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Agent receives such a
notice, the Agent shall give notice thereof to the Lenders. The Agent shall take
such action with respect to such Default or Event of Default as shall be
reasonably directed by the Majority Lenders; provided that unless and until the
Agent shall have received such directions, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders. Non-Reliance on Agent and Other Lenders. Each Lender
expressly acknowledges that neither the 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 Agent hereinafter
taken, including any review of the affairs of any Borrower, shall be deemed to
constitute any representation or warranty by the Agent to any Lender. Each
Lender represents to the Agent that it has, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation into
the business, operations, property, financial and other condition and
creditworthiness of each Borrower 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 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 each Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
each Borrower which may come into the possession of the Agent or any of its
officers, directors, employees, Agents, attorneys-in-fact or Affiliates.
Indemnification. The Lenders agree to indemnify the Agent in its capacity as
such (to the extent not reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to their respective
Commitment Percentages in effect on the date on which indemnification is sought
(such Commitment Percentage to be determined as if there are not Defaulting
Lenders), from and against any and all liabilities, obligations, losses,
damages, 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 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 Agent under
or in connection with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. To the
extent that any Lender would be required to indemnify the Agent pursuant to this
subsection 10.7 but for the fact that it is a Defaulting Lender, such Defaulting
Lender shall not be entitled to receive any portion of any payment or other
distribution hereunder until each other Lender shall have been reimbursed for
the excess, if any, of the aggregate amount paid by such Lender under this
subsection 10.7 over the aggregate amount that such Lender would have been
obligated to pay had such first Lender not been a Defaulting Lender. The
agreements in this subsection 10.7 shall survive the payment of the Loans and
all other amounts payable hereunder. Agent in its Individual Capacity. The Agent
and each of its respective Affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Borrower as though the
Agent were not the Agent hereunder and under the other Loan Documents. With
respect to its Loans made or renewed by it and any Note issued to it and with
respect to any Letter of Credit issued or participated in by it, the 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
Agent, and the terms "Lender" and "Lenders" shall include the Agent in its
respective individual capacity. Successor Agent. The Agent may resign as Agent
upon ten (10) days' notice to the Lenders and the Borrowers. If the Agent shall
resign as 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 (provided that it shall have been approved by the
Borrowers), shall succeed to the rights, powers and duties of the Agent
hereunder. Effective upon such appointment and approval, the term "Agent" shall
mean such successor Agent, and the former Agent's rights, powers and duties as
Agent shall be terminated, without any other or further act or deed on the part
of such former Agent or any of the parties to this Agreement or any holders of
the Loans. After any retiring Agent's resignation as Agent, the provisions of
this Section 10 shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under this Agreement and the other Loan
Documents. MISCELLANEOUS Amendments and Waivers. 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 11.1. The Majority Lenders may, or, with the written consent of the
Majority Lenders, the Agent may, from time to time, with the consent of the
Borrowers (a) enter into with the Borrowers 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 Borrowers hereunder or thereunder or
(b) waive, on such terms and conditions as the Majority Lenders or the 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: reduce the amount or extend the scheduled date
of maturity of any Loan or of any installment thereof, or reduce the stated 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 Commitment, in each case without the consent of each Non-Defaulting
Lender directly affected thereby; amend, modify or waive any provision of this
subsection 11.1 or reduce the percentage specified in the definition of Majority
Lenders, in each case without the written consent of all the Non-Defaulting
Lenders; consent to the assignment or transfer by any Borrower of any of its
rights and obligations under this Agreement and the other Loan Documents, in
each case without the written consent of all the Non-Defaulting Lenders; release
of any of the material collateral or material guarantee obligations provided for
in a Security Document, without the written consent of all Non-Defaulting
Lenders except in connection with permitted dispositions of Collateral; amend,
modify or waive any provision of Section 3 without the written consent of each
Issuing Bank directly affected thereby (provided that, such Issuing Bank is a
Non-Defaulting Lender); or amend, modify or waive any provision of Section 11
without the written consent of the then Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
(including Defaulting Lenders) and shall be binding upon each Borrower, the
Lenders (including Defaulting Lenders), the Agent and all future holders of the
Loans. In the case of any waiver, the Borrowers, the Lenders (including
Defaulting Lenders) and the 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.
Releases of Collateral Security. Notwithstanding anything to the contrary
contained herein or in any Security Document, upon request of the Borrowers, the
Agent shall (without any notice to or vote or consent of any Lender) take any
action which has the effect of releasing any collateral security and/or
guarantee obligations provided for in any Loan Document to the extent necessary
to permit the consummation of any Net Proceeds Event or any asset dispositions
permitted by subsection 8.6; provided that (unless all Lenders shall otherwise
consent) the Net Proceeds of any Net Proceeds Event are applied in the manner
contemplated by subsection 4.5 (if so required). Notices. Unless otherwise
expressly provided herein, 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 (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three (3) days after being
deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrowers and the 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: The Borrowers:
Advanced Communication Systems, Inc.
10089 Lee Highway
Fairfax, VA 22030
Attention: Dev Ganesan
Telecopy: (703) 385-8684
Phone: (703) 934-8130
with a copy to:
Venable, Baetjer and Howard, LLP
2010 Corporate Ridge, Suite 400
McLean, VA 22102-7847
Attention: Joseph C. Schmelter, Esq.
Telecopy: (703) 821-8949
Phone: (703) 760-1920
The Agent:
NationsBank, N.A.
8300 Greensboro Drive
McLean, VA 22102
Attention: Lindsey S. Rheaume
Telecopy: (703) 761-8246
Phone: (703) 761-8346
with a copy to:
Shaw Pittman Potts & Trowbridge
2300 N Street, N.W.
Washington, D.C. 20037
Attention: M. David Krohn, Esq.
Telecopy: (212) 603-6801
Phone: (212) 603-6824
provided that any notice, request or demand to or upon the Agent pursuant to
subsection 2.2, 3.2, 4.3, 4.4 or 4.8 shall not be effective until received.
No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising on the part of the 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. 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
and shall continue until the termination of this Agreement pursuant to
subsection 11.7. Payment of Expenses and Taxes. The Borrowers, jointly and
severally, agree (a) to pay or reimburse the Agent for all of its reasonable
out-of-pocket costs and expenses incurred in connection with the development,
preparation and execution of 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 Agent, (b) to pay or
reimburse each Lender and the Agent for all its costs and expenses incurred in
connection with the enforcement or with respect to the Agent, the preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including, without limitation, the reasonable fees and disbursements
of counsel to each Lender and of counsel to the Agent, (c) to pay, indemnify,
and hold each Lender and the 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, 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 each Lender and the Agent
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to any Letters of Credit or the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents or the use of the proceeds of the Loans and
any such other documents, including, without limitation, any of the foregoing
relating to the violation of, noncompliance with or liability under, any
Environmental Law applicable to the operations of any Borrower, any Subsidiary
or any of the Properties (all the foregoing in this clause (d), collectively,
the "indemnified liabilities"), provided that the Borrowers shall have no
obligation hereunder to the Agent or any Lender with respect to indemnified
liabilities to the extent arising from the gross negligence, bad faith or
willful misconduct of the Agent or such Lender. The agreements in this
subsection 11.6 shall survive repayment of the Loans and all other amounts
payable hereunder. Termination. This Agreement shall terminate upon the
termination of all Commitments and the irrevocable repayment in full of the
aggregate outstanding principal amount of the Loans, accrued interest thereon,
and all fees and expenses and other amounts due and payable at such time under
any of the Loan Documents; provided that all indemnities set forth herein
including, without limitation, in subsections 4.14, 4.15, 4.16, 4.17, 10.7 and
11.6 shall survive such termination. Successors and Assigns; Participations and
Assignments. This Agreement shall be binding upon and inure to the benefit of
the Borrowers, the Lenders, the Agent and their respective successors and
assigns, except that no Borrower may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender. 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 financial institutions ("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 shall remain unchanged, such
Lender shall remain solely responsible for the performance thereof, such Lender
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrowers and the 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. No
Lender shall be entitled to create in favor of any Participant, in the
participation agreement pursuant to which such Participant's participating
interest shall be created or otherwise, any right to vote on, consent to or
approve any matter relating to this Agreement or any other Loan Document except
for those specified in clauses (i) and (ii) of the proviso to subsection 11.1.
The Borrowers agree 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 fully as if it were a Lender
hereunder. The Borrowers also agree that each Participant shall be entitled to
the benefits of subsections 4.14, 4.15, 4.16 and 4.17 with respect to its
participation in the Commitments and the Loans outstanding from time to time as
if it was a Lender; provided that, in the case of subsection 4.16, such
Participant shall have complied with the requirements of said subsection and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such subsection than the Lenders would have been entitled
to receive in respect of the amount of the participation transferred by such
Lender to such Participant had no such transfer occurred. 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 Borrowers and the 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, substantially in the form of Exhibit G, 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 Borrowers and the Agent) and
delivered to the Agent for its acceptance and recording, provided that, in the
case of any such assignment to an additional bank or financial institution, (x)
the aggregate amount of the Commitments being assigned are not less than
$1,000,000 (or such lesser amount as may be agreed to by the Borrowers and the
Agent) and (y) 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 $1,000,000 (or such
lesser amount as may be agreed to by the Borrowers and the Agent).
Notwithstanding the foregoing, so long as no event described in subsection 9(f)
shall have occurred and be continuing, unless the Borrowers shall have otherwise
consented, NationsBank, N.A. shall at all times retain (i) not less than thirty
percent (30%) of the sum of the Commitments of the Lenders and (ii) a Commitment
Percentage of each Facility greater than that of any other single Lender
hereunder. Upon such execution, delivery, acceptance and recording (and the
payment of the registration and processing fee described in clause (e) below),
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 the Lenders' rights and obligations under this Agreement, such
assigning Lender shall cease to be a party hereto). Notwithstanding any
provision of this paragraph (c) of this subsection, the consent of the Borrowers
shall not be required for any assignment which occurs at any time when any of
the events described in subsection 9(f) shall have occurred and be continuing.
The Agent, on behalf of the Borrowers, shall maintain at the address of the
Agent referred to in subsection 11.3 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 Loans owing to, each Lender from time to time. The entries in the Register
shall, to the extent permitted by applicable law, be prima facie evidence of the
information contained therein, and the Borrowers, the Agent and the Lenders may
(and, in the case of any Loan or other obligation hereunder not evidenced by a
Note, shall) treat each Person whose name is recorded in the Register as the
owner of a 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 Loan or other obligation hereunder
not evidenced by a Note shall be effective only upon appropriate entries with
respect thereto being made in the Register. The Register shall be available for
inspection by any Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice. 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 Borrowers
and the Agent), together with payment to the Agent of a registration and
processing fee of $2,500 by such Assignee, the 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 Borrowers;
provided that no such fee shall be payable with respect to any assignment from
an assigning Lender to an affiliate thereof. The Borrowers authorize each Lender
to disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lenders'
possession concerning any Borrower or any Affiliate of a Borrower which has been
delivered to such Lender by or on behalf of such Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of any such
Borrower in connection with such Lenders' credit evaluation of any such Borrower
and its Affiliates prior to becoming a party to this Agreement. For avoidance of
doubt, the parties to this Agreement acknowledge that the provisions of this
subsection 11.8 concerning assignments of Loans and Notes 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 or Note to any Federal Reserve Bank in
accordance with applicable law.
Adjustments; Set-off.
If any Lender (a "Benefited Lender") at any time shall receive any payment of
all or part of its Loans or the Reimbursement Obligations owing to it, 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 subsection 9(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 Lenders' Loans or the Reimbursement Obligations
owing to it (as the case may be), or interest thereon, such benefited Lender
shall purchase for cash from the other Lenders such portion of each such other
Lenders' Loans or the Reimbursement Obligations owing to it (as the case may
be), or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders, and if after taking into account such
sharing the benefited Lender continues to have access to addition funds of or
collateral granted by any Borrower for application on account of its debt, then
the benefited Lender shall use such funds or collateral to reduce Indebtedness
of any such Borrower held by it and share such payments and the benefits of such
collateral with the other Lenders; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. The Borrowers,
jointly and severally, agree that each Lender so purchasing a portion of another
Lenders' Loans or Reimbursement Obligations may exercise all rights of payment
(including, without limitation, rights of set-off) with respect to such portion
as fully as if such Lender were the direct holder of such portion. In addition
to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to any Borrower, any such notice being
expressly waived by each Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by any Borrower 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 case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch, agency or (to the extent permitted by
applicable law) banking affiliate thereof to or for the credit or the account of
any Borrower. Each Lender agrees promptly to notify the Borrowers and the Agent
or any Lender 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
the set-off and application.
Joint and Several Liability. WHETHER OR NOT EXPRESSLY STATED HEREIN OR IN ANY
OTHER LOAN DOCUMENT, ALL OBLIGATIONS OF THE BORROWERS (OR OF ANY BORROWER)
HEREUNDER AND UNDER EACH OTHER LOAN DOCUMENT (WHETHER IN CONNECTION WITH LOANS,
LETTERS OF CREDIT OR OTHER OBLIGATIONS) ARE JOINT AND SEVERAL OBLIGATIONS OF ALL
BORROWERS. Maximum Amount of Joint and Several Liability. To the extent that
applicable Law otherwise would render the full amount of the joint and several
obligations of any Subsidiary of ACS Inc. hereunder and under the other Loan
Documents invalid or unenforceable, such Subsidiary's obligations hereunder and
under the Loan Documents shall be limited to the maximum amount which does not
result in such invalidity or unenforceability, provided, however, that each
Borrower's obligations hereunder and under the other Loan Documents shall be
presumptively valid and enforceable to their fullest extent in accordance with
the terms hereof or thereof, as if this subsection 11.11 were not a part of this
Agreement. 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 ACS Inc. and the Agent.
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. Integration. This Agreement and the other Loan Documents
represent the agreement of the Borrowers, the Agent and the Lenders with respect
to the subject matter hereof, and there are no promises, undertakings,
representations or warranties by the Agent or any Lender relative to subject
matter hereof not expressly set forth or referred to herein or in the other Loan
Documents. This Agreement amends and restates in its entirety the Existing
Credit Agreement. This Agreement renews, restructures and continues the Existing
Credit Agreement without any novation, discharge, release or satisfaction of the
underlying obligations or indebtedness (or any collateral security therefore),
all of which obligations or indebtedness and security remain outstanding under
this Agreement and the Notes. 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 COMMONWEALTH OF VIRGINIA.
Submission To Jurisdiction; Waivers. Each Borrower hereby irrevocably and
unconditionally: 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
Commonwealth of Virginia, the courts of the United States of America for the 4th
circuit, and appellate courts from any thereof, 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; 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 a Borrower at its address set forth in subsection 11.3 or at
such other address of which the Lenders shall have been notified pursuant
thereto; 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 waives, except in the case of bad faith (and
otherwise 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 11.16 any special, exemplary, punitive or consequential damages.
Acknowledgments. The Borrowers hereby acknowledge that: each Borrower has been
advised by counsel in the negotiation, execution and delivery of this Agreement
and the other Loan Documents; neither the Agent nor any Lender has any fiduciary
relationship with or duty to any Borrower arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
Agent and Lenders, on the one hand, and the Borrowers, on the other hand, in
connection herewith is solely that of debtor and creditor; and no joint venture
is created hereby or by the other Loan Documents or otherwise exists by virtue
of the transactions contemplated hereby among any Borrower and the Lenders.
WAIVERS OF JURY TRIAL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH
BORROWER, THE 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.
<PAGE>
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.
NATIONSBANK, N.A.,
as Agent and a Lender
By:
Lindsey S. Rheaume
Vice President
MELLON BANK, N.A.,
as a Lender
By:
Michael J. Troutman
Vice President
<PAGE>
ADVANCED COMMUNICATION
SYSTEMS, INC.,
as Borrower
By:
Dev Ganesan
Chief Financial Officer
ADVANCED MANAGEMENT, INC.,
as Borrower
By:
Dev Ganesan
Chief Financial Officer
INTEGRATED SYSTEMS CONTROL,INC.,
as Borrower
By:
Dev Ganesan
Chief Financial Officer
RF MICROSYSTEMS, INC.,
as Borrower
By:
Dev Ganesan
Chief Financial Officer
SEMCOR, INC.,
as Borrower
By:
Dev Ganesan
Chief Financial Officer
EXHIBIT 11.1 - COMPUTATION OF PER SHARE EARNINGS
Advanced Communication Systems,Inc.
(in thousands, except per share data)
<TABLE>
<CAPTION>
Three months ended Six months ended
March 31 March 31
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Basic:
Total basic average shares outstanding.... 8,669 6,524 8,644 6,438
===== ===== ===== =====
Net income................................ $1,647 $843 $2,920 $1,497
===== ===== ===== =====
Net income per share - basic.............. $0.19 $0.13 $0.34 $0.23
===== ===== ===== =====
Diluted:
Total basic average shares outstanding.... 8,669 6,524 8,644 6,438
Plus dilutive stock options............... 162 112 114 120
----- ----- ----- -----
Total diluted average shares.............. 8,831 6,636 8,758 6,558
===== ===== ===== =====
Net income per share - diluted............ $0.19 $0.13 $0.33 $0.23
===== ===== ===== =====
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0001035104
<NAME> ADVANCED COMMUNICATION SYSTEMS, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-30-1999
<PERIOD-START> OCT-01-1998
<PERIOD-END> MAR-31-1999
<CASH> 751
<SECURITIES> 0
<RECEIVABLES> 66,502
<ALLOWANCES> 1,359
<INVENTORY> 790
<CURRENT-ASSETS> 68,703
<PP&E> 17,003
<DEPRECIATION> 8,777
<TOTAL-ASSETS> 135,488
<CURRENT-LIABILITIES> 35,213
<BONDS> 0
0
0
<COMMON> 115
<OTHER-SE> 48,447
<TOTAL-LIABILITY-AND-EQUITY> 135,488
<SALES> 0
<TOTAL-REVENUES> 98,836
<CGS> 0
<TOTAL-COSTS> 92,076
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,027
<INCOME-PRETAX> 4,821
<INCOME-TAX> 1,901
<INCOME-CONTINUING> 2,920
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,920
<EPS-PRIMARY> .34
<EPS-DILUTED> .33
</TABLE>
