<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
FORM 10-K
X ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended December 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 - 6234
ACMAT CORPORATION
(Exact name of registrant as specified in its charter)
Connecticut 06-0682460
(State of incorporation) (I.R.S. Employer Identification No.)
233 Main Street 06050-2350
New Britain, Connecticut (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code
(860) 229-9000
Securities registered pursuant to Section 12 (b) of the Act: None
Securities registered pursuant to Section 12 (g) of the Act:
Common Stock, without par value
Class A Stock, without par value
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) or 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 XX No
The aggregate market value as of March 1, 2000 of the Common Stock and Class A
Stock held by non-affiliates of the registrant was $17,173,790.
As of March 1, 2000 there were 570,568 shares of the registrant's Common Stock
and 2,288,527 shares of registrant's Class A Stock, each without par value,
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE: None
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<TABLE>
<CAPTION>
PART I
<S> <C>
Item 1. Business 3
General 3
Financial Information about Operating Segments 3
United Coastal Liability Insurance 3
ACSTAR Bonding 5
Insurance and Bonding Performance Ratios 5
Underwriting 6
Reinsurance 6
Claims 6
Reserves for Losses and Loss Adjustment Expenses 6
IRIS Ratios 9
A.M. Best Ratings 9
Risk-Based Capital 9
ACMAT Contracting 9
General 9
Backlog 9
Materials 10
Contract Acquisition 10
Warranty 10
Asbestos Abatement Operations 10
Marketing 10
Competition 11
Regulation 11
Investments 12
Environmental Compliance 14
Employees 14
Item 2. Properties 14
Item 3. Legal Proceedings 14
Item 4. Submission of Matters to a Vote of Security Holders 14
PART II
Item 5. Market for the Registrant's Common Stock and Related Stockholder matters 15
Item 6. Selected Financial Data 15
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations 16
Reserves for Losses and Loss Adjustment Expenses 18
Liquidity and Capital Resources 19
Regulatory Environment 20
Item 7a. Quantitative and Qualitative Discussions about Market Risk 20
Item 8. Financial Statements and Supplementary Data 22
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure 49
PART III
Item 10. Directors and Executive Officers of the Registrant 49
Item 11. Executive Compensation 51
Item 12. Security Ownership of Certain Beneficial Owners and Management 53
Item 13. Certain Relationships and Related Transactions 54
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K 54
</TABLE>
<PAGE> 3
PART I
ITEM 1. BUSINESS
General
ACMAT Corporation ("ACMAT" or the "Company") provides specialized commercial
insurance and bonding coverages for contractors, architects, engineers and other
professionals in the construction and environmental fields and other specialty
insurance such as products liability. The Company derives its underwriting
expertise from its construction and remediation operations. Through United
Coastal Insurance Company ("United Coastal Insurance"), the Company provides a
broad line of general, professional, environmental and other liability insurance
primarily to environmental contractors and specialty trade contractors and
architects, engineers and other professionals. Through ACSTAR Insurance Company
("ACSTAR Insurance"), the Company provides surety bonds for general building,
specialty trade and environmental contractors and all forms of commercial
surety. Both United Coastal Insurance and ACSTAR Insurance are rated A-
(excellent) by The A.M. Best Co., Inc. ("A.M. Best").
The Company is also engaged in construction contracting which consists of
interior contracting services involving the design and furnishing of building
interiors and asbestos abatement services for commercial, industrial and
institutional buildings.
Financial Information about Operating Segments
Financial information relating to the three business segments is set forth in
Note 15 to the consolidated financial statements on page 40 of this document.
The Company has three reportable operating segments: United Coastal Liability
Insurance, ACSTAR Bonding and ACMAT Contracting. The Company's reportable
segments are primarily the three main legal entities of the Company which offer
different products and services. The accounting policies of the segments are the
same as those described in the summary of significant accounting policies.
The United Coastal Liability Insurance operating segment offers specific lines
of liability insurance as an approved non-admitted excess and surplus lines
insurer in forty-six states, Puerto Rico, the Virgin Islands and the District of
Columbia. United Coastal offers claims made and occurrence policies for specific
specialty lines of liability insurance through certain excess and surplus lines
brokers who are licensed and regulated by the state insurance department(s) in
the state(s) in which they operate. United Coastal offers general, asbestos,
lead, pollution and professional liability insurance nationwide to specialty
trade contractors, environmental contractors, property owner, storage and
treatment facilities and professionals. United Coastal also offers products
liability insurance to manufacturers and distributors.
The Bonding operating segment provides, primarily through ACSTAR, surety bonds
written for prime, specialty trade, environmental, asbestos and lead abatement
contractors and miscellaneous obligations. ACSTAR also offers other
miscellaneous surety such as workers' compensation bonds, supply bonds,
subdivision bonds and license and permit bonds.
ACMAT Contracting provides construction contracting services to commercial and
governmental customers. ACMAT Contracting also provides underwriting services to
its insurance subsidiaries. In addition, ACMAT Contracting owns a commercial
office building in New Britain, Connecticut and leases office space to its
insurance subsidiaries as well as third parties.
UNITED COASTAL LIABILITY INSURANCE
The liability insurance lines of the Company, which consist primarily of
contractor policies and professional liability policies, are discussed more
fully below:
Contractors
- - General Liability - Policies are offered to general contractors and
specialty trade contractors involved in plumbing, heating, electrical,
framing, roofing, drilling, excavation, demolition, road work, and other
contracting activities. Coverage is also offered for other specialized
non-contractor general liability risks. Coverage is limited to third-party
bodily injury and property damage arising out of covered operations.
General liability insurance is offered on either a claims-made or
occurrence basis.
3
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- - Contractor Pollution Liability - Policies are offered to contractors
involved in hazardous waste remediation or cleanup, installation or removal
of storage tanks, or the transportation of hazardous waste. Coverage is
provided for third party-bodily injury or property damage liability caused
by release of, or exposure to, pollutants as a result of contractors'
operations. Contractor pollution liability insurance is offered on a
claims-made basis.
- - Asbestos and Lead Abatement Liability - Policies are offered to contractors
involved in the removal or encapsulation of asbestos and/or lead containing
materials from structures or their containment through appropriate
encapsulation or repair. Coverage is provided for third-party bodily injury
and property damage liability as a result of a release of asbestos or lead
which arises out of the contractors' operations. Asbestos and lead
abatement liability insurance is provided on either a claims-made or
occurrence basis.
Professionals
- - Architects and Engineers Professional Liability - Policies are offered to
architects and engineers and consultants in the fields of architecture;
civil, electrical, mechanical, structural and process engineering;
construction/property management; design/build services; laboratory testing
and surveying. Project professional liability policies are also offered for
architect and engineer design teams and owner controlled wrap-ups. All
policies are written on a claims-made basis.
- - Environmental Asbestos and/or Lead Consultants Professional Liability -
Policies are offered to consultants involved in providing services such as
environmental assessments, design/build services, asbestos or lead
consulting, remedial investigations and feasibility studies, and storage
tank consulting. Coverage is provided for liability arising out of the
acts, errors or omissions of a consultant in the performance of
professional services. All professional liability coverages are written on
a claims-made basis.
Owners and Lenders
- - Hazardous Waste Storage and Treatment Pollution Liability - Policies are
offered on a claims-made basis in response to the insurance requirements of
the Environmental Protection Agency in connection with facilities subject
to the Resource Conservation and Recovery Act of 1976 ("RCRA").
- - Site Specific Pollution Liability - These policies cover pollution claims
arising or emanating from a specific site and are provided on a claims-made
basis. Comprehensive site evaluations are required prior to providing
coverage for any site.
- - Lenders Pollution Liability - Policies are offered to financial
institutions for pollution occurring at property owned or controlled by the
institution as a result of foreclosure or otherwise. Lender pollution
liability coverage is offered on a claims-made basis.
Products Liability
- - Products Liability - Policies are offered on a claims-made or occurrence
basis to manufacturers for a variety of products including chemicals,
fertilizers, pesticides, pollution control devices, storage tanks and
other.
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The Company customizes many of its insurance policies to suit the individual
needs of its insureds. Combined policies insuring multiple exposures under one
policy form and one combined policy limit are available.
ACSTAR Bonding
Surety bonds are written for general, specialty trade, environmental, asbestos
and lead abatement contractors. The Company also offers a wide variety of
miscellaneous bonds. Many bonds are supported by various levels of collateral
based upon the financial condition of the customer.
The Company often requires cash or irrevocable letters of credit to
collateralize a portion of most bonds issued. In addition, the Company will only
accept irrevocable letters of credit from financial institutions which have a
rating of C "sound credit risk" or higher as determined by Thomson BankWatch,
Inc. However, no assurance can be made that such financial institutions will
maintain their financial strength and, thus, that funds guaranteed under letters
of credit will be available, if needed, to offset any potential claims.
The Company provides the following types of bonds:
- - Payment and performance bonds - Bonds are provided for general building and
specialty trade contractors, environmental remediation and asbestos
abatement contractors and consultants, lead abatement contractors and solid
waste disposal contractors. A payment and performance bond guarantees
satisfactory performance and completion of the contractor's work and
payment of the contractor's debts and obligations relating to the
performance of the contract covered by the bond.
- - Closure and post-closure bonds - Bonds are provided for owners of solid and
hazardous waste landfills as required to meet certain requirements under
RCRA and remediation bonds in connection with the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 ("CERCLA").
Closure bonds usually guarantee that a property owner will restore property
to a specified level or condition. Post-closure bonds guarantee cultivation
and maintenance of a closed site.
- - Supply and other specialty bonds - Bonds are provided for contractors,
manufacturers and other owners in their normal course of operations,
usually to guaranty the supply of equipment and material.
- - Miscellaneous surety, license, permit, self insurer, supersedeas and other
bonds - Miscellaneous bonds are provided for applicants based on those
requirements specified in the bond form and the applicant's financial
strength.
The underwriting department and management are responsible for the development
of new insurance products and enhancements. Underwriting profitability is
enhanced by the creation of niche products focused on classes of business which
traditionally have provided underwriting profits.
Insurance and Bonding Performance Ratios
The following table sets forth the combined ratios of the Company, prepared in
accordance with generally accepted accounting principles and statutory
accounting principles prescribed or permitted by state insurance authorities.
The combined ratio is a traditional measure of underwriting profitability. When
the combined ratio is under 100%, underwriting results are generally considered
profitable. Conversely, when the combined ratio is over 100%, underwriting
results are considered unprofitable. The combined ratio does not reflect
investment income, federal income taxes or other non-operating income or
expense.
<TABLE>
<CAPTION>
Year
Ended December 31,
------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
GAAP Ratios:
Loss ratio 17.6% 19.6% 28.8%
Expense ratio 56.6 51.8 48.0
---- ---- ----
GAAP combined ratio 74.2 71.4 76.8
==== ==== ====
Statutory Ratios:
Loss ratio 17.6 19.9 29.5
Expense ratio 63.3 59.2 45.0
---- ---- ----
Statutory combined ratio 80.9% 79.1% 74.5%
==== ==== ====
</TABLE>
The increase in the combined statutory ratio over the past three years results
primarily from the decline in written premiums partially offset by the release
of reserves on older underwriting years. See Item 7 "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
5
<PAGE> 6
Underwriting
The Company's underwriting practices rely heavily upon the knowledge base which
it has developed in over forty-nine years of construction contracting.
Accordingly, ACMAT, in addition to its construction contracting operations,
provides risk evaluation, loss adjustment, underwriting, claims handling and
monitoring services for its insurance subsidiaries, United Coastal Insurance and
ACSTAR Insurance. Contractors seeking liability insurance and bonding through
the Company are carefully reviewed with respect to their past practices, claims
history and records. Other factors considered are the contractors' and
professionals' financial conditions, training techniques, safety procedures,
histories of violations, record keeping, supervisory qualifications and
experience. Historically, the Company has issued policies and bonds to fewer
than twenty-five percent of its applicants.
Underwriting procedures for products liability insurance involve conducting an
in-depth review of the product that is being manufactured or distributed. Such
review involves examining an applicant's past record of recalls, claims history
and litigation.
The Company's underwriting and pricing strategy is designed to produce an
underwriting profit resulting in a Company-wide combined ratio well below 100%.
The Company has a conservative underwriting philosophy which, in the opinion of
management, is one of the primary reasons for the favorable loss ratios relative
to the property and casualty insurance industry over the last three years.
The Company continually monitors financial stability of contractors with surety
bonds outstanding. Work in progress reports and updated financial information
are reviewed by the Company to ensure that the contractor continues to meet the
underwriting guidelines.
Reinsurance
In the normal course of business, the Company assumes and cedes reinsurance with
other companies. Reinsurance ceded primarily represents excess of loss
reinsurance with companies with "A" ratings from the insurance rating
organization, A.M. Best Company, Inc. Such reinsurance is applicable on a per
policy basis generally to those policies with per occurrence limits in excess of
$2 million up to $10 million for liability and for individual surety bonds, the
Company reinsures through various layered excess of loss agreements up to $10
million on a $14.5 million bond. Reinsurance ceded also includes a facultative
reinsurance treaty which is applicable to excess policies written over a primary
policy issued by the Company for specific projects. Reinsurance is ceded to
limit losses from large exposures and to permit recovery of a portion of direct
losses; however, such a transfer does not relieve the originating insurer of its
liability. The Company participates in assumed quota share reinsurance
arrangements covering marine and property catastrophe risks with one of its
excess of loss reinsurers.
The availability and price of reinsurance fluctuates according to market
conditions. Depending on the availability and cost of reinsurance, the Company
may, from time to time, elect to cede greater or lesser portions of its
underwriting risk.
Claims
The Company directly handles substantially all claims of its insureds, except
that independent claims adjusters and/or counsel selected for their experience
and reputation in the locality of the claim are retained to conduct initial
fact-finding investigations. All decisions respecting payment of claims are made
by experienced employees of the Company.
Reserves for Losses and Loss Adjustment Expenses
Reserves for losses and loss adjustment expenses are estimates at any given
point in time of what the Company may have to ultimately pay on incurred losses,
including related settlement costs, based on facts and circumstances then known.
The Company also reviews its claims reporting patterns, past loss experience,
risk factors and current trends and considers their effect in the determination
of estimates of incurred but not reported losses. Ultimate losses and loss
adjustment expenses are affected by many factors which are difficult to predict,
such as claim severity and frequency, inflation levels and unexpected and
unfavorable judicial rulings. Reserves for surety claims also consider the
amount of collateral held as well as the financial strength of the contractor
and its indemnitors. Management believes that the reserves for losses and loss
adjustment expenses at December 31, 1999 are adequate to cover the unpaid
portion of the ultimate net cost of losses incurred through that date and
related adjustment expenses incurred, including losses incurred but not
reported.
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Reserves for losses and loss adjustment expenses are established with respect to
both reported and incurred but not reported claims for insured risks. The amount
of loss reserves for reported claims is primarily based upon a case-by-case
evaluation of the type of risk involved, knowledge of the circumstances
surrounding each claim and the policy provisions relating to the type of claim.
In determining appropriate adjustments to reserves historical data is reviewed
and consideration is given to the anticipated impact of various factors such as
legal developments and economic conditions, including the effects of inflation.
Reserves are monitored and recomputed periodically using new information on
reported claims.
The following table sets forth a reconciliation of beginning and ending reserves
for losses and loss adjustment expenses for the periods indicated on a GAAP
basis for the business of the Company.
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Balance at January 1 $43,115,062 $48,900,713 $47,960,084
Less reinsurance recoverable 2,224,116 3,478,121 3,841,001
--------- --------- ---------
Net balance at January 1 40,890,946 45,422,592 44,119,083
Incurred related to:
Current year 3,091,120 4,508,667 5,176,030
Prior years (1,418,233) (2,321,939) (838,778)
---------- ---------- ---------
Total incurred 1,672,887 2,186,728 4,337,252
Payments related to:
Current year 81,569 18,260 94,398
Prior years 7,861,837 6,700,114 2,939,345
--------- --------- ---------
Total Payments 7,943,406 6,718,374 3,033,743
Net balance at December 31 34,620,427 40,890,946 45,422,592
Plus reinsurance recoverable 3,924,064 2,224,116 3,478,121
--------- --------- ---------
Balance at December 31 $38,544,491 $43,115,062 $48,900,713
========== ========== ==========
</TABLE>
The decrease of incurred losses and loss adjustment expenses of prior years
represents a release of surety loss reserves on older years that are no longer
needed and a reallocation of reserves among accident years. There can be no
assurance, however, that the Company's reserves will be sufficient to cover
ultimate losses and loss adjustment expenses or that future adjustments to
losses and loss adjustment expense reserves will not be required.
The Company has no exposure to any asbestos or environmental claims associated
with general liability policies issued with the pre-1986 pollution exclusion.
Policies written with the exclusion are typically associated with mass tort
environmental and asbestos claims. The Company has never issued a policy with
the pre-1986 pollution exclusion. The Company's exposure to asbestos and
environmental liability claims is primarily limited to asbestos and
environmental liability insurance for contractors and consultants involved in
the remediation, removal, storage, treatment and/or disposal of environmental
and asbestos hazards.
As of December 31, 1999, 1998 and 1997 reserves for the combined losses and loss
adjustment expenses of the Company's insurance operations as determined in
accordance with accounting principles and practices prescribed or permitted by
insurance regulatory authorities ("Statutory basis reserves") were $40,715,475,
$49,758,263, and $57,723,399, respectively. As of December 31, 1999, 1998 and
1997 reserves determined in accordance with generally accepted accounting
principles ("GAAP basis reserves") were $38,544,491, $43,115,062, and
$48,900,713, respectively. The difference between the Statutory basis reserves
and the GAAP basis reserves result from the minimum statutory, or "Schedule P",
loss reserves required to be maintained by the Company's insurance subsidiaries,
partially offset by the netting of reinsurance recoverable against losses and
loss adjustment expense reserves for statutory purposes.
The following losses and loss adjustment expense reserve runoff table is for the
combined insurance operations of the Company's insurance subsidiaries. The data
for 1992 and prior periods are presented on a net basis in the reserve run-off
table. Restatement of prior periods is not practicable.
Each column shows the reserve held at the indicated calendar year-end and
cumulative data on payments and reestimated liabilities for that accident year
and all prior accident years making up that calendar year-end reserve.
Therefore, the redundancy (deficiency) is also a cumulative number for that year
and all prior years. It would not be appropriate to use this cumulative history
to project future performance.
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<TABLE>
<CAPTION>
1990 1991 1992 1993 1994 1995 1996 1997 1998 1999
---- ---- ---- ---- ---- ---- ---- ---- ---- ----
(thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Liability for unpaid losses
and loss adjustment expenses 21,378 26,234 29,240 30,437 36,726 41,363 44,119 45,423 40,891 34,620
Liability reestimated as of:
One year later 21,378 26,234 29,240 30,437 35,825 40,193 43,282 43,106 37,816
Two years later 21,378 26,234 29,240 28,337 34,659 37,872 40,865 35,698
Three years later 21,378 26,234 26,000 27,170 29,913 35,354 33,359
Four years later 21,378 22,094 24,833 23,550 27,193 28,149
Five years later 16,642 20,927 22,284 20,880 19,486
Six years later 15,475 18,841 19,914 13,673
Seven years later 13,394 16,932 13,148
Eight years later 12,845 11,761
Nine years later 9,472
Cumulative Redundancy
(deficiency): 11,906 14,473 16,092 16,764 17,240 13,214 10,762 9,725 3,077
Paid (cumulative) as of:
One year later 1,357 3,216 6,142 1,560 2,361 3,067 2,942 6,703 7,903
Two years later 4,067 8,699 7,574 3,655 4,582 5,256 8,951 13,928
Three years later 8,954 9,576 8,603 5,022 6,412 8,922 16,047
Four years later 10,233 10,488 9,554 6,189 7,969 15,601
Five years later 10,554 10,816 9,818 6,869 12,425
Six years later 10,858 10,856 10,034 9,723
Seven years later 10,874 10,949 10,761
Eight years later 10,874 11,445
Nine years later 10,884
Gross liability - end of year 34,730 40,955 45,235 47,960 48,901 43,115 38,544
Reinsurance recoverable 4,293 4,229 3,872 3,841 3,478 2,224 3,924
----- ----- ----- ----- ----- ----- -----
Net liability - end of year 30,437 36,726 41,363 44,119 45,423 40,891 34,620
</TABLE>
In 1995, the Company changed its method of reporting estimated liabilities for
claims-made policies which is reflected in the reserve run-off table. For
calendar years 1994 and prior, reserves associated with claims-made policies
were reported based on accident year basis consistent with the Company's
treatment in Schedule P to the Company's Statutory Annual Statement. At the
request of the Arizona Insurance Department, ("Department") the Company was
required to change its method of reporting in Schedule P to the Annual
Statement, reserve and payment data associated with claims-made policies to a
report year basis versus an accident year basis in order to comply with the
National Association of Insurance Commissioners ("NAIC") guidelines. The
Company's prior treatment of claims-made loss data on an accident basis was
approved by the Department during years prior to 1995. For its 1995 statutory
filing, the Company restated loss data reported in Schedule P to comply with the
Department's request. As a result of the change to Schedule P for claims-made
policies, the Company has also changed the method for reporting claims-made loss
payment data in the reserve run-off table to conform to a report year basis for
claims-made policies. Occurrence policies were and continue to be reported on an
accident year basis. The 1995 reestimated liabilities for each calendar year
have been restated to reflect the new method of reporting.
Because of the change in reporting loss data for claims-made policies from an
accident year basis to a report year basis, prior accident year reserves have
been moved forward to fall within the report year resulting in no change to
total reserve amounts or estimates. Management believes that the aggregate
reserves for losses and loss adjustment expenses for all accident years are
adequate.
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IRIS Ratios
The National Association of Insurance Commissioners ("NAIC") has developed the
Insurance Regulatory Information System ("IRIS"), intended to assist state
insurance departments in executing their statutory mandates to oversee the
financial condition of insurance companies operating in their respective states.
IRIS identifies eleven industry ratios and specifies "usual values" for each
ratio. When an insurance company's ratio falls outside the "usual value," it is
designated an "unusual value," which event alerts state insurance departments to
potential problems. For the year ended December 31, 1999, none of the Company's
insurance subsidiaries' IRIS ratios were designated an "unusual value", except
for the change in surplus for United Coastal and the investment yield for ACSTAR
Insurance Company. The investment yield for ACSTAR is above the NAIC standard of
10% primarily due to dividends received from ACSTAR's investment in United
Coastal. The decrease in surplus for United Coastal is greater than 10%
primarily due to dividends of $14,000,000 paid by United Coastal during 1999.
A.M. Best Ratings
A.M. Best ratings are indications of the solvency of an insurer based on an
analysis of the financial condition and operations of a company relative to the
industry in general. Occasionally, the requirement for an A.M. Best's-rated
insurer is a condition imposed upon the contractor by the party engaging the
contractor. Certain insurance brokers also restrict the business they will place
with insurers which are not A.M. Best's-rated. The 1999 Best letter ratings
range from A++ (superior) to F (in liquidation). United Coastal Insurance and
ACSTAR Insurance each have an A.M. Best's rating of A- (excellent).
Risk-Based Capital
Risk-based capital requirements are used as early warning tools by the National
Association of Insurance Commissioners and the states to identify companies that
require further regulatory action. The ratio for each of the Company's insurance
subsidiaries as of December 31, 1999 was above the level which might require
regulatory action.
ACMAT CONTRACTING
General
The Company provides a broad range of general building construction and
coordinated interior contracting services. The Company began to offer asbestos
abatement services in the 1970's and the Company continues to be active in the
asbestos abatement field. The Company provides new and renovation general
construction and installs interiors for office buildings, retail establishments,
schools, colleges, churches, hospitals and other buildings. The Company's
general building construction and interior contracting is provided both in
connection with new buildings and in connection with the remodeling and
renovation of interiors of existing buildings usually under contracts with
building owners and building occupants. The Company provides a broad range of
coordinated interior contracting services, many of which are performed by
subcontractors.
Backlog
The following table sets forth the Company's backlog of unbilled contract
amounts, the total number of contracts and the number of contracts with unbilled
amounts in excess of $400,000 as of December 31, 1999 and 1998:
<TABLE>
<CAPTION>
December 31, 1999 December 31, 1998
----------------- -----------------
<S> <C> <C>
Total Number of Contracts. 13 4
Total unbilled contract amounts. $10,100,000 $6,000,000
Number of contracts with unbilled amounts in
excess of $400,000. 4 2
Aggregate unbilled amount of contracts in
excess of $400,000. $9,800,000 $5,900,000
</TABLE>
The Company estimates that all of the December 31, 1999 backlog will be
completed prior to December 31, 2000.
Materials
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<PAGE> 10
The Company purchases the materials it installs in the course of its
construction contracting operations from a number of suppliers. Most of the
Company's materials are standard building components which historically have
been readily available from several suppliers. Some components are manufactured
to the Company's specifications. Most of the materials used by the Company are
shipped directly to the job site by the manufacturer.
Contract Acquisition
The Company's work projects are obtained by lump sum fixed price bids, unit
prices or are negotiated. Contract prices are usually determined by competition
with other contractors.
Warranty
Each project usually contains a one-year warranty or guaranty period, wherein
the Company and its subcontractors warrant that the work is free from defects
and was performed in accordance with the plans and specifications. Occasionally,
the Company is required to make minor corrections or adjustments, but has never
incurred any significant costs in connection with any such work.
Asbestos Abatement Operations
Both the Company's insurance and construction contracting operations have
involved risks associated with asbestos. The Company has in the past insured and
continues to insure risks associated with asbestos abatement or containment
operations on both a claims-made and occurrence basis. Since harm from exposure
to asbestos fibers may not be detectable in humans for as much as thirty years,
losses under insurance contracts written on an occurrence basis may not be known
for some time.
The Company's construction contracting operations involve the removal of
asbestos. As asbestos containing materials deteriorate or become disturbed by
incidental or intentional contact, asbestos fibers may enter the air and can
circulate into the breathing zone of building occupants. Exposure to asbestos is
thought by some to be a cause of cancer. In the mid 1970's, the Company became
engaged in the removal of asbestos in addition to its other contracting
operations. Since that time, it has been engaged in hundreds of contracts
involving the removal of asbestos. Claims by non-employees related to asbestos
have been made against the Company from time to time and are pending and there
can be no assurance that claims will not be made in the future.
The Company believes that it is fully covered by workers' compensation insurance
with respect to any claims by current and former employees relating to asbestos
operations. The Company currently obtains its workers' compensation insurance in
those states in which it performs work either from state insurance funds or one
of several insurance companies designated in accordance with the Assigned Risk
Pool. The amount of workers' compensation insurance maintained varies from state
to state but is generally greater than the maximum recovery limits established
by law and is not subject to any aggregate policy limits. In the past, the
Company has received a number of asbestos-related claims from employees, all of
which have been fully covered by its workers' compensation insurance. The
Company believes, although no assurances can be given, that workers'
compensation insurance sufficient to cover all future claims will remain
available in accordance with applicable state laws.
MARKETING
Insurance and Bonding
As an excess and surplus lines carrier, United Coastal Insurance markets its
policies through excess and surplus lines brokers only in those states in which
it is permitted to write coverage. Currently, United Coastal Insurance is
permitted to write excess and surplus lines insurance as a non-admitted insurer
in forty-six states, the District of Columbia, Puerto Rico and the Virgin
Islands.
ACSTAR Insurance offers payment and performance bonds through carefully selected
insurance agents which specialize in the needs of contractors. All underwriting
approvals and issuance of policies and bonds are performed directly by the
Company's insurance subsidiaries.
The Company's insurance products are marketed in all 50 states.
ACMAT Contracting
The Company markets its construction contracting services directly to building
owners and building occupants. Project opportunities are brought to the
attention of the Company through various sources such as F. W. Dodge Company,
10
<PAGE> 11
which publishes lists of projects available for bid, architects, owners, general
contractors, or engineers who are familiar with the Company. The Company also
depends upon repeat business and responses to the Company's advertising program
which is intended to emphasize ACMAT's packaged interior renovation capability.
ACMAT's sales force consists of its senior management and project managers, all
of whom function as construction consultants and work closely with owners,
tenants and architects.
COMPETITION
Insurance and Bonding
The property and casualty insurance industry is highly competitive. The Company
competes with large national and smaller regional insurers in each state in
which it operates, as well as monoline specialty insurers. The Company's
principal competitors include certain insurance subsidiaries of American
International Group, Inc. ("AIG"), Reliance Insurance Group, Zurich Insurance
Group, Design Professionals Insurance Company, CNA Insurance Companies and
Lloyd's of London. Many of its competitors are larger and have greater financial
resources than the Company. Among other things, competition may take the form of
lower prices, broader coverage, greater product flexibility, higher quality
services or the insurer's rating by independent rating agencies. The Company
competes with admitted insurers, surplus line insurers, new forms of insurance
organizations such as risk retention groups, and alternative self-insurance
mechanisms.
Competition in the field of surety bonding is intense and many of the Company's
competitors are larger and have greater surplus than the Company, thereby
allowing them to provide bonds with higher limits than those which the Company
is able to provide. The Company's principal competitors include the St. Paul
Companies, Inc., Reliance Insurance Group, AIG, CNA and Frontier Insurance
Company. The Company's insurance subsidiaries hold primary and reinsurance
certificates of authority as acceptable sureties on Federal bonds as do
approximately 250 to 300 other surety companies. The certificates give the
Company an advantage over companies which are not certified by the United States
Treasury Department with respect to surety bonding on Federal projects in that
such certification has become a standard with respect to both Federal and other
bonds. Approximately one-half of the surety bonds written by the Company's
subsidiaries are required to be provided by a Treasury listed company. With
respect to other bonds, the Company faces competition from as many as 1,000
additional non-certified surety companies.
ACMAT Contracting
Competition in the interior construction business serviced by ACMAT generally is
intense. Historically, a majority of the Company's construction business was
performed on projects on which the Company had been in competition with other
contractors. The Company focuses its efforts on privately negotiated contracts
obtained through advertising and its reputation. Quality of service and pricing
are the Company's principal methods of competition.
The economic climate of the Northeast has increased the competitive pressure on
all aspects of the Company's contracting operations. The Company has responded
with marketing efforts seeking to obtain business when the Company's reputation
and experience allow it to privately negotiate contracts at prices which are
sufficiently profitable.
REGULATION
The business of ACMAT's insurance subsidiaries is subject to comprehensive and
detailed regulation and supervision throughout the United States. The laws of
the various jurisdictions establish supervisory agencies with broad
administrative authority which includes, but is not limited to, the power to
regulate licenses, to transact business, trade practices, agent licensing,
policy forms, claim practices, underwriting practices, reserve requirements, the
form and content of required financial statements and the type and amounts of
investments permitted. The insurance companies are required to file detailed
annual reports with supervisory agencies in each of the jurisdictions in which
they do business, and their operations and accounts are subject to examination
by such agencies at regular intervals.
As a nonadmitted excess and surplus lines insurer, United Coastal Insurance is
not subject to the comparatively more extensive state regulations to which
ACSTAR Insurance is subject. The regulations and restrictions to which ACSTAR
Insurance and United Coastal Insurance are subject include provisions intended
to assure the solvency of ACSTAR Insurance and United Coastal Insurance and are
primarily for the protection of policyholders and loss claimants rather than for
the benefit of investors.
State insurance regulations impose certain restrictions upon the types of
investments that the Company's insurance subsidiaries can acquire and the
percentage of their capital or assets that may be placed in any particular
investment or type of investment. Certain states also require insurance
companies to furnish evidence of financial security by means of a deposit of
marketable securities with the state insurance regulatory authority. On December
31, 1999, the
11
<PAGE> 12
Company's insurance subsidiaries had securities with an aggregate
book value of approximately $9.9 million on deposit with various state
regulatory authorities.
The insurance subsidiaries of ACMAT are restricted as to the amount of cash
dividends they may pay. United Coastal Insurance is restricted by the Arizona
Insurance Holding Company Systems Act as to the amount of dividends it may pay
without the prior approval of the Arizona Department. During 1999, United
Coastal Insurance paid $14,000,000 in dividends. At January 1, 2000,
approximately $2,390,000 is available for the payment of dividends by United
Coastal Insurance in 2000 without the prior approval of the Arizona Insurance
Department.
Under applicable insurance regulations in its domicile state of Illinois, ACSTAR
Insurance is also restricted as to the amount of dividends it may pay. ACSTAR
may pay or declare a dividend only up to the amount of any available surplus
funds derived from realized net profits on its business, as determined in
accordance with statutory accounting principles. During 1999, ACSTAR paid
$4,760,000 in dividends to ACSTAR Holdings. At January 1, 2000, approximately
$7,380,000 is available for the payment of dividends by ACSTAR Insurance in 2000
without the prior approval of the Illinois Insurance Department.
New regulations and legislation are being proposed to limit damage awards, to
control plaintiffs' counsel fees, to bring the industry under regulation by the
federal government and to control premiums, policy terminations and other policy
terms. It is not possible to predict whether these proposals will be adopted or
their likely effect, if any, on the Company.
INVESTMENTS
The Company's investment strategy is to maintain a conservative investment
policy by generally acquiring high quality securities, primarily bonds, with
fixed effective maturities of approximately three years or less. The investment
portfolio is well diversified and is in compliance with regulatory requirements.
The Company's bond portfolio is composed primarily of investments rated AA or
better by Standard and Poor's. Management has also decided to avoid long-term
investing at what management believes to be low long-term interest rates.
The Company's investment portfolio is subject to several risks including
interest rate and reinvestment risk. Fixed maturity security values generally
fluctuate inversely with movements in interest rates. The Company's corporate
and municipal bond investments may contain call and sinking fund features which
may result in early redemptions and the Company's mortgage-backed securities
investments held by the Company are subject to prepayment risk. Declines in
interest rates could cause early redemptions or prepayments which would require
the Company to reinvest at lower rates.
Investment securities are classified as held to maturity, available for sale or
trading. The Company currently classifies all investment securities as available
for sale. Investment securities available for sale are carried at fair value and
unrealized gains and losses are included in other comprehensive income, net of
estimated income taxes.
12
<PAGE> 13
The Company invests primarily in tax-exempt securities as part of its strategy
to maximize after-tax income. Such strategy considers, among other factors, the
impact of the alternative minimum tax. The following table summaries the fair
value fixed maturity investments portfolio at December 31, 1999 and 1998
(dollars in thousands):
<TABLE>
<CAPTION>
December 31,
------------
1999 1998
------------------------ --------------------------
Percent Percent
of of
Amount Total Amount Total
------ ----- ------ -----
<S> <C> <C> <C> <C>
Fixed maturities available for sale (1):
U.S. government and government
agencies and authorities $ 18,569 20.6% $ 19,006 16.7%
State and political subdivisions 36,608 40.7 55,082 48.3
Industrial and Miscellaneous 27,007 30.0 -- --
Mortgage-backed securities 5,643 6.3 24,795 21.8
-------- ----- -------- -----
Total fixed maturities available for sale 87,827 97.6 98,883 86.8
Equity securities(2) 1,615 1.8 2,061 1.8
Short-term investments(3) 518 .6 12,948 11.4
-------- ----- -------- -----
Total investments $ 89,960 100.0% $113,892 100.0%
======== ===== ======== =====
</TABLE>
(1) Fixed maturities available for sale are carried at fair value. Total
cost of fixed maturities was approximately $89,291,000 at December 31,
1999 and $98,128,000 at December 31, 1998.
(2) Equity securities are carried at fair value. Total cost of equity
securities was approximately $2,065,000 at December 31, 1999 and 1998.
(3) Short-term investments, consisting primarily of money market
instruments maturing within one year are carried at cost which, along
with accrued interest, approximates fair value.
The following table sets forth the fair value of fixed maturities in the fixed
maturity investment portfolio at December 31, 1999 and 1998 (dollars in
thousands):
<TABLE>
<CAPTION>
December 31,
------------
1999 1998
------------------------ -------------------------
Percent Percent
of of
Amount Total Amount Total
------ ----- ------ -----
<S> <C> <C> <C> <C>
Due in (1):
One year or less 16,908 19.3% $19,805 20.0%
After one year through five years 64,139 73.0% 72,805 73.6%
After five years through ten years 3,719 4.2% 5,225 5.3%
After ten years 3,061 3.5% 1,048 1.1%
------- ----- ------- -----
$87,827 100.0% $98,883 100.0%
======= ===== ======= =====
</TABLE>
(1) Based on effective maturity dates. Actual maturities may differ
because borrowers may have the right to call or prepay obligations
with or without call or prepayment penalties.
The Company's insurance subsidiaries are subject to state laws and regulations
that require diversification of its investment portfolio and limit the amount of
investments in certain investment categories. Failure to comply with these laws
and regulations would cause non-conforming investments to be treated as
non-admitted assets for purposes of measuring statutory surplus and, in some
instances, would require divestiture. As of December 31, 1999, the Company's
investments complied with such laws and regulations.
13
<PAGE> 14
Investment results for the years ended December 31, 1999, 1998 and 1997 are
shown in the following table (dollars in thousands):
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Invested assets (1) $111,559 $126,371 $140,029
Investment income (2) $5,390 $6,138 $6,505
Average yield 4.83% 4.86% 4.65%
</TABLE>
(1) Average of the aggregate invested amounts at the beginning and end of the
period including cash and cash equivalents.
(2) Investment income is net of investment expenses and does not include
realized investment gains or losses or provision for income taxes.
The yields reflect the Company's investment strategy of acquiring high quality
tax-exempt securities with fixed effective maturities of approximately three
years or less. Invested assets are attributable to the net cash flow generated
by written premiums, cash collateral and the reinvestment of investment income
offset in part by cash used to repay debt and repurchase stock.
ENVIRONMENTAL COMPLIANCE
The Company does not expect that its compliance with federal, state or local
environmental laws or regulations will have any material effect upon its capital
expenditures, earnings or competitive position.
EMPLOYEES
As of December 31, 1999, the Company employed approximately 35 persons, all in
the United States. None of its current employees are employed subject to
collective bargaining agreements. The Company believes that its relations with
all of its employees are excellent.
ITEM 2. PROPERTIES
The Company and its subsidiaries occupy a 7 story office building located at 233
Main Street, in New Britain, Connecticut. ACMAT leases approximately 50% of the
building to unaffiliated tenants. The office building is suitable and adequate
for ACMAT's current and future requirements.
ITEM 3. LEGAL PROCEEDINGS
The Company is a party to legal actions arising in the ordinary course of its
business. In management's opinion, the Company has adequate legal defenses
respecting those actions where the Company is a defendant, has appropriate
insurance reserves recorded, and does not believe that their settlement will
materially affect the Company's operations or financial position.
The Company has, together with many other defendants, been named as a defendant
in actions by injured or deceased individuals or their representatives based on
product liability claims relating to materials containing asbestos. No specific
claims for monetary damages are asserted in these actions. Although it is early
in the litigation process, the Company does not believe that its exposure in
connection with these cases is significant.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the fourth
quarter of 1999.
14
<PAGE> 15
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
ACMAT's Class A Stock trades on the Nasdaq Stock Market under the symbol ACMTA.
The Common Stock trades on the over-the-counter market. The following table sets
forth the quarterly high and low closing prices of the Company's Common Stock
and Class A Stock as reported by Nasdaq.
<TABLE>
<CAPTION>
1999 1998
HIGH LOW HIGH LOW
<S> <C> <C> <C> <C>
COMMON STOCK
1st Quarter 20-5/8 20-1/2 21-1/4 21-1/4
2nd Quarter 20-1/2 19 21 21
3rd Quarter 20-7/16 20 21 21
4th Quarter 19 19 23 20-1/2
CLASS A STOCK
1st Quarter 16-1/4 15 17-7/8 15-3/8
2nd Quarter 15-1/4 14-3/4 15-3/4 15-1/8
3rd Quarter 14-7/8 7-1/2 16-1/2 14-9/16
4th Quarter 9 6-3/4 15-3/4 14-1/4
</TABLE>
No dividends have been paid in the past five years and there is no intention of
paying dividends in the near future. As of March 17, 2000, there were 330 Common
Stock shareholders of record and 934 Class A Stock shareholders of record.
ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
1999 1998 1997 1996 1995
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Revenues $ 25,500,249 $ 28,752,273 $ 33,552,135 $ 37,035,305 $ 41,857,398
Total Assets 125,855,611 146,126,465 176,208,762 184,359,566 180,402,238
Long-Term Debt 30,792,720 37,200,000 48,212,727 35,807,419 40,127,590
Stockholders' Equity 36,126,992 37,622,926 39,577,739 49,702,404 37,587,259
Net Earnings 3,013,723 2,120,529 4,456,949 5,293,111 5,350,280
Basic Earnings Per Share 1.02 .66 1.29 1.56 1.49
Diluted Earnings Per Share .99 .65 1.12 1.22 1.17
</TABLE>
Note: No cash dividends were paid during any of the periods above.
15
<PAGE> 16
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
CONSOLIDATED RESULTS OF OPERATIONS:
Net earnings were $3,013,723 in 1999, $2,120,529 in 1998 and $4,456,949 in 1997.
Net earnings included approximately $1,000,000 of loss in 1998 and approximately
$700,000 of gain in 1997 related to the Company's share of a limited
partnership. The limited partnership invested in small cap equities and incurred
the loss in 1998 due to volatility in the small cap market. The Company sold its
investment in the limited partnership on December 31, 1998. The increase in 1999
net earnings compared to the 1998 net earnings was due to the improved gross
margins in the contracting business, the elimination of the limited partnership
in 1998 and the reduction in interest expense related to the reduction of
long-term debt partially offset by the decrease in investment income.
Revenues were $25,500,249 in 1999, $28,752,273 in 1998 and $33,552,135 in 1997.
The decrease in revenues over the past two years reflects the Company's strategy
to avoid the current unfavorable pricing in the Company's casualty insurance
operations. Earned premiums were $9,414,192 in 1999, $10,962,663 in 1998 and
$15,045,844 in 1997. Contract revenue is difficult to predict and depends
greatly on the successful securement of contracts bid. Contract revenues were
$9,223,457 in 1999, $12,139,924 in 1998 and $10,056,322 in 1997.
Investment income was $5,389,732 in 1999, $6,138,105 in 1998 and $6,504,716 in
1997. The decrease in investment income was primarily related to a continued
decrease in invested assets as the Company continues to reduce long-term debt.
Net realized capital gains were $252,190 in 1999, $266,169 in 1998 and $282,667
in 1997.
Other income (expense) was $1,220,678 in 1999, ($754,588) in 1998 and $1,662,586
in 1997. The fluctuations in other income (expense) are attributable to a
pre-tax loss of approximately $1,400,000 in 1998 and a pre-tax gain of
approximately $965,000 in 1997 related to the Company's share of a limited
partnership. The Company sold its investment in the limited partnership on
December 31, 1998.
Losses and loss adjustment expenses were $1,672,887 in 1999, $2,186,728 in 1998
and $4,337,252 in 1997. The decreases in losses and loss adjustment expenses are
attributable to the decline in earned premiums and the release of surety loss
reserves on older years that are no longer needed. Amortization of policy
acquisition costs were $2,223,918 in 1999, $2,112,857 in 1998 and $2,802,993 in
1997. The increase in amortization of policy acquisition costs is primarily
attributable to the increase in commissions paid to agents.
Costs of contract revenues were $8,261,408 in 1999, $11,635,879 in 1998 and
$9,331,103 in 1997. The gross profit margin on construction projects was 10.4%
in 1999, 4.2% in 1998 and 7.2% in 1997. Gross margin fluctuations each year
based upon the profitability of specific projects.
General and administrative expenses were $5,385,409 in 1999, $5,355,183 in 1998
and $5,767,808 in 1997. The increase in general and administrative expenses in
1999 compared to 1998 is due primarily to the increase in salary expense. The
decrease in general and administrative expenses in 1998 compared to 1997 is due
primarily to the decrease in bad debt expense.
Interest expense was $3,738,740 in 1999, $4,621,401 in 1998 and $5,116,414 in
1997. The decrease in interest expense is due to the decrease in long-term debt.
During 1999 and 1998, the Company repaid and refinanced long-term debt.
Income tax expense was $1,204,164 in 1999, $719,696 in 1998 and $1,739,616 in
1997, representing effective tax rates of 28.6%, 25.3% and 28.1%, respectively.
The fluctuation in the effective tax rate is due to tax exempt interest income
making up a larger portion of taxable income in 1998.
16
<PAGE> 17
Results of Operations by Segment:
<TABLE>
<CAPTION>
ACSTAR BONDING: 1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenue $6,227,462 $5,286,955 $7,209,863
Operating Earnings $2,968,882 $2,314,485 $2,305,342
</TABLE>
Revenues for the ACSTAR Bonding segment were $6,227,462 in 1999, $5,286,955 in
1998 and $7,209,863 in 1997. The 1999 increase in revenue reflects a slight
increase in earned premiums and investment income compared to 1998. Included in
1998 revenues is a pre-tax loss of approximately $570,000 for net loss of the
limited partnership investment. The decrease in 1998 revenue compared to the
1997 revenue is due primarily to a decrease in earned premiums in 1998.
Investment income was $1,268,175 in 1999, $1,169,977 in 1998 and $962,815 in
1997. The increase in investment income was primarily related to a continued
increase in invested assets and an increase in the effective yield on those
invested assets. Net realized capital gains were $51,616 in 1999, $68,040 in
1998 and $25,380 in 1997.
Operating earnings for the ACSTAR Bonding segment were $2,968,882 in 1999,
$2,314,485 in 1998 and $2,305,342 in 1997. The increase in 1999 operating
earnings compared to 1998 operating earnings is due primarily to an increase in
earned premiums and investment income offset in part by an increase in the
amortization of policy acquisition costs.
Losses and loss adjustment expenses were $238,520 in 1999, $230,912 in 1998 and
$1,577,766 in 1997. The lower losses and loss adjustment expenses for 1999 and
1998 compared to 1997 are attributable to the release of surety loss reserves on
older years that are no longer needed and a reallocation of reserves among
accident years. Amortization of policy acquisition costs were $1,543,783 in
1999, $1,225,718 in 1998 and $1,605,140 in 1997. The increase in amortization of
policy acquisition costs in 1999 compared to 1998 is primarily attributable to
the increase in commissions paid to agents. The decrease in amortization of
policy acquisition costs in 1998 compared to 1997 is primarily attributable to
the decrease in earned premiums.
General and administrative expenses were $1,476,277 in 1999, $1,515,840 in 1998
and $1,696,235 in 1997. The decrease in general and administrative expenses is
due primarily to the decrease in bad debt expense.
<TABLE>
<CAPTION>
UNITED COASTAL
LIABILITY INSURANCE: 1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenue $8,529,279 $10,315,294 $15,043,823
Operating Earnings $4,578,802 $ 5,176,870 $ 8,239,017
</TABLE>
Revenues for the United Coastal Liability Insurance segment were $8,529,279 in
1999, $10,315,294 in 1998 and $15,043,823 in 1997. The 1999 decrease in revenue
reflects a 27% decrease in earned premiums and a 20% decrease in investment
income compared to 1998. Included in 1998 revenues is a pre-tax loss of
approximately $830,000 for net loss of the limited partnership investment. The
decrease in 1998 revenue compared to the 1997 revenue is due primarily to a 29%
decrease in earned premiums in 1998. The decrease in revenues over the past two
years reflects the Company's strategy to avoid the current unfavorable pricing
in the Company's casualty insurance market.
Investment income was $3,557,332 in 1999, $4,430,026 in 1998 and $4,859,805 in
1997. The decrease in investment income was primarily related to a decrease in
invested assets as a result of dividends distributed to the parent company to
reduce corporate debt. Net realized capital gains were $200,574 in 1999,
$198,129 in 1998 and $257,287 in 1997.
Operating earnings for the United Coastal Liability Insurance segment were
$4,578,802 in 1999, $5,176,870 in 1998 and $8,239,017 in 1997. The decrease in
1999 operating earnings compared to 1998 operating earnings is
17
<PAGE> 18
due primarily to a decrease in earned premiums and investment income. The
decrease in 1998 operating earnings compared to 1997 is due to a decrease in
earned premiums.
Losses and loss adjustment expenses were $1,434,367 in 1999, $1,955,816 in 1998
and $2,759,486 in 1997. The decrease in losses and loss adjustment expenses are
attributable to the decrease in earned premiums. Amortization of policy
acquisition costs were $1,528,179 in 1999, $1,852,218 in 1998 and $2,564,959 in
1997. The decrease in amortization of policy acquisition costs is primarily
attributable to the decrease in earned premiums.
General and administrative expenses were $987,931 in 1999, $1,330,390 in 1998
and $1,505,741 in 1997. The decrease in general and administrative expenses is
due primarily to the overall decrease in business activities.
<TABLE>
<CAPTION>
ACMAT CONTRACTING: 1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Revenue $13,154,753 $15,801,541 $14,218,660
Operating Earnings $ 907,228 $ 501,712 $ 1,224,579
</TABLE>
Revenues for the ACMAT Contracting segment were $13,154,753 in 1999, $15,801,541
in 1998 and $14,218,660 in 1997. The 1999 decrease in revenue reflects a 24%
decrease in contract revenues compared to 1998. The increase in 1998 revenue
compared to the 1997 revenue is due primarily to a 21% increase in contract
revenues in 1998. Contract revenue is difficult to predict and depends greatly
on the successful securement of contracts bid.
Operating earnings for the ACMAT Contracting segment were $907,228 in 1999,
$501,712 in 1998 and $1,224,579 in 1997. The increase in 1999 operating earnings
compared to 1998 operating earnings is due primarily to improved gross margins
on the 1999 projects. The decrease in 1998 operating earnings compared to 1997
operating earnings is due to lower gross margins on 1998 projects.
Cost of contract revenues were $8,261,408 in 1999, $11,635,879 in 1998 and
$9,331,103 in 1997. The gross profit margin on construction projects was 10.4%
in 1999, 4.2% in 1998 and 7.2% in 1997. Gross margin fluctuations each year
based upon the profitability of specific projects.
General and administrative expenses were $3,886,117 in 1999, $3,488,950 in 1998
and $3,662,978 in 1997. The increase in general and administrative expenses in
1999 compared to 1998 is due primarily to the increase in salary expense and the
amortization of intangibles. The decrease in general and administrative expenses
in 1998 compared to 1997 is due primarily to the decrease in salary expense.
RESERVES FOR LOSSES AND LOSS ADJUSTMENT EXPENSES:
Reserves for losses and loss adjustment expenses are established with respect to
both reported and incurred but not reported claims for insured risks. The amount
of loss reserves for reported claims is primarily based upon a case-by-case
evaluation of the type of risk involved, knowledge of the circumstances
surrounding each claim and the policy provisions relating to the type of claim.
As part of the reserving process, historical data is reviewed and consideration
is given to the anticipated impact of various factors such as legal developments
and economic conditions, including the effects of inflation. Reserves are
monitored and evaluated periodically using current information on reported
claims.
Management believes that the reserves for losses and loss adjustment expenses at
December 31, 1999 are adequate to cover the unpaid portion of the ultimate net
cost of losses and loss adjustment expenses, including losses incurred but not
reported. Reserves for losses and loss adjustment expenses are estimates at any
given point in time of what the Company may have to pay ultimately on incurred
losses, including related settlement costs based on facts and circumstances then
known. The Company also reviews its claims reporting patterns, past loss
experience, risk factors and current trends and considers their effect in the
determination of estimates of incurred but not reported reserves. Ultimate
losses and loss adjustment expenses are affected by many factors which are
difficult to predict, such as claim severity and frequency, inflation levels and
unexpected and unfavorable judicial rulings. Reserves for surety claims also
consider the amount of collateral held as well as the financial strength of the
principal and its indemnitors.
The combined ratio is one means of measuring the underwriting experience of a
property and casualty insurer. The combined ratio, consisting of the ratio of
losses and loss adjustment expenses to premiums earned (the "loss ratio") plus
the ratio of underwriting expenses to premiums written (the "expense ratio")
reflects relative underwriting profit or loss. The Company's insurance
subsidiaries' loss ratios under generally accepted
18
<PAGE> 19
accounting principles ("GAAP") were 17.6%,19.6 and 28.8% for the years ended
December 31, 1999, 1998 and 1997, respectively. These loss ratios are below
industry averages and are believed to be the result of conservative
underwriting. The decrease in the loss ratios is due to the release of surety
reserves in 1999 and 1998. There can be no assurance that such loss ratios can
continue. The Company's insurance subsidiaries' expense ratios under GAAP were
56.6%, 51.8% and 48.0% for the years ended December 31, 1999, 1998 and 1997,
respectively. The increase in the expense ratios is due to the decline in
premiums. The Company's insurance subsidiaries' combined ratios under GAAP were
74.2%, 71.4% and 76.8% for the years ended December 31, 1999, 1998 and 1997,
respectively. The increase in the 1999 combined ratio results primarily from the
decline in premiums.
LIQUIDITY AND CAPITAL RESOURCES:
The Company internally generates sufficient funds for its current operations and
maintains a relatively high degree of liquidity in its investment portfolio. The
primary sources of funds to meet the demands of claim settlements and operating
expenses are premium collections, investment earnings and maturing investments.
The Company has no material commitments for capital expenditures and, in the
opinion of management, has adequate sources of liquidity to fund its operations
over the next 12 months.
ACMAT, exclusive of its subsidiaries, has incurred negative cash flows from
operating activities primarily because of interest expense related to notes
payable and long-term debt incurred by ACMAT to acquire and capitalize its
insurance subsidiaries and to repurchase Company stock. ACMAT has also incurred
negative working capital as a result of holding short-term debt related to its
operations.
ACMAT's principal sources of funds are dividends from its wholly owned
subsidiaries, intercompany and short-term borrowings, insurance underwriting
fees from its subsidiaries, construction contracting operations and rental
income. Management believes that these sources of funds are adequate to serve
its indebtedness. ACMAT has recently utilized short-term borrowings to
repurchase its stock. ACMAT has also relied on dividends from its insurance
subsidiaries to repay debt.
The Company used cash flow from other sources to support operations in the
amount of $7,065,427 in 1999, compared to cash flow realized from operations of
$530,977 in 1998 and $5,585,329 in 1997. The reduced cash flow from operations
is due primarily to the return of cash collateral and the payment of claims.
Substantially all of the Company's cash flow is used to repay short-term and
long-term debt, repurchase stock and purchase investments. Purchases of
investments are made based upon excess cash available after the payment of
losses and loss adjustment expenses and other operating and non-operating
expenses. The Company's short term investment strategy coincides with the
relatively short maturity of its liabilities which are comprised primarily of
reserves for losses covered by claims-made insurance policies, reserves related
to surety bonds and collateral held for surety obligations.
Net cash provided by investing activities was $20,580,662 in 1999, $21,326,746
in 1998 and $4,993,298 in 1997.
The terms of the Company's note agreements contain limitations on payment of
cash dividends, re-acquisition of shares, borrowings and investments and require
maintenance of specified ratios and minimum net worth levels, including cross
default provisions. The payment of future cash dividends and the re-acquisition
of shares are restricted each to amounts of an available fund ("Available
Fund"). The Available Fund is a cumulative fund which is increased each year by
20% of the Consolidated Net Earnings (as defined). The Company is in compliance
with all covenants at December 31, 1999.
The Company maintains a short-term unsecured bank credit line of $10 million to
fund interim cash requirements. There were no borrowings outstanding under this
line of credit as of December 31, 1999. Effective December 9, 1998, the Company
obtained a $5,000,000, five-year, term loan which is repayable in quarterly
installments commencing March 1, 1999. Portions of the proceeds of such term
loan were applied to the repayment of term debt and to the reduction of the
Company's short-term credit line.
During 1999, the Company purchased, in the open market and privately negotiated
transactions, 7,260 shares of its Common Stock at an average price of $20.93.
The Company also purchased, in open market and privately negotiated
transactions, 189,221 shares of its Class A Stock at an average price of $12.52
per share.
The Company's principal source of cash for repayment of long-term debt is
dividends from its two insurance companies. During 1999, ACMAT received
$14,000,000 as dividends from its subsidiaries. Under applicable insurance
regulations, ACMAT's insurance subsidiaries are restricted as to the amount of
dividends they may pay to their respective holding companies, without the prior
approval of their domestic state insurance department.
19
<PAGE> 20
For 2000, the amount of dividends ACMAT's insurance subsidiaries may pay,
without prior approval of their domestic state insurance departments, is limited
to approximately $9,775,000.
In 2000, the Company anticipates that internally generated funds and short-term
borrowings will be utilized for repayment of long-term debt. Principal
repayments on long-term debt is scheduled to be approximately $1,600,000 in
2000.
REGULATORY ENVIRONMENT
Risk-based capital requirements are used as early warning tools by the National
Association of Insurance Commissioners and the states to identify companies that
require further regulatory action. The ratio for each of the Company's insurance
subsidiaries as of December 31, 1999 was significantly above the level which
might require regulatory action.
ITEM 7a. QUANTITATIVE AND QUALITATIVE DISCUSSIONS ABOUT MARKET RISK
MARKET RISK
Market risk is the risk of loss arising from adverse changes in market rates and
prices, such as interest rates, foreign currency exchange rates, and other
relevant market rate or price changes. Market risk is directly influenced by the
volatility and liquidity in the markets in which the related underlying assets
are traded. The following is a discussion of the Company's primary market risk
exposures and how those exposures are currently managed as of December 31, 1999.
The Company's market risk sensitive instruments are entered into for purposes
other than trading.
The carrying value of the Company's investment portfolio as of December 31, 1999
was $89,960,240, 98% of which was invested in fixed maturity securities. The
primary market risk to the investment portfolio is interest rate risk associated
with investments in fixed maturity securities. The Company's exposure to equity
price risk and foreign exchange risk is not significant. The Company has no
direct commodity risk.
For the Company's investment portfolio, there were no significant changes in the
Company's primary market risk exposures or in how those exposures are managed
compared to the year December 31, 1998. The Company does not anticipate
significant changes in the Company's primary market risk exposures or in how
those exposures are managed in future reporting periods based upon what is known
or expected to be in effect in future reporting periods.
The primary market risk for all of the Company's long-term debt is interest rate
risk at the time of refinancing. As the majority of the Company's debt is fixed
rate debt, the Company's exposure to interest rate risk on its long-term debt is
not significant. The Company continually monitors the interest rate environment
and evaluates refinancing opportunities as the maturity dates approach.
SENSITIVITY ANALYSIS
Sensitivity analysis is defined as the measurement of potential loss in future
earnings, fair values or cash flows of market sensitive instruments resulting
from one or more selected hypothetical changes in interest rates and other
market rates or prices over a selected time. In the Company's sensitivity
analysis model, a hypothetical change in market rates is selected that is
expected to reflect reasonably possible near-term changes in those rates. The
term "near term" means a period of time going forward up to one year from the
date of the consolidated financial statements.
In this sensitivity analysis model, the Company uses fair values to measure its
potential loss. The sensitivity analysis model includes the following financial
instruments: fixed maturities, interest-bearing non-redeemable preferred stocks,
short-term securities, cash, investment income accrued, and long-term debt. The
primary market risk to the Company's market sensitive instruments is interest
rate risk. The sensitivity analysis model uses a 100 basis point change in
interest rates to measure the hypothetical change in fair value of financial
instruments included in the model.
For invested assets, duration modeling is used to calculate changes in fair
values. Durations on invested assets are adjusted for call, put and interest
rate reset features. Duration on tax exempt securities is adjusted for the fact
that the yield on such securities is less sensitive to changes in interest rates
compared to Treasury securities. Invested asset portfolio durations are
calculated on a market value weighted basis, including accrued investment
income, using holdings as of December 31, 1999.
The sensitivity analysis model used by the Company produces a loss in fair value
of market sensitive instruments of $1.9 million based on a 100 basis point
increase in interest rates as of December 31, 1999, which is not considered
material. This loss value only reflects the impact of an interest rate increase
on the fair value of the Company's financial instruments, which constitute
approximately 71% of total assets. As a result, the loss value excludes a
20
<PAGE> 21
significant portion of the Company's consolidated balance sheet which would
partially mitigate the impact of the loss in fair value associated with a 100
basis point increase in interest rates.
For example, certain non-financial instruments, primarily insurance accounts for
which the fixed maturity portfolio's primary purpose is to fund future claims
payments related thereto, are not reflected in the development of the above loss
value. These non-financial instruments include premium balances receivable,
reinsurance recoverables, claims and claim adjustment expense reserves and
unearned premium reserves.
21
<PAGE> 22
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Index to Consolidated Financial Statements and Schedules
ACMAT Corporation and Subsidiaries:
The following Consolidated Financial Statements of the Company, related notes
and Independent Auditors' Report are included herein:
Independent Auditors' Report
Consolidated Statements of Earnings for the years ended December 31, 1999,
1998 and 1997
Consolidated Balance Sheets as of December 31, 1999 and 1998
Consolidated Statements of Stockholders' Equity for the years ended
December 31, 1999, 1998 and 1997
Consolidated Statements of Cash Flows for the years ended December 31,
1999, 1998 and 1997
Notes to Consolidated Financial Statements - December 31, 1999, 1998 and
1997
Consolidated Schedules included in Part II of this Report - Years ended
December 31, 1999, 1998 and 1997:
I - Condensed Financial Information of Registrant
II - Valuation and Qualifying Accounts and Reserves
V - Supplemental Information Concerning Property-Casualty
Insurance Operations
22
<PAGE> 23
INDEPENDENT AUDITORS' REPORT
The Board of Directors
ACMAT Corporation:
We have audited the consolidated financial statements of ACMAT Corporation and
subsidiaries as listed in the accompanying index. In connection with our audits
of the consolidated financial statements, we also have audited the financial
statement schedules as listed in the accompanying index. These consolidated
financial statements and financial statement schedules are the responsibility of
the Company's management. Our responsibility is to express an opinion on these
consolidated financial statements and financial statement schedules based on our
audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of ACMAT Corporation
and subsidiaries as of December 31, 1999 and 1998, and the results of their
operations and their cash flows for each of the years in the three-year period
ended December 31, 1999 in conformity with generally accepted accounting
principles. Also in our opinion, the related financial statement schedules, when
considered in relation to the basic consolidated financial statements taken as a
whole, present fairly, in all material respects, the information set forth
therein.
KPMG LLP
Hartford, Connecticut
March 7, 2000
23
<PAGE> 24
ACMAT CORPORATION AND SUBSIDIARIES
Consolidated Statements of Earnings
Years Ended December 31, 1999, 1998 and 1997
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Earned premiums $ 9,414,192 10,962,663 15,045,844
Contract revenues 9,223,457 12,139,924 10,056,322
Investment income, net 5,389,732 6,138,105 6,504,716
Net realized capital gains 252,190 266,169 282,667
Other income (expense) 1,220,678 (754,588) 1,662,586
----------- ----------- -----------
25,500,249 28,752,273 33,552,135
Losses and loss adjustment expenses 1,672,887 2,186,728 4,337,252
Cost of contract revenues 8,261,408 11,635,879 9,331,103
Amortization of policy acquisition costs 2,223,918 2,112,857 2,802,993
General and administrative expenses 5,385,409 5,355,183 5,767,808
Interest expense 3,738,740 4,621,401 5,116,414
----------- ----------- -----------
21,282,362 25,912,048 27,355,570
---------- ---------- ----------
Earnings before income taxes 4,217,887 2,840,225 6,196,565
Income taxes 1,204,164 719,696 1,739,616
--------- --------- ---------
Net earnings $3,013,723 2,120,529 4,456,949
========= ========= =========
Basic earnings per share $1.02 .66 1.29
---- --- ----
Diluted earnings per share $.99 .65 1.12
--- --- ----
</TABLE>
See Notes to Consolidated Financial Statements.
24
<PAGE> 25
ACMAT CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
December 31, 1999 and 1998
<TABLE>
<CAPTION>
ASSETS 1999 1998
- ------ ---- ----
<S> <C> <C>
Investments:
Fixed maturities - available for sale at fair value
(Cost of $89,290,810 in 1999 and $98,128,192 in 1998) $ 87,826,920 98,882,751
Equity securities - available for sale at fair value
(Cost of $2,065,262 in 1999 and 1998 ) 1,614,763 2,061,448
Short-term investments, at cost which approximates fair value 518,557 12,947,913
------------- -------------
Total Investments 89,960,240 113,892,112
Cash and cash equivalents 7,054,911 2,306,232
Accrued interest receivable 1,324,356 1,352,334
Receivables, net of allowance for doubtful accounts of
$195,118 in 1999 and $257,617 in 1998 2,823,381 3,737,627
Reinsurance recoverable 3,924,064 2,224,116
Income tax refund receivable 173,465 207,380
Prepaid expenses 106,049 162,784
Deferred income taxes 1,560,324 1,733,987
Property and equipment, net 12,675,956 12,894,191
Deferred policy acquisition costs 1,323,780 1,550,089
Other assets 2,360,366 3,170,242
Intangibles, net 2,568,719 2,895,371
------------- -------------
$ 125,855,611 146,126,465
============= =============
Liabilities & Stockholders' Equity
Accounts payable $ 1,923,081 3,200,965
Reserves for losses and loss adjustment expenses 38,544,491 43,115,062
Unearned premiums 5,262,468 6,795,435
Collateral held 11,954,554 17,344,376
Other accrued liabilities 1,251,305 847,701
Long-term debt 30,792,720 37,200,000
------------- -------------
Total Liabilities 89,728,619 108,503,539
Commitments and contingencies
Stockholders' Equity:
Common Stock (No par value; 3,500,000 shares authorized;
584,828 and 592,088 shares issued and outstanding) 584,828 592,088
Class A Stock (No par value; 10,000,000 shares authorized;
2,304,587 and 2,460,808 shares issued and outstanding) 2,304,587 2,460,808
Retained earnings 35,151,966 34,074,538
Accumulated other comprehensive income (loss) (1,914,389) 495,492
------------- -------------
Total Stockholders' Equity 36,126,992 37,622,926
------------- -------------
$ 125,855,611 146,126,465
============= =============
</TABLE>
See Notes to Consolidated Financial Statements.
25
<PAGE> 26
ACMAT CORPORATION AND SUBSIDIARIES
Consolidated Statements of Stockholders' Equity
December 31, 1999, 1998 and 1997
<TABLE>
<CAPTION>
Common Class A Additional
Stock par Stock par paid-in Retained
value value capital earnings
----- ----- ------- --------
<S> <C> <C> <C> <C>
Balance as of December 31, 1996 $ 600,257 3,488,860 8,407,877 36,894,494
Comprehensive income:
Net unrealized losses on debt and equity
securities, net of reclassification
adjustment -- -- -- --
Net earnings 4,456,949
Total comprehensive income -- -- -- --
Acquisition and retirement of
3,400 shares of Common Stock $ (3,400) -- (66,096) --
Acquisition and retirement of
1,347,686 shares of Class A Stock -- (1,347,686) (13,522,491) (5,318,290)
Issuance of 450,000 shares
of Class A Stock -- 450,000 4,050,000 --
Issuance of 121,000 shares of Class A Stock
Pursuant to stock options -- 121,000 1,130,710 --
----------- ----------- ----------- -----------
Balance as of December 31, 1997 $ 596,857 2,712,174 -- 36,033,153
Comprehensive income:
Net unrealized appreciation of debt and
equity securities, net of reclassification
adjustment -- -- -- --
Net earnings -- -- -- 2,120,529
Total comprehensive income
Acquisition and retirement of
4,769 shares of Common Stock $ (4,769) -- -- (93,697)
Acquisition and retirement of
342,366 shares of Class A Stock -- (342,366) (841,980) (3,985,447)
Issuance of 91,000 shares of Class A Stock
Pursuant to stock options -- 91,000 841,980 --
----------- ----------- ----------- -----------
Balance as of December 31, 1998 $ 592,088 2,460,808 -- 34,074,538
Comprehensive income:
Net unrealized losses on debt and
equity securities, net of reclassification
adjustment -- -- -- --
Net earnings -- -- -- 3,013,723
Total comprehensive income
Acquisition and retirement of 7,260 shares of
Common Stock $ (7,260) -- -- (144,658)
Acquisition and retirement of 189,221 shares
of Class A Stock -- (189,221) (388,500) (1,791,637)
Issuance of 15,000 shares of Class A Stock
pursuant to investment agreement -- 15,000 206,250 --
Issuance of 18,000 shares of Class A Stock
Pursuant to stock options -- 18,000 182,250 --
----------- ----------- ----------- -----------
Balance as of December 31, 1999 $ 584,828 2,304,587 -- 35,151,966
=========== =========== =========== ===========
Accumulated
other Total
comprehensive stockholders'
income (loss) equity
------------- ------
<S> <C> <C>
Balance as of December 31, 1996 310,916 49,702,404
Comprehensive income:
Net unrealized losses on debt and equity
securities, net of reclassification
adjustment (75,361) (75,361)
Net earnings -- 4,456,949
-----------
Total comprehensive income 4,381,588
Acquisition and retirement of
3,400 shares of Common Stock -- (69,496)
Acquisition and retirement of
1,347,686 shares of Class A Stock -- (20,188,467)
Issuance of 450,000 shares
of Class A Stock -- 4,500,000
Issuance of 121,000 shares of Class A Stock
Pursuant to stock options -- 1,251,710
----------- -----------
Balance as of December 31, 1997 235,555 39,577,739
Comprehensive income:
Net unrealized appreciation of debt and
equity securities, net of reclassification
adjustment 259,937 259,937
Net earnings -- 2,120,529
-----------
Total comprehensive income 2,380,466
Acquisition and retirement of
4,769 shares of Common Stock -- (98,466)
Acquisition and retirement of
342,366 shares of Class A Stock -- (5,169,793)
Issuance of 91,000 shares of Class A Stock
Pursuant to stock options -- 932,980
----------- -----------
Balance as of December 31, 1998 495,492 37,622,926
Comprehensive income:
Net unrealized losses on debt and
equity securities, net of reclassification
adjustment (2,409,881) (2,409,881)
Net earnings -- 3,013,723
-----------
Total comprehensive income 603,842
Acquisition and retirement of 7,260 shares of
Common Stock -- (151,918)
Acquisition and retirement of 189,221 shares
of Class A Stock -- (2,369,358)
Issuance of 15,000 shares of Class A Stock
pursuant to investment agreement -- 221,250
Issuance of 18,000 shares of Class A Stock
Pursuant to stock options -- 200,250
----------- -----------
Balance as of December 31, 1999 (1,914,389) 36,126,992
=========== ===========
</TABLE>
See Notes to Consolidated Financial Statements.
26
<PAGE> 27
ACMAT CORPORATION AND SUBSIDIARIES
Consolidated Statements of Cash Flows
Years ended December 31, 1999, 1998 and 1997
<TABLE>
<CAPTION>
1999 1998 1997
------------- ------------- -------------
<S> <C> <C> <C>
Cash Flows From Operating Activities:
Net earnings $ 3,013,723 2,120,529 4,456,949
Adjustments to reconcile net earnings to net
Cash provided by (used for) operating activities:
Depreciation and amortization 1,829,646 1,412,004 1,506,013
Net realized capital gain (252,190) (266,169) (282,667)
Limited partnership investment -- 1,429,288 (966,315)
Deferred income taxes 428,918 73,041 383,771
Changes In:
Accrued interest receivable 27,978 105,830 109,597
Receivables, net 914,246 3,380,900 1,263,063
Reinsurance recoverable (1,699,948) 1,254,005 362,880
Deferred policy acquisition costs 226,309 528,316 827,470
Prepaid expenses and other assets 741,366 951,605 351,384
Accounts payable and other liabilities (874,280) (389,056) 1,159,290
Collateral held (5,389,822) (2,931,326) (1,554,864)
Reserves for losses and loss adjustment expenses (4,570,571) (5,785,651) 940,629
Income taxes 72,165 594,431 (434,388)
Unearned premiums (1,532,967) (3,008,724) (2,537,483)
------------- ------------- -------------
Net cash provided by (used for) operating activities (7,065,427) (530,977) 5,585,329
------------- ------------- -------------
Cash Flows From Investing Activities:
Proceeds from investments sold or matured:
Fixed maturities - sold 63,593,712 40,118,160 41,501,401
Fixed maturities - matured 11,692,000 38,383,281 35,221,999
Equity securities 24,405 1,022,466 774,349
Short-term investments 143,866,543 79,604,384 155,255,106
Purchases Of:
Fixed maturities (66,790,040) (75,373,107) (85,168,980)
Equity securities (24,405) (2,060,000) (1,727,812)
Short-term investments (131,437,187) (60,129,984) (140,708,282)
Capital expenditures (344,366) (238,454) (154,483)
------------- ------------- -------------
Net cash provided by investing activities 20,580,662 21,326,746 4,993,298
------------- ------------- -------------
Cash Flows From Financing Activities:
Borrowings under line of credit 9,000,000 7,000,000 5,000,000
Repayments under line of credit (9,000,000) (12,000,000) (13,200,000)
Repayments on long-term debt (10,907,280) (23,812,727) (3,594,692)
Issuance of long-term debt 4,500,000 12,800,000 8,500,000
Issuance of Class A Stock 162,000 696,000 882,250
Payments for acquisition and retirement of stock (2,521,276) (5,268,259) (8,257,963)
------------- ------------- -------------
Net cash used for financing activities (8,766,556) (20,584,986) (10,670,405)
------------- ------------- -------------
Net increase (decrease) in cash and cash equivalents 4,748,679 210,783 (91,778)
Cash and cash equivalents, beginning of year 2,306,232 2,095,449 2,187,227
------------- ------------- -------------
Cash and cash equivalents, end of year $ 7,054,911 2,306,232 2,095,449
============= ============= =============
</TABLE>
See Notes to Consolidated Financial Statements.
27
<PAGE> 28
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1999, 1998 AND 1997
(1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Principles of Consolidation
The consolidated financial statements include ACMAT
Corporation ("ACMAT" or the "Company"), its subsidiaries,
AMINS, Inc., Geremia Electric Co., ACMAT of Texas, Inc.,
ACSTAR Holdings, Inc. ("ACSTAR Holdings") and ACSTAR Holdings'
wholly-owned subsidiary, ACSTAR Insurance Company ("ACSTAR");
and United Coastal Insurance Company ("United Coastal
Insurance").
These consolidated financial statements have been prepared in
conformity with generally accepted accounting principles
("GAAP"). All significant intercompany accounts and
transactions have been eliminated in consolidation. Certain
re-classifications have been made to the 1998 and 1997
financial statements to conform to the classifications in
1999.
(b) Business
ACMAT operates as an insurance holding company and as an
interior contractor; designing, supplying, renovating and
installing interiors for commercial, industrial and
institutional buildings, including asbestos abatement
contracting.
ACMAT's Insurance Group includes United Coastal Insurance,
ACSTAR and AMINS, Inc. United Coastal Insurance is an excess
and surplus lines property and casualty insurer providing
specialty general and environmental liability insurance to
specialty trade and environmental contractors, property
owners, storage and treatment facilities and allied
professionals, as well as professional liability insurance to
architects, engineers and consultants. ACSTAR is licensed as
an admitted insurer in 50 states and the District of Columbia
and provides surety bonding for specialty trade, environmental
remediation and asbestos abatement contractors. AMINS, Inc. is
an insurance agency which acts primarily as a general agent
for ACSTAR and United Coastal Insurance. United Coastal
Insurance participates in a number of reinsurance arrangements
with other companies on a quota share basis. These
arrangements primarily cover marine and other property
catastrophic risks.
During 1999, 1998 and 1997, customers who individually
accounted for more than 10% of consolidated construction
contracting revenue are as follows; in 1999 - two customers
provided 51% and 24%, respectively. In 1998 - three customers
provided 52%, 19% and 17%, respectively. In 1997 - four
customers provided 28%, 21%, 19% and 11%, respectively. No
customers accounted for more than 10% of the consolidated
insurance revenues in any year.
(c) Investments
Investments are classified as "available for sale" and are
reported at fair value, with unrealized gains or losses
charged or credited directly to stockholders' equity.
The fair value of investment securities are based on
quoted market prices. Premiums and discounts on debt
securities are amortized into interest income over the term of
the securities in a manner that approximates the interest
method. Realized gains and losses on sales of securities are
computed using the specific identification method. Any
security which management believes has experienced a decline
in value which is other than temporary is written down to its
market value through a charge to income.
Short-term investments, consisting primarily of money
market instruments maturing within one year are carried at
cost which, along with accrued interest, approximates fair
value. Cash and cash equivalents include cash on hand and
short-term highly liquid investments of maturities of three
months or less when purchased. These investments are carried
at cost plus accrued interest which approximates fair value.
28
<PAGE> 29
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(d) Policy Acquisition Costs
Policy acquisition costs, representing commissions and certain
underwriting costs, are deferred and amortized on a
straight-line basis over the policy term. During the years
ended December 31, 1999, 1998 and 1997, deferrable costs
capitalized were $1,997,609, $1,584,541 and $1,975,523,
respectively. The amortization of deferred policy acquisition
costs charged to operations for the years ended December 31,
1999, 1998 and 1997 was $2,223,918, $2,112,857 and $2,802,993,
respectively.
(e) Property and Equipment
Property and equipment are reported at depreciated cost.
Depreciation is computed using the straight-line method at
rates based upon the respective estimated useful lives of the
assets. Maintenance and repairs are expensed as incurred.
(f) Intangibles
All intangibles are stated at amortized cost and are being
amortized using the straight-line method. Intangibles include
insurance operating licenses and goodwill, which represents
the excess of cost over the fair market value of net assets
acquired. These intangible assets are amortized over periods
ranging from 15 to 25 years. The carrying amounts of these
intangibles are regularly reviewed for indicators of
other-than-temporary impairments in value.
(g) Insurance Reserve Liabilities
Reserves for losses and loss adjustment expenses are
established with respect to both reported and incurred but not
reported claims for insured risks. The amount of loss reserves
for reported claims is primarily based upon a case-by-case
evaluation of the type of risk involved, knowledge of the
circumstances surrounding the claim and the policy provisions
relating to the type of claim. As part of the reserving
process, historical data are reviewed and consideration is
given to the anticipated impact of various factors such as
legal developments and economic conditions, including the
effects of inflation. Reserves are monitored and recomputed
periodically using new information on reported claims.
Reserves for losses and loss adjustment expenses are estimates
at any given point in time of what the Company may have to pay
ultimately on incurred losses, including related settlement
costs, based on facts and circumstances then known. The
Company also reviews its claims reporting patterns, past loss
experience, risk factors and current trends and considers
their effect in the determination of estimates of incurred but
not reported losses. Ultimate losses and loss adjustment
expenses are affected by many factors which are difficult to
predict, such as claim severity and frequency, inflation
levels and unexpected and unfavorable judicial rulings.
Reserves for surety claims also consider the amount of
collateral held as well as the financial strength of the
contractor and its indemnitors. Management believes that the
reserves for losses and loss adjustment expenses are adequate
to cover the unpaid portion of the ultimate net cost of losses
and loss adjustment expenses incurred, including losses
incurred but not reported.
(h) Collateral Held
The carrying amount of collateral held approximates its fair
value because of the short maturity of these instruments.
Collateral held represents cash and investments retained by
the Company for surety bonds issued by the Company.
29
<PAGE> 30
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(i) Reinsurance
In the normal course of business, the Company assumes and
cedes reinsurance with other companies. Reinsurance ceded
primarily represents excess of loss reinsurance with companies
with "A" ratings from the insurance rating organization, A.M.
Best Company, Inc. Such reinsurance is applicable on a per
policy basis generally to those policies with per occurrence
limits in excess of $2 million up to $10 million for liability
and for individual surety bonds, the Company reinsures through
various layered excess of loss agreements up to $10 million on
a $14.5 million bond. Reinsurance ceded also includes a
facultative reinsurance treaty which is applicable to excess
policies written over a primary policy issued by the Company
for specific projects. Reinsurance is ceded to limit losses
from large exposures and to permit recovery of a portion of
direct losses; however, such a transfer does not relieve the
originating insurer of its liability. The Company participates
in assumed quota share reinsurance arrangements covering
marine and property catastrophe risks with one of its excess
of loss reinsurers.
Reinsurance recoverables include ceded reserves for losses and
loss adjustment expenses. Ceded unearned premiums of $453,588
and $662,363 at December 31, 1999 and 1998, respectively, are
included in other assets. All reinsurance contracts maintained
by the Company qualify as short-duration prospective
contracts. A summary of reinsurance premiums written and
earned is provided below:
<TABLE>
<CAPTION>
Premiums Written Premiums Earned
---------------- ---------------
1999 1998 1997 1999 1998 1997
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Direct $8,968,024 8,324,506 12,851,647 $10,528,702 11,211,803 15,164,588
Assumed 124,763 528,220 686,935 97,052 656,023 1,144,017
Ceded (1,002,787) (649,109) (858,385) (1,211,562) (905,163) (1,262,761)
--------- ---------- ----------- ----------- ------------ -----------
Totals $8,090,000 8,203,617 12,680,197 $ 9,414,192 10,962,663 15,045,844
========= ========= ========== ========== ========== ==========
</TABLE>
Ceded incurred losses and loss adjustment expenses totaled
$215,292, $180,553 and $364,015 for the years ended December
31, 1999, 1998 and 1997, respectively.
(j) Revenue Recognition
Revenue on construction contracts is recorded using the
percentage of completion method. Under this method revenues
with respect to individual contracts are recognized in the
proportion that costs incurred to date relate to total
estimated costs. Revenues and cost estimates are subject to
revision during the terms of the contracts, and any required
adjustments are made in the periods in which the revisions
become known. Provisions are made, where applicable, for the
entire amount of anticipated future losses on contracts in
progress. Claims are recorded as revenue at the time of
settlement and profit incentives and change orders are
included in revenues when their realization is reasonably
assured. Selling, general and administrative expenses are not
allocated to contracts.
Insurance premiums are recognized over the coverage period.
Unearned premiums represent the portion of premiums written
that is applicable to the unexpired terms of policies in
force, calculated on a prorata basis.
(k) Income Taxes
Deferred tax assets and liabilities are recognized for the
future tax consequences attributable to differences between
the financial statement carrying amounts of existing assets
and liabilities and their respective tax bases. Deferred tax
assets and liabilities are measured using enacted tax rates
expected to apply to taxable income in the years in which
those temporary differences are expected to be recovered or
settled. The effect on deferred tax assets and liabilities of
a change in tax rates is recognized in income in the period
that includes the enactment date.
(l) Use of Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management
to make estimates and assumptions that affect the amounts
reported in the financial statements and accompanying notes.
Actual results could differ from reported results using those
estimates.
30
<PAGE> 31
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(m) Comprehensive Income
The following table summarizes reclassification adjustments
for other comprehensive income (loss) and the related tax
effects for the years ended December 31, 1999, 1998 and 1997:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Unrealized gains (losses) on investments:
Unrealized holding gain (loss) arising during period net of income
tax expense of $224,405 and $57,163 for 1998 and 1997, respectively. $(2,243,436) 435,609 111,199
Less reclassification adjustment for gains included in net earnings,
net of income tax expense of $85,745, $90,497 and $96,107 for 1999,
1998 and 1997, respectively. 166,445 175,672 186,560
---------- ------- -------
Other comprehensive income (loss) $(2,409,881) 259,937 (75,361)
=========== ======= =======
</TABLE>
(n) New Accounting Standards
Statement of Position ("SOP") 97-3, "Accounting by Insurance
and Other Enterprises for Insurance-Related Assessments", was
issued in December 1997 and provides guidance for determining
when an entity should recognize a liability for guaranty-fund
and other insurance-related assessments, how to measure that
liability, and when an asset may be recognized for the
recovery of such assessments through premium tax offsets or
policy surcharges. SOP 97-3 became effective for financial
statements for fiscal years beginning after December 15, 1998,
and the effect of initial adoption is to be reported as a
cumulative catch-up adjustment. Restatement of previously
issued financial statements is not allowed. The adoption of
this SOP did not have a material effect on the Company's
results of operations or financial condition.
Statement of Position ("SOP") 98-1, "Accounting for the Costs
of Computer Software Developed or Obtained for Internal Use,"
was issued in March 1998 and provides guidance on accounting
for the costs of computer software developed or obtained for
internal use and for determining when specific costs should be
capitalized and when they should be expensed. SOP 98-1 became
effective for financial statements for fiscal years beginning
after December 15, 1998. Costs incurred prior to initial
application of this SOP, whether capitalized or not, are not
be adjusted to the amounts that would have been capitalized
had this SOP been in effect when those costs were incurred and
therefore, the adoption of this SOP did not have a material
effect on the Company's result of operations or financial
condition.
(o) Future Accounting Standard
SFAS No. 133, "Accounting for Derivative Instruments and
Hedging Activities", was issued in June 1998 and establishes
accounting and reporting standards for derivative instruments,
including certain derivative instruments embedded in other
contracts, (collectively referred to as derivatives) and for
hedging activities. It requires that an entity recognize all
derivatives as either assets or liabilities in the statement
of financial position and measure those instruments at fair
value. This statement was to be effective for all fiscal
quarters of fiscal years beginning after June 15, 1999.
However, in June 1999, SFAS No. 137, "Deferral of the
Effective Date of FASB Statement No. 133" was issued. SFAS No
137 allows entities which have not adopted SFAS No. 133 to
defer its effective date to all fiscal quarters of all fiscal
years beginning after June 15, 2000. This Statement should not
be applied retroactively to financial statements of prior
periods. The Company adopted the deferral provisions of SFAS
No. 137, effective January 1, 2000 and has not completed its
evaluation of the effect SFAS No. 133 will have on the
Company's results of operations or financial condition.
31
<PAGE> 32
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(2) INVESTMENTS
INVESTMENTS AT DECEMBER 31, 1999 AND 1998 FOLLOWS:
<TABLE>
<CAPTION>
AMORTIZED ESTIMATED CARRYING
COST FAIR VALUE VALUE
---- ---------- -----
<S> <C> <C> <C>
1999
Fixed maturities - available for sale:
Bonds:
States, municipalities and political subdivisions $37,020,634 36,607,995 36,607,995
United States government and government agencies 18,885,440 18,568,888 18,568,888
Mortgage-backed securities 5,816,255 5,642,888 5,642,888
Industrial and miscellaneous 27,568,481 27,007,149 27,007,149
----------- ---------- ----------
Total fixed maturities 89,290,810 87,826,920 87,826,920
Equity securities - common stocks:
Banks, trusts and insurance 5,262 14,763 14,763
Equity securities - redeemable preferred stocks:
Banks, trusts and insurance 1,060,000 860,000 860,000
Industrial and miscellaneous 1,000,000 740,000 740,000
--------- ------- -------
Total equity securities 2,065,262 1,614,763 1,614,763
Short-term investments 518,557 518,557 518,557
----------- ---------- ----------
Total investments $91,874,629 89,960,240 89,960,240
=========== ========== ==========
1998
Fixed maturities - available for sale:
Bonds:
States, municipalities and political subdivisions $54,679,758 55,081,641 55,081,641
United States government and government agencies 18,809,228 19,005,763 19,005,763
Mortgage-backed securities 24,639,206 24,795,347 24,795,347
----------- ---------- ----------
Total fixed maturities 98,128,192 98,882,751 98,882,751
Equity securities - common stocks:
Banks, trusts and insurance 5,262 18,948 18,948
Equity securities - redeemable preferred stocks:
Banks, trusts and insurance 1,060,000 1,060,000 1,060,000
Industrial and miscellaneous 1,000,000 982,500 982,500
----------- ---------- ----------
Total equity securities 2,065,262 2,061,448 2,061,448
Short-term investments 12,947,913 12,947,913 12,947,913
------------ ---------- ----------
Total investments $113,141,367 113,892,112 113,892,112
============ =========== ===========
</TABLE>
Fair value estimates are made based on quoted market prices and
information about the financial instrument. These estimates do not
reflect any premium or discount that could result from offering for
sale at one time the Company's entire holdings of a particular
financial instrument. These estimates are subjective in nature and
involve uncertainties and matters of significant judgment and,
therefore, cannot be determined with precision. Changes in assumptions
could significantly affect the estimates.
On December 31, 1999, the Company's insurance subsidiaries had
securities with an aggregate book value of approximately $9.9 million
on deposit with various state regulatory authorities.
32
<PAGE> 33
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The amortized cost and fair value of fixed maturities at December 31,
1999 and 1998, by effective maturity, follows:
<TABLE>
<CAPTION>
1999 1998
------------------------------ ------------------------------
Amortized Fair Amortized Fair
Cost Value Cost Value
---- ----- ---- -----
<S> <C> <C> <C> <C>
Due in one year or less $16,692,346 16,907,611 19,661,604 19,804,671
Due after one year through five years 65,642,615 64,139,194 72,227,199 72,805,247
Due after five years through ten years 3,843,840 3,719,256 5,198,529 5,225,378
Due after ten years 3,112,009 3,060,859 1,040,860 1,047,455
----------- ----------- ----------- ----------
Total $89,290,810 87,826,920 98,128,192 98,882,751
========== =========== ========== ==========
</TABLE>
The Company's portfolio is comprised primarily of fixed maturity
securities rated AA or better by Standard and Poor's and includes
mostly U.S. Treasuries and tax-free municipal securities
A summary of gross unrealized gains and losses at December 31, 1999
and 1998 follows:
<TABLE>
<CAPTION>
1999 1998
-------------------------- --------------------------
Gains Losses Gains Losses
----- ------ ----- ------
<S> <C> <C> <C> <C>
States, municipalities and
political subdivisions $ 8,870 (421,509) 413,730 (11,847)
United States government and
government agencies 103 (316,655) 232,849 (36,314)
Industrial and miscellaneous -- (173,367) -- --
Mortgage-backed securities -- (561,332) 156,767 (626)
---------- ---------- ---------- ----------
Total 8,973 (1,472,863) 803,346 (48,787)
Equity securities 9,501 (460,000) 13,686 (17,500)
---------- ---------- ---------- ----------
Total $ 18,474 (1,932,863) 817,032 (66,287)
========== ========== ========== ==========
</TABLE>
(3) INVESTMENT INCOME AND REALIZED CAPITAL GAINS AND LOSSES
A summary of net investment income for the years ended December 31,
1999, 1998 and 1997 follows:
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Tax-exempt interest $ 1,680,051 2,045,722 1,996,969
Taxable interest 3,680,987 4,080,814 4,639,758
Dividends on equity securities 112,130 56,603 10,283
Investment expenses (83,436) (45,034) (142,294)
----------- ----------- -----------
Net investment income $ 5,389,732 6,138,105 6,504,716
=========== =========== ===========
</TABLE>
Realized capital gains (losses) for the years ended December 31, 1999,
1998 and 1997 follows:
<TABLE>
<CAPTION>
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Fixed maturities $252,190 225,701 258,318
Equity securities -- 44,653 24,349
Other -- (4,185) --
-------- -------- --------
Net realized capital gains $252,190 266,169 282,667
======== ======== ========
</TABLE>
33
<PAGE> 34
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Gross gains of $349,413, $229,063 and $261,005 and gross losses of
$97,223, $3,362 and $2,687 were realized on fixed maturity sales for
the years ended December 31, 1999, 1998 and 1997, respectively. Gross
gains of $0, $44,653 and $24,349 were realized on sale of equity
securities for the years ended December 31, 1999, 1998 and 1997,
respectively. There were no losses realized on equity security sales
for the years ended December 31, 1999, 1998 and 1997.
(4) RECEIVABLES
A summary of receivables at December 31, 1999 and 1998
follows:
<TABLE>
<CAPTION>
1999 1998
----------- -----------
<S> <C> <C>
Insurance premiums due from agents $ 1,526,145 2,440,836
Receivables under construction contracts:
Amounts billed 1,335,451 2,662,501
Recoverable costs in excess of billings on uncompleted contracts 67,885 173,324
Billings in excess of costs on uncompleted contracts (489,650) (1,957,000)
Retainage, due on completion of contracts 463,959 504,857
----------- -----------
Total receivables under construction contracts 1,377,645 1,383,682
Other 114,709 170,726
----------- -----------
Total receivables 3,018,499 3,995,244
Less allowances for doubtful accounts (195,118) (257,617)
----------- -----------
Total receivables, net $ 2,823,381 3,737,627
=========== ===========
</TABLE>
The balances billed but not paid by customers pursuant to retainage
provisions in construction contracts will be due upon completion of the
contracts and acceptance by the owner. In management's opinion, the
majority of contract retainage is expected to be collected in 2000.
Recoverable costs in excess of billings on uncompleted contracts are
comprised principally of amounts of revenue recognized on contracts for
which billings had not been presented to the contract owners as of the
balance sheet date. These amounts will be billed in accordance with the
contract terms.
(5) PROPERTY AND EQUIPMENT
A summary of property and equipment at December 31, 1999 and 1998
follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Building $14,912,042 14,843,201
Land 800,000 800,000
Equipment and vehicles 1,255,128 1,008,966
Furniture and fixtures 888,824 892,663
----------- ------------
17,855,994 17,544,830
Less accumulated depreciation 5,180,038 4,650,639
----------- -----------
$12,675,956 12,894,191
=========== ==========
</TABLE>
Future minimum rental income to be generated by leasing a portion of
the building under non-cancelable operating leases as of December 31,
1999 are estimated to be $651,344 for 2000, $656,144 for 2001, $660,944
for 2002 $581,744 for 2003 and $99,600 for 2004. Rental income earned
in 1999, 1998 and 1997 was $688,102, $626,730 and $561,852,
respectively.
(6) INTANGIBLES
A summary of intangibles, acquired primarily in connection with
purchases of the Company's insurance subsidiaries, at December 31, 1999
and 1998 follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Insurance licenses $4,188,926 4,188,926
Goodwill 2,524,872 2,524,872
--------- ---------
6,713,798 6,713,798
Less accumulated amortization 4,145,079 3,818,427
--------- ---------
$2,568,719 2,895,371
========== =========
</TABLE>
Intangible assets are written off when they become fully amortized.
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(7) RESERVES FOR LOSSES AND LOSS ADJUSTMENT EXPENSES
34
<PAGE> 35
The following table sets forth a reconciliation of beginning and ending
reserves for unpaid losses and loss adjustment expenses for the periods
indicated on a GAAP basis for the business of the Company.
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Balance at January 1 $43,115,062 48,900,713 47,960,084
Less reinsurance recoverable 2,224,116 3,478,121 3,841,001
---------- ---------- ----------
Net balance at January 1 40,890,946 45,422,592 44,119,083
Incurred related to:
Current year 3,091,120 4,508,667 5,176,030
Prior years (1,418,233) (2,321,939) (838,778)
----------- ----------- -----------
Total incurred 1,672,887 2,186,728 4,337,252
Payments related to:
Current year 81,569 18,260 94,398
Prior years 7,861,837 6,700,114 2,939,345
--------- --------- ---------
Total payments 7,943,406 6,718,374 3,033,743
Net balance at December 31 34,620,427 40,890,946 45,422,592
Plus reinsurance recoverable 3,924,064 2,224,116 3,478,121
----------- ---------- ----------
Balance at December 31 $38,544,491 43,115,062 48,900,713
=========== ========== ==========
</TABLE>
The decrease of incurred losses and loss adjustment expenses of prior
years represents a release of surety loss reserves on older years that
are no longer needed and a reallocation of reserves among accident
years. Management believes that the reserves for losses and loss
adjustment expenses are adequate to cover the unpaid portion of the
ultimate net cost of losses and loss adjustment expenses, including
losses incurred but not reported.
The Company has no exposure to any asbestos or environmental claims
associated with general liability policies issued with the pre-1986
pollution exclusion. Policies written with the exclusion are typically
associated with mass tort environmental and asbestos claims. The
Company has never issued a policy with the pre-1986 pollution
exclusion. The Company's exposure to asbestos and environmental
liability claims is primarily limited to asbestos and environmental
liability insurance for contractors and consultants involved in the
remediation, removal, storage, treatment and/or disposal of
environmental and asbestos hazards.
(8) NOTES PAYABLE TO BANKS
At December 31, 1999, the Company has a $10,000,000 bank line of credit
with a financial institution. The line of credit does not require the
Company to maintain a compensating balance. There were no outstanding
borrowings under this line of credit at December 31, 1999 and 1998.
Under the terms of the line of credit, interest on the outstanding
balance is calculated based upon the London Inter-Bank Offering Rate
(LIBOR) plus 160 basis points in effect during the borrowing period.
The fair value of notes payable to banks approximates cost.
(9) LONG-TERM DEBT
A summary of long-term debt at December 31, 1999 and 1998
follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Term Loan due 2004 $ 4,250,000 -
Term Loan due 2003 - 5,000,000
Senior Notes due 2005 3,900,000 9,000,000
Mortgage Note due 2009 7,242,720 7,800,000
Convertible Note due 2022 15,400,000 15,400,000
---------- ----------
$30,792,720 37,200,000
=========== ==========
</TABLE>
35
<PAGE> 36
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
On September 1, 1999, the Company obtained a $4,500,000 term loan from
a financial institution, which is currently payable in quarterly
installments of $250,000 which commenced December 1, 1999. The interest
rate is fixed at 7.25%. The loan agreement contains certain limitations
on borrowings, minimum statutory capital levels and requires
maintenance of certain ratios. The proceeds were used to replace the
term loan obtained on December 9, 1998.
On December 23, 1998, the Company obtained a permanent mortgage loan
from a financial institution. The $7,800,000 mortgage note, with
interest fixed at 6.95% is payable in monthly installments of principal
and interest over 10 years. The loan agreements contain certain
limitations on borrowings, minimum statutory capital levels and require
maintenance of specified ratios. The proceeds were used to repay the
existing mortgage note.
On September 1, 1999, the Company replaced a $5,000,000, five-year term
loan that was obtained from a financial institution on December 9,
1998. The loan agreements contained certain limitations on borrowings,
minimum statutory capital levels and require maintenance of specified
ratios. The proceeds, along with internal funds, were used to refinance
existing debt which existed at December 31, 1998.
On February 5, 1997, ACMAT Corporation purchased 1,099,996 shares of
Class A Stock which AIG Life Insurance Company (366,663 shares) and
American International Life Assurance Company of New York, (733,333)
had acquired over the last three years through conversion options (See
Note 12). The shares were purchased at an average price of $14.70 per
share, for a total purchase price of $16,174,942. The purchase price of
$16,174,942 consisted of $4,174,942 in cash and promissory notes
totaling $12,000,000. The promissory notes are with AIG Life Insurance
Company and American International Life Assurance Company of New York
and are payable over eight years with annual payments of $1,500,000
which commenced on January 31, 1998, with interest at prime rate
(8-1/2%). The Company voluntarily prepaid the installments due January
31 on December 31 in both 1999 and 1998. The Company also made a
voluntary prepayment of $3,600,000 on December 31, 1999. The interest
rate is equal to the prime rate, however, the interest rate shall not
exceed 9-1/4% and it shall not be less than 7-1/4%. The purchase of
stock in 1997 with the $12,000,000 promissory notes is a non-cash
transaction that is not reflected in the Consolidated Statement of Cash
Flows.
The terms of the note agreements with AIG Life Insurance Company and
American International Life Assurance Company of New York contain
limitations on payment of cash dividends, re-acquisition of shares,
borrowings and investments and require maintenance of specified ratios
and a minimum tangible net worth of $12,000,000. ACMAT may also require
its insurance subsidiaries to pay dividends to the extent of funds
legally available therefore, in order to enable ACMAT to have funds to
pay on a timely basis all amounts due with respect to the notes. The
Company is in compliance with all of these covenants at December 31,
1999.
On July 1, 1992, the Company issued a 30-year unsecured $16,500,000,
11.5% subordinated debenture to the Sheet Metal Workers' National
Pension Fund ("Fund") to purchase 3,000,000 shares of United Coasts
Corporation's outstanding common stock held by the Fund. Annual
principal payments of $1,650,000 per year for ten years are due
beginning on July 1, 2012. The note is convertible into ACMAT Class A
stock at $11 per share. The conversion price of $11 per share would be
adjusted at the time of conversion to reflect any stock dividends,
recapitalizations or additional stock issuance. The Company can prepay
the note and the Fund has the option to accept the prepayment or
convert the note to stock. The Company made a voluntary principal
payment of $1,100,000 on July 31, 1998. At December 31, 1999, the
Company had reserved 1,400,000 shares of Class A Stock for issuance
pursuant to such conversion option.
Principal payments on long-term debt are $1,600,052, $3,143,108,
$3,189,256, $2,638,716 and $1,041,724 for the years 2000 through 2004,
respectively. Interest expense paid in 1999, 1998 and 1997 amounted to
$3,751,313, $5,121,093 and $4,630,502, respectively.
The fair value at December 31, 1999 of the mortgage, the term loan and
the senior notes approximate carrying value. It is not practicable to
estimate the fair value of convertible note at December 31, 1999
because of the complex and unique terms associated with this debt
instrument.
36
<PAGE> 37
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(10) INCOME TAXES
The components of income tax expense for each year follows:
<TABLE>
<CAPTION>
1999 1998 1997
---------- ---------- ----------
<S> <C> <C> <C>
Current Taxes:
Federal $ 725,246 584,655 1,310,845
State 50,000 62,000 45,000
---------- ---------- ----------
775,246 646,655 1,355,845
---------- ---------- ----------
Deferred Taxes:
Federal 428,918 73,041 383,771
State -- -- --
---------- ---------- ----------
428,918 73,041 383,771
---------- ---------- ----------
Total $1,204,164 719,696 1,739,616
========== ========== ==========
</TABLE>
The effective income tax rate, as a percentage of earnings before
income taxes and minority interest follows:
<TABLE>
<CAPTION>
1999 1998 1997
------ ------ ------
<S> <C> <C> <C>
Federal statutory tax rate 34.0% 34.0% 34.0%
State income tax .8 1.4 .5
Effect of tax-exempt interest (11.5) (20.8) (9.4)
Dividend received deduction -- (4.8) --
Amortization of goodwill 2.8 3.9 1.8
Officers life insurance premiums 2.0 2.8 1.2
Other, net .5 8.8 --
------ ------ ------
Effective income tax rate 28.6% 25.3% 28.1%
====== ====== ======
</TABLE>
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at
December 31, 1999 and 1998 are presented below:
<TABLE>
<CAPTION>
1999 1998
----------- -----------
<S> <C> <C>
Deferred Tax Assets:
Reserves for losses and loss adjustment expenses,
Principally due to reserve discounting $ 2,037,064 2,455,519
Unearned premiums 327,004 417,049
Accounts receivable, principally due to allowance for doubtful accounts 66,340 87,590
Unrealized losses on investments 650,892 --
State net operating loss carryforward 8,709,178 8,895,440
Other 60,020 22,073
----------- -----------
Total gross deferred tax assets 11,850,498 11,877,671
Less valuation allowance 9,360,070 8,895,440
----------- -----------
Net deferred tax assets $ 2,490,428 2,982,231
Deferred Tax Liabilities:
Plant and equipment 480,019 461,970
Deferred policy acquisition costs 450,085 527,030
Unrealized gains on investments -- 255,254
Other -- 3,990
----------- -----------
Total gross deferred tax liabilities 930,104 1,248,244
----------- -----------
Net deferred tax assets $ 1,560,324 1,733,987
=========== ===========
</TABLE>
A valuation allowance is provided for the state net operating loss
carryforward and the unrealized loss on investments which is not
considered realizable. In assessing the realization of deferred tax
assets, management considers whether it is more likely than not that
the deferred tax assets will be realized. The ultimate realization of
deferred tax assets is dependent upon the generation of future taxable
income during the periods in which those temporary differences become
deductible. Management considers the scheduled reversal of deferred tax
liabilities, tax planning strategies and anticipated future taxable
income in making this assessment and believes it is more likely than
not the Company will realize the benefits of its deductible temporary
differences, net of the valuation allowance, at December 31, 1999.
Taxes paid in 1999, 1998 and 1997 were $703,081, $52,227 and
$1,790,253, respectively.
37
<PAGE> 38
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(11) PENSION AND PROFIT SHARING PLANS
The Company and its subsidiaries maintain, for the benefit of non-union
employees, a qualified thrift, profit sharing and retirement plan.
Participants are required to contribute three percent of their
compensation to the plan annually. The Company's contributions,
established by the Board of Directors, were $85,000 in 1999, 1998 and
1997.
The Company participated in various multi-employer defined contribution
plans for its union employees. Upon withdrawal from these plans, the
Company may be liable for its share of the unfunded vested liabilities
of the plans. Such obligations, if any, of the Company are not
determinable at December 31, 1999.
(12) STOCKHOLDERS' EQUITY
The Company has two classes of common stock; the Common Stock and the
Class A Stock, each without par value. The rights of the Common Stock
and the Class A Stock are identical, except with respect to voting
rights. Holders of the Class A Stock are entitled to one-tenth vote per
share in relation to the Common Stock, holders of which are entitled to
one vote per share.
During 1999, 1998 and 1997, ACMAT repurchased, in open market and
privately negotiated transactions 7,260, 4,769, and 3,400 respectively,
shares of its Common Stock at an average price of $20.93, $20.65 and
$20.44 per share, respectively. The Company also repurchased during
1999, 1998 and 1997, in open market and privately negotiated
transactions 189,221, 342,366 and 1,347,686, respectively, shares of
its Class A Stock at an average price of $12.52, $15.10 and $14.98 per
share, respectively.
On April 1, 1999, the Company purchased a 40% interest in Allied Surety
Agency, Inc. The Company issued 15,000 shares of Class A Stock for the
ownership interest. The Company may issue an additional 20,000 shares
of Class A Stock if certain performance goals are met by Allied Surety
Agency, Inc. The purchase was a non-cash transaction and is not
reflected in the Consolidated Statements of Cash Flow.
During 1997, the Company issued 450,000 shares of Class A Stock at $10
per share pursuant to the conversion options of the Convertible Senior
Notes to AIG Life Insurance Company and American International Life
Assurance Company of New York, all of which was repurchased by the
Company in 1997 (see Note 9). The issuance of stock pursuant to the
conversion option of the Convertible Senior Notes is a non-cash
transaction that is not reflected in the Consolidated Statement of Cash
Flows.
The stockholders have periodically approved the distribution of
non-qualified stock options to certain officers and directors giving
such individuals the right to purchase restricted shares of the
Company's Common and Class A Stock. Transactions regarding these stock
options are summarized below:
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Options outstanding at December 31 274,000 292,000 383,000
Weighted average price per share of
options outstanding $ 8.48 $ 10.20 $ 9.59
Expiration dates 1/2001-7/2006 1/2001-7/2006 1/2001-7/2006
Options exercisable at December 31 -- 292,000 383,000
Options granted -- -- --
Options exercised or surrendered 18,000 91,000 121,000
Price ranges of options exercised or surrendered $ 15.25 $6.00-$8.50 $6.00-$8.50
</TABLE>
The exercise price of each option equals the market price of the
Company's stock on the date of grant and the option's term is ten
years. The options vest six months after the date of grant. There were
no stock options granted in 1999, 1998 or 1997, however, the exercise
price of the Class A Stock options were re-priced at $7.25 on December
16, 1999.
38
<PAGE> 39
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Under applicable insurance regulations, ACMAT's insurance subsidiaries
are restricted as to the amount of dividends they may pay, without the
prior approval of any insurance department and are limited to
approximately $9,775,000 in 2000.
The Company's insurance subsidiaries, United Coastal Insurance and
ACSTAR, are domiciled in Arizona and Illinois, respectively. The
statutory financial statements of United Coastal Insurance and ACSTAR
are prepared in accordance with accounting practices prescribed by the
Arizona Department of Insurance and the Illinois Department of
Insurance, respectively. Prescribed statutory accounting practices
include a variety of publications of the National Association of
Insurance Commissioners (NAIC), as well as the state laws, regulations,
and general administrative rules. As of December 31, 1999, the Company
does not utilize any statutory accounting practices which are not
prescribed by insurance regulators that individually or in the
aggregate materially affect statutory shareholders' equity.
The NAIC recently completed a process intended to codify statutory
accounting practices for certain insurance enterprises. As a result,
the NAIC issued a revised statutory Accounting Practices and Procedures
Manual - version effective January 1, 2001 (the revised Manual) that
will be effective for years beginning January 1, 2001. The States of
Illinois and Arizona will require that, effective January 1, 2001,
insurance companies domiciled in Illinois and Arizona prepare their
statutory basis financial statements in accordance with the revised
Manual subject to any deviations prescribed or permitted by the
Illinois and Arizona insurance commissioner. The Company has not yet
determined the impact that this change will have on the statutory
capital and surplus of its insurance subsidiaries.
In accordance with statutory accounting principles, ACMAT's insurance
subsidiaries' statutory capital and surplus was $49,130,735 and
$55,124,801 at December 31, 1999 and 1998, respectively, and their
statutory net income for the years ended December 31, 1999, 1998 and
1997 was $11,231,410, $12,078,378 and $12,383,045, respectively. The
primary differences between amounts reported in accordance with GAAP
and amounts reported in accordance with statutory accounting principles
are excess statutory reserves over statement reserves (Schedule P
Liability), carrying value of fixed maturity investments; assets not
admitted for statutory purposes such as agents balances over 90 days,
furniture and fixtures and certain notes receivable; and deferred
acquisition costs and deferred taxes which are recognized for GAAP
only.
Pursuant to various debt covenants, previously described, ACMAT is
restricted from purchasing treasury stock and paying dividends greater
than 20% of consolidated net earnings.
(13) EARNINGS PER SHARE
The following is a reconciliation of the numerators and denominators of
the basic and diluted earnings per share ("EPS") computations for the
years ended December 31, 1999, 1998 and 1997:
<TABLE>
<CAPTION>
Average
Shares Per-Share
1999: Earnings Outstanding Amount
- ----- -------- ----------- ------
<S> <C> <C> <C>
Basic EPS:
Earnings available to stockholders $3,013,723 2,961,817 $1.02
Effect of Dilutive Securities:
Stock options -- 80,323
---------- ----------
Diluted EPS:
Earnings available to stockholders $3,013,723 3,042,140 $ .99
========== ========== =====
1998:
- -----
Basic EPS:
Earnings available to stockholders $2,120,529 3,199,906 $ .66
Effect of Dilutive Securities:
Stock options -- 79,029
---------- ----------
Diluted EPS:
Earnings available to stockholders $2,120,529 3,278,935 $ .65
========== ========== =====
</TABLE>
39
<PAGE> 40
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Average
Shares Per-Share
1997: Earnings Outstanding Amount
----- -------- ----------- ------
<S> <C> <C> <C>
Basic EPS:
Earnings available to stockholders $4,456,949 3,443,976 $1.29
Effect of Dilutive Securities:
Stock options -- 128,917
Convertible senior notes $ 29,903 43,150
Convertible Notes $1,252,350 1,500,000
--------- ---------
Diluted EPS:
Earnings available to stockholders $5,739,202 5,116,043 $1.12
========= ========= ====
</TABLE>
The Convertible Notes were anti-dilutive in 1999 and 1998.
(14) COMMITMENTS AND CONTINGENCIES
The Company is a party to legal actions arising in the ordinary course
of its business. In management's opinion, the Company has adequate
legal defenses respecting those actions where the Company is a
defendant, has appropriate insurance reserves recorded, and does not
believe that their settlement will materially affect the Company's
operations or financial position.
Many construction projects in which the Company has been engaged have
included asbestos exposures which the Company believes to involve a
particularly high degree of risk because of the hazardous nature of
asbestos. The Company believes it has reduced the risks associated with
asbestos through proper training of its employees and by maintaining
general liability and workers' compensation insurance From 1986 to
1996, the Company obtained its general liability insurance from its
insurance subsidiaries. Since 1996, the Company obtained its general
liability insurance from unaffiliated insurance companies. Since 1989,
the Company has obtained its surety bonds from its insurance
subsidiary.
The Company has, together with many other defendants, been named as a
defendant in actions brought by injured or deceased individuals or
their representatives based on product liability claims relating to
materials containing asbestos. No specific claims for monetary damages
are asserted in these actions. Although it is early in the litigation
process, the Company does not believe that its exposure in connection
with these cases is significant.
(15) SEGMENT REPORTING
The Company has three reportable operating segments: ACMAT Contracting,
ACSTAR Bonding and United Coastal Liability Insurance. The Company's
reportable segments are primarily the three main legal entities of the
Company which offer different products and services. The accounting
policies of the segments are the same as those described in the summary
of significant accounting policies.
ACMAT Contracting provides construction contracting services to
commercial and governmental customers. ACMAT Contracting also provides
underwriting services to its insurance subsidiaries. In addition, ACMAT
Contracting owns a commercial office building in New Britain
Connecticut and leases office space to its insurance subsidiaries as
well as third parties.
The United Coastal Liability Insurance operating segment offers
specific lines of liability insurance as an approved non-admitted
excess and surplus lines insurer in forty-six states, Puerto Rico, the
Virgin Islands and the District of Columbia. United Coastal offers
claims made and occurrence policies for specific specialty lines of
liability insurance through certain excess and surplus lines brokers
who are licensed and regulated by the state insurance department(s) in
the state(s) in which they operate. United Coastal offers general,
asbestos, lead, pollution and professional liability insurance
nationwide to specialty trade contractors, environmental contractors,
property owner, storage and treatment facilities and professionals.
United Coastal also offers products liability insurance to
manufacturers and distributors.
The Bonding operating segment provides, primarily through ACSTAR,
surety bonds written for prime, specialty trade, environmental,
asbestos and lead abatement contractors and miscellaneous obligations.
ACSTAR also offers other miscellaneous surety such as workers'
compensation bonds, supply bonds, subdivision bonds and license and
permit bonds.
40
<PAGE> 41
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The Company evaluates performance based on earnings before income taxes
and excluding interest expense. The Company accounts for intersegment
revenue and expenses as if the products/services were to third parties.
Information relating to the three segments is summarized as follows:
<TABLE>
<CAPTION>
1999 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
Revenues:
ACSTAR Bonding $ 6,227,462 5,286,955 7,209,863
United Coastal Liability Insurance 8,529,279 10,315,294 15,043,823
ACMAT Contracting 13,154,753 15,801,541 14,218,660
------------ ------------ ------------
$ 27,911,494 31,403,790 36,472,346
============ ============ ============
Operating Earnings:
ACSTAR Bonding $ 2,968,882 2,314,485 2,305,342
United Coastal Liability Insurance 4,578,802 5,176,870 8,239,017
ACMAT Contracting 907,228 501,712 1,224,579
------------ ------------ ------------
$ 8,454,912 7,993,067 11,768,938
============ ============ ============
Depreciation and Amortization:
ACSTAR Bonding $ 451,506 442,457 307,453
United Coastal Liability Insurance 385,502 279,422 512,769
ACMAT Contracting 992,638 690,125 685,791
------------ ------------ ------------
$ 1,829,646 1,412,004 1,506,013
============ ============ ============
Identifiable Assets:
ACSTAR Bonding $ 44,594,402 50,312,769 53,220,508
United Coastal Liability Insurance 63,335,872 78,888,156 100,524,851
ACMAT Contracting 17,925,337 16,925,540 20,463,403
------------ ------------ ------------
$125,855,611 146,126,465 176,208,762
============ ============ ============
Capital Expenditures:
ACSTAR Bonding $ 250,475 3,364 652
United Coastal Liability Insurance 6,969 49,044 93,709
ACMAT Contracting 86,922 186,046 60,122
------------ ------------ ------------
$ 344,366 238,454 154,483
============ ============ ============
</TABLE>
The components of revenue for each segment are as follows:
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
ACSTAR Bonding:
Premiums $ 4,770,401 4,618,281 5,847,558
Investment income, net 1,268,175 1,169,977 962,815
Equity income (loss) from limited partnership investment -- (569,343) 244,302
Capital gains 51,616 68,040 25,380
Other 137,270 -- 129,808
----------- ----------- -----------
$ 6,227,462 5,286,955 7,209,863
----------- ----------- -----------
United Coastal Liability Insurance:
Premiums $ 4,743,791 6,519,382 9,198,286
Investment income, net 3,557,332 4,430,026 4,859,805
Equity income (loss) from limited partnership investment -- (832,243) 591,735
Capital gains 200,574 198,129 257,287
Other 27,582 -- 136,710
----------- ----------- -----------
$ 8,529,279 10,315,294 15,043,823
----------- ----------- -----------
ACMAT Contracting:
Contract revenues $ 9,223,457 12,139,924 10,056,322
Investment income, net 78,702 65,342 55,071
Inter-segment revenue:
Rental income 1,258,637 1,251,299 1,251,955
Underwriting services and agency commissions 1,538,131 1,697,978 2,295,371
Other 1,055,826 646,998 559,941
----------- ----------- -----------
$13,154,753 15,801,541 14,218,660
----------- ----------- -----------
</TABLE>
41
<PAGE> 42
ACMAT CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
The following is a reconciliation of segment totals for revenue and
operating income to corresponding amounts in the Company's statement of
earnings:
<TABLE>
<CAPTION>
1999 1998 1997
------------ ------------ ------------
<S> <C> <C> <C>
Revenue:
Total revenue for reportable segments $ 27,911,494 31,403,790 36,472,346
Inter-segment eliminations (2,411,245) (2,651,517) (2,920,211)
------------ ------------ ------------
$ 25,500,249 28,752,273 33,552,135
============ ============ ============
Operating Earnings:
Total operating earnings for reportable segments $ 8,454,912 7,993,067 11,768,938
Interest expense (3,738,740) (4,621,401) (5,116,414)
Intersegment interest expense -- (52,774) --
Other operating expenses (498,285) (478,667) (455,959)
------------ ------------ ------------
$ 4,217,887 2,840,225 6,196,565
============ ============ ============
</TABLE>
Operating earnings for ACMAT contracting are operating revenues less
cost of contract revenues and identifiable selling, general and
administrative expenses. Operating earnings for the bonding and
liability insurance segments are revenues less losses and loss
adjustment expenses, amortization of policy acquisition costs and
identifiable selling, general and administrative expenses. The
adjustments and eliminations required to arrive at consolidated amounts
shown above consist principally of the elimination of the intersegment
revenues related to the performance of certain services and rental
charges. Identifiable assets are those assets that are used by each
segment's operations. Foreign revenues are not significant.
(16) QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
A summary of the unaudited quarterly results of operations for
1999 and 1998 follows:
<TABLE>
<CAPTION>
MARCH 31 JUNE 30 SEPTEMBER 30 DECEMBER 31
-------- ------- ------------ -----------
<S> <C> <C> <C> <C>
1999
Operating Revenues $6,575,571 6,265,327 7,002,716 5,656,65
---------- ---------- ---------- ----------
Operating Earnings $2,108,544 2,119,645 2,033,631 1,694,807
---------- ---------- ---------- ----------
Net Earnings $ 881,058 894,276 683,046 555,343
---------- ---------- ---------- ----------
Basic Earnings Per Share $ .30 .30 .23 .19
---------- ---------- ---------- ----------
Diluted Earnings Per Share $ .26 .27 .22 .19
---------- ---------- ---------- ----------
1998
Operating Revenues $7,402,497 6,963,358 7,504,575 6,881,843
---------- ---------- ---------- ----------
Operating Earnings $2,608,244 1,990,413 1,199,983 1,662,986
---------- ---------- ---------- ----------
Net Earnings $1,003,526 620,254 66,538 430,211
---------- ---------- ---------- ----------
Basic Earnings Per Share $ .30 .19 .02 .14
---------- ---------- ---------- ----------
Diluted Earnings Per Share $ .27 .19 .02 .14
---------- ---------- ---------- ----------
</TABLE>
Note: Operating earnings represent operating revenues less the cost of
contract revenues, losses and loss adjustment expenses and amortization
of policy acquisition costs and selling, general and administrative
expenses.
42
<PAGE> 43
Schedule I
ACMAT CORPORATION AND SUBSIDIARIES
Condensed Financial Information of Registrant
As of December 31, 1999 and 1998 and for the
years ended December 31, 1999, 1998 and 1997
The following presents the condensed financial position of ACMAT Corporation
(parent company only) as of December 31, 1999 and 1998 and its condensed
statements of earnings and cash flows for the years ended December 31, 1999,
1998 and 1997.
BALANCE SHEETS
<TABLE>
<CAPTION>
Assets 1999 1998
----------- -----------
<S> <C> <C>
Current assets:
Cash $ 2,418,839 $ 396,430
Receivables 1,486,959 1,549,013
Other current assets 94,249 150,984
----------- -----------
Total current assets 4,000,047 2,096,427
Property and equipment, net 12,289,154 12,671,837
Investments in and advance from subsidiaries 51,721,904 61,652,491
Intangibles 394,959 518,135
Other assets 1,701,635 1,731,203
----------- -----------
$70,107,699 $78,670,093
=========== ===========
Liabilities and Stockholders' Equity
Current liabilities:
Current portion of long-term debt $ 1,600,052 1,559,871
Other current liabilities 3,187,987 3,847,167
----------- -----------
Total current liabilities 4,788,039 5,407,038
Long-term debt 29,192,668 35,640,129
----------- -----------
Total liabilities 33,980,707 41,047,167
Commitments and contingencies
Stockholders' equity 36,126,992 37,622,926
----------- -----------
$70,107,699 $78,670,093
=========== ===========
</TABLE>
See Notes to Condensed Financial Statements.
43
<PAGE> 44
Schedule I, continued
ACMAT CORPORATION AND SUBSIDIARIES
Condensed Financial Information of Registrant, Continued
STATEMENT OF EARNINGS
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Contract revenues $ 9,223,457 12,139,924 10,056,322
Cost of contract revenues 8,361,408 11,810,879 9,331,103
----------- ----------- -----------
Gross profit 862,049 329,045 725,219
Selling, general and administrative expenses 4,206,660 3,841,623 3,982,916
----------- ----------- -----------
Operating loss (3,344,611) (3,512,578) (3,257,697)
Interest expense (3,738,740) (4,674,175) (5,116,414)
Interest income 78,622 46,854 43,101
Underwriting fees 1,214,697 1,260,399 1,718,281
Other income 2,335,099 1,898,297 1,811,896
----------- ----------- -----------
Loss before income taxes and equity in net
earnings of subsidiaries (3,454,933) (4,981,203) (4,800,833)
Income tax benefit (1,010,000) (1,435,000) (1,500,000)
----------- ----------- -----------
Loss before equity in net earnings of subsidiaries (2,465,569) (3,546,203) (3,300,833)
Equity in net earnings of subsidiaries 5,479,292 5,666,732 7,757,782
----------- ----------- -----------
Net earnings $ 3,013,723 2,120,529 4,456,949
=========== =========== ===========
</TABLE>
See Notes to Condensed Financial Statements.
44
<PAGE> 45
Schedule I, Continued
ACMAT CORPORATION AND SUBSIDIARIES
Condensed Financial Information of Registrant, Continued
STATEMENTS OF CASH FLOWS
Cash flows from operating activities:
<TABLE>
<CAPTION>
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Net earnings $ 3,013,723 2,120,529 4,456,949
Depreciation and amortization 990,461 688,862 684,521
Equity in undistributed earnings of subsidiaries (5,479,292) (5,666,732) (7,757,782)
(Increase) decrease in accounts receivable 62,054 1,404,622 (839,594)
(Increase) decrease in other assets (51,879) 787,299 149,711
Increase (decrease) in other liabilities (659,180) 159,662 122,424
------------ ------------ ------------
Net cash used for operating activities (2,124,113) (505,758) (3,183,771)
------------ ------------ ------------
Cash flows from investing activities:
Capital expenditures (86,922) (186,046) (60,122)
Decrease in investment in subsidiaries 13,000,000 20,851,120 13,714,452
------------ ------------ ------------
Net cash provided by investing activities 12,913,078 20,665,074 13,654,330
Cash flows from financing activities:
Borrowings under lines of credit 9,000,000 7,000,000 5,000,000
Repayments of lines of credit (9,000,000) (12,000,000) (13,200,000)
Repayment of long-term debt (10,907,280) (23,812,727) (3,594,692)
Issuance of long-term debt 4,500,000 12,800,000 8,500,000
Issuance of Class A stock, net of taxes 162,000 696,000 882,250
Payments for acquisition and retirement of stock (2,521,276) (5,268,259) (8,257,963)
------------ ------------ ------------
Net cash used for financing activities (8,766,556) (20,584,986) (10,670,405)
------------ ------------ ------------
Net increase (decrease) in cash 2,022,409 (425,670) (199,846)
Cash, beginning of year 396,430 822,100 1,021,946
------------ ------------ ------------
Cash, end of year $ 2,418,839 396,430 822,100
============ ============ ============
</TABLE>
See Notes to Condensed Financial Statements.
45
<PAGE> 46
Schedule I, Continued
ACMAT CORPORATION AND SUBSIDIARIES
Condensed Financial Information
Notes to Condensed Financial Statements
The accompanying condensed financial statements should be read in conjunction
with the Consolidated Financial Statements and Notes thereto in the Company's
1999 Annual Report.
(1) SUPPLEMENTAL CASH FLOW INFORMATION
Income taxes received from subsidiaries during the years ended December
31, 1999, 1998 and 1997 were $1,157,813, $2,355,403, and $112,995,
respectively. Interest paid during the years ended December 31, 1999,
1998 and 1997 was $3,751,313, $5,173,867, and $4,630,502, respectively.
Interest paid in 1998 included $52,774 paid to subsidiaries for
intercompany loans.
(2) LONG-TERM DEBT
A summary of long-term debt at December 31, 1999 and 1998 follows:
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Term Loan Due 2004 $ 4,250,000 --
Term Loan Due 2003 -- 5,000,000
Senior Notes Due 2005 3,900,000 9,000,000
Mortgage Note Due 2008 7,242,720 7,800,000
Convertible Note Due 2022 15,400,000 15,400,000
---------- ----------
$30,792,720 $37,200,000
========== ==========
</TABLE>
See Note 9 to the Consolidated Financial Statements in the Annual
Report for a description of the long-term debt and aggregate maturities
for 2000 to 2004 and thereafter.
(3) INCOME TAXES
See Note 10 to the Consolidated Financial Statements in the Annual
Report for a description of income taxes.
(4) COMMITMENTS AND CONTINGENCIES
See Note 14 to the Consolidated Financial Statements in the Annual
Report for a description of the commitments and contingencies.
46
<PAGE> 47
SCHEDULE II
ACMAT CORPORATION AND SUBSIDIARIES
Valuation and Qualifying Accounts and Reserves
Years ended December 31, 1999, 1998 and 1997
<TABLE>
<CAPTION>
Balance Additions
at charged Balance
beginning to costs At
of and end of
Description period expenses Deductions (a) period
------ -------- -------------- ------
Allowance for
doubtful accounts:
<S> <C> <C> <C> <C>
1999 $257,617 180,000 242,499 195,118
======== ======== ======== ========
1998 $309,746 293,149 345,278 257,617
======== ======== ======== ========
1997 $322,406 620,000 632,660 309,746
======== ======== ======== ========
</TABLE>
(a) Deductions represent accounts written off.
47
<PAGE> 48
ACMAT CORPORATION AND SUBSIDIARIES Schedule V
Supplemental Information concerning property-casualty insurance operations
As of and for the years ended December 31, 1999, 1998 and 1997
<TABLE>
<CAPTION>
Discount Ded.
Reserves for from Unpaid
Deferred Unpaid Losses Losses
Affiliation Policy and Loss and Loss
with Acquisition Adjustment Adjustment Unearned Earned
Registrant Costs Expenses Expenses Premiums Premiums
---------- ----- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
1999 $ 692,351 27,889,335 -- 3,290,024 4,743,791
========== ========== ========== ========== ==========
1998 $1,004,850 31,471,445 -- 4,650,438 6,519,382
========== ========== ========== ========== ==========
1997 $1,432,358 35,994,240 -- 6,846,846 9,198,286
========== ========== ========== ========== ==========
ACSTAR Bonding:
1999 $ 631,429 12,571,156 -- 2,193,118 4,770,401
========== ========== ========== ========== ==========
1998 $ 545,239 14,512,333 -- 2,889,186 4,618,281
========== ========== ========== ========== ==========
1997 $ 646,047 16,093,222 -- 3,587,126 5,847,558
========== ========== ========== ========== ==========
Losses & Loss Adjustment Amortization Paid
Expenses Incurred of Deferred Losses
Affiliation Net Related to Policy and Loss
with Investment ------- ----------- Acquisition Adjustment Premiums
Registrant Income Current Year Prior Years Costs Expenses Written
---------- ------ ------------ ----------- ----- -------- -------
<S> <C> <C> <C> <C> <C> <C>
United Coastal Liability Insurance:
1999 3,557,332 1,660,000 (225,633) 1,528,179 5,315,006 3,544,657
========== ========== ========== ========== ========== ==========
1998 4,430,026 3,123,183 (1,167,367) 1,852,218 6,572,054 4,351,983
========== ========== ========== ========== ========== ==========
1997 4,859,805 3,421,762 (662,276) 2,564,959 3,011,873 7,026,051
========== ========== ========== ========== ========== ==========
ACSTAR Bonding:
1999 1,268,175 1,431,120 (1,192,600) 1,543,783 2,669,290 4,645,343
========== ========== ========== ========== ========== ==========
1998 1,169,977 1,385,484 (1,154,572) 1,225,718 146,320 4,026,634
========== ========== ========== ========== ========== ==========
1997 962,815 1,754,268 (176,502) 1,605,140 21,870 5,654,146
========== ========== ========== ========== ========== ==========
</TABLE>
48
<PAGE> 49
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE: None
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following table shows for each director (a) his or her age, (b) the year in
which the director first served as a director of the Company, (c) position with
the Company and business experience during the past five years, including
principal occupation, (d) his or her committee assignments, and (e) his or her
other directorships. Each director is elected for a term of one year and until
his or her successor shall be elected.
<TABLE>
<CAPTION>
NAME AGE DIRECTOR POSITION WITH THE COMPANY AND BUSINESS EXPERIENCE
SINCE DURING LAST FIVE YEARS, INCLUDING OCCUPATION
<S> <C> <C> <C>
HENRY W. NOZKO, SR. (1) 80 1951 Chairman of the Board, President and Chief Executive
Officer of the Company. Chairman of the Board and
Director of United Coastal Insurance Company, ACSTAR
Holdings, Inc. and ACSTAR Insurance Company.
Co-Chief Executive Officer of United Coastal
Insurance Company.
HENRY W. NOZKO, JR. (1) 53 1971 Executive Vice President, Chief Operating Officer,
and Treasurer of the Company. Member of the Audit
Committee. President, Co-Chief Executive Officer and
Treasurer of United Coastal Insurance Company.
President and Treasurer of ACSTAR Holdings, Inc. and
ACSTAR Insurance Company. Member, Boards of
Directors of United Coastal Insurance Company, ACSTAR
Holdings, Inc., ACSTAR Insurance Company.
VICTORIA C. NOZKO (1) 81 1982 Housewife during past five years. Member of the
Audit Committee.
JOHN C. CREASY 80 1987 Retired Chief Executive Officer of Danbury Hospital,
Member, Board of United Coastal Insurance Company.
Member of the Compensation Committee and Audit
Committee.
ARTHUR R. MOORE 66 1999 Former General President of Sheet Metal Workers'
International Association.
ALFRED T. ZLOTOPOLSKI 53 1999 General Secretary-Treasurer of the Sheet Metal
Workers' International Association as of March 1,
1999. Previously was the Business Manager and
President of Local 36 of the Sheet Metal Workers'
International Association.
</TABLE>
(1) Mr. Henry W. Nozko, Sr. and Mrs. Victoria C. Nozko are husband and wife and
Mr. Henry W. Nozko, Jr. is their son.
49
<PAGE> 50
EXECUTIVE OFFICERS OF THE REGISTRANT:
The following are the Company's Executive Officers, their age, and offices
held. Officers are appointed to serve until the meeting of the Board of
Directors following the next Annual Meeting of Stockholders and until their
successors have been elected.
<TABLE>
<CAPTION>
NAME AGE OFFICES HELD
- ---- --- ------------
<S> <C> <C>
Henry W. Nozko, Sr. 80 President, Chief Executive
Officer, Director and
Chairman of the Board
since 1951.
Henry W. Nozko, Jr. 53 Executive Vice President since
1982. Treasurer since 1973.
Director since 1971, and Chief
Operating Officer since 1985.
Robert H. Frazer 53 Vice President since 1982.
Secretary since 1992. General
Counsel since 1977.
Michael P. Cifone 41 Vice President-Finance since
1990. Corporate Controller
since 1989.
</TABLE>
50
<PAGE> 51
ITEM 11. EXECUTIVE COMPENSATION
Directors who are not employees of the Company are paid an annual fee of $4,000.
The following table provides certain summary information regarding compensation
of the Company's Chief Executive Officer and each of the four most highly
compensated executive officers of the Company for the periods indicated.
<TABLE>
<CAPTION>
NAME AND PRINCIPAL POSITION ANNUAL COMPENSATION (A) ALL OTHER
YEAR SALARY BONUS COMPENSATION (B)
<S> <C> <C> <C> <C>
Henry W. Nozko, Sr. 1999 $447,200 $395,000 $10,532
Chairman, President 1998 $447,200 -- $12,238
And Chief Executive Officer 1997 $430,000 $ 86,000 $10,591
Henry W. Nozko, Jr. 1999 $322,500 $315,000 $10,430
Executive Vice President and Chief 1998 $322,500 -- $12,120
Operating Officer 1997 $310,000 $62,000 $10,488
Robert H. Frazer, Esq. 1999 $171,600 $25,000 $10,392
Vice President, Secretary and 1998 $171,600 -- $12,075
General Counsel 1997 $165,000 $33,000 $10,450
Michael P. Cifone 1999 $150,000 $155,000 $10,289
Vice President-Finance 1998 $114,400 -- $10,202
1997 $110,000 $22,000 $ 9,253
</TABLE>
(A) Amounts shown include cash compensation earned and received by the executive
officers. There are no other forms of non-cash compensation or other perquisites
for any executive officer.
The Company has a Management Compensation Plan based upon earnings of the
Company. As a guideline, the plan provides that participants may share in an
incentive fund equal to 12% of pretax earnings, provided such pretax earnings
amount to at least a 10% return on the Company's equity. However, both the
participants and the amount of bonus are discretionary, provided the total
amount of bonuses paid do not exceed the total incentive fund available. In
addition, the Company may offer separate incentives and commissions on an
individual basis.
(B) The amounts shown in this column represent contributions made by the Company
to the Company's Thrift, Profit Sharing and Retirement Plan ("Plan"). The Plan
provides that all nonunion employees employed on a full time or part time
salaried basis are eligible to participate on the first day of January or July
after twelve consecutive months of employment. The Company contributes amounts,
as determined by the Board of Directors, to be allocated among the participants
according to a formula based upon the employee's years of service and
compensation. A participant becomes vested at the rate of 20% per year
commencing after two years of service.
51
<PAGE> 52
The following table provides information on options during 1999 by the
named Executive Officers and the value of their unexercised options at
December 31, 1999. No options were granted in 1999.
AGGREGATED OPTION EXERCISES IN LAST FISCAL YEAR AND FISCAL YEAR END 1999 OPTION
VALUES
<TABLE>
<CAPTION>
Number of
Unexercised Value of Unexercised
Options at In-the-Money Options
Name 12/31/99 (1) at 12/31/99 (2)
- ---- ------------ --------------------
<S> <C> <C>
Henry W. Nozko, Sr.
- ACMAT Class A Stock Options 46,000 -
- ACMAT Common Stock Options 50,000 412,500
Henry W. Nozko, Jr.
- ACMAT Class A Stock Options 46,000 -
- ACMAT Common Stock Options 50,000 412,500
Robert H. Frazer
- ACMAT Class A Stock Options 35,000 -
Michael P. Cifone
- ACMAT Class A Stock Options 10,000 -
</TABLE>
(1) Represents the number of options held at year end. All options were
exercisable at December 31, 1999.
(2) Represents the total gain that would have been realized if all options
for which the year-end stock price was greater than the exercise price
were exercised on the last day of the year.
TEN-YEAR OPTION REPRICINGS
<TABLE>
<CAPTION>
Length of
Number of Original
Securities Market Price Exercise Option Term
Underlying Of Stock at Price At New Remaining at
Options Time of Time of Exercise Date of
Name Date Repriced Repricing Repricing Price Repricing
- ---- ---- ---------- ------------ --------- ----- ---------
<S> <C> <C> <C> <C> <C> <C>
Henry W. Nozko, Sr. 12/16/99 46,000 $7.25 $11.50 $7.25 79 months
Henry W. Nozko, Jr. 12/16/99 15,000 $7.25 $8.50 $7.25 57 months
12/16/99 26,000 $7.25 $11.50 $7.25 79 months
Robert H. Frazer 12/16/99 35,000 $7.25 $8.50 $7.25 57 months
Michael P. Cifone 12/16/99 10,000 $7.25 $8.50 $7.25 57 months
</TABLE>
On December 16, 1999, the Board of Directors repriced the outstanding options at
the current market price of the Class A Stock at $7.25.
52
<PAGE> 53
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT:
As of March 1, 2000, no person was known to the Company to be the beneficial
owner of more than five percent of its outstanding shares of Common Stock or
Class A Stock except as set forth in the following table which also shows, as of
that date, the total number of shares of each class of stock of the Company
beneficially owned, and the percent of the outstanding class of stock so owned,
by each director, and by all directors and officers of the Company, as a group:
<TABLE>
<CAPTION>
PERCENTAGE PERCENTAGE
CLASS NUMBER OF SHARES OF CLASS OF TOTAL
BENEFICIAL OWNER OF STOCK BENEFICIALLY OWNED (1) OUTSTANDING VOTING POWER (14)
---------------- -------- ---------------------- ------------ -----------------
<S> <C> <C> <C> <C>
Henry W. Nozko, Sr Common 432,000(4) 69.61% 49.35%
Class A 51,000(3) 2.18
Henry W. Nozko, Jr Common 191,274(2)(4) 30.82 23.49
Class A 167,074(2)(5) 7.16
Victoria C. Nozko Class A 42,000(6) 1.82 .50
John C. Creasy Common 3,300 .58 .62
Class A 18,453(7) .80
Sheet Metal Workers'
National Pension Fund Class A 1,400,000(8) 37.96 14.42
Franklin Resources, Inc. Class A 445,000(9) 19.44 5.35
First Manhattan Co. Class A 208,913(10) 9.13 2.51
Queensway Financial
Holdings Limited Class A 454,050(11) 19.84 5.46
Investment Counselor of
Maryland, Inc. Class A 175,000(12) 7.65 2.11
EQSF Advisors, Inc. Class A 200,678(13) 8.77 2.41
All Directors and
Officers (8 persons)
As a Group Common 626,574 93.44 69.53
Class A 324,242 13.20
</TABLE>
(1) The person listed has the sole power to vote the shares of Common Stock
and Class A Stock listed above as beneficially owned by such person and
has sole investment power with respect to such shares.
(2) Does not include 24,250 shares of Class A Stock and 7,500 shares of
Common Stock held by Mr. Nozko, Jr. as custodian for his minor child
nor 500 shares of Class A Stock and 4,750 shares of Common Stock held
by his wife, Gloria C. Nozko.
(3) Includes options to purchase 46,000 shares of Class A Stock.
(4) Includes options to purchase 50,000 shares of Common Stock.
(5) Includes options to purchase 45,000 shares of Class A Stock.
(6) Includes options to purchase 15,000 shares of Class A Stock.
(7) Includes options to purchase 16,500 shares of Class A Stock.
(8) Assumes the full conversion of $15,400,000 principal amount of 11.5%
Convertible Note into 1,400,000 shares of Class A Stock. The Address of
the Fund is Suite 500, 601 North Fairfax Street, Alexandria, VA 22314.
(9) Address of Franklin Resources, Inc. is 777 Mariners Island Blvd. San
Mateo, CA 94404
(10) Address of First Manhattan Co. is 437 Madison Avenue, New York, NY
10022.
(11) Address of Queensway Financial Holdings Limited is 90 Adelaide Street
West, Toronto, Ontario M5H3V9.
(12) Address of Investment Counselor's of Maryland, Inc. is 803 Cathedral
Street, Baltimore, MD 21201.
(13) Address of EQSF Advisors, Inc. is 767 Third Avenue, New York, NY
10017-2023.
(14) Based upon one vote for each share of Common Stock and one-tenth vote
for each share of Class A Stock.
53
<PAGE> 54
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS:
Sheet Metal Workers' National Pension Fund
The Pension Fund has the right to convert indebtedness of ACMAT to the Pension
Fund in the principal amount of $15,400,000 into shares of Class A Stock at the
current conversion price of $11.00 per share pursuant to the terms of a 30-year
unsecured, subordinated debenture dated July 1, 1992 and bearing interest at the
annual rate of 11.5%.
Henry W. Nozko, Sr., Henry W. Nozko, Jr. and the Pension Fund are parties to a
voting agreement pursuant to which the parties have agreed to vote their
respective shares of Class A Stock in favor of the Pension Fund's nominees to
the ACMAT Board of Directors.
AIG Life Insurance Company
On February 5, 1997, ACMAT Corporation purchased 1,099,996 shares of its own
Class A Stock from AIG Life Insurance Company (366,663 shares) and American
International Life Assurance Company of New York (733,333 shares). The 1,099,996
shares of Class A Stock were acquired throughout the past two years by AIG Life
Insurance Company and American International Life Assurance Company of New York
pursuant to the conversion options of the Convertible Senior Notes. The shares
were purchased by the Company at an average price of $14.70 per share for a
total purchase price of $16,174,942.
The purchase price of $16,174,942 consisted of $4,174,942 in cash and promissory
notes totaling $12,000,000. The promissory notes are with AIG Life Insurance
Company and American International Life Assurance Company of New York and are
payable over eight years with interest at prime rate (8-1/2%). The interest rate
is equal to the prime rate, however, it shall not exceed 9-1/4% and it shall not
be less than 7-1/4%.
American International Group, Inc., a holding company for AIG Life Insurance
Company and American International Life Assurance Company of New York, is a
substantial owner of Transatlantic Reinsurance Company, a reinsurer to which the
Company, through Coastal Insurance and ACSTAR Insurance, ceded approximately
$270,000 in reinsurance premiums in the year ended December 31, 1999.
Other Relationships
During the year ended December 31, 1999, the Company paid to Dr. Arthur Cosmas
$134,790 in fees in connection with consulting services rendered by Dr. Cosmas
with respect to inspection and engineering services relating to ACMAT's asbestos
abatement activities. Dr. Cosmas is the son-in-law of Henry W. Nozko, Sr. and
Victoria C. Nozko and the brother-in-law of Henry W. Nozko, Jr.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. Consolidated Financial Statements
Included in Part II of this Report:
Independent Auditors' Report
Consolidated Statements of Earnings for the years ended
December 31, 1999, 1998 and 1997
Consolidated Balance Sheets as of December 31, 1999 and 1998
Consolidated Statements of Stockholders' Equity for the years
ended December 31, 1999, 1998 and 1997
Consolidated Statements of Cash Flows for the years ended
December 31, 1999, 1998 and 1997
Notes to Consolidated Financial Statements - December 31,
1999, 1998 and 1997
54
<PAGE> 55
2. Financial Statement Schedules
Consolidated Schedules included in Part II of this
Report-Years ended December 31, 1999, 1998 and 1997:
I - Condensed Financial Information of
Registrant
II - Valuation and Qualifying Accounts and
Reserves
V - Supplemental Information Concerning
Property-Casualty Insurance Operations
All other schedules are omitted as the required information is not applicable or
the information is presented in the Consolidated Financial Statements or related
notes.
(b) Reports on Form 8-K
The Company did not file a report on Form 8-K during the fourth quarter
of 1999.
(c) Exhibits
(3) Certificate Amending and Restating the Company's Bylaws as filed as an
Exhibit to the Company's Form 10-Q for the Quarter ended March 31, 1989
is incorporated herein by reference.
(3a) Certificate Amending and Restating the Company's Certificate of
Incorporation as amended May 1, 1991 as filed as an Exhibit to the
Company's Form 10-Q for the Quarter ended March 31, 1991 is
incorporated by reference.
(4b) Promissory Note between ACMAT Corporation and Webster Bank as filed as
an Exhibit to the Company's Form 10-k for the year ended December 31,
1998 is incorporated by reference.
(4c) Open-end Mortgage Deed and Security Agreement between ACMAT Corporation
and Webster Bank is attached hereto as Exhibit 4(c).
(4d) Commercial Credit Agreement between ACMAT Corporation and Webster Bank
is attached hereto as Exhibit 4(d).
(4e) Revolving Credit Note between ACMAT Corporation and Webster Bank is
attached hereto as Exhibit 4(e).
(4f) Term Note between ACMAT Corporation and Webster Bank is attached hereto
as Exhibit 4(f). (10a) Annual Management Compensation Plan filed as an
Exhibit to the Company's 1984 Form 10-K is incorporated herein by
reference.
(10b) Stock Purchase Agreement dated as of July 1, 1992 between ACMAT
Corporation and the Sheet Metal Workers' National Pension Fund together
with Note Agreement Re: 11 1/2% Convertible Subordinated Notes due 2012
filed as Exhibit 10g to the Company's Form 10-K for the year ended
December 31, 1992 is incorporated herein by reference.
(21) Subsidiaries of ACMAT.
(27) Financial Data Schedule.
55
<PAGE> 56
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities
Exchange Act of 1934, the Registrant had duly caused this Report to be
signed on its behalf by the undersigned, thereunto duly authorized.
ACMAT CORPORATION
Dated: March 30, 2000 By:/s/ Henry W. Nozko, Sr.
------------------------------
Henry W. Nozko, Sr., President
and Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
Chairman of the Board,
President, Chief Executive
/s/ Henry W. Nozko, Sr Officer and Director March 30, 2000
-------------------
Henry W. Nozko, Sr.
Chief Operating Officer,
Executive Vice President
/s/ Henry W. Nozko, Jr. Treasurer and Director March 30, 2000
-------------------
Henry W. Nozko, Jr.
Vice President - Finance
(Principal Financial and
/s/ Michael P. Cifone Accounting Officer) March 30, 2000
-------------------
Michael P. Cifone
/s/ Victoria C. Nozko Director March 30, 2000
-------------------
Victoria C. Nozko
/s/ John C. Creasy Director March 30, 2000
-------------------
John C. Creasy
</TABLE>
56
<PAGE> 57
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Regulation S-K Exhibit Page Number
- ---------------------- -----------
<S> <C> <C>
Exhibit 3 - Bylaws Incorporated by
Reference
Exhibit 3a - Certificate of Incorporation
as amended May 1, 1991 Incorporated by
Reference
Exhibit 4b - Promissory Note between ACMAT
and Webster Bank Incorporated by
Reference
Exhibit 4c - Open-end Mortgage Deed/Security
Agreement between ACMAT and
Webster Bank. Incorporated by
Reference
Exhibit 4d - Commercial Credit Agreement between
ACMAT and Webster Bank Page 58
Exhibit 4e - Revolving Credit Note between ACMAT
and Webster Bank Page 96
Exhibit 4f - Term Note between ACMAT and Webster Bank Page 101
Exhibit 10a - Annual Management Incorporated by
Compensation Plan Reference
Exhibit 10b - Stock Purchase and Note Agreement Incorporated by
between ACMAT Corporation Reference
and The Sheet Metal Workers'
National Pension Fund
Exhibit 21 - Subsidiaries of ACMAT Page 106
Exhibit 27 - Financial Data Schedule Page 107
</TABLE>
57
<PAGE> 1
Exhibit 4d
(1)
COMMERCIAL CREDIT AGREEMENT
THIS IS A COMMERCIAL CREDIT AGREEMENT made this 1st day of September, 1999
by and among
WEBSTER BANK
------------
a federally chartered savings bank
with a place of business at
150 Main Street
Bristol, Connecticut 06010 ("Lender")
and
ACMAT CORPORATION
-----------------
a Connecticut corporation
with a place of business at
233 Main Street
New Britain, CT 06050 ("Borrower")
and
ACSTAR HOLDINGS, INC.
---------------------
a Delaware corporation
with a place of business at
233 Main Street
New Britain, CT 06050 ("Guarantor")
The liability of the Borrower and of the Guarantor hereunder shall be
joint and several.
THE PARTIES AGREE AS FOLLOWS (reference being hereby made to Appendix I
appended hereto for the definition of certain capitalized terms used herein):
SECTION 1. LOANS; INTEREST; GUARANTY.
1.1 The Loans. Subject to all of the terms and conditions of this
Agreement:
(A) Revolving Credit.
(i) Lender shall from time to time, until the
Termination Date, at the request of Borrower, and provided that all of the
Conditions Precedent have been met by Borrower at the time of such request, make
advances (each an "Advance" and collectively "Advances") to Borrower as a
Revolving Credit (the "Revolving Credit"), which Advances may be repaid and
readvanced from time to time, and which
1
<PAGE> 2
shall bear interest at the rate set forth in Section 1.5 provided that the
aggregate amount of all outstanding Advances shall not (except in the sole and
absolute discretion of Lender) at any time exceed the amount of $10,000,000.00.
The Revolving Credit shall be evidenced by the Revolving Credit Note delivered
to Lender in form and substance set forth as Exhibit A attached (together with
any note which from time to time extends, amends, supplements, modifies, renews
or substitutes such note, the "Revolving Note").
(ii) On and before the Termination Date, Lender shall
determine in its sole and absolute discretion whether it is willing to extend
the Termination Date. On and after the Termination Date, as extended, if at all,
any obligation of Lender to make Advances shall automatically terminate and all
Advances, together with accrued and unpaid interest thereon and expenses related
thereto, shall become immediately due and payable in full.
(B) Term Loan. Lender is lending to Borrower and Borrower is
borrowing from Lender the sum of $4,500,000.00 as a Term Loan (the "Term Loan"),
which Term Loan is payable in quarterly payments of principal, each in the
amount of $250,000.00 payable on the first day of each December, March, June and
September after the date hereof, each to be accompanied by a payment of interest
at the rate set forth in Section 1.5 hereof until the Maturity Date, when the
entire unpaid balance of the Term Loan, together with all accrued and unpaid
interest, shall be due and payable, all as more particularly set forth in the
Term Loan Note delivered to Lender in form and substance as set forth in Exhibit
B attached hereto, (together with any note which from time to time extends,
amends, supplements, modifies, renews or substitutes for such note, the "Term
Note"); and
1.2 Conditions Precedent to Advances. Lender's obligation to
make any Advance shall be subject to the conditions precedent ("Conditions
Precedent") that on the date on which Lender makes the Advance:
(A) Borrower must have received and provided to Lender such
approvals, opinions, consents or documents evidencing compliance with this
Agreement as Lender may reasonably request; and
(B) Borrower must have submitted all financial statements
required hereunder to Lender showing an availability for Advances under the
Revolving Credit, and such Advance when added to all outstanding Advances must
be within such availability; and
(C) The following statements must be true, and each request
for an Advance shall be deemed to be a representation and warranty by Borrower
to the effect that, at and as of the date of such request:
(i) the representations and warranties contained in
Section 2 are true and correct on and as of the date of such request as though
made on and as of such date; and
(ii) no Default nor Event of Default has occurred and/or
is continuing or would result from the Advance.
1.3 Procedures for Requesting Advances. Provided that all
Conditions Precedent have been satisfied, Borrower may from time to time request
Advances by a telephone call from such person as
2
<PAGE> 3
Borrower may hereafter designate in writing, each of which request must be for
an amount in excess of $100,000.00. Any request for an Advance made prior to
12:00 noon on a Business Day shall result in the Advance being made on such
Business Day as to Prime Rate Advances and on the second (2nd) London Business
Day following such request as to LIBOR Advances. Any request made after 12:00
noon shall result in such Advance being made on the next Business Day as to
Prime Rate Advances and on the third (3rd) London Business Day following such
request as to LIBOR Advances. Any and all Advances to be made by Lender under
this Agreement shall be deposited in Account #100009023109 maintained by
Borrower with Lender. Borrower specifically agrees that Lender shall not be
required to but shall be entitled to rely on such telephone instructions and
that Borrower shall be bound thereby. Borrower shall provide to Lender such
documentation respecting each request for Advance, including, without
limitation, the form of Request for Advance attached hereto as Exhibit C, as
Lender shall require.
1.4 Loans. It is specifically contemplated by the parties to
this Agreement that the banking relationship evidenced hereby may, in Lender's
discretion, involve financial accommodations of various types to Borrower,
including, but not limited to, letters of credit, term loans, coverage of
overdrafts, time loans, demand loans, over loans under the Revolving Credit, and
the like, in addition to any and all loans and/or Advances previously made by
Lender to Borrower and in addition to the Revolving Note and the Term Note.
Consequently, the parties intend that this Agreement shall govern any and all
financial accommodations now or hereafter extended by Lender to Borrower and all
other liabilities of the Borrower to the Lender of any kind or nature including,
without limitation, fees, charges, indemnities and penalties. In extension of
the foregoing, all loans and advances now or hereafter made by Lender to or on
behalf of Borrower pursuant to this Agreement and/or any of the documents
executed in connection herewith, or otherwise, whether or not evidenced by
notes, and all liabilities of the Borrower to the Lender (primary, secondary,
direct, indirect, absolute, contingent, sole, joint or several, whether similar
or dissimilar or related or unrelated) whether previously incurred, now existing
or hereafter arising, including, without limitation under guarantees or other
form of surety now or hereafter provided by Borrower in favor of Lender, whether
pursuant to this Agreement or any of the Documents or otherwise, any renewals or
extensions thereof, to the extent the same are outstanding from time to time,
are herein collectively called the "Loans".
1.5 Interest.
(A) Revolving Credit.
(i) All amounts outstanding from time to time under the
Revolving Credit shall bear interest at a per annum variable rate which at all
times is equal to the Prime Rate, said rate to change when and as said Prime
Rate changes; provided however, that
(ii) At the election of Borrower made pursuant to a
Notice of Interest Rate Election (in form and substance as set forth in Exhibit
D, attached hereto), outstanding amounts under the Revolving Credit shall bear
interest at the LIBOR Rate plus one and sixtenths (1.6) percentage points. Such
amounts must be in increments of $50,000.00 and remain outstanding for the
Interest Period selected by Borrower at the time such election is made, which
period of time shall be in increments of one month but not to exceed three
months; and
3
<PAGE> 4
(iii) Notwithstanding the foregoing, not more than four
(4) separate interest rate tranches shall be outstanding at any time under the
Revolving Credit at any time.
(B) Term Loan.
(i) All amounts outstanding from time to time under the
Term Loan shall bear interest at a fixed rate equal to seven and one quarter
(7 1/4%) percent per annum.
1.6 Payment. Except as otherwise provided in any note now or
hereafter executed which evidences any Loan, interest on all Loans shall be
payable by Borrower monthly on the first (1st) day of each calendar month for
interest accrued during the preceding month on the Loans at the rate or rates of
interest applicable during said preceding month. With respect to the Term Loan,
interest payments shall accompany payments of principal. Interest on all Loans
shall be computed using a per diem rate which shall be a fraction, the numerator
of which shall be the rate of interest calculated in accordance with Section
1.5(A) or (B) above and the denominator of which shall be three hundred sixty
(360), multiplied by the actual number of days elapsed. For the purposes of
computing interest earned on the Loans, including without limitation interest
payments which are paid by an Advance (in which case such advance shall
constitute a Loan) or interest payments which are withdrawn directly from
Borrowers' accounts maintained with Lender or are made by other current funds
(AND EACH BORROWER HEREBY CONSENTS TO ANY AND ALL SUCH ADVANCES AND/OR
WITHDRAWALS, AND/OR PAYMENTS BY ANY OTHER MEANS AVAILED OF BY LENDER, AND
FURTHER CONSENTS TO PAYMENTS OF PRINCIPAL AND/OR INTEREST ON ANY OF THE LOANS
AND/OR OTHER SUM OWING TO LENDER BY SUCH ADVANCES AND/OR WITHDRAWALS), credit
for checks deposited, wire transfers received or payment by any other means
shall be given on the third (3rd) business day following the receipt of such
check, wire transfer or other form of payment. In the event any payment of
principal and/or interest shall be returned unpaid for any reason, any credit
given on account of such payment shall be deleted, interest shall accrue
retroactively to the date such credit was given and such payment shall be deemed
for all purposes under this Agreement, never to have been made. Any interest not
paid as aforesaid may, in Lender's sole discretion, accrue and be added to the
principal and continue to bear interest at the rate being borne by such
principal.
1.7 Prepayment. Any amounts outstanding bearing interest in
relation to the LIBOR Rate or bearing a fixed rate of interest may only be
prepaid if any such prepayment is accompanied by the Prepayment Premium.
Notwithstanding the foregoing, Borrower may prepay amount outstanding bearing
interest at a fixed rate without penalty or premium in the event Webster Bank
has merged with or been acquired by another lending institution such that the
surviving entity is not Webster Bank.
1.8 Guaranty. Guarantor is simultaneously herewith executing
and delivering to Lender its Guaranty Agreement (the "Guaranty") unconditionally
guaranteeing to Lender the payment of all Indebtedness and obligations now or
hereafter owing by Borrower to Lender, including, without limitation, the Loans.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
Borrower and Guarantor each jointly and severally represent and warrant to
Lender as of the date hereof, and as of the date of each Advance that:
4
<PAGE> 5
2.1 Borrower Incorporation and Qualification. Borrower is a
corporation duly organized and validly existing and in good standing under the
laws of the State of Connecticut, has the corporate power to own its properties
and conduct its business, as presently conducted, and is duly qualified to do
business in each jurisdiction, wherein the nature of the business conducted by
it or the property owned or held under lease by it makes such qualification
necessary in order to avoid any limitation, penalty, forfeiture or restriction
under the laws of such jurisdiction.
2.2 Guarantor Incorporation and Qualification. Guarantor is a
corporation duly organized and validly existing and in good standing under the
laws of Delaware, has the corporate power to own its properties and conduct its
business, as presently conducted, and is duly qualified to do business in each
jurisdiction, wherein the nature of the business conducted by it or the property
owned or held under lease by it makes such qualification necessary in order to
avoid any limitation, penalty, forfeiture or restriction under the laws of such
jurisdiction.
2.3 Borrower Capitalization, Business and Subsidiaries. Borrower
does not own stock or other ownership interest of any other business entity,
active or inactive except as set forth on Schedule to 2.3. The information set
forth on Schedule to 2.3 attached with respect to the Borrower's authorized,
issued and outstanding capital stock, all of which stock has been duly
authorized and validly issued and is fully paid and non-assessable, the holders
of such stock, its principal and other places of business, the place where its
inventories, equipment and records of its accounts receivable are kept, and its
present business activities and status, is complete and accurate. It has no
place of business and does not maintain or store any of its assets at any
location, including without limitation Inventory at a vender or subcontractor,
other than those set forth in Schedule to 2.3 attached.
2.4 Guarantor Capitalization, Business and Subsidiaries. Guarantor
does not own stock or other ownership interest of any other business entity,
active or inactive except as set forth on Schedule to 2.4. The information set
forth on Schedule to 2.4 attached with respect to the Guarantor's authorized,
issued and outstanding capital stock, all of which stock has been duly
authorized and validly issued and is fully paid and non-assessable, the holders
of such stock, its principal and other places of business, the place where its
inventories, equipment and records of its accounts receivable are kept, and its
present business activities and status, is complete and accurate. It has no
place of business and does not maintain or store any of its assets at any
location, including without limitation Inventory at a vender or subcontractor,
other than those set forth in Schedule to 2.4 attached.
2.5 Authority. Each of Borrower and Guarantor has the corporate
power to execute, deliver and carry out the terms and provisions of this
Agreement and the other Documents to which it is a party and has taken all
necessary corporate and legal action with respect thereto (including, without
limitation, obtaining any consent of stockholders required by the law of any
applicable jurisdiction or its Certificate of Incorporation or By-Laws and this
Agreement and such other Documents to which it is a party have been duly
authorized, executed and delivered by it and constitute its valid, legal and
binding agreement and obligation enforceable in accordance with the terms
thereof) and Lender is entitled to the benefits thereof in accordance with such
terms.
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2.6 Compliance with Instruments, Charter and Law. Each of
Borrower and Guarantor and each of their Subsidiaries is in full compliance with
and is not in violation or default of any term or provision of (1) its
Certificate of Incorporation or by-laws, (2) any loan agreement, debt
instrument, mortgage or indenture, (C) any other material contract, agreement or
instrument, (3) any judgment, decree or order or statute, rule or regulation,
law, or ordinance, including without limitation ERISA, OSHA, all state and
federal environmental laws and those of the Internal Revenue Service. (4) any
licensing or governmental requirement, or (5) any state or federal environmental
act. The execution and delivery and performance and compliance with this
Agreement or any of the other Documents will not result in any such violation or
default by Borrower or Guarantor, or be in conflict with any such term or
provision or result in the creation of any mortgage, lien, encumbrance or charge
upon any of its properties or assets and there is no such term or provision
which materially adversely affects or in the future may (so far as it can now
foresee) materially adversely affect its business, prospects, profits,
properties, liabilities, operations or condition (financial or otherwise) or its
ability to perform this Agreement or any of the other Documents executed by it.
2.7 Financial Statements.
(A) The consolidated balance sheet of the Borrower and its
consolidated subsidiaries as of December 31, 1998 and the related consolidated
statements of operations, cash flows and stockholders' equity for the Fiscal
Year then ended, reported on by KPMG Peat Marwick and set forth in the
Borrower's 1998 Form 10-K, fairly present, in conformity with GAAP, the
consolidated financial position of the Borrower and its consolidated
subsidiaries as of such date and their consolidated results of operations and
cash flows for such Fiscal Year.
(B) The unaudited consolidated balance sheet of the Borrower
and its consolidated subsidiaries as of June 30, 1999 and the related unaudited
consolidated statements of operations, cash flows and stockholders' equity for
the nine months then ended, set forth in the Borrower's latest Form 10-Q, fairly
present, on a basis consistent with the financial statements referred to in
subsection (A), the consolidated financial position of the Borrower and its
consolidated subsidiaries as of such date and their consolidated results of
operations and cash flows for such three month period (subject to normal
year-end adjustments).
2.8 Indebtedness. Borrower has no outstanding Indebtedness,
except for liabilities to trade creditors incurred in the ordinary course of
business and/or except as described or set forth in the financial statements
referred to in Section 2.7 hereof, and has performed and complied with all of
the terms of such Indebtedness and all instruments and agreements relating
thereto and no default exists as of the date hereof or would after notice or
lapse of time, or both, exist with respect to any such Indebtedness, instruments
or agreements.
2.9 Title to Properties and Assets; Liens, Etc. Borrower has
good and marketable title to its properties and assets free and clear of any
mortgage, pledge, lien, lease, encumbrance or charge, other than those set forth
on Schedule to 2.9 attached and other than those permitted under Section 4.2 .
No financing statement under the Uniform Commercial Code which names Borrower as
a debtor has been filed in any state or other jurisdiction which has not been
terminated and it has not signed any such financing statement or any security
agreement authorizing any secured party thereunder to file any such financing
statement, other than as set forth on Schedule to 2.9 attached
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2.10 Patents, Trademarks, Etc. Borrower, Guarantor and each of its
Subsidiaries owns or holds licenses for the use of or has the right to use all
patents, trademarks, service marks, trade names, copyrights and other
intellectual property rights necessary for the conduct of its business as now
conducted and as contemplated, including those identified in Schedule to 2.10
attached.
2.11 Litigation, Etc. Except as set forth in Schedule to 2.11
attached and in the ordinary course of business of the Insurance Subsidiaries
respecting claims which in the aggregate do not materially adversely affect
their business, there are no equitable, legal, arbitration or administrative
proceedings, suits, actions or investigations pending against Borrower or
Guarantor or any Subsidiary thereof or in any other way relating to the
Borrower's or Guarantor's or any such Subsidiary's business, assets or other
properties or to its knowledge threatened (or any basis therefor known to it)
which, either in any case or in the aggregate, might result in any material
adverse change in its business, prospects, profits, properties, liabilities,
operations or conditions (financial or otherwise), or which might materially
adversely affect its ability to perform this Agreement or any other Documents
executed by it.
2.12 Changes in Condition. Since the date of the financial
statements referred to in Section 2.7, there has been no material adverse
change, by reason of any matter or cause whatsoever, in Borrower's, Guarantor's
or any of their Subsidiaries, business, prospects, profits, properties,
liabilities, operations or condition (financial or otherwise).
2.13 Tax Returns and Payments. All tax returns and reports required
by law to be filed by Borrower, Guarantor and each of their Subsidiaries have
been duly filed and all taxes, assessments, fees and other governmental charges
(U.S., foreign, state or local or other) upon it or upon any of its properties,
assets, income or franchises, which are due and payable, have been paid. The
reserves on the Borrower's, Guarantor's or any of their Subsidiaries books, in
respect of taxes, reserves, risk based capital and the like for all fiscal
periods to date, are adequate. Its Federal and State income and payroll tax
returns have been examined and reported on by the taxing authorities or closed
by applicable statutes and satisfied for all fiscal years prior to and including
the fiscal years set forth in Schedule to 2.13 attached.
2.14 Governmental Consents, Etc. No consent, approval or
authorization of or designation, declaration or filing with any governmental
authority, federal, foreign or other, is required in connection with the
execution and delivery of this Agreement or the Documents or the consummation of
any transaction contemplated hereby or thereby.
2.15 Solvency. Borrower, after giving effect to the transactions
described herein, is solvent, having assets of a value which exceeds the amount
of its liabilities, and is able to and anticipates that it will be able to meet
its debts as they mature and has adequate capital to conduct the business in
which it is engaged and is about to engage.
2.16 Names. Borrower currently conducts all business only under its
legal name as set forth above. During the preceding five years Borrower has not
(i) been known as or used any other corporate, fictitious or trade name, (ii)
been the surviving entity of a merger or consolidation or (iii) acquired all or
substantially all of the assets from any Person.
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2.17 No Default nor Event of Default. No Default nor Event of
Default has occurred or exists.
2.18 Shareholder Agreements. Borrower is not a party to any written
executive employment, management or shareholder agreement, except as described
in Schedule to 2.18 attached.
2.19 Place of Business; Records. Borrower's chief place of business
is the address shown above and Borrower shall give Lender at least sixty (60)
days prior written notice of any change.
2.20 Year 2000 Compliance. Borrower, Guarantor and each of their
Subsidiaries has taken all necessary action to assess, evaluate and correct all
hardware, software, embedded microchips and other processing capabilities it
uses, directly or indirectly, to ensure that it will be able to function
accurately and without interruption or ambiguity using date information, before,
during and after January 1, 2000.
2.21 Judgments. Neither Borrower nor Guarantor nor any of their
Subsidiaries, nor any of the assets of any such party is subject to any unpaid
judgment (whether or not stayed) or any judgment lien in any jurisdiction.
2.22 No Regulatory Restrictions on Borrowing. Neither Borrower nor
Guarantor nor any of their Subsidiaries is (i) an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" of a holding company within the meaning of
the Public Utility Holding Company Act of 1935, as amended, or (iii) otherwise
subject to any regulatory scheme which restricts its ability to incur or
guarantee debt.
2.23 Insider. Borrower is not, and no Person having "control" (as
defined in 12 U.S.C. 375(b)(5) or in regulations promulgated thereto) of
Borrower is an "executive officer", "director" or "principal shareholder" (as
those terms are defined in 12 U.S.C. 375(b)(5) or in regulations promulgated
thereto) of Lender, of a bank holding company (or Subsidiary thereof) of which
Lender is a Subsidiary.
2.24 Compliance with ERISA. Each member of the ERISA Group has
fulfilled its obligations under the minimum funding standards of ERISA and the
Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan, or made any amendment
to any Plan, which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security under ERISA or the Internal Revenue Code
or (iii) incurred any liability under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA.
2.25 Environmental Matters. (A) Except as set forth in Schedule to
2.25 and to the extent that the liabilities of the Borrower and its
Subsidiaries, taken as a whole (and after considering any applicable third party
indemnification which has been provided and remains in full force and effect
and/or to the extent a solvent insurer has agreed in writing to provide
coverage), relating to or resulting from the matters referred to in clauses (i)
through (vi) below, inclusive, would not reasonably be expected to exceed
$250,000.00 for any one occurrence or $500,000.00 in the aggregate.
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(i) no notice, notification, demand, request for
information, citation, summons, complaint or order has been received, no penalty
has been assessed and no investigation or review is pending, or to the
Borrower's knowledge, threatened by any governmental or other entity relating to
the Borrower or any Subsidiary and relating to or arising out of any applicable
Environmental Law;
(ii) there are no liabilities of the Borrower or any
Subsidiary of any kind whatsoever, whether accrued, contingent, absolute,
determined, determinable or otherwise, arising under or relating to any
Environmental Law;
(iii) no polychlorinated biphenyls, radioactive
material, lead, lead paint, asbestos-containing material, incinerator, sump,
surface impoundment, lagoon, landfill, septic, wastewater treatment or other
disposal system or underground storage tank (active or inactive) that requires
remediation, or could reasonably be expected to lead to liability under,
applicable Environmental Laws is or has been present at any property now or
previously owned, operated or leased by the Borrower or any Subsidiary;
(iv) no Hazardous Substance has been discharged,
disposed of, dumped, injected, pumped, deposited, spilled, leaked, emitted or
released at, on or under any property now or previously owned, operated or
leased by the Borrower or any Subsidiary other than in compliance in all
material respects with, and in a manner that could not reasonably be expected to
lead to liability under, applicable Environmental Laws;
(v) no property now or previously owned, leased or
operated by the Borrower or any Subsidiary nor any property to which the
Borrower or any Subsidiary has, directly or indirectly, transported or arranged
for the transportation of any Hazardous Substances, is listed or, to the
Borrower's knowledge, proposed for listing, on the National Priorities List
promulgated pursuant to CERCLA, or CERCLIS (as defined in CERECLA) or on any
similar federal, state or foreign list of sites requiring investigation or
clean-up; and
(vi) the Borrower and its Subsidiaries are in compliance
with all Environmental Laws and have obtained and are in compliance with all
permits, licenses, authorizations, certificates and approvals of governmental
authorities relating to or required by applicable Environmental Laws and
necessary or property for the business of the Borrower or any Subsidiary as
currently conducted.
(B) There has been no material environmental investigation,
study, audit, test, review or other analysis conducted of which the Borrower or
any Subsidiary has control or possession in relation to the current or prior
business of the Borrower or any Subsidiary or any property or facility now or
previously owned, leased or operated by the Borrower or any Subsidiary, which
has not been delivered to the Lenders at least five days prior to the date
hereof.
(C) For purposes of this Section, the terms "Borrower" and
"Subsidiary" shall include any business or business entity (including a
corporation) which is, in whole or in part, a predecessor of the Borrower or any
Subsidiary.
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2.26 Subsidiaries. Each of the Borrower's Subsidiaries is duly
organized, validly existing and, where applicable, in good standing under the
laws of its jurisdiction of organization, and has all powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. The Borrower has no Subsidiaries other than
those listed on Schedule to 2.26.
2.27 Full Disclosure. All information (excluding projections)
heretofore furnished by the Borrower to Lender for purposes of or in connection
with the Loan Documents or any transaction contemplated thereby is, and all such
information hereafter furnished by the Borrower to Lender will be, true and
accurate in all material respects on the date as of which such information is
stated or certified. The Borrower and Guarantor have disclosed to Lender any and
all facts (other than general economic or political conditions) which materially
and adversely affect, or may affect (to the extent the Borrower and Guarantor
can now reasonably foresee), the business, operations or financial condition of
the Borrower and its Subsidiaries, taken as a whole, or the ability of any
Borrower of Guarantor to perform its obligations under the Loan Documents. All
projections heretofore furnished by the Borrower to Lender for purposes of or in
connection with the Loan Documents or any transaction contemplated thereby were,
and all projections hereafter furnished by the Borrower to Lender will be, based
on reasonable assumptions and as of their date represented the Borrower's best
estimate of future performance of the Borrower and its Subsidiaries.
2.28 Special Representations and Warranties re Insurance
Subsidiaries.
(A) United Coastal Insurance Company ("Coastal") is and will
continue to be duly licensed in the State of Arizona and is qualified to do
business in all states other than Maine, New Hampshire, Vermont and Tennessee .
Coastal was last audited by the Department of Insurance of the State of Arizona
on December 31, 1997. Coastal has not currently applied for permission to grant
any extraordinary dividends and no such application has ever been denied.
(B) ACSTAR INSURANCE COMPANY ("ACSTAR") is and will continue
to be duly licensed in the State of Illinois and is qualified to do business in
all states. ACSTAR was last audited by the Department of Insurance of the State
of Illinois on December 31, 1995. ACSTAR has not currently applied for
permission to grant any extraordinary dividends and no such application has ever
been denied.
(C) Each Insurance Subsidiary is and will continue to be in
compliance with the laws and regulations of each state in which it is approved
to sell insurance, specifically including, without limitation, the State of New
York.
(D) Each Insurance Subsidiary maintains and will continue to
maintain adequate reserves as determined by its outside auditors and is at or
above state regulatory requirements and those determined by NAIC.
(E) Each Insurance Subsidiary has and will at all times
maintain risk based capital ratio which complies with the guidelines of NAIC and
complies with all applicable state regulatory guidelines including, without
limitation, the State of New York. Each Insurance Subsidiary has and will
continue to have actual capital equal to or in excess of its required risk based
capital.
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(F) Coastal has not incurred losses in excess of 15% of its
statutory surplus in any year.
(G) ACSTAR has not incurred losses in excess of 15% of its
statutory surplus in any year.
(H) None of Coastal's reinsurance recoverables are more than
90 days past due.
(I) None of ACSTAR's reinsurance recoverables are more than 90
days past due.
(J) No Insurance Subsidiary has entered into transactions with
Affiliates during the last three years except as disclosed on Schedule to 2.28
attached hereto.
(K) On and as of the date hereof the rating of Coastal by A.M.
Best is A-. Borrower knows of no basis for any reduction of such rating nor any
action to evidence such rating.
(L) On and as of the date hereof the rating of ACSTAR by A.M.
Best is A-. Borrower knows of no basis for any reduction of such rating nor any
action to evidence such rating.
SECTION 3. AFFIRMATIVE COVENANTS.
Borrower covenants and agrees that so long as there is outstanding any
portion of the Loans, Borrower will comply or cause compliance with the
following:
3.1 Punctual Payment. Borrower shall duly and punctually pay all
principal, interest and charges which are owing by it in accordance with the
provisions of the Revolving Note and the Term Note and also in accordance with
the provisions hereof and of the other Documents. If any Loan is not evidenced
by a writing specifying a due date, Borrower shall pay the same ON DEMAND. All
Loans shall be paid in U.S. Dollars at the address of Lender shown above.
Borrower shall pay on demand all charges customarily levied by lender in making
loans of the type herein or incurred by Lender in connection with the Loans.
3.2 Prompt Payment of Taxes, Mortgages, Leases and Indebtedness.
Borrower shall promptly pay and discharge, or cause to be paid and discharged,
prior to the date when due (unless contested in good faith and reserves against
the payment of which, satisfactory to Lender, are deposited with Lender), all
lawful taxes, assessments and governmental charges or levies imposed upon assets
owned by it or in which it has an interest or upon the Borrower's Business
premises or upon the income, profits, property or business of itself or
Guarantor or any of its or their Subsidiaries, or upon any of its or their other
assets. Borrower shall promptly pay or cause to be paid when due (or in
conformity with customary trade terms) all other Indebtedness of itself incident
to its operations and will promptly pay and perform all obligations under leases
of real and personal property and under material contracts and shall notify
Lender promptly of any default or notice of alleged default received with
respect to any such Indebtedness, lease or contract.
3.3 Conduct of Business. Borrower shall do all things necessary to
preserve, renew and keep in full force and effect in good standing the
Borrower's, Guarantor's and each of its or their Subsidiaries' corporate
existence, qualification and any franchises, licenses, patents, trademarks and
items necessary to
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continue its business. Borrower shall maintain its properties and assets and
those of the Guarantor and those of Borrower's and/or Guarantor's Subsidiaries
in good order and repair, all in compliance with applicable federal, state, and
local judgments, decrees, orders, statutes, rules and regulations, including,
but not limited to, state and federal environmental regulations and those of the
Occupational Safety and Health Administration.
3.4 Insurance.
(A) Borrower, Guarantor, and each of its or their Subsidiaries
shall maintain, with insurers satisfactory to Lender, insurance with respect to
the assets owned by it or in which it has an interest and its other properties
and business against loss or damage to the extent that is currently in force.
Such insurance shall include:
(i) public and product liability insurance in such
amounts and covering such risks, as Lender may reasonably require,
(ii) all worker's compensation and other employees'
liability insurance as may be required by law,
(iii) insurance with respect to its assets constituting
tangible personal property and fixtures, and with respect to its other
properties both real and personal, including, without limitation, the Borrower's
business premises, to the full extent of the insurable value thereof, and
including All Risk coverage (so-called) covering such other risks, as Lender may
require, and
(iv) business interruption insurance in amounts
sufficient to cover the reasonable needs of the Borrower's business during
periods of partial or complete interruption of the Borrower's business.
(B) Borrower shall furnish evidence satisfactory to Lender
confirming to Lender the insurance at the time in force pursuant to this Section
specifying the amount and character of coverage, identifying the insurers and
certifying as to no default in the payment of current premiums thereon and will
furnish Lender with original or duplicate original copies of all policies.
3.5 Accounting; Financial Statements and Other Information. Borrower
shall maintain a system of accounts established and administered in accordance
with GAAP and practices consistently applied. Borrower shall deliver or cause to
be delivered to Lender:
(A) Financial Reports.
(i) As soon as available and in any event within
forty-five (45) days after the end of each Fiscal Quarter after the date hereof,
a balance sheet of the Borrower, in consolidating and consolidated form, as of
the end of such period, and a statement of income and retained earnings of the
Borrower, in consolidated form, for the period commencing at the end of the
previous Fiscal Year and ending with the end of such quarter, all in reasonable
detail, and duly certified by the chief financial officer of the Borrower as
having been prepared in accordance with GAAP and fairly presenting the financial
position and
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results of operations of the Borrower for such period, together with a statement
of such individual preparing such statements to the effect that in the course of
the preparation of such statements said individual has gained no knowledge that
a Default or Event of Default has occurred and is continuing or, if, in the
opinion of said individual, a Default or Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action which the
Borrower proposes to take with respect thereto (the provision for such a
statement herein shall in no way be construed as a consent to the existence of
such an Event nor the granting of time to cure). In addition, said preparer
shall complete and forward to Lender together with such financial statements the
completed Covenant Compliance Certificate in the form attached hereto as Exhibit
E.
(ii) As soon as available and in any event within ninety
(90) days after the end of each Fiscal Year of the Borrower, a copy of the
annual audited report for such year for the Borrower, including therein, a
balance sheet of the Borrower as of the end of such Fiscal Year and a statement
of income, retained earnings and statement of changes in financial position of
the Borrower for such Fiscal Year, in each case on a consolidated basis, and in
each case "Certified" by a firm of independent certified public accountants
selected by the Borrower but acceptable to Lender, together with the unqualified
opinion of such accounting firm to Lender stating that the financial statements
audited by such firm present fairly, in all material respects, the financial
position of Borrower as of the date of such financial statements and the results
of its operations and its cash flow for the Fiscal Year then ended, all in
conformity with GAAP, together with the certificate of such accounting firm
that, in the course of its audit of Borrower, it has obtained no knowledge that
a Default or Event of Default has occurred and is continuing or if, in the
opinion of such accounting firm, a Default or Event of Default has occurred and
is continuing, a statement as to the nature thereof (the provision for such a
statement herein shall in no way be construed as a consent to the existence of
such an Event nor the granting of time to cure) and together with the Management
Letter (so called) of such firm and Borrower's written response thereto
detailing actions to be taken relating to matters discussed in said Management
Letter, and together with a completed Covenant Compliance Certificate. In
addition, Borrower shall provide all financial statements for the Insurance
Subsidiaries required by the laws of any jurisdiction in which the Insurance
Subsidiary conducted business.
(iii) Such other data and information (financial and
otherwise) bearing upon or related to the Borrower's or the Guarantor's
financial condition, results of operations or assets, as Lender from time to
time may reasonably request.
(B) Projections/Budgets. As soon as available and in any event
within thirty (30) days prior to the end of each Fiscal Year of Borrower,
financial projections prepared by Borrower on a consolidated and consolidating
basis for the next Fiscal Year of Borrower, profit and loss statements projected
for each Fiscal Quarter and for the end of the next Fiscal Year, including
without limitation a projection of all drawings under, paydowns of and
anticipated quarterly availability under, the Revolving Credit and a capital
expenditure budget for the next Fiscal Year.
3.6 Financial Covenants. Borrower shall maintain the following,
calculated in accordance with GAAP, as shown on the financial statements
required to be provided pursuant to Section 3.5;
(A) a ratio of Borrower's consolidated total Indebtedness to
Borrower's (i) cash on hand and cash equivalents on hand plus (ii) marketable
securities (including amounts owing to Borrower in
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connection therewith but not yet paid) plus (iii) accrued interest receivable of
not more than 1.05 to 1.0 measured at the end of each Fiscal Quarter; and
(B) on September 30, 1999 an Adjusted Interest Coverage Ratio
(being the ratio of Adjusted Cash Flow taking into account only 75% of the
allowable dividend permitted to be paid to Borrower by its Subsidiaries to
consolidated Interest Expense) of not less than 2.25 to 1.0 and thereafter an
Interest Coverage Ratio (being the ratio of Adjusted Cash Flow to consolidated
Interest Expense) of at least 2.25 to 1.0 measured: (i) on a calendar year basis
at the end of the Fiscal Quarter ending September 30, 1999, and (ii) at the end
of each Fiscal Quarter over the immediate preceding four (4) Fiscal Quarters
commencing with the Fiscal Quarter ending December 31, 1999 and for each Fiscal
Quarter thereafter.
(C) On September 30, 1999 an Adjusted Debt Service Coverage
Ratio (being the ratio of Adjusted Cash Flow taking into account only 75% of the
allowable dividend permitted to be paid to Borrower by its Subsidiaries to Debt
Service) of not less than 1.25 to 1.0 and thereafter a Debt Service Coverage
Ratio (being the ratio of Adjusted Cash Flow to Debt Service) of not less than
1.25 to 1.0 measured: (i)on a calendar year basis at the end of the Fiscal
Quarter ending September 30, 1999, and (ii) at the end of each Fiscal Quarter
over the immediate preceding four (4) Fiscal Quarters commencing with the Fiscal
Quarter ending December 31, 1999 and for each Fiscal Quarter thereafter.
(D) A ratio of Borrower's total Funded Debt to Statutory
Operating Earnings of not more than 5.0 to 1.0 measured: (i) on a calendar year
basis at the end of the Fiscal Quarter ending September 30, 1999, and (ii) at
the end of each Fiscal Quarter over the immediate preceding four (4) Fiscal
Quarters commencing with the Fiscal Quarter ending December 31, 1999 and for
each Fiscal Quarter thereafter.
(E) A ratio of Borrower's total Funded Debt to Statutory
Capital of not more than 0.70 to 1.0 measured at the end of each Fiscal Quarter.
Borrower acknowledges that it has assisted Lender in the formation of each
of the foregoing financial performance criteria and fully understands each of
said criteria.
3.7 Notice of Certain Events and Changes; Governmental Notices.
(A) Promptly after becoming aware of any condition, event or
state of facts which constitutes a Default or Event of Default, Borrower shall
give written notice to Lender specifying the nature and period of existence
thereof. Borrower shall give Lender prompt written notice of any condition,
event or state of facts which causes or may cause material loss or depreciation
in the value of the assets or Borrower's business premises and of the
commencement or threat of any action, proceeding or investigation or the
occurrence or existence of any other event, matter or cause whatsoever, which,
either in any case or in the aggregate results or might result in any material
adverse change in its business, prospects, profits, properties, operations or
condition (financial or otherwise). Borrower shall give Lender at least sixty
(60) days' prior written notice of any proposed change in its place or places of
business, any proposed change of location of any of the assets and any proposed
changes in its name.
(B) As soon as reasonably practicable, after the issuance
thereof, Borrower shall send to Lender a copy of all notices of investigation,
claims of violation or possible violation and/or orders
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issued by any federal, state or municipal regulatory authority under any laws or
regulations adopted thereby which are directed to and received by Borrower.
Further, as soon as reasonably practicable, Borrower shall send to Lender copies
of all reports or other materials filed by it with or issued or sent to it by
the Securities and Exchange Commission and all reports, notices or statements
sent by it to its stockholders.
3.8 Unused Fee. Borrower shall pay Lender, in current funds,
quarterly in arrears, a fee equal to 3/8 per cent per annum (but calculated
based on the actual number of days elapsed) of the average daily unused amount
of the Revolving Credit. Notwithstanding the foregoing, Borrower shall not be
required to make any unused fee payments until the aggregate amount to be paid
exceeds $103,000.00 and then Borrower shall make payments only in excess of such
$103,000.00.
3.9 Environmental Compliance.
(A) Borrower shall comply with all applicable Environmental
Laws, regulations, rules, standards, orders and agreements. Whenever, pursuant
to any such legal requirement, Borrower is obligated to report to any party the
existence of a Spill (as such term is defined in Section 1 of Public Act
85-443), "Release" (as defined in 42 U.S. Code 9601 et seq.), "Hazardous Waste"
(as defined in Section 22a-115 of Connecticut General Statutes), "Hazardous
Substance" (as defined in 42 U.S. Code 9601 et seq.) or other environmental
contamination on or emanating from Borrower's business premises, Borrower shall,
simultaneously and in writing, report the existence of such conditions to Lender
at the address set forth in Section 13 hereof.
(B) In addition to any and all other liability of Borrower to
Lender hereunder, Borrower shall indemnify the Lender against any loss or damage
that shall occur to Lender as a result of the application of the Super Lien Act
(Section 22a-452a of the Connecticut General Statutes) or any other federal,
state, local or quasi-governmental law, rule, regulation, ordinance or the like.
(C) The Lender and/or its authorized representatives has the
right, at reasonable times and upon reasonable notice to Borrower, to enter upon
Borrower's business premises for the purpose of conducting inspections and/or
audits of Borrower's environmental compliance and/or of Borrower's methods
and/or procedures for disposal of waste products used in the course of
Borrower's business. Borrower shall correct any discrepancies found during such
inspections or audits promptly.
(D) In the event that any lien is filed against any of
Borrower's properties or any claim is made against Borrower by any governmental
entity in connection with the discharge of hazardous substances or wastes then
Borrower shall either (i) pay the claim and remove any lien from the applicable
property or (ii) furnish to such governmental entity that imposed the lien a
bond, cash deposit or other security reasonably satisfactory to such
governmental entity in an amount sufficient to discharge the lien.
3.10 Intentionally left blank.
3.11 Use of Proceeds. Borrower shall use the proceeds of the Loans
to repay indebtedness owing by Borrower to BankBoston, N.A. and for general
working capital purposes. Borrower shall not, directly or indirectly, apply any
part of any proceeds or advance from any loan to the purchasing or carrying of
any "margin stock" within the meaning of Regulation U or Regulation G of the
Board of Governors of the
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Federal Reserve System, or for any use which will cause a violation of any other
regulation of the Board of Governors of the Federal Reserve System or of any
regulations, interpretations or rulings thereunder, including without limitation
Regulations G, U, T and X.
3.12 Deposit Accounts. Borrower shall maintain its primary
disbursement account with Lender.
3.13 Pension Plans.
(A) As soon as reasonably practicable, upon the filing,
issuance or receipt thereof, Borrower will send to Lender copies of (i) all
annual reports filed by it or on its behalf with respect to all pension or other
employee benefit plans, subject to ERISA, (hereinafter collectively referred to
as the "Plans" and individually as the "Plan"), with the Secretary of Labor, the
Internal Revenue Service, or the Pension Benefit Guaranty Corporation ("PBGC"),
(ii) all notices, reports, determinations or statements to or from the PBGC with
respect to the occurrence of a reportable event, as defined in Subsections (1),
(2), (3), (4), (5), (6), (7), (8) or (9) of Section 4043(b) of ERISA and
regulations issued thereunder, (iii) all reports submitted to it and/or the
Internal Revenue Service by any actuary with respect to any of the Plans, (iv)
all notices of Plan termination or requests for determination letters in
connection therewith filed by Borrower, any Plan Administrator (as such term is
defined in ERISA,) or trustee or custodian of any accounts of any Plan with the
PBGC and/or Internal Revenue Service, and (v) all requests to waive the minimum
funding standard or extension of amortization periods submitted to the Secretary
of the Treasury.
(B) Borrower (to the extent applicable to it) shall be and
remain in compliance with the provisions of ERISA or the applicable provisions
of the Internal Revenue Code of 1986, as amended, (hereinafter referred to as
the "Revenue Code"), including, without limitation, (i) the payment of all
premiums to the PBGC when and as the same shall be due and payable, pursuant to
Section 4007 of ERISA, and (ii) the taking of such action as may be necessary
from time to time to meet all minimum funding standards for each of the Plans
under Section 412 of the Revenue Code. In furtherance of the foregoing, it
shall, on or before the date in each year required by ERISA and/or the Revenue
Code for any Plan, (hereinafter referred to as "Plan Year"), cause the actuary
for such Plan to deliver to Lender a true and correct copy of its report to the
Internal Revenue Service relating to (a) the actuary's methods and assumptions
for determining all costs, accrued liabilities, past service liabilities and
experience gains and losses, and (b) the amount to be contributed by it to the
funding standard account on account of such Plan for such Plan Year.
3.14 Special Covenants re Insurance Subsidiaries. The Borrower
shall:
(A) Notify the Lender annually of the allowable dividend which
may be paid by each Insurance Subsidiary to the Borrower.
(B) Notify the Lender promptly if any Insurance Subsidiary has
applied for permission to grant any special dividends.
(C) Notify the Lender of any allegation of non-compliance by
any Insurance Subsidiary with the laws and regulations of each state in which it
is approved to sell insurance, specifically including, without limitation, the
State of New York, except this notification does not apply to any non-
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compliance matter if such non-compliance matter does not have a material effect.
(D) Furnish to the Lender annually all reports issued by its
outside auditors which analyze the adequacy of the level of each Insurance
Subsidiary's reserves.
(E) Notify the Lender of any material change in any Insurance
Subsidiary's risk based capital ratio.
(F) Maintain in each Insurance Subsidiary actual capital equal
to or in excess of its required risk based capital.
(G) Notify the Lender, promptly upon becoming aware, of the
following: (i) any material increase in the levels of primary liability of each
Insurance Subsidiary which is ceded to reinsurers, (ii) the occurrence of any
default in any such contract of reinsurance and (iii) the occurrence of any
insolvency of any reinsurer or any non-compliance by any reinsurer with the NAIC
risk based capital guidelines.
(H) Notify the Lender, promptly upon becoming aware, of the
following: (i) any material increase in the levels of primary liability of each
Insurance Subsidiary which is co-insured with others, (ii) the occurrence of any
default in any such contract of co-insurance and (iii) the occurrence of any
insolvency of any co-insurer or any non-compliance by any co-insurer with the
NAIC risk based capital guidelines.
(I) Notify the Lender within 90 days of the fiscal year end
each Insurance Subsidiary's (i) net investment income for the year then ended,
(ii) the statutory surplus for the year then ended, (iii) the "Combined Ratio"
for each such Insurance Subsidiary for the year then ended, (iv) the loss, if
any, of any Insurance Subsidiary in excess of 15% of its statutory surplus for
the year then ended, (v) a listing of each Insurance Subsidiary's reinsurance
recoverables which are more than 90 days past due as at the end of any year and
(vi) a listing of all transactions with Affiliates entered into by any Insurance
Subsidiary during the year then ended.
(J) Notify the Lender of any reduction in the rating by A.M.
Best and Company of any Insurance Subsidiary.
3.15 Upstream Dividends. Borrower shall, among other things, cause
its Subsidiaries to pay to Borrower such profits, excess capital and other sums
as may be necessary to comply with the financial covenants set forth in Section
3.6. In extension of the foregoing, Borrower shall diligently apply for and
pursue any approvals from any state or regulatory authority having jurisdiction
over each such Subsidiary if such approvals are necessary to comply with the
financial covenants set forth in Section 3.6.
3.16 Rating. The Insurance Subsidiaries shall at all times maintain
a rating by A.M. Best and Company of at least B+.
SECTION 4. NEGATIVE COVENANTS.
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Borrower covenants and agrees that, so long as there is outstanding any
portion of the Loans, or so long as this Agreement has not been mutually
terminated after all amounts owing under the Loans have been paid, Borrower
shall not, and Guarantor shall not, to the extent set forth in each of the
following Sections:
4.1 Restrictions on Liens. Directly or indirectly, create, incur,
assume or permit to exist any mortgage, lien, charge or encumbrance on or pledge
or deposit of or conditional sale, lease or other title retention agreement with
respect to any property or asset, whether now owned or hereafter acquired, or be
bound by or subject to any agreement or option to do so, provided that the
foregoing restrictions do not apply to:
(A) liens for taxes, assessments or governmental charges or
levies the payment of which is not at the time required by Section 3.2;
(B) liens incurred or deposits made in the ordinary course of
business in connection with worker's compensation or unemployment insurance or
to secure the performance of tenders, statutory obligations, surety and appeal
bonds, performance and return-of-money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money);
(C) zoning restrictions, easements, rights-of-way,
restrictions and/or minor irregularities in title and other liens, charges and
encumbrances incidental to the conduct of its business or the ownership of its
properties or assets which are not incurred in connection with the borrowing of
money and which in the aggregate are not material;
(D) statutory or common law possessory liens for charges
incurred in the ordinary course of business the payment of which is not yet due;
(E) the mortgages, liens and encumbrances referred to or
described in Schedules to 4.1 attached and/or the replacement thereof;
(F) liens in favor of Lender.
4.2 Restrictions on Indebtedness. Directly or indirectly, create,
incur, assume, guarantee, agree to purchase or repurchase, pay or provide funds
in respect of, or otherwise become or be or remain liable, contingently,
directly or indirectly, with respect to, any Indebtedness other than:
(A) Indebtedness to Lender;
(B) current liabilities for trade and other obligations
incurred in the ordinary course of its business not yet past due and not as a
result of borrowing;
(C) Indebtedness arising under leases permitted hereby;
(D) Indebtedness in respect of endorsements made in connection
with the deposit of items for credit or collection in the normal and ordinary
course of business; and
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(E) Indebtedness described in the financial statements
described in Section 2.8 or refinancing of such Indebtedness in amounts not to
exceed such refinanced Indebtedness.
(F) Indebtedness otherwise in conformity with all of the other
terms hereof incurred in order to fund the loan, advance or capital contribution
described in Section 4.3 (F) below.
Borrower shall not guarantee or otherwise assure any obligation of any
other party including, without limitation, that of any Guarantor.
4.3 Restrictions on Investments, Loans, Etc. Make or permit to be
outstanding any loan or advance or capital contribution to any other Person,
other than:
(A) presently outstanding loans, advances and investments
incurred in the ordinary course of Borrower's business;
(B) Indebtedness of customers for merchandise sold or services
rendered in the ordinary course of business; and
(C) investments in bills or bonds issued or guaranteed by the
government of the United States of America and/or Certificates of Deposit issued
by Lender or any other bank having a net worth of at least $50,000,000.00; and
(D) loans to employees of Borrower for travel and
entertainment advances not to exceed $250,000.00 in the aggregate outstanding at
any one time.
(E) the portfolios of the Insurance Subsidiaries maintained
pursuant to Borrower's guidelines attached hereto as Schedule to 4.3.
(F) any other loan, advance or capital contribution to any
other business entity not set forth herein for Borrower's or the Insurance
Subsidiaries' legitimate business purposes in an amount not to exceed
$10,000,000 outstanding in the aggregate provided that (i) no proceeds of any
Loan shall be used for such purpose and (ii) no Default or Event of Default
shall exist or be created thereby.
4.4 Dividends, Distributions and Redemptions. Directly or
indirectly, declare, order, pay, make or set apart any sum or property for the
redemption, retirement, purchase or other acquisition, direct or indirect, of
any shares of its stock of any class now or hereafter outstanding in an amount
exceeding (i) $3,000,000 in any Fiscal Year in the aggregate (including the
Fiscal Year ending December 31, 1999) and/or (ii) exceeding the aggregate amount
for the purchase of shares in the Borrower held by Henry Nozko, Sr. in excess of
the proceeds of insurance policies held by Borrower on the life of such person.
4.5 Sale of Assets, Consolidation, Merger, Acquisition of Assets.
Directly or indirectly, sell, abandon or otherwise dispose of any material asset
or any part thereof (except for the sale of Inventory in the ordinary course of
Borrower's business) or of all or any portion of its properties or assets, or
consolidate with or merge into any other corporation, or permit any other
corporation to consolidate with or merge into
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it, or acquire all or a substantial portion of the assets of another
Person, or form any Subsidiary, or, directly or indirectly, suffer any change in
ownership.
4.6 Management Agreements. Enter into any executive employment,
management or consulting agreement or renew, extend or amend any presently
existing executive employment, management or consulting agreement, except
agreements with Henry Nozko, Sr. and Henry Nozko, Jr.
4.7 Expenditures for Capital Assets. Make any expenditure for
capital assets (other than for routine repairs and maintenance which are not
required to be capitalized, as hereinafter set forth) unless, immediately after
giving effect thereto, the aggregate amount expended or to be expended on
account of all such expenditures by Borrower in any Fiscal Year would not exceed
$1,500,000.00 on a non-cumulative basis. The following are deemed to be
expenditures for capital assets and subject to the limitations of this section:
(A) Expenditures for major repairs and maintenance which, in
accordance with GAAP, are or should be capitalized; and
(B) All lease rentals and other amounts payable under leases
entered into after the date hereof, whether "true" leases or finance leases
(other than renewals and extensions of leases existing on the date hereof), and
all amounts payable under contracts or arrangements for the purchase of property
wherein payment of the purchase price for such property is deferred in whole or
in part.
4.8 Management. Suffer any material change in executive
management, including without limitation the day to day involvement of Henry
Nozko, Sr. and Henry Nozko, Jr. nor suffer a change in day to day management;
4.9 Ownership. Suffer a change in ownership of Borrower's capital
stock except for trades in the ordinary course, of Borrower's stock on
nationally recognized markets, nor issue additional shares thereof except for
stock options or equity financing provided that in any case Henry Nozko, Sr. And
Henry Nozko, Jr. shall always own or control at least 51% of the combined voting
power of all issued and outstanding shares of all classes of stock.
4.10 E.R.I.S.A. Engage in any "Prohibited Transaction", so-called,
incur any so-called "Accumulated Funding Deficiency", or create or terminate any
pension or profit sharing plan or suffer the existence of any Reportable Event
or the appointment by any United States District Court of a trustee to
administer any Plan or if the PBGC shall institute proceedings to terminate any
plan or to administer any Plan, or otherwise not be in full compliance.
4.11 Judgments. Suffer any final judgment (exclusive of judgments
insured against by adequate liability insurance policies) against it which is
not discharged or execution thereof stayed pending appeal, within ninety (90)
days after the entry of such judgment , or if, within ninety (90) days after the
expiration of any such stay, such judgment shall not have been discharged.
4.12 Uninsured Losses, Etc. Suffer, during any consecutive twelve
(12) month period, one or more material uninsured losses, thefts, damage or
destruction of any material portion of its assets (other than bad debts incurred
in the ordinary course of business).
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4.13 Fiscal Year. Change the fiscal year of Borrower.
4.14 No Sale, Leaseback. Enter into any sale-and-leaseback or
similar transaction.
4.15 Negative/Negative Pledges. Agree with any party other than
Lender that it will not pledge and/or grant a lien or security interest in any
of its assets.
SECTION 5. EVENTS OF DEFAULT.
If any of the following events (each an "Event of Default") occurs:
5.1 If Borrower defaults in the payment of any part of the Loans,
including, without limitation, payments due under the Revolving Credit or the
Term Loan, owing by it when the same becomes due and payable, whether at any
stated maturity, or by declaration, acceleration or otherwise;
5.2 If the Guarantor or any Subsidiary of the Borrower or Guarantor
defaults in the payment of any Indebtedness owing by it when the same becomes
due and payable, at any stated maturity, by declaration, acceleration or
otherwise;
5.3 If Borrower fails to perform or comply with any term or covenant
applicable to it contained in this Agreement, or contained in any other
Documents;
5.4 If any representation or warranty made by or on behalf of
Borrower, in this Agreement or in the Schedules hereto, or in any of the other
Documents, or in connection with the transactions contemplated hereby and
thereby proves to be false or incorrect in any material respect;
5.5 If a draw is made under any payment or performance bond issued
for the account of Borrower;
5.6 If Borrower, Guarantor or any of their Subsidiaries defaults in
the payment of any Indebtedness for borrowed money or defaults with respect to
any of the terms of any evidence of such Indebtedness or of any indenture or
other agreement relating thereto, or if Borrower commits any breach or defaults
under any material contract to which it is or becomes a party or by which it is
or becomes bound;
5.7 If Borrower, Guarantor or any of their Subsidiaries makes an
assignment for the benefit of creditors, or admits in writing an inability to
pay debts as they become due, or files a voluntary petition in bankruptcy, or is
adjudicated a bankruptcy or insolvent, or files any petition or answer seeking
for itself any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future statute,
law or regulation, or files any answer admitting or fails to deny the material
allegations of a petition filed against it for any such relief, or seeks or
consents to or acquiesces in the appointment of any trustee, receiver or
liquidator of itself or of all or any substantial part of its properties, or its
directors or majority stockholders takes any action looking to its dissolution
or liquidation, or it ceases doing business as a going concern;
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5.8 If, within thirty (30) days after the commencement of any
proceeding against Borrower, Guarantor or any of their Subsidiaries seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution
or similar relief under any present or future statute, law or regulation, such
proceeding has not been dismissed, or if, within thirty (30) days after the
appointment, without Borrower's, Guarantor's or such Subsidiary's consent or the
acquiescence of any trustee, receiver or liquidator of itself or of all or any
substantial part of its properties, such appointment has not been vacated; then,
and in any such event, in addition to its rights and remedies under this
Agreement, or the other Documents and any other instruments, but after ten (10)
days prior written notice and opportunity to cure, unless Lender believes such
prior notice and opportunity to cure will have a material adverse effect on its
rights and remedies, Lender may, at its option, declare all Term Loans and/or
the Loans or any portion thereof to be immediately due and payable, whereupon
the same shall forthwith mature and become due and payable, together with
interest accrued thereon and together with any and all costs of collection,
including, but not limited to, reasonable attorneys fees, and without
presentment, demand or protest, all of which are hereby waived.
SECTION 6. SET-OFF RIGHTS.
In addition to any rights now or hereafter granted under applicable law
and not by way of limitation of any such rights, each Lender and any affiliate
of Lender is hereby authorized by Borrower and the Guarantor at any time or from
time to time, without notice to Borrower or to any other Person, any such notice
being hereby expressly waived by Borrower and Guarantor to set off and to
appropriate and to apply any and all balances, deposits, credits, Collateral and
property of Borrower held at, or in transit to, any of its offices for the
account of Borrower and/or Guarantor (regardless of whether then due to Borrower
and/or Guarantor) and any other property at any time held or in transit or owing
by that Lender or that holder to or for the credit or for the account of
Borrower or Guarantor against and on account of any of the Loans which remain
unpaid. Borrower and Guarantor agree, to the fullest extent permitted by law,
that (a) Lender or any holder may exercise its right to set off with respect to
the Loans and may sell participations in such set off to other lenders and
holders and (b) any lender or holder so purchasing a participation in the Loans
made or held by other lenders or holders may exercise all rights of set-off,
bankers' lien, counterclaim or similar rights with respect to such participation
as fully as if such Lender or holder were a direct holder of Loans in the amount
of such participation and (3) the rights contained in this paragraph exist
regardless of whether the Loan to which they are applied has matured.
SECTION 7. REMEDIES ON DEFAULT, ETC.
7.1 If a Default or Event of Default occurs, Lender may withhold all
subsequent Advances and, in addition, may accelerate and declare to be
immediately due and payable all Loans and may proceed to protect and enforce its
rights by suit in equity, action at law or other appropriate proceedings,
whether for the specific performance of any agreement contained herein or in any
other Document, or for an injunction against a violation of any of the terms
hereof or thereof, or in aid of the exercise of any right, power or remedy
granted thereby or by law, equity or otherwise.
7.2 Upon the occurrence of a Default or Event of Default the
Borrower grants a royalty-
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free license to the Lender for all patents, service marks, trademarks,
tradenames, copyrights, computer programs and other intellectual property rights
sufficient to permit the Lender to exercise all rights granted to the Lender
pursuant to this Agreement.
SECTION 8. CUMULATIVE REMEDIES; NO WAIVERS, ETC.
No right, power or remedy granted to Lender in this Agreement or in the
other Documents is intended to be exclusive, but each shall be cumulative and in
addition to any other rights, powers or remedies referred to in this Agreement,
in the other Documents or otherwise available to Lender at law or in equity; and
the exercise or beginning of exercise by Lender of any one or more of such
rights, powers or remedies, shall not preclude the simultaneous or later
exercise by Lender of any or all of such other rights, powers or remedies. No
waiver by, nor any failure or delay on the part of Lender in any one or more
instances to insist upon strict performance or observance of one or more
covenants or conditions hereof, or of the other Documents shall in any way be,
or be construed to be, a waiver of such covenant in any other instance or to
prevent Lender's rights to later require the strict performance or observance of
such covenants or conditions, or otherwise prejudice Lender's rights, powers or
remedies.
SECTION 9. PARTIAL INVALIDITY; WAIVERS.
9.1 If any term or provision of this Agreement or any of the other
Documents or the application thereof to any Person or circumstance shall, to any
extent, be invalid or unenforceable by reason of any applicable law, the
remainder of this Agreement and the other Documents, or application of such term
or provision to Persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement and the other Documents shall be valid and be
enforced to the fullest extent permitted by law. To the full extent, however,
that the provisions of any such applicable law may be waived, they are hereby
waived by Borrower to the end that this Agreement and the other Documents shall
be deemed to be valid and binding obligations enforceable in accordance with
their terms.
9.2 To the extent permitted by applicable law, Borrower and
Guarantor hereby waives protest, prior notice of protest, or dishonor, notice of
payments and non-payments, or of any default.
9.3 WITH RESPECT TO ANY CONTROVERSY, ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS DESCRIBED
HEREIN OR CONTEMPLATED HEREBY, INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH
THE LOANS AND/OR ANY OF THE OTHER DOCUMENTS BORROWER, GUARANTOR AND LENDER EACH
VOLUNTARILY AND KNOWINGLY WAIVES ANY RIGHT TO OR CLAIM FOR A TRIAL BY JURY.
9.4 BORROWER ACKNOWLEDGES THAT THE WITHIN AGREEMENT EVIDENCES A
COMMERCIAL TRANSACTION AND THAT IT COULD, UNDER CERTAIN CIRCUMSTANCES HAVE THE
RIGHT UNDER CHAPTER 903a, AS FROM TIME TO TIME AMENDED, OF THE CONNECTICUT
GENERAL STATUTES, SUBJECT TO CERTAIN LIMITATIONS, TO NOTICE OF AND HEARING ON
THE RIGHT OF THE LENDER TO OBTAIN A PREJUDGMENT REMEDY, SUCH AS ATTACHMENT,
GARNISHMENT AND/OR REPLEVIN, UPON COMMENCING
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ANY LITIGATION AGAINST BORROWER. NOTWITHSTANDING, BORROWER HEREBY WAIVES ALL
RIGHTS TO NOTICE, JUDICIAL HEARING OR PRIOR COURT ORDER TO WHICH IT MIGHT
OTHERWISE HAVE THE RIGHT UNDER SAID CHAPTER 903a, AS FROM TIME TO TIME AMENDED,
OR UNDER ANY OTHER STATE OR FEDERAL STATUTE OR CONSTITUTION IN CONNECTION WITH
THE OBTAINING BY THE LENDER OF ANY PREJUDGMENT REMEDY BY REASON OF THIS
COMMERCIAL REVOLVING CREDIT AND SECURITY AGREEMENT, OR BY REASON OF BORROWER'S
OBLIGATIONS OR ANY RENEWALS OR EXTENSIONS OF THE SAME. BORROWER ALSO WAIVES ANY
AND ALL OBJECTION WHICH IT MIGHT OTHERWISE ASSERT, NOW OR IN THE FUTURE, TO THE
EXERCISE OR USE BY LENDER OF ANY RIGHT OF SETOFF, REPOSSESSION OR SELF HELP AS
MAY PRESENTLY EXIST UNDER STATUTE OR COMMON LAW.
9.5 BORROWER SPECIFICALLY WAIVES AND RELINQUISHES ANY CLAIM TO
INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES ARISING IN ANY WAY OUT OF AN ALLEGED
BREACH HEREOF BY LENDER AND AGREES THAT DAMAGES FOR WHICH LENDER MAY BE LIABLE,
IF ANY, SHALL BE LIMITED TO THOSE DIRECT DAMAGES PROVEN TO HAVE BEEN SUFFERED BY
BORROWER ARISING DIRECTLY FROM SUCH BREACH.
SECTION 10. EXPENSES/INDEMNITY.
Borrower agrees that it shall:
10.1 pay or reimburse Lender on demand for any and all reasonable
charges, costs and taxes incurred in the preparation, documentation and
implementation of this Agreement, and all Documents, and any amendment thereto,
including, without limitation, all recording and filing fees, appraisal fees and
reasonable fees and disbursements of Lender's special counsel retained in
connection therewith, including payment upon the Closing hereof of any portion
of such charges, costs and fees for which an invoice shall be rendered;
10.2 indemnify and save Lender harmless from, and pay or reimburse
Lender for, all charges, costs, damages, liabilities and expenses, including
reasonable attorneys' fees, if any, incurred by Lender relating to:
(A) the Notes or any of the other Documents;
(B) the exercise by the Lender of any of its rights, remedies
or powers hereunder, the Notes or any of the other Documents;
(C) any misrepresentation, inaccuracy, or breach of any
representation, warranty, covenant, or agreement contained or referred to herein
or any other Document, the security interests and liens granted pursuant to this
Agreement or the other Documents;
(D) the performance of any obligation of Borrower or Guarantor
in connection herewith;
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(E) the attempted enforcement or enforcement of this Agreement
or the other Documents, or the collection or attempted collection of any of the
obligations owing under any thereof, including, without limitation, the Loans,
or the realization or attempted realization of any right or remedy;
(F) the prosecution or defense of any action or proceeding
concerning any matter growing out of or connected with this Agreement or the
other Documents;
(G) any Hazardous Substance at, on, in, under, or about all or
any portion of any property owned, occupied and/or operated by the Borrower or
any environmental condition within, on, from, related to, or attaching to any
such property;
(H) any Release or threatened Release of any Hazardous
Substance from any property owned, occupied or operated by the Borrower or from
the Borrower's operations or other activities, including without limitation any
Release by any prior owner, occupant or operator of any such property;
(I) any violation or claim of violation of any Environmental
Law by the Borrower or their operations or other activities;
(J) any other environmental condition or matter within, on,
from or related to or affecting any property owned, leased or operated by the
Borrowers or Borrowers' operations or other activities;
(K) any other operations or activities of the Borrowers or
conditions or occurrences on the Borrowers' properties (all the foregoing under
this paragraph collectively, the "Indemnified Liabilities")
In addition, at Lender's discretion, Borrower shall defend (with
counsel satisfactory to the Lender) Lender against those Indemnified Liabilities
which the Lender shall choose Borrower to defend Lender against (provided, that,
it is understood and agreed that all reasonable costs and expenses of counsel
incurred by Lender in defending itself against any Indemnified Liability shall
be Indemnified Liabilities for which Borrower is responsible for payment under
this subparagraph). The agreements in this section shall survive any payment of
the Loans or any other amounts payable hereunder or under any other Document
and/or any termination of this Agreement or any Document. All amounts payable
under this Section shall be payable by the Borrower on demand by the Lender.
10.3 allow Lender, in Lender's discretion, after ten (10) days prior
written notice and Borrowers failure to pay the same, to receive payment of any
of the foregoing by a charge to the Revolving Credit (which charge shall
thereupon become a Loan) or by deduction from any account maintained by Borrower
or Guarantor with Lender.
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SECTION 11. SURVIVAL OF AGREEMENTS, REPRESENTATIONS AND WARRANTIES, ETC.
All agreements, covenants, representations and warranties contained herein
or made in writing by or on behalf of Borrower, in connection with the
transactions contemplated hereby, shall survive the execution and delivery of
this Agreement and the related documents and, to the extent applicable, shall be
deemed to be made anew by each of them each time an Advance is made, pursuant
hereto or pursuant to the other Documents and shall continue until all Loans
have been paid in full and this Agreement has been terminated. All statements
contained in any certificate or other instrument delivered by or on behalf of
Borrower, pursuant hereto or in connection with the transactions contemplated
hereby, shall be deemed representations and warranties made hereunder.
SECTION 12. FAILURE TO PERFORM.
If Borrower fails to observe or perform any of the covenants hereof,
Lender may pay amounts or incur liabilities to remedy or attempt to remedy any
such failure (including, without limitation, any sums payable under any statute
relating to the environment) and all such payments made and liabilities incurred
shall be for the account of Borrower, may be paid, at Lender's option, by the
making of additional advances, including without limitation, Revolving Credit
Advances, and, consequently, shall be included in the Loans and all such amounts
shall be repaid by Borrower on demand, together with interest thereon at the
rate of 18% per annum, or may be repaid by a withdrawal from any of Borrower's
accounts maintained with Lender. The provisions of this Section and any such
action by Lender shall not prevent any default in the observance or performance
of any covenant hereof from constituting an Event of Default hereunder.
SECTION 13. NOTICES, ETC.
All notices, requests, consents and other communications hereunder shall
be in writing and shall be deemed to be duly delivered if mailed, postage
prepaid, by first class registered mail, return receipt requested, or by any
nationally recognized receipted delivery or courier service:
(A) if to Lender:
Webster Bank
150 Main Street
Bristol, Connecticut 06010
Attention: Business Banking Group
Peter F. Samson, Vice President
with a copy to:
Berman & Sable
195 Church Street
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New Haven, Connecticut 06510
Attention: Steven A. Berman, Esq.
or at such other address as may have been furnished in writing by Lender to
Borrowers; or
(B) if to Borrower or Guarantor:
ACMAT Corporation
233 Main Street
New Britain, CT 06050
Attention: Henry Nozko, Jr.
or at such other address as may have been furnished in writing by Borrower to
Lender.
SECTION 14. AMENDMENTS AND WAIVERS. Neither this Agreement nor any other
Document nor any term hereof or thereof may be changed, waived, discharged or
terminated, except by a writing signed by all of the parties hereto.
SECTION 15. GOVERNING LAW. This Agreement and the documents contemplated
hereby shall be construed and enforced in accordance with and governed by the
laws of the State of Connecticut. Borrower and Guarantor hereby specifically
consent(s) to the jurisdiction of the Courts of the State of Connecticut and
agree(s) to be personally bound by the decisions of the Court of the State of
Connecticut.
SECTION 16. SUPERCEDURE. To the extent there is any inconsistency
between the terms of this Agreement and any other Document, this Agreement
shall control.
SECTION 17. SUCCESSORS AND ASSIGNS. All of the terms of this Agreement and
such other documents shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
whether so expressed or not, and by any other holder or holders at the time of
any of the Loans or any part thereof.
SECTION 18. HEADINGS. The headings in this Agreement are for the
purposes of reference only and shall not limit or otherwise affect any of the
terms hereof.
SECTION 19. GENDER AND NUMBER; NO RULE OF STRICT CONSTRUCTION. Whenever
the context herein so requires, the neuter gender includes the masculine and
feminine, and the singular number includes the plural and vice-versa. Borrower
acknowledges that Borrower and Borrower's counsel have had an opportunity to
review and negotiate the terms of this agreement and the other Loan Documents
and that no rule of strict construction shall be used against the Lender with
respect to any of the Loan Documents.
SECTION 20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and by the several
parties hereto in separate counterparts, but all of
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which together shall constitute one and the same instrument.
SECTION 21. THIRD PARTIES. This Agreement is between each Lender and
Borrower and Guarantor only and shall not be relied upon by any third party.
Without limiting the foregoing, Lender shall have no liability to any party
whatever (including, without limitation, Borrower or Guarantor, or anyone
conducting business with any of the foregoing) in the event Lender, for any
reason and at any time, determines not to make Advances for any reason or
otherwise exercises its rights under this Agreement and/or the other documents
contemplated hereby.
SECTION 22. TIME OF THE ESSENCE. Time is of the essence for the
performance by the Borrower of any of Borrower's obligations set forth in this
Agreement.
SECTION 23. NO FIDUCIARY RELATIONSHIP. Borrower acknowledges that Lender
does not have a fiduciary relationship to the Borrower and the relationship
between Lender and Borrower is solely that of creditor and debtor.
IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement
on the day first above mentioned.
WEBSTER BANK
By_________________________________
Peter F. Samson
Its Vice President
ACMAT CORPORATION
By__________________________________
Its
ACSTAR HOLDINGS, INC.
By___________________________________
Its
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SCHEDULE OF EXHIBITS
<TABLE>
<CAPTION>
Section
Reference Exhibit Subject
- --------- ------- -------
<S> <C> <C>
1.1(A) A Revolving Note
1.1(B) B Term Note
1.3 C Request for Advance
1.5(A) D Notice of Interest Rate Election
3.5 E Covenant Compliance Certificate
</TABLE>
SCHEDULE OF SCHEDULES
<TABLE>
<S> <C>
2.3 Borrower Capitalization, Business and Subsidiaries
2.4 Guarantor Capitalization, Business and Subsidiaries
2.9 Title to Properties and Assets, Liens, etc.
2.10 Patents, Trademarks
2.11 Litigation
2.13 Tax Returns and Payments
2.18 Shareholder Agreements
2.25 Environmental
2.26 Subsidiaries
2.28 Special Representations and Warranties re insurance subsidiaries
2.30 Environmental
4.1 Restrictions on Liens
4.3 Restrictions on Investments, Loans, etc.
</TABLE>
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APPENDIX I
As used herein, the following terms have the following meanings:
ADVANCE: an advance under the Revolving Credit.
ADJUSTED CASH FLOW: Cash Flow plus allowable dividends permitted to be paid
to Borrower by its Subsidiaries plus management and underwriting fees paid to
Borrower by its Subsidiaries plus rent paid to Borrower by its Subsidiaries plus
tax sharing payments paid to Borrower by its Subsidiaries (in all cases, not
requiring regulatory approval).
ADJUSTED DEBT SERVICE COVERAGE RATIO: the meaning specified in Section
3.6(C).
ADJUSTED INTEREST COVERAGE RATIO: the meaning specified in Section 3.6(B).
AFFILIATE: with reference to any Person, any director, officer or employee of
such Person, any corporation, association, firm or other entity in which such
Person has a direct or indirect controlling interest or by which such Person is
directly or indirectly controlled or is under direct or indirect common control
with such Person.
AGREEMENT: this Commercial Credit Agreement, as it may be amended from
time to time.
BANKBOSTON AGREEMENTS: various documents evidencing present indebtedness of
Borrower to BankBoston, N.A., all of which shall be fully discharged with the
proceeds of the Loans.
PRIME RATE ADVANCE: any Loan or portion thereof bearing interest at the
Prime Rate.
BORROWER(S): the meaning specified on page one of this Agreement.
BUSINESS DAY: any day other than a Saturday, Sunday or legal holiday on
which commercial banks are open for the normal transaction of business in the
State of Connecticut and in the State of Massachusetts.
CASH FLOW: Borrower's unconsolidated net income for an accounting period
before provision for payment of Interest Expense and all income taxes plus
depreciation and amortization to the extent deducted from such net income during
such accounting period, all as determined by GAAP less capital expenditures less
income taxes paid in cash less dividends paid.
CONDITIONS PRECEDENT: the meaning specified in Section 1.2.
DEBT SERVICE: for any period, the sum of (i) Interest Expense, (ii) Principal
Amortization and (iii) scheduled payments by Borrower on its capitalized leases.
DEFAULT: the occurrence of any event which with the giving of notice or
passage of time (other than stated grace periods), or both, might become an
Event of Default.
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DOCUMENTS: this Agreement, the Revolving Note, Term Note, the Guaranty,
and all other instruments heretofore, now or hereafter executed and delivered
pursuant to this Agreement or any of the aforesaid documents.
ENVIRONMENTAL LAWS: any and all applicable foreign, Federal, state and local
statutes, laws, regulations, rules, ordinances, orders, guidances, policies or
common law (whether now existing or hereafter enacted or promulgated) pertaining
to the environment, of any and all Federal, state or local governments and
governmental and quasi-governmental agencies, bureaus, subdivisions, commissions
or departments which may now or hereafter have jurisdiction over Debtor and all
applicable judicial and administrative and regulatory decrees, judgments and
orders, including common law rulings and determinations, relating to injury to,
or the protection of, real or personal property or human health or the
environment, including, without limitation, all requirements pertaining to
reporting, licensing, permitting, investigation, remediation and removal of
emissions, discharges, releases or threatened releases of Hazardous Substances,
chemicals substances, pollutants or contaminants whether solid liquid or gaseous
in nature, into the environmental or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of such
Hazardous Substances, chemical substances, pollutants or contaminants.
Without limiting the generality of the foregoing, the term "Environmental
Laws" shall encompass each of the following statutes, and regulations
promulgated thereunder, and amendments and successors to such statutes and
regulations, as may be enacted and promulgated from time to time: Federal
Occupational Safety and Health Act ("OSHA"); the Clean Air Act ("CAA"); the
Toxic Substances Control Act ("TSCA"); the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"), as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"); the Clean Water Act
("CWA"); the Resource Conservation and Recovery Act, as amended by the Hazardous
and Solid Waste Amendments of 1984 ("RCRA"); the Hazardous Materials
Transportation Act; and all applicable Environmental Laws of each state and
municipality in which Debtor conducts business or locates assets and all rules
and regulations thereunder and amendments thereto and all similar state and
local laws, rules and regulations.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
ERISA GROUP: the Borrower, any Subsidiary and all members of a controlled
group of corporations and all trades or businesses (whether or not incorporated)
under common control which, together with the Borrower or any Subsidiary, are
treated as a single employer under Section 414 of the Internal Revenue Code.
EUROCURRENCY RESERVE REQUIREMENT: for any day, as applied to any Loan bearing
interest in relation to the LIBOR Rate, the aggregate (without duplication) of
the rates (expressed as a decimal fraction) of the maximum reserve percentages
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 proscribed
for eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of such Board) and required to be maintained by a member bank of
such system.
EVENT OF DEFAULT: the meaning specified in Section 5.
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FISCAL QUARTER: the three (3) month periods ending each March, June,
September and December.
FISCAL YEAR: a twelve (12) month year ending on December 31.
FUNDED DEBT: aggregate consolidated Indebtedness of Borrower for
borrowed money but excluding Indebtedness owing to the Sheetmetal Workers
National Pension Fund or any refinance of the same.
GAAP: generally accepted accounting principals and practices consistently
applied from accounting period to accounting period.
GOVERNMENTAL AUTHORITIES: any federal, state or local governmental authority
or any political subdivision of any of them and any court, agency, department,
commission, board, bureau or instrumentality of any of them which now or
hereafter has jurisdiction over the Borrower's business premises.
GUARANTOR: the meaning specified on Page 1.
GUARANTY: the meaning specified in Section 1.8.
HAZARDOUS SUBSTANCE: any chemical, compound, material, mixture or substance:
(i) the presence of which requires or may hereafter require notification,
investigation, monitoring or remediation under any Environmental Law; (ii) which
is or becomes defined as a "Hazardous Waste", "Hazardous Material" or "Hazardous
Substance" or "Toxic Substance" or "Pollutant" or "Contaminant" under any
present or future applicable Federal, state or local law or under the rules and
regulations adopted or promulgated pursuant thereto, including, without
limitation, the Environmental Laws; (iii) which is toxic, explosive, corrosive,
reactive, ignitable, infectious, radioactive, carcinogenic, mutagenic or
otherwise hazardous and is or becomes regulated by any governmental authority,
agency, department, commission, board, agency or instrumentality of any foreign
country, the United States, any state of the United States, or any political
division thereof to the extent any of the foregoing has or had jurisdiction over
Debtor; (iv) without limitation, which contains gasoline, diesel fuel or other
petroleum products, asbestos or polychlorinated biphenyls ("PBCs"); or (v) any
other chemical, material or substance, exposure to, or disposal of, which is now
or hereafter prohibited, limited or regulated by any federal, state or local
governmental body, instrumentality or agency.
INDEBTEDNESS: as applied to a Person, (a) all items, except items of capital
stock or of surplus or of general contingency reserves or of reserves for
deferred income taxes if in compliance with Section 3.2, which in accordance
with generally accepted accounting principles and practices would be included in
determining total liabilities as shown on the liability side of a balance sheet
of such person as at the date of which indebtedness is to be determined, (b) all
indebtedness secured by any mortgage, pledge, lease, lien or conditional sale or
other title retention agreement existing on any property or asset owned or held
by such person subject thereto, whether or not such indebtedness shall have been
assumed, and (c) all indebtedness of others which such Person has directly or
indirectly guaranteed, endorsed, discounted or agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire, or in respect of
which such Person has agreed to supply or advance funds (whether by way of loan,
stock purchase, capital contribution or otherwise) or otherwise to become liable
directly or indirectly with respect thereto.
INTEREST COVERAGE RATIO: the meaning specified in Section 3.6(B).
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<PAGE> 33
INTEREST EXPENSE: for any period, all amounts accrued by Borrower, whether as
interest, late charges, service fees or other charge for money borrowed on
account of or in connection with Borrower's indebtedness for money borrowed or
with respect to which Borrower or any of their respective properties are liable
by assumption, operation of law or otherwise, including, without limitation, any
leases which are required, in accordance with generally accepted accounting
principles, to be carried as a liability on Borrower's balance sheet.
INTEREST PERIOD: with respect to each LIBOR Advance, the period commencing on
the date of the making or continuation of, or conversion to, such LIBOR Advance
and ending one (1), two (2) or three (3) months thereafter, as Borrower may
elect in the applicable Notice of Interest Rate Election.
provided, however, that:
(i) any Interest Period (other than an Interest Period determined
pursuant to clause (iii) below) that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in the next calendar month, in which case such Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall, subject to
clause (iii) below, end on the last Business Day of a calendar month;
(iii) any Interest Period that would otherwise end after the
Termination Date or the Maturity Date shall end on the Termination Date or the
Maturity Date as the case may be; and
(iv) notwithstanding clause (iii) above, no Interest Period shall have
a duration of less than one (1) month and if any Interest Period applicable to
such Loan would be for a shorter Interest Period, such Interest Period shall not
be available hereunder.
INSURANCE SUBSIDIARY: ACSTAR INSURANCE COMPANY and/or United Coastal
Insurance Company.
LENDER: the meaning specified on page one of this Agreement.
LIBOR ADVANCES: Any Loan or part thereof bearing interest at a rate in
relation to the LIBOR.
LIBOR RATE: the rate per annum (rounded upward, if necessary, to the nearest
1/16 of 1%), determined by Lender to be equal to the quotient of (x) the London
Interbank Offered Rate (hereinafter defined) for such LIBOR Advance for such
Interest Period, divided by (y) 1 - Eurocurrency Reserve Requirements for such
Interest Period.
Provided, however:
(i) If Borrower requests that all or any portion of the Loans with
respect to which a LIBOR option applies shall bear interest at the LIBOR Rate
and (a) Lender determines that, by reason of
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circumstances affecting the interbank Eurodollar market generally, deposits in
U.S. Dollars (in the applicable amounts) are not being offered to banks in the
interbank Eurodollar market for the selected Interest Period, or (b) that the
LIBOR Rate does not accurately reflect the cost to Lender of making or
maintaining LIBOR Advances for the Interest Period or therefor, then Lender
shall forthwith give notice thereof to Borrower, whereupon, (1) the obligation
of Lender to permit the LIBOR Advances to bear interest at the LIBOR Rate shall
be suspended so long as such circumstances exist, and (2) Borrower shall convert
the interest rates on the applicable portions of the outstanding Advances to the
rate in relation to the Prime Rate set forth above for the current Interest
Period. Such suspension shall continue until Lender notifies Borrower that the
circumstances giving rise to such suspension no longer exist.
(ii) If, after the date of this Agreement, the adoption of or any
change in rules, or change in the interpretation or administration thereof, by a
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Lender with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for Lender to make or maintain or fund LIBOR Advances, the interest
rates on the applicable portions of the outstanding LIBOR Advances shall be
deemed to have been converted to the rate relating to the Prime Rate set forth
above, on either (a) the last day of the then current Interest Period if Lender
may lawfully continue to maintain loans at the LIBOR Interest Rate to such day,
or (b) immediately if Lender may not lawfully continue to maintain Advances at
the LIBOR Interest Rate.
(iii) Upon notice to Borrower, the Borrower shall pay to the Lender for
the account of Lender, such amount or amounts as shall be sufficient (in the
reasonable opinion of Lender) to compensate it for any loss, cost, liability or
expense incurred as a result of (x) any repayment of a LIBOR Advance on a date
other than the last day of the Interest Period for such LIBOR Advance,
including, but not limited to that resulting from acceleration of all amounts
outstanding under any Loan following the occurrence of any Default or Event of
Default and/or (y) any failure by Borrower to borrow or convert or prepay, as
the case may be, a LIBOR Advance on the date for borrowing or conversion or
prepayment, as the case may be, which is specified in the Notice of Interest
Rate Election.
LOANS: the meaning specified in Section 1.4.
LONDON BUSINESS DAY: any day other than a Saturday or Sunday on which dealing
in dollar deposits are carried on in the London interbank market and on which
banks are open for business in London and which must be a Business Day.
LONDON INTERBANK OFFERED RATE: the arithmetic average of the rates per annum
quoted at approximately 11:00 A.M. London time by the principal branch of each
of the Reference Banks (hereinafter defined) two (2) London Business Days
(hereinafter defined) prior to the first day of such Interest Period for the
offering to leading banks in the London interbank market of dollar deposits for
a period and in an amount comparable to the Interest Period and principal amount
of the particular LIBOR Advance to which the LIBOR Rate is to apply. "Reference
Banks" means banks appearing in the display designated as page "LIBOR" on the
Reuters' Monitor Money Rates Service (or such other page as may replace the
LIBOR page on that service for the purpose of displaying London Interbank
Offered Rates of major banks); provided that if no such offered rate shall
appear on such display, "Reference Banks" shall mean one or more major banks in
the London interbank market as selected by the Lender in its sole discretion.
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MATURITY DATE: March 31, 2004.
NAIC: National Association of Insurance Commissioners.
NOTE(S): the Revolving Note and/or the Term Note.
NOTICE OF INTEREST RATE ELECTION: Whenever Borrower desires to elect, change
or continue the LIBOR Interest Rate on all or a portion of any Advance(s),
Borrower shall deliver to Lender a written Notice of Interest Rate Election in
form provided by Lender and substance as that attached hereto as Exhibit D (the
"Notice of Interest Rate Election") with respect to a Loan or Advance received
no later than 11:00 A.M. at least three (3) Business Days in advance of the
proposed date of election, change or continuation, which election, change or
continuation must be confirmed by telephone. The Notice of Interest Rate
Election shall be irrevocable and shall specify: (i) the proposed date of change
or continuation (which shall be a Business Day); (ii) the amount with respect to
which such election is being made; and (iii) the Interest Periods.
If an Advance shall be outstanding for which Borrower has not elected a LIBOR
Rate or if at the termination of any Interest Period, Borrower fails to submit a
Notice of Interest Rate Election to convert or to continue any outstanding
Advance, then such Advance, regardless of the dollar amount, shall automatically
accrue interest in relation to the Prime Rate as of the applicable date.
LIBOR Advances may be converted into advances bearing interest relating to
the Prime Rate only on the expiration date of an Interest Period applicable
thereto. In addition, no outstanding Advances may be continued as, or converted
into LIBOR Advances and no change in Interest Rate may be exercised when any
Default or Event of Default has occurred.
PBGC: The Pension Benefit Guaranty Corporation.
PERSON: a corporation, an association, a partnership, an organization, a
limited liability company, a business, an individual or a government or
political subdivision thereof or any governmental agency.
PREPAYMENT PREMIUM: (i) on the prepayment date, the remaining payments of
principal and interest that would otherwise have become payable at the
expiration of the Interest Period (for amounts outstanding bearing interest at
LIBOR-based interest rate(s)) or the period beginning on the prepayment date and
ending on the maturity date (for amounts outstanding bearing interest at a fixed
rate) pertaining to the principal being prepaid shall be discounted to a present
value at a rate per annum equal to the "Prepayment Yield to Maturity", as
hereinafter defined, plus any costs for reserves or assessments or for
reinvesting the amount being prepaid, and if such discounted value shall exceed
the unpaid principal amount being prepaid, then the Prepayment Premium shall be
an amount equal to such excess; otherwise no Prepayment Premium shall be
payable; (ii) the "Prepayment Yield to Maturity" shall mean the yield to
maturity of the debt obligation of the United States Treasury (excluding those
commonly known as "Flower Bonds") having a term substantially equal to the term
of the relevant Interest Period (for amounts outstanding bearing interest at a
LIBOR-based rate) or the period beginning on the prepayment date and ending on
the maturity date (for amounts outstanding bearing interest at a fixed rate),
nearest in expiration of the relevant period. The maturity date and yield to
maturity of such United States Treasury obligation shall be determined by Lender
on the basis of quotations appearing in the
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Reuter Monitor Money Rates Service or other repository service reasonably
satisfactory to Lender on the prepayment date. If there shall be more than one
such debt obligation of the United States Treasury maturing nearest in time to
the expiration of the relevant Interest Period (for amounts outstanding bearing
interest at a LIBOR-based rate) or the period beginning on the prepayment date
and ending on the maturity date (for amounts outstanding bearing interest at a
fixed rate), the Prepayment Yield to Maturity shall be the arithmetic average of
the yields to maturity of all such obligations. Said prepayment shall be
irrevocable once Borrower has notified Lender of such prepayment and Borrower
will reimburse Lender for any and all loss, cost, liability and expense incurred
by Lender in the event Borrower for any reason does not make such prepayment.
A determination by Lender as to the amounts payable pursuant to this
Subsection shall be conclusive absent arithmetical error.
PRIME RATE: an annual rate of interest designated from time to time by Lender
as an index for setting loan rates; it is not necessarily Lender's lowest or
most favorable rate. The Prime Rate will be based on the rate published in the
Wall Street Journal, Eastern Edition, under the heading "Money Rates" and shown
as Prime Rate. If there is more than one Prime Rate, the highest of such rates
shall be the rate applicable hereunder.
PRINCIPAL AMORTIZATION: for any period all amounts which Borrower is required
to pay whether regularly scheduled or as a result of a default excluding
payments of principal under the Revolving Credit and whether or not actually
paid by Borrower in reduction of Borrower's Indebtedness including without
limitation payments on capitalized leases.
RELEASE: any release, emission, disposal, leaching or migration into the
environment (including, without limitation, the abandonment or disposal of any
barrels, containers, or other closed receptacles containing any Hazardous
Substances) or into or out of any property owned, occupied or used by Debtor.
REVENUE CODE: the meaning specified in Section 3.13(B).
REVOLVING CREDIT: the credit facility described in Section 1.1(A).
REVOLVING NOTE: the meaning specified in Section 1.1(A)
SPILL: the meaning specified in Section 3.9(A).
STATUTORY CAPITAL: means Statutory Capital plus Statutory Surplus of the
Insurance Subsidiaries as shown on the statutory financial statements filed with
the states of Illinois and Arizona.
STATUTORY OPERATING EARNINGS: means the Statutory Operating Earnings of the
Insurance Subsidiaries as shown on the statutory financial statements filed with
the states of Illinois and Arizona.
SUBSIDIARY: with reference to any Person, a corporation, or similar
association or entity not less than a majority of the outstanding shares of the
class or classes of stock, having by the terms thereof ordinary voting power to
elect a majority of the directors, managers or trustees of such corporation,
association or entity, of which are at the time owned or controlled, directly or
indirectly, by such Person or by a Subsidiary of such Person.
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TERM LOAN: the meaning specified in Section 1.1(B)
TERM NOTE: the meaning specified in Section 1.1(B)
TERMINATION DATE: June 30, 2001.
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Exhibit 4e
(2)
REVOLVING CREDIT NOTE
$10,000,000.00 Hartford, Connecticut
September 1, 1999
FOR VALUE RECEIVED, ACMAT CORPORATION, a Connecticut corporation with a
place of business in New Britain, Connecticut ("Maker") promises to pay to the
order of WEBSTER BANK, a federally chartered savings bank having a place of
business in Waterbury, Connecticut ("Payee"), or other holder of this Note, the
principal sum of TEN MILLION ($10,000,000.00) DOLLARS, or so much thereof as
shall from time to time be advanced by the Payee to the Maker and remain
outstanding, as conclusively evidenced by the books and records of Payee,
together with interest on the outstanding balance hereof before and after
maturity, at the rate hereinafter set forth until this Note shall have been
fully paid, all as hereinafter provided. Advances hereunder may be repaid by
Maker and readvanced by Payee from time to time.
Interest Rate. The from time to time outstanding balance hereof shall bear
interest at a rate per annum (the "Rate") which is at all times equal to the
Prime Rate. The Prime Rate is an annual rate of interest designated from time to
time by Payee as an index for setting loan rates; it is not necessarily the
Payee's lowest or most favorable rate. The Prime Rate will be based on the rate
published in the Wall Street Journal, Eastern Edition, under the heading "Money
Rates" and shown as Prime Rate. If there is more than one Prime Rate, the
highest of such rates shall be the rate applicable hereunder. The interest rate
hereunder shall change simultaneously with each change in the Payee's Prime Rate
without notice or demand of any kind.
LIBOR Option. At any time after the date hereof, provided no default
hereunder shall have occurred, the Maker may elect, pursuant to a Notice of
Interest Rate Election (as defined in the Agreement hereinafter referenced) to
have amounts outstanding hereunder bear interest at a rate per annum equal to
one and six tenths (1.6%) percentage points per annum in excess of the LIBOR
Rate (as defined in the Agreement) for the Interest Period (as defined in the
Agreement) elected by Maker. No election may be made for a period that extends
beyond the maturity date of this Note.
Amounts outstanding hereunder shall bear interest at the Prime Rate unless
otherwise so elected by Maker.
Payments. Commencing on October 1, 1999, and on the same day of each and
every month thereafter, Maker shall make payments of interest only, in arrears,
on the unpaid balance hereof at the Rate(s) aforesaid applicable during such
prior month, calculated based on a year of three hundred sixty (360) days but
for the actual number of days elapsed.
1
<PAGE> 2
Maturity Date. The final maturity date of this Note shall be June 30,
2001, on which date the entire indebtedness evidenced by this Note, including
without limitation, the unpaid principal balance and unpaid interest accrued
thereon, shall be due and payable without notice or demand. The maturity of this
Note shall in no way be affected or altered as a result of any increase or
decrease in the Rate.
Prepayment. The Maker may prepay amounts outstanding under this Note
accruing interest at the Prime Rate in whole or in part without prepayment
penalty or premium. Amounts outstanding hereunder accruing interest in relation
to the LIBOR Rate may only be prepaid if such prepayment is accompanied by the
Prepayment Premium as more particularly set forth in the Agreement.
Late Payments. In the event that any payment of principal or interest due
hereunder is not received by Payee within five (5) days after the same is due,
then the Maker agrees to pay to the Payee the additional sum of five (5%)
percent of the amount of such late payment to cover the additional expense of
Payee's handling of such late payment (but not as consideration for making such
late payment). Maker and Payee hereby agree that an exact computation of Payee's
damages relating to such late payment is impossible to ascertain, and further
agree that the percentage stated above is a reasonable estimation of Payee's
damages. Such estimation is based upon, inter alia, Payee's additional expenses
relating to (i) sending late notices, (ii) referring the matter to Payee's
collection department and (iii) providing for any necessary regulatory
compliance and reserve requirements.
Application of Payments. All payments hereon shall be applied to expenses
as provided herein, interest and principal in such order as Payee shall, in its
discretion, determine. Said sums shall be payable together with all lawful taxes
and assessments levied thereon, or upon this Note, or upon the Payee with
respect to the same, and together with all costs and expenses related to
collecting this Note and together with all costs and expenses of foreclosing or
protecting or sustaining the lien of any security which may be given to secure
the payment of this Note, and/or in any litigation or controversy arising from
or connected with this Note and/or any collateral securing this Note and/or the
Agreement hereinafter referred to and/or incurred in any action brought by the
holder of a prior lien in which the Payee is a party defendant, including
without limitation reasonable attorneys' fees. Said obligation to pay the
reasonable attorneys' fees of the Payee in connection with protecting, enforcing
or realizing of the rights and remedies above described shall exist whether or
not proceedings are instituted or court appearance is made on behalf of the
Payee.
Set Off. Upon the occurrence of an Event of Default the Payee shall have
and may exercise a right of set-off for the payment of this Note and the
aforesaid costs and expenses against, and Maker hereby gives and grants to Payee
a security interest (perfected by Payee's possession thereof) in, all deposits,
monies, securities and property left with the Payee and/or any affiliate of the
Payee by the Maker or by any guarantor, endorser or otherwise to the credit of
or belonging to the Maker or any such party, and the Payee shall have full power
and authority at any time and without prior notice to sell, assign and deliver
any such property at public or private sale, and apply the proceeds in
satisfaction hereof.
2
<PAGE> 3
Commercial Credit Agreement. This Note is issued under and pursuant to the
terms of a Commercial Credit Agreement of even date (the "Agreement") by and
among the Maker, the Payee and ACSTAR Holdings, Inc., a Delaware corporation, as
Guarantor, which Agreement is in the possession of the Payee.
Guarantee. Additionally, payment of this Note is guaranteed pursuant to
Guaranty Agreement of even date executed and delivered by ACSTAR Holdings, Inc.
Default. Upon the occurrence of any Event of Default, as such term is
defined in the Agreement or if any payment specified herein shall remain in
arrears and unpaid for a period of ten (10) days after the same shall become
due, at the option of Payee, (i) the interest rate accruing hereunder shall,
from such default, be increased by three (3%) percentage points per annum above
the Prime Rate (the "Default Rate"), such Default Rate to change when and as
said Prime Rate changes, and (ii) this Note shall become forthwith due and
payable without presentment, demand, protest or notice of any kind, all of which
being hereby expressly waived by the undersigned. Without in any way limiting
the generality of the foregoing the interest rate accruing hereunder shall be
the Default Rate (i) upon the option of Payee and (ii) only during the period
when Payee is not also collecting a late payment charge hereunder. Maker and
Payee hereby agree that any Event of Default or default in any payments of
principal or interest hereunder results in, inter alia, additional
administrative costs, regulatory costs, reserve requirements, and credit costs
to Payee. Maker and Payee further agree that such Default Rate approximates the
interest rate Payee might charge to borrowers with sub-standard credit. In the
event the Default Rate exceeds the maximum rate of interest allowed by law, the
Default Rate shall be reduced so as to equal the maximum rate of interest
allowed by law.
Reimbursement for Costs. If the Payee shall deem applicable to this Note
(including, in each case, the borrowed and the unused portion thereof, if any)
any requirement of any law of the United States of America, any regulation,
order, interpretation, ruling, official directive or guideline (whether or not
having the force of law) of the Board of Governors of the Federal Reserve
System, the Comptroller of the Currency, the Federal Deposit Insurance
Corporation or any other board or governmental or administrative agency of the
United States of America which shall impose, increase, modify or make applicable
to this Note or cause this Note to be included in, any reserve, special deposit,
calculation used in the computation of regulatory capital standards, assessment
or other requirement which imposes on the Payee any cost that is attributable to
the maintenance thereof, then, and in each such event, the Maker shall promptly
pay the Payee, upon its demand, such amount as will compensate the Payee for any
such cost. In the event any such cost is a continuing cost, a fee payable to the
Payee may be imposed upon the Maker periodically for so long as any such cost is
deemed applicable by the Payee, in an amount determined by the Payee to be
necessary to compensate the Payee for any such cost, which determination may be
based upon the Payee's reasonable allocation of the aggregate of such costs
resulting from such events. The determination by the Payee of the existence and
amount of any such costs shall, in the absence of manifest error, be conclusive.
3
<PAGE> 4
Successors and Assigns. This Note shall bind the Maker and the Maker's
successors and assigns and all endorsers hereto and shall inure to the benefit
of Payee and/or any subsequent holder of this Note and/or their respective
successors and assigns.
Partial Invalidity. In the event that any one or more of the provisions of
this Note shall for any reason be held to be invalid, illegal or unenforceable,
in whole or in part, or in any respect, or in the event that any one or more of
the provisions of this Note shall operate, or would prospectively operate, to
invalidate this Note, then, and in such event, such provision or provisions only
shall be deemed to be null and void and of no force nor effect and shall not
affect any other provision of this Note, and the remaining provisions of this
Note shall remain in full force and effect, shall be valid, legal and
enforceable, and shall in no way be affected, prejudiced or disturbed thereby.
Joint and Several. The obligations of the Maker and of each and every
endorser, guarantor, and surety shall be joint and several.
MAKER ACKNOWLEDGES THAT THIS NOTE EVIDENCES A COMMERCIAL TRANSACTION AS
THAT TERM IS DEFINED IN CONNECTICUT GENERAL STATUTES SECTION 52-278a(a) AND
PURSUANT TO CONNECTICUT GENERAL STATUTES SECTIONS 52-278b AND 52-278f, MAKER
DOES HEREBY WAIVE ITS RIGHTS TO NOTICE AND HEARING PRIOR TO THE ISSUANCE BY THE
PAYEE OF ANY PREJUDGMENT REMEDY, AND MAKER FURTHER WAIVES ANY RIGHTS AS MAY
EXIST UNDER FEDERAL LAW TO ANY NOTICE AND/OR HEARING PRIOR TO THE PAYEE'S
OBTAINING AND EXERCISING ANY PREJUDGMENT REMEDY.
ADDITIONALLY, MAKER AND PAYEE HEREBY EACH WAIVES THE RIGHT TO TRIAL BY
JURY IN ANY ACTION, DEFENSE, COUNTERCLAIM, CROSSCLAIM AND/OR ANY FORM OF
PROCEEDING BROUGHT IN CONNECTION WITH THIS NOTE OR RELATING TO ANY INDEBTEDNESS
EVIDENCED HEREBY AND/OR ANY COLLATERAL NOW OR HEREAFTER SECURING THIS NOTE.
THIS NOTE HAS BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF
CONNECTICUT AND SHALL BE CONSTRUED AND ENFORCED UNDER AND IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CONNECTICUT.
The Maker hereby expressly waives to the full extent and for the maximum period
permitted by applicable law, the right to plead any statute of limitations or
any similar bar as a defense to any demand, claim or cause of action based upon
or arising from such failure to pay any part of the principal of this Note or
any interest thereon, which waiver as to each such failure shall be separate and
distinct from any such waivers or to each other such failure. The waivers of
notice and hearing for prejudgment remedies made herein are made by the Maker on
behalf of the Maker and the Maker's successors and assigns and shall apply to
any and all actions against such successors and assigns.
4
<PAGE> 5
The Maker hereby waives presentment, demand, protest, notice of protest or
other notice or notice of dishonor of any kind in any action to collect this
Note or relating to any collateral securing this Note.
ACMAT CORPORATION
By_________________________________
Its
5
<PAGE> 1
Exhibit 4f
(3)
TERM NOTE
$4,500,000.00 Hartford, Connecticut
September 1, 1999
FOR VALUE RECEIVED, ACMAT CORPORATION, a Connecticut corporation with a
place of business in New Britain, Connecticut ("Maker"), promises to pay to the
order of WEBSTER BANK, a federally chartered savings bank having a place of
business in Waterbury, Connecticut ("Payee") or other holder of this Note the
principal sum of FOUR MILLION FIVE HUNDRED THOUSAND ($4,500,000.00) DOLLARS,
together with interest on the outstanding balance hereof before and after
maturity, at the rate hereinafter set forth until this Note shall have been
fully paid, all as hereinafter provided.
Interest Rate. The from time to time outstanding balance hereof shall
bear interest at the rate of seven and one quarter (7 1/4%) percent per
annum (the "Rate").
Payments. Commencing on December 1, 1999, and on the first day of each
March, June, September and December thereafter, Maker shall make payments of
principal, each in the amount of $250,000.00, each to be accompanied by a
payment of interest in arrears on the unpaid balance at the Rate(s) aforesaid
applicable during the prior three month period, calculated on the basis of a
year of three hundred and sixty (360) days but for the actual number of days
elapsed.
Maturity Date. The final maturity date of this Note shall be March 31,
2004, on which date the entire indebtedness evidenced by this Note, including
without limitation, the unpaid principal balance and unpaid interest accrued
thereon, shall be due and payable without notice or demand.
Prepayment. Amounts outstanding hereunder may only be prepaid if such
prepayment is accompanied by the Prepayment Premium as more particularly set
forth in the Agreement.
Late Payments. In the event that any payment of principal or interest due
hereunder is not received by Payee within five (5) days after the same is due,
then the Maker agrees to pay to the Payee the additional sum of five (5%)
percent of the amount of such late payment to cover the additional expense of
Payee's handling of such late payment (but not as consideration for making such
late payment). Maker and Payee hereby agree that an exact computation of Payee's
damages relating to such late payment is impossible to ascertain, and further
agree that the percentage stated above is a reasonable estimation of Payee's
damages. Such estimation is based upon, inter alia, Payee's additional expenses
relating to (i) sending late notices, (ii) referring the matter to Payee's
1
<PAGE> 2
collection department and (iii) providing for any necessary regulatory
compliance and reserve requirements.
Application of Payments. All payments hereon shall be applied to expenses
as provided herein, interest and principal in such order as Payee shall, in its
discretion, determine. Said sums shall be payable together with all lawful taxes
and assessments levied thereon, or upon this Note, or upon the Payee with
respect to the same, and together with all costs and expenses related to
collecting this Note and together with all costs and expenses of foreclosing or
protecting or sustaining the lien of any security which may be given to secure
the payment of this Note, and/or in any litigation or controversy arising from
or connected with this Note and/or any collateral securing this Note and/or the
Agreement hereinafter referred to and/or incurred in any action brought by the
holder of a prior lien in which the Payee is a party defendant, including
without limitation reasonable attorneys' fees. Said obligation to pay the
reasonable attorneys' fees of the Payee in connection with protecting, enforcing
or realizing of the rights and remedies above described shall exist whether or
not proceedings are instituted or court appearance is made on behalf of the
Payee.
Set Off. Upon the occurrence of an Event of Default the Payee shall have
and may exercise a right of set-off for the payment of this Note and the
aforesaid costs and expenses against, and Maker hereby gives and grants to Payee
a security interest (perfected by Payee's possession thereof) in, all deposits,
monies, securities and property left with the Payee and/or any affiliate of the
Payee by the Maker or by any guarantor, endorser or otherwise to the credit of
or belonging to the Maker or any such party, and the Payee shall have full power
and authority at any time and without prior notice to sell, assign and deliver
any such property at public or private sale, and apply the proceeds in
satisfaction hereof.
Commercial Credit Agreement. This Note is issued under and pursuant to the
terms of a Commercial Credit Agreement of even date (the "Agreement") by and
among the Maker, the Payee and ACSTAR Holdings, Inc., a Delaware corporation, as
Guarantor, which Agreement is in the possession of the Payee.
Guarantee. Additionally, payment of this Note is guaranteed pursuant to a
Guaranty Agreement of even date executed and delivered by ACSTAR Holdings, Inc.
Default. Upon the occurrence of any Event of Default, as such term is
defined in the Agreement or if any payment specified herein shall remain in
arrears and unpaid for a period of ten (10) days after the same shall become
due, at the option of Payee, (i) the interest rate accruing hereunder shall,
from such default, be increased by three (3) percentage points per annum above
the Rate (the "Default Rate") and (ii) this Note shall become forthwith due and
payable without presentment, demand, protest or notice of any kind, all of which
being hereby expressly waived by the undersigned. Without in any way limiting
the generality of the foregoing the interest rate accruing hereunder shall be
the Default Rate (i) upon the option of Payee and (ii) only during the period
when Payee is not also collecting a late payment charge hereunder. Maker and
Payee hereby agree that any Event of Default or default in any payments of
principal or interest hereunder results in, inter alia, additional
administrative costs, regulatory costs, reserve requirements, and credit costs
2
<PAGE> 3
to Payee. Maker and Payee further agree that such Default Rate approximates the
interest rate Payee might charge to borrowers with sub-standard credit. In the
event the Default Rate exceeds the maximum rate of interest allowed by law, the
Default Rate shall be reduced so as to equal the maximum rate of interest
allowed by law.
Reimbursement for Costs. If the Payee shall deem applicable to this Note
(including, in each case, the borrowed and the unused portion thereof, if any)
any requirement of any law of the United States of America, any regulation,
order, interpretation, ruling, official directive or guideline (whether or not
having the force of law) of the Board of Governors of the Federal Reserve
System, the Comptroller of the Currency, the Federal Deposit Insurance
Corporation or any other board or governmental or administrative agency of the
United States of America which shall impose, increase, modify or make applicable
to this Note or cause this Note to be included in, any reserve, special deposit,
calculation used in the computation of regulatory capital standards, assessment
or other requirement which imposes on the Payee any cost that is attributable to
the maintenance thereof, then, and in each such event, the Maker shall promptly
pay the Payee, upon its demand, such amount as will compensate the Payee for any
such cost. In the event any such cost is a continuing cost, a fee payable to the
Payee may be imposed upon the Maker periodically for so long as any such cost is
deemed applicable by the Payee, in an amount determined by the Payee to be
necessary to compensate the Payee for any such cost, which determination may be
based upon the Payee's reasonable allocation of the aggregate of such costs
resulting from such events. The determination by the Payee of the existence and
amount of any such costs shall, in the absence of manifest error, be conclusive.
Successors and Assigns. This Note shall bind the Maker's and the Maker's
successors and assigns and all endorsers hereto and shall inure to the benefit
of Payee and/or any subsequent holder of this Note and/or their respective
successors and assigns.
Partial Invalidity. In the event that any one or more of the provisions of
this Note shall for any reason be held to be invalid, illegal or unenforceable,
in whole or in part, or in any respect, or in the event that any one or more of
the provisions of this Note shall operate, or would prospectively operate, to
invalidate this Note, then, and in such event, such provision or provisions only
shall be deemed to be null and void and of no force nor effect and shall not
affect any other provision of this Note, and the remaining provisions of this
Note shall remain in full force and effect, shall be valid, legal and
enforceable, and shall in no way be affected, prejudiced or disturbed thereby.
Joint and Several. The obligations of the Maker and of each and every
endorser, guarantor, and surety shall be joint and several.
Headings The headings used herein are for the purpose of reference only
and shall not affect any of the terms hereof.
MAKER ACKNOWLEDGES THAT THIS NOTE EVIDENCES A COMMERCIAL TRANSACTION AS
THAT TERM IS DEFINED IN CONNECTICUT GENERAL STATUTES SECTION 52-278a(a) AND
PURSUANT TO CONNECTICUT GENERAL STATUTES
3
<PAGE> 4
SECTIONS 52-278b AND 52-278f, MAKER DOES HEREBY WAIVE ITS RIGHTS TO NOTICE AND
HEARING PRIOR TO THE ISSUANCE BY THE PAYEE OF ANY PREJUDGMENT REMEDY, AND MAKER
FURTHER WAIVES ANY RIGHTS AS MAY EXIST UNDER FEDERAL LAW TO ANY NOTICE AND/OR
HEARING PRIOR TO THE PAYEE'S OBTAINING AND EXERCISING ANY PREJUDGMENT REMEDY.
ADDITIONALLY, MAKER AND PAYEE HEREBY EACH WAIVES THE RIGHT TO TRIAL BY
JURY IN ANY ACTION, DEFENSE, COUNTERCLAIM, CROSSCLAIM AND/OR ANY FORM OF
PROCEEDING BROUGHT IN CONNECTION WITH THIS NOTE OR RELATING TO ANY INDEBTEDNESS
EVIDENCED HEREBY AND/OR ANY COLLATERAL NOW OR HEREAFTER SECURING THIS NOTE.
THIS NOTE HAS BEEN MADE, EXECUTED AND DELIVERED IN THE STATE OF
CONNECTICUT AND SHALL BE CONSTRUED AND ENFORCED UNDER AND IN ACCORDANCE WITH THE
LAWS OF THE STATE OF CONNECTICUT.
The Maker hereby expressly waives to the full extent and for the maximum
period permitted by applicable law, the right to plead any statute of
limitations or any similar bar as a defense to any demand, claim or cause of
action based upon or arising from such failure to pay any part of the principal
of this Note or any interest thereon, which waiver as to each such failure shall
be separate and distinct from any such waivers or to each other such failure.
The waivers of notice and hearing for prejudgment remedies made herein are made
by the Maker on behalf of the Maker and the Maker's successors and assigns and
shall apply to any and all actions against such successors and assigns.
4
<PAGE> 5
The Maker hereby waives presentment, demand, protest, notice of protest or
other notice or notice of dishonor of any kind in any action to collect this
Note or relating to any collateral securing this Note.
ACMAT CORPORATION
By_________________________________
Its
5
<PAGE> 1
EXHIBIT 21
Subsidiaries of ACMAT Corporation
Listed are the subsidiaries of ACMAT Corporation:
<TABLE>
<CAPTION>
STATE OF
NAME OWNERSHIP INCORPORATION
---- --------- -------------
<S> <C> <C>
ACMAT Companies, Inc. 100% Delaware
AMINS, Inc. 100% Connecticut
Geremia Electric Co. 100% Connecticut
ACSTAR Holdings, Inc. 100% Delaware
ACSTAR Insurance Co. (1) 100% Illinois
ACMAT of Texas, Inc. 100% Delaware
United Coastal Insurance Company (2) 66% Arizona
</TABLE>
(1) Owned 100% by ACSTAR Holdings, Inc.
(2) Owned 66% by ACMAT Corporation and 34% by ACSTAR Insurance Company
58
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-END> DEC-31-1999
<CASH> 7,054,911
<SECURITIES> 89,960,240
<RECEIVABLES> 3,018,499
<ALLOWANCES> 195,118
<INVENTORY> 0
<CURRENT-ASSETS> 106,926,790
<PP&E> 17,855,994
<DEPRECIATION> 5,180,038
<TOTAL-ASSETS> 125,855,611
<CURRENT-LIABILITIES> 58,935,899
<BONDS> 30,792,720
0
0
<COMMON> 2,889,415
<OTHER-SE> 33,237,577
<TOTAL-LIABILITY-AND-EQUITY> 125,855,611
<SALES> 18,637,649
<TOTAL-REVENUES> 25,500,249
<CGS> 12,158,213
<TOTAL-COSTS> 12,158,213
<OTHER-EXPENSES> 5,385,409
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,738,740
<INCOME-PRETAX> 4,217,887
<INCOME-TAX> 1,204,164
<INCOME-CONTINUING> 3,013,723
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,013,723
<EPS-BASIC> 1.02
<EPS-DILUTED> .99
</TABLE>
