<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended September 30, 1998
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 0-21040
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
(Exact name of registrant as specified in its charter)
DELAWARE 06-1320610
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
304 VASSAR STREET,
Cambridge, Massachusetts 02139
(Address of principal executive offices) (Zip Code)
(617) 374-9800
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No ___
-----
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date:
As of September 30, 1998, there were 58,560,140 shares of common stock
outstanding.
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
TABLE OF CONTENTS
-----------------
PART I - FINANCIAL INFORMATION:
ITEM 1: FINANCIAL STATEMENTS
Consolidated Balance Sheets as of September 30, 1998 and
December 31, 1997 3
Consolidated Statements of Operations for the Three and
Nine Months Ended September 30, 1998 and 1997 4
Consolidated Statements of Cash Flows for the Nine
Months Ended September 30, 1998 and 1997 5
Notes to Consolidated Financial Statements 6
ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS 11
PART II - OTHER INFORMATION:
Item 2: CHANGES IN SECURITIES AND USE OF PROCEEDS 21
Item 6: EXHIBITS AND REPORTS ON FORM 8-K 21
SIGNATURES 22
EXHIBIT INDEX 23
2
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PART I - FINANCIAL INFORMATION
Item 1. Financial Statements
------- --------------------
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share data)
<TABLE>
<CAPTION>
September 30, December 31,
1998 1997
-------------- -------------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 64,339 $ 39,649
Investments held to maturity 24,112 15,824
Accounts receivable, less allowance of $4,312 and $2,757
at September 30, 1998 and December 31, 1997, respectively 138,469 105,206
Unbilled revenue on contracts 15,784 9,048
Deferred income taxes 950 950
Prepaid expenses and other current assets 30,477 27,878
-------- --------
Total current assets 274,131 198,555
Property and equipment, net 46,632 36,027
Other assets 8,719 5,745
Goodwill, net 1,480 2,094
-------- --------
Total assets $330,962 $242,421
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 20,180 $ 19,134
Accrued expenses 49,650 40,018
Deferred revenue 13,977 9,502
Income taxes payable 24,709 19,361
Obligations under capital leases, current 144 207
Other current liabilities - 2,032
-------- --------
Total current liabilities 108,660 90,254
Obligations under capital leases 235 377
Deferred income taxes 923 923
Commitments and contingencies
Stockholders' equity:
Common stock, $.01 par value, authorized 250,000,000
shares; issued and outstanding 58,560,140 and 56,649,420 shares
at September 30, 1998 and December 31, 1997, respectively 586 567
Additional paid-in capital 111,664 75,400
Retained earnings 111,300 77,361
Accumulated other comprehensive loss (2,406) (2,461)
-------- --------
Total stockholders' equity 221,144 150,867
-------- --------
Total liabilities and stockholders' equity $330,962 $242,421
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
3
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended September 30, Nine Months Ended September 30,
-------------------------------- -------------------------------
1998 1997 1998 1997
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Net revenues $ 153,074 $ 117,029 $ 451,875 $ 309,559
Costs and expenses:
Project personnel 68,272 54,127 205,659 143,117
General and administration 16,806 12,469 50,358 34,564
Sales and marketing 13,794 10,739 42,824 28,624
Other costs 31,971 23,124 88,608 58,573
Business combination costs 8,400 - 8,400 -
----------- ------------ ------------ ------------
Total operating expenses 139,243 100,459 395,849 264,878
----------- ------------ ------------ ------------
Income from operations 13,831 16,570 56,026 44,681
Other income, net 990 515 1,901 1,403
----------- ------------ ------------ ------------
Income before income taxes 14,821 17,085 57,927 46,084
Provision for income taxes 5,146 6,633 22,238 18,134
----------- ------------ ------------ ------------
Net income $ 9,675 $ 10,452 $ 35,689 $ 27,950
=========== ============ ============ ============
Basic net income per share $ .17 $ .19 $ .62 $ .52
=========== ============ ============ ============
Diluted net income per share $ .16 $ .17 $ .57 $ .46
=========== ============ ============ ============
Weighted average number of
common shares outstanding 58,410 54,894 57,846 54,270
=========== ============ ============ ============
Weighted average number of
common and common
equivalent shares outstanding 61,895 61,244 62,348 60,327
=========== ============ ============ ============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
4
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended September 30,
--------------------------------
1998 1997
------------ -------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 35,689 $ 27,950
Amounts that reconcile net income to net cash provided
by operating activities:
Depreciation and amortization 10,040 6,476
Tax benefit from exercise of stock options 11,265 8,900
Gain on equity investment (433) -
Changes in assets and liabilities:
Increase in accounts receivable (32,845) (33,254)
Increase in unbilled revenue on contracts (6,547) (2,284)
Increase in prepaid expenses and other current assets (3,862) (7,568)
Increase in accounts payable 936 7,874
Increase in accrued expenses 8,273 12,220
Increase in deferred revenue 4,488 4,099
Increase in income taxes payable 5,239 4,451
Other, net 200 (1,674)
------------ -------------
Net cash provided by operating activities 32,443 27,190
------------ -------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property and equipment (19,809) (17,174)
Investment in Cambridge Technology Capital Fund I (1,289) -
Purchase of investments held to maturity (23,733) (15,107)
Maturity of investments 15,445 12,583
------------ -------------
Net cash used for investing activities (29,386) (19,698)
------------ -------------
CASH FLOWS FROM FINANCING ACTIVITIES:
(Repayment) / proceeds of loan (823) 808
Obligations under capital leases (158) (61)
Dividend distribution (1,186) (2,323)
Proceeds from employee stock purchase plan 7,222 4,914
Proceeds from exercise of stock options 16,047 8,787
------------ -------------
Net cash provided by financing activities 21,102 12,125
------------ -------------
Effect of foreign exchange rate changes on cash 531 (389)
Net increase in cash and cash equivalents 24,690 19,228
Cash and cash equivalents at beginning of period 39,649 26,456
------------ -------------
Cash and cash equivalents at end of period $ 64,339 $ 45,684
============ =============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
5
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
A. BASIS OF REPORTING
------------------
The accompanying consolidated financial statements of Cambridge Technology
Partners (Massachusetts), Inc. (the "Company") include the accounts of the
Company and all of its wholly owned subsidiaries. All significant intercompany
transactions and balances have been eliminated in consolidation. In August
1998, the Company acquired all of the outstanding capital stock of Excell Data
Corporation ("Excell") (see Note B). The Excell acquisition was accounted for
using the pooling of interests method of accounting. In November 1997, the
Company acquired all of the outstanding capital stock of Peter Chadwick Holdings
Limited ("Peter Chadwick"). The acquisition of Peter Chadwick was accounted for
using the pooling of interests method of accounting. All prior period historical
consolidated financial statements presented herein have been restated to include
the financial position, results of operations, and cash flows of Excell and
Peter Chadwick. Certain prior period amounts have been reclassified to conform
to current period presentation. In the opinion of management, the consolidated
financial statements reflect all normal and recurring adjustments, which are
necessary for a fair presentation of the Company's financial position, results
of operations, and cash flows as of the dates and for the periods presented.
The consolidated financial statements have been prepared in accordance with
generally accepted accounting principles for interim financial information.
Consequently, these statements do not include all the disclosures normally
required by generally accepted accounting principles for annual financial
statements nor those normally made in the Company's Annual Report on Form 10-K.
Accordingly, reference should be made to the Company's Annual Report on Form
10-K and the Company's registration statement on Form S-3 filed on September 30,
1998 for additional disclosures, including a summary of the Company's accounting
policies. The consolidated results of operations for the three and nine months
ended September 30, 1998 are not necessarily indicative of results for the
full year.
B. ACQUISITION
- -- -----------
On August 31, 1998, the Company acquired all of the outstanding capital stock of
Excell. This acquisition was accomplished through a merger of the Company's
acquisition subsidiary and Excell in an exchange of 1,680,416 shares of the
Company's common stock for all outstanding shares of capital stock of Excell.
The acquisition has been accounted for using the pooling of interests method of
accounting. Founded in 1991, Excell had approximately 510 employees at the time
of the acquisition and had locations in Bellevue, Washington, Portland, Oregon,
and Denver, Colorado. Direct transaction costs, which consist primarily of
investment banking fees, accounting fees, legal fees, and business integration
costs, related to this acquisition approximated $1.7 million and are included in
business combination costs in the accompanying consolidated statements of
operations for the periods ended September 30, 1998 (also see Note H).
C. REVOLVING CREDIT FACILITY
- -- -------------------------
In September 1998, the Company obtained a $50.0 million unsecured senior
revolving credit facility (the "Facility") through a syndication arrangement
committed equally by The Chase Manhattan Bank ("Chase") and Fleet National Bank.
The Facility expires on September 10, 2001 and replaces the Company's previously
maintained $20.0 million revolving credit facility that
6
<PAGE>
expired on June 30, 1998. The Facility is administered by Chase and carries a
commitment fee, payable quarterly in arrears, calculated based on the unused
portion of the Facility and a price grid as set forth in the credit agreement.
The Facility permits the Company to elect any of three possible interest rate
formulas as defined in the credit agreement. Interest is payable in arrears
based on an interest period determined by the interest rate elected by the
Company. The Facility requires, among other things, the Company to maintain
certain financial ratios, including debt service coverage, debt to capital, and
net worth. At September 30, 1998, the Company was in compliance with these
financial ratio requirements. As of September 30, 1998 and December 31, 1997,
the Company had no balance outstanding under its revolving credit facilities.
D. OTHER CURRENT LIABILITIES
-------------------------
In April 1997, Peter Chadwick acquired the assets of a training facility located
in the United Kingdom. Peter Chadwick entered into a loan agreement with
National Westminister Bank (the "Loan Agreement") to finance this acquisition.
In March 1998, the Company terminated this Loan Agreement and repaid the
outstanding principal balance of approximately $823,000.
E. NET INCOME PER SHARE
--------------------
The Company adopted Statement of Financial Accounting Standard No. 128,
"Earnings per Share," ("SFAS 128") beginning with the year ended December 31,
1997, which includes retroactively restating earnings per share for all prior
periods for which earnings per share ("EPS") data is presented. SFAS 128
requires the presentation of basic and diluted EPS. Basic net income per share
is computed by dividing income available to common stockholders by the weighted
average number of common shares outstanding for the period. Diluted net income
per share is computed using the weighted average number of common shares
outstanding plus the dilutive effect of common stock equivalents (using the
treasury stock method). For the three and nine month periods ended September
30, 1998, outstanding options to purchase approximately 2.9 million and 2.8
million shares, respectively, were excluded from the computation of diluted EPS
because the effects of these option shares were anti-dilutive. The following
table presents the calculation of earnings per share for the three and nine
months ended September 30, 1998 and 1997 (in thousands except per share data):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
------------------ -----------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net income $ 9,675 $ 10,452 $ 35,689 $ 27,950
======== ======== ======== ========
Basic:
Weighted average common
shares outstanding 58,410 54,894 57,846 54,270
======== ======== ======== ========
Net income per share $ .17 $ .19 $ .62 $ .52
======== ======== ======== ========
Diluted:
Weighted average common
shares outstanding 58,410 54,894 57,846 54,270
Dilutive effects of stock options
and warrants 3,485 6,350 4,502 6,057
Weighted average common and
common equivalent shares
outstanding -------- -------- -------- --------
61,895 61,244 62,348 60,327
======== ======== ======== ========
Net income per share $ .16 $ .17 $ .57 $ .46
======== ======== ======== ========
</TABLE>
7
<PAGE>
During the period from April 1, 1996 through August 31, 1998 (the date of the
Company's acquisition of Excell), Excell elected to be treated as an S-
Corporation for income tax reporting purposes. Under this election, Excell's
individual stockholders are deemed to have received a pro rata distribution of
taxable income of Excell (whether or not an actual distribution was made), which
is included in each stockholder's taxable income. Accordingly, Excell did not
provide for income taxes during the period from April 1, 1996 through August 31,
1998. Excell's S-Corporation tax reporting status was terminated on the date of
acquisition and the undistributed earnings of Excell totaling $1.8 million, as
of August 31, 1998, were reclassifed to additional paid-in-capital. Pro forma
net income per share data is presented below to reflect the pro forma increase
to historical income taxes related to Excell, as if Excell was a C-Corporation
for tax reporting purposes for the periods presented (in thousands, except per
share data).
<TABLE>
<CAPTION>
Three Months Ended September 30, Nine Months Ended September 30,
-------------------------------- -------------------------------
1998 1997 1998 1997
------------ ------------- ------------ --------------
<S> <C> <C> <C> <C>
Pro forma data:
Historical income before income taxes $ 14,821 $ 17,085 $ 57,927 $ 46,084
Provision for income taxes:
Historical income taxes 5,146 6,633 22,238 18,134
Pro forma increase to
historical income taxes 37 224 195 399
------------ ------------- ------------ --------------
Pro forma net income $ 9,638 $ 10,228 $ 35,494 $ 27,551
============ ============= ============ ==============
Pro forma basic net income per share $ .17 $ .19 $ .62 $ .51
============ ============= ============ ==============
Pro forma diluted net income per share $ .16 $ .17 $ .57 $ .46
============ ============= ============ ==============
Weighted average number of
common shares outstanding 58,410 54,894 57,846 54,270
============ ============= ============ ==============
Weighted average number of
common and common equivalent
shares outstanding 61,895 61,244 62,348 60,327
============ ============= ============ ==============
</TABLE>
F. FOREIGN EXCHANGE CONTRACTS
--------------------------
The Company maintains foreign exchange contracts to mitigate the risk of changes
in foreign exchange rates associated with intercompany balances. The contracts
generally have maturities of one month. The impact of exchange rate movements
on contracts is recorded in other income in the period in which the exchange
rates change, generally consistent with the term of the contract. As of
September 30, 1998, the Company held foreign exchange forward contracts of
approximately $8.2 million and there were no related deferred gains and losses.
The Company does not hold foreign exchange contracts for trading purposes.
G. COMPREHENSIVE INCOME
--------------------
The Company has adopted Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income" ("SFAS 130"). SFAS 130 requires the
presentation of comprehensive income and its components. Comprehensive income
presents a measure of all changes in equity that result from recognized
transactions and other economic events during the period other than transactions
with stockholders. SFAS 130 requires restatement of all prior period financial
statements presented and is effective for periods beginning after December 15,
1997. The Company has elected to disclose this information in its annual
Statement of Stockholders' Equity.
8
<PAGE>
The following table presents the calculation of comprehensive income and its
components for the three and nine months ended September 30, 1998 and 1997 (in
thousands):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
------------------ -----------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Comprehensive income:
Net income $ 9,675 $ 10,452 $ 35,689 $ 27,950
Foreign currency translation
adjustments 1,491 (69) 55 (2,093)
-------- -------- -------- --------
Comprehensive income $11,166 $ 10,383 $ 35,744 $ 25,857
======== ======== ======== ========
</TABLE>
H. EXCELL PHANTOM STOCK PLAN
-------------------------
Excell maintained a 1996 Class I Phantom Stock Plan ("Phantom Plan") under which
Excell granted nonqualified phantom stock units to qualifying employees. The
Phantom Plan entitled a holder to surrender the units for cash equal to the
defined per-unit amount derived from net income of Excell over the holding
period of the units. The Phantom Plan also provided for a five-year vesting
period along with other restrictions regarding redemption. The Phantom Plan
also contained provisions related to payments to holders of units based on a
defined market value if Excell was sold or a major change in ownership
(collectively "change in control") occurred, as defined under the Phantom Plan
agreement. The acquisition of Excell by the Company qualified as a change in
control under the Phantom Plan. As a result, upon consummation of the
acquisition, the Company recorded a charge to operations of $6.7 million in the
quarter ended September 30, 1998, included in business combination costs,
representing amounts owed to Phantom Plan participants as of the closing. In
accordance with the Phantom Plan, as a result of the acquisition, the Phantom
Plan was terminated.
I. NEW ACCOUNTING PRONOUNCEMENTS
-----------------------------
In March 1998, Statement of Position 98-1, "Accounting for the Cost of Computer
Software Developed or Obtained for Internal Use" ("SOP 98-1"), was issued.
SOP 98-1 provides guidance on applying generally accepted accounting principles
in addressing whether and under what condition the costs of internal-use
software should be capitalized. SOP 98-1 is effective for transactions entered
into in fiscal years beginning after December 15, 1998, however earlier adoption
is encouraged. The Company adopted the guidelines of SOP 98-1 as of January 1,
1998.
In July 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" ("SFAS 131"), which is effective for fiscal
years beginning after December 15, 1997. Interim reporting disclosures are not
required in the first year of adoption. SFAS 131 specifies revised guidelines
for determining an entity's operating segments and the type and level of
financial information to be disclosed. SFAS 131 changes current practice under
SFAS 14 by establishing a new framework on which to base segment reporting and
expands the required disclosures for each segment. The Company will adopt
SFAS 131 in the fourth quarter of 1998 and is currently determining the impact
of such adoption on its reporting as currently presented.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" ("SFAS 133").
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SFAS 133 is effective for all fiscal quarters of all fiscal years beginning
after June 15, 1999 (January 1, 2000 for the Company). SFAS 133 requires that
all derivative instruments be recorded on the balance sheet at their fair value.
Changes in the fair value of derivatives are recorded for each period in current
earnings or other comprehensive income, depending on whether a derivative is
designated as part of a hedge transaction and, if it is, the type of hedge
transaction. The Company is currently determining the impact of the adoption of
SFAS 133 on the Company's results of operations and financial position.
10
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
- ------- -----------------------------------------------------------
AND RESULTS OF OPERATIONS
-------------------------
OVERVIEW
Cambridge Technology Partners (Massachusetts), Inc. (the "Company") is an
international management consulting and systems integration firm. The Company
combines management consulting, information technology ("IT") strategy, process
innovation and implementation, custom and package software deployment, network
services, and educational services to rapidly deliver end-to-end business
solutions for clients. In performing its services, the Company employs a rapid
development methodology that features an iterative approach and conducts
facilitated workshops that bring together key client users, executives, and IT
professionals to achieve consensus on the business case, strategic objectives,
and functionality of a business solution. The Company believes that this
approach permits the delivery of results in unprecedented time frames, typically
within three to twelve months. Net revenues for the third quarter of 1998
increased 31% to $153.1 million compared to $117.0 million for the same period
in 1997. Excluding business combination costs of $8.4 million related to the
acquisition of Excell Data Corporation ("Excell") in August 1998 (see Notes B
and H of Notes to Consolidated Financial Statements), net income for the quarter
ended September 30, 1998 increased 47% to $15.4 million, or $.25 per share
(diluted), compared to $10.5 million, or $.17 per share (diluted), for the
comparable period in 1997. Giving effect to the business combination costs, net
income for the quarter ended September 30, 1998 was $9.7 million, or $.16 per
share (diluted).
In August 1998, the Company acquired all of the outstanding capital stock of
Excell. This acquisition was accomplished through a merger of the Company's
acquisition subsidiary and Excell in an exchange of 1,680,416 shares of the
Company's common stock for all outstanding shares of capital stock of Excell.
The acquisition has been accounted for using the pooling of interests method of
accounting. Founded in 1991, Excell had approximately 510 employees at the time
of the acquisition and had locations in Bellevue, Washington, Portland, Oregon,
and Denver, Colorado. This acquisition augmented the Company's existing
Microsoft-centric service capabilities, expanded the Company's network services
business, and increased the Company's geographic reach in the domestic Northwest
region.
North American net revenues grew 23% for the quarter ended September 30, 1998
compared to the same period in 1997. Internationally, net revenues grew 51% in
the third quarter of 1998 compared to the same period a year ago. The
international revenue growth resulted from continuing demand for the Company's
services, primarily in Europe, including management consulting services, custom
and package client/server applications, and interactive solutions.
Additionally, net revenues from the Company's Asia Pacific and Latin American
operations accounted for 4% of consolidated net revenues in the quarter ended
September 30, 1998, compared to 2% for the same period in 1997.
While the Company's net revenues continued to grow domestically and
internationally in the third quarter of 1998, the Company experienced downward
pressure in its North American Rapid Application Deployment ("RAD") business.
The lower rate of revenue growth in the Company's North American RAD business
was principally due to three factors: (1) an increased number of clients opting
to defer or cancel strategic IT initiatives in favor of completing Year 2000
remediation activities; (2) increased competition in specialty solution areas;
and (3) a decline
11
<PAGE>
in the Company's new business win rates and project transition rates due in part
to clients entering annual budgeting cycles.
The Company recently combined its North America-based Enterprise Resource
Solutions and RAD strategic business units into a new North American strategic
business unit. The Company believes that the formation of this new North
American strategic business unit achieves two objectives. First, it integrates
the Company's front- and back-office delivery capabilities to help provide
clients with integrated IT service offerings and a single point of client
contact. This should enhance the development of long-term client relationships.
Second, the Company is organizing the new North American strategic business unit
around its major service lines, including custom support solutions, customer
management solutions, educational services, interactive solutions, network
services, and enterprise resource solutions. The Company believes that this
service line structure should enable the Company to provide its clients with a
more focused service approach.
In order to support continuing demand for the Company's services, total company
headcount increased to 4,299 at September 30, 1998, from 3,496 at December 31,
1997. The Company will continue to focus on hiring and assimilating appropriate
personnel to service its clients. While the Company's employee turnover
remained at an annualized rate of over 20% for 1998, the Company does not expect
employee turnover to have a detrimental impact on the Company's ability to meet
its growth goals. The Company is continuing to hire in accordance with its
current and anticipated demand requirements and has implemented a number of
employee appreciation and benefit programs to retain and attract existing and
new employees.
As part of its global expansion plans, the Company added offices, during the
third quarter of 1998, in Denver, CO, and Portland, OR, in the United States,
and Sydney, Australia, and Munich, Germany, bringing worldwide total office
count to 53 locations at September 30, 1998.
RESULTS OF OPERATIONS
THREE MONTHS ENDED SEPTEMBER 30, 1998, COMPARED TO
THREE MONTHS ENDED SEPTEMBER 30, 1997
Net revenues increased 31% to $153.1 million in 1998 compared to $117.0 million
in 1997 due principally to an increase in the volume of services delivered to
new clients, leveraging the existing client base by undertaking additional
projects, and continuing demand for the Company's expanded service offerings.
North American net revenues grew 23% to $105.0 million in 1998 from $85.2
million in 1997. International net revenues grew 51% to $48.1 million in 1998
from $31.8 million in 1997.
Project personnel costs consist principally of payroll and payroll related
expenses for personnel dedicated to client assignments and are directly related
to the level of client services being delivered. Project personnel costs were
$68.3 million or 45% of net revenues in 1998 compared to $54.1 million or 46% of
net revenues in 1997. The dollar increase resulted from the hiring of
additional project personnel over 1997 staff levels to support the increased
volume of services delivered to clients, the related increase in payroll and
payroll related expenses, and an increase in subcontractor costs. This dollar
increase was partially offset by a decrease in variable compensation levels
related to the Company's bonus compensation plan, which was the primary
12
<PAGE>
factor contributing to the decrease in project personnel costs as a percentage
of net revenues. Worldwide project personnel headcount increased 28% to 3,463
employees at September 30, 1998 from 2,714 employees at September 30, 1997.
While the Company anticipates meeting its hiring goals for the remainder of
fiscal 1998, competition for personnel with IT skills is intense and the Company
expects salaries and wages to continue to increase. The Company periodically
reviews and updates its billing rates to cover the expected increase in costs.
General and administration expenses were $16.8 million in 1998 compared to $12.5
million in 1997, representing 11% of net revenues for both periods. The dollar
increase primarily reflects increased payroll and payroll related expenses
associated with increased staff headcount and increased facilities, travel, and
legal expenses to support the Company's continued growth and geographic
expansion in North America and internationally, partially offset by a decrease
in variable compensation levels and recruiting and relocation expenses.
Sales and marketing expenses were $13.8 million in 1998 compared to $10.7
million in 1997, reflecting 9% of net revenues for both periods. The dollar
increase is primarily attributable to an increase in payroll and payroll related
expenses associated with the increase in sales and marketing personnel from 206
at September 30, 1997 to 279 at September 30, 1998, partially offset by a
decrease in variable compensation levels. The increased headcount enables the
Company to generate client leads through its regional field marketing staff with
subsequent services coordinated by its sales personnel. The dollar increase also
resulted from increased marketing events and publications in order to provide
existing and potential clients with essential information about the Company and
its existing and new service offerings. The Company continued its investment in
marketing initiatives and educational and training programs through those
conducted by its Management Lab and the Cambridge Information Network (CIN). The
Management Lab and CIN enable clients to participate in both physical and
virtual interactive forums to discuss issues associated with adopting advanced
information technology, as well as key business, technology, and career
management issues.
Other costs consist of non-billable expenses directly incurred for client
projects and other associated business costs, including facilities costs and
related expenses, non-billable staff travel, and non-billable project personnel
costs. Other costs were $32.0 million or 21% of net revenues in 1998 compared
to $23.1 million or 20% of net revenues in 1997. The dollar and percentage
increase from 1997 resulted principally from a decrease in project personnel
utilization (which results in increased non-billable project personnel costs)
and increased facility, travel, and employee training costs. The decrease in
project personnel utilization is primarily due to the downward pressure on the
Company's North American RAD revenues. The Company has adjusted its hiring
plans to reflect the reduced North American RAD revenue growth rate and will
continue to monitor its staffing needs based on critical skills and demand
requirements.
Direct transaction costs, which consisted primarily of investment banking fees,
accounting fees, legal fees, and business integration costs, related to the
acquisition of Excell, approximated $1.7 million and are included in business
combination costs in the accompanying consolidated statements of operations for
the periods ended September 30, 1998. Additionally, the acquisition of Excell
by the Company qualified as a change in control under an Excell Phantom Stock
Plan. As a result, upon consummation of the acquisition, the Company recorded a
charge to operations of $6.7 million for the period ended September 30, 1998,
included in business combination costs, representing amounts owed to Excell
Phantom Stock Plan participants as of the closing. In
13
<PAGE>
accordance with the Excell Phantom Stock Plan, as a result of the acquisition,
the Excell Phantom Stock Plan was terminated (see Note H of Notes to
Consolidated Financial Statements).
Other income of $990,000 in 1998 included interest income of $622,000 and a
$514,000 gain from the Company's investment in Cambridge Technology Capital Fund
I, partially offset by foreign currency exchange rate loss and other interest
expense totaling $146,000. Other income in 1997 of $515,000 consisted of
interest income of $632,000, partially offset by foreign currency exchange rate
loss and other interest expense totaling $117,000.
The Company maintains monthly foreign exchange forward contracts to hedge
against the risk of changes in foreign exchange rates associated with
intercompany balances. This risk coverage is dependent upon forecasted
intercompany activities at the beginning of each month. The exchange rate gains
and losses are directly related to the accuracy of such forecasted amounts. As
of September 30, 1998, the Company held foreign exchange contracts of
approximately $8.2 million.
The Company's effective income tax rate for the third quarter of 1998 was 34.7%
compared to 38.8% for the same period a year ago. The decrease in the Company's
effective tax rate in the third quarter of 1998 is primarily due to favorable
effects of state tax rate minimization initiatives put in place in the second
half of 1997 and continuing into 1998 and favorable global tax planning
strategies. The Company's effective tax rate may vary from period to period
based on the Company's future expansion into areas of varying country, state,
and local statutory income tax rates and its geographic mix of revenue and
income.
Net income, excluding business combination costs of $8.4 million related to the
Excell acquisition, increased 47% to $15.4 million or $.25 per share (diluted)
for the 1998 period as compared to $10.5 million or $.17 per share (diluted) for
the same period in 1997. Giving effect to the $8.4 million business combination
costs, net income for the quarter ended September 30, 1998 was $9.7 million, or
$.16 per share (diluted).
NINE MONTHS ENDED SEPTEMBER 30, 1998, COMPARED TO
NINE MONTHS ENDED SEPTEMBER 30, 1997
Net revenues increased 46% to $451.9 million in 1998, compared to $309.6 million
in 1997 due principally to an increase in the volume of services delivered to
new clients, leveraging the existing client base by undertaking additional
projects, and continuing demand for the Company's expanded service offerings.
North American net revenues grew 44% to $316.3 million in 1998 from $219.5
million in 1997. International net revenues grew 51% to $135.6 million in 1998
from $90.1 million in 1997.
Project personnel costs were $205.7 million in 1998 and $143.1 million in 1997,
or 46% of net revenues for both periods. The dollar increase primarily resulted
from the hiring of additional project personnel over 1997 staff levels to
support the increased volume of services delivered to clients and the related
increase in payroll and payroll related expenses. Average worldwide project
personnel for the nine-month period ended September 30, 1998 increased 28% from
the comparable period in 1997.
General and administration expenses were $50.4 million in 1998 compared to $34.6
million in 1997, representing 11% of net revenues for both periods. The dollar
increase primarily reflects
14
<PAGE>
expenses associated with increased staff headcount and an increase in facilities
costs to support the Company's continued growth and geographic expansion in
North America and internationally, partially offset by a decrease in variable
compensation levels. Average worldwide general and administration personnel for
the nine-month period ended September 30, 1998 increased 41% from the comparable
period in 1997.
Sales and marketing expenses were $42.8 million in 1998 compared to $28.6
million in 1997, reflecting 9% of net revenues for both periods. The dollar
increase is primarily attributable to an increase in payroll and payroll related
expenses associated with a 35% increase in average sales and marketing personnel
in the first nine months of 1998, compared to the same period in 1997, the
increase in sales commissions related to the significant increase in net
revenues, facility costs, and travel related expenses for the field sales and
marketing groups. This increased headcount enables the Company to generate
client leads through its regional field marketing staff with subsequent services
coordinated by its sales personnel. The dollar increase also resulted from
increased participation in marketing events and publications.
Other costs were $88.6 million or 20% of net revenues in 1998 compared to $58.6
million or 19% of net revenues in 1997. The dollar and percentage increase from
1997 resulted principally from decreased project personnel utilization and
increased facility, travel, and employee training costs.
Other income of $1.9 million in 1998 included interest income of $1.9 million
and a $433,000 gain from the Company's investment in Cambridge Technology
Capital Fund I, partially offset by foreign currency exchange rate loss and
other interest expense totaling $409,000. Other income in 1997 of $1.4 million
consisted of interest income of $1.4 million and a $188,000 one-time gain from
sale of an investment, partially offset by foreign currency exchange rate loss
and other interest expense totaling $230,000. The increase in interest income
in 1998 compared to 1997 is primarily due to increased cash and investment
balances.
The Company's effective income tax rate for the first nine months of 1998 was
38.4% compared to 39.3% for the same period a year ago. The decrease in the
Company's effective tax rate is primarily due to favorable effects of state tax
rate minimization initiatives put in place in the second half of 1997 and
continuing into 1998 and favorable global tax planning strategies. The
Company's effective tax rate may vary from period to period based on the
Company's future expansion into areas of varying country, state, and local
statutory income tax rates and its geographic mix of revenue and income.
Net income, excluding business combination costs of $8.4 million related to the
Excell acquisition, increased 48% to $41.4 million or $.66 per share (diluted)
for the 1998 period compared to $28.0 million or $.46 per share (diluted) for
the same period in 1997. Giving effect to the business combination costs, net
income for the nine months ended September 30, 1998 was $35.7 million, or $.57
per share (diluted).
LIQUIDITY AND CAPITAL RESOURCES
The Company continues to operate primarily debt-free and to enhance its working
capital position. Working capital increased to $165.5 million at September 30,
1998, from $108.3 million at December 31, 1997. This increase was primarily due
to increases in cash flow from operations, accounts receivable, proceeds from
the exercise of stock options, and proceeds from shares issued
15
<PAGE>
under the Company's employee stock purchase plan, partially offset by cash used
for capital expenditures related to office expansions and computer equipment for
new employees and increases in accrued expenses and income taxes payable. The
Company's days sales in accounts receivable was 83 days during the third quarter
of 1998 compared to 71 days for the same period in 1997. The increase in days
sales in accounts receivable in 1998 is primarily due to lower net revenue
growth for the third quarter of 1998 coupled with an increase in average
accounts receivable.
Net cash provided by operating activities was $33.2 million in 1998 compared to
$27.2 million for the comparable period in 1997. Increased accounts receivable,
unbilled revenue on contracts, and prepaid expenses and other current assets
were more than offset by increases in net income, tax benefits from the exercise
of stock options, depreciation and amortization, accrued expenses, deferred
revenue, and taxes payable.
Capital expenditures of $19.8 million in 1998 were used principally for computer
equipment to support the Company's expanding operations and employee
workstations and leasehold improvements related to the Company's expanding and
opening of new offices worldwide. Capital expenditures for the full year of
1998 are expected to approximate $25.0 million, principally for leasehold
improvements, personal computers, employee workstations, telecommunication and
video conferencing equipment, and other equipment to support both current and
anticipated levels of customer activities worldwide. In accordance with the
Company's strategic acquisition plans, the Company evaluates, on an ongoing
basis, potential acquisitions of companies or technologies that may complement
its business.
In order to support the Company's anticipated business growth, capital
expenditures, and working capital, the Company obtained, in September 1998, a
$50.0 million unsecured senior revolving credit facility (the "Facility")
through a syndication arrangement committed equally by The Chase Manhattan Bank
("Chase") and Fleet National Bank. The Facility expires on September 10, 2001
and replaces the Company's previously maintained $20.0 million revolving credit
facility that expired on June 30, 1998. The Facility is administered by Chase
and carries a commitment fee, payable quarterly in arrears, calculated based on
the unused portion of the Facility and a price grid as set forth in the credit
agreement. The Facility permits the Company to elect any of three possible
interest rate formulas as defined in the credit agreement. Interest is payable
in arrears based on an interest period determined by the interest rate elected
by the Company. The Facility requires, among other things, the Company to
maintain certain financial ratios, including debt service coverage, debt to
capital, and net worth. At September 30, 1998, the Company was in compliance
with these financial ratio requirements. As of September 30, 1998 and December
31, 1997, the Company had no balance outstanding under its revolving credit
facilities.
In the first quarter of 1998, the Company repaid the outstanding principal
balance of approximately $823,000 under a loan agreement entered into by Peter
Chadwick Holdings Limited to finance the purchase of a training facility located
in the United Kingdom. This loan agreement was then terminated. (see Note D of
the Notes to the Consolidated Financial Statements).
In January 1998, the Company entered into an agreement with Boston Properties
Limited Partnership ("Boston Properties") to lease a building to be constructed
and developed by Boston Properties. This approximately 177,000 square foot
building, which is located in Cambridge, Massachusetts, will house the Company's
Northeast operations, new employee training facility,
16
<PAGE>
and corporate departments. The lease agreement is for a ten-year period, which
is expected to commence in June 1999. Pursuant to the terms of the lease
agreement, the Company paid a $1.3 million refundable security deposit in
January 1998. The Company's current building is expected to be subleased through
its remaining lease term.
The Company expects that cash flows from operations will provide the principal
source of future liquidity for the Company. However, the Company is currently
experiencing a period of growth, which could place a strain on the Company's
financial resources. The Company currently anticipates that existing cash and
investment balances combined with cash generated from operations and amounts
available under the Facility will be sufficient, at least through 1999, to meet
the Company's working capital requirements and to fund the expansion of the
Company's business. In order to meet client demand for the Company's services,
the Company expects to continue to increase its professional staff and to open
additional sales and operations offices in North America and internationally.
Although the Company's plans to open offices and hire personnel are in response
to increased demand for the Company's services, a portion of these expenses will
be incurred in anticipation of increased demand. Operating results and
liquidity may be adversely affected if market demand and revenues do not
increase as anticipated. As the Company expands its international operations, a
number of factors, including market acceptance of the Company's services,
significant fluctuations in currency exchange rates, and changes in general
economic, political, and regulatory conditions, could also adversely affect
future results and liquidity.
STOCK OPTIONS
During October 1998, the Management Resource Committee of the Board of Directors
(the "Committee") reviewed the stock options held by the Company's employees and
concluded that the broad decline in the market price of the Company's Common
Stock and comparable companies in the IT service sector had resulted in a
significant number of outstanding stock options having exercise prices well
above the recent trading prices for the Common Stock. The Committee also
considered the following: recent employee turnover; compensation packages
appearing less attractive due to option exercise prices well above the current
market price; and intensity in competition for experienced talent in the
IT marketplace. The Committee concluded that the disparity between the exercise
price of options previously granted and the then current market price of the
Company's Common Stock no longer provided the desired incentive to employees
that the stock options were issued to achieve.
In order to re-establish the incentive nature of the Company's stock option
program, on October 14, 1998 (the "Grant Date"), the Committee approved an offer
to exchange (the "Option Exchange") outstanding stock options issued on or after
April 24, 1997 (the "Affected Options") for newly issued options (the "Exchange
Options") with an exercise price of $15.50 per share, the fair market value of
the Common Stock on the Grant Date. The Company's Chief Executive Officer and
members of its Board of Directors are not eligible to participate in the Option
Exchange. As of the Grant Date, there were approximately 6.5 million Affected
Options. Participation in the Option Exchange is voluntary on the part of
eligible holders of Affected Options.
Eligible holders of Affected Options will receive one Exchange Option for each
Affected Option exchanged. Each Exchange Option will have an exercise price of
$15.50 per share (the fair market value of the Company's Common Stock on
17
<PAGE>
the Grant Date). The vesting schedule and other terms of the Exchange Options
will be substantially the same as those for the Affected Options, except as set
forth below.
As a condition of the opportunity to exchange Affected Options, the Exchange
Options will not be immediately exercisable even if the Affected Options
exchanged were exercisable on the Grant Date. As a general rule, employees will
not be able to exercise any Exchange Options until April 14, 1999. The Company's
senior vice presidents, vice presidents and associate vice presidents will not
be able to exercise any Exchange Options until October 14, 1999. Executive vice
presidents will be able to exercise the Exchange Options (to the extent vested)
after October 14, 1999, if the fair market value of the Company's Common Stock
exceeds the exercise price of the Exchange Options by at least 50% over any
ten-day period after the Grant Date; otherwise, the Exchange Options will not be
exercisable before 2002.
THE YEAR 2000 ISSUE
The Year 2000 issue results from computer programs written using two digits
rather than four to define the applicable year. Any of the Company's internal
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices, or
engage in similar normal business activities.
The Company is conducting an assessment of its information technology ("IT")
systems and non-IT systems (such as building security, voice mail, telephone and
other systems containing embedded microprocessors) and is in the process of
determining the nature and extent of the work required, if any, to make any
material internal systems Year 2000 compliant. This assessment is expected to
be completed by the end of 1998. The Company's material internal IT systems
consist principally of accounting, human resources and sales force automation
application software created by third parties, plus internally developed time
and expense reporting and project accounting software applications. For the
third-party software applications, the Company has obtained written confirmation
that the software applications are Year 2000 compliant. The Company also expects
that each of these third party applications will be upgraded, as well as tested
by the Company for Year 2000 compliance by the end of the first quarter of 1999.
The Company's internally developed applications are also expected to be Year
2000 compliant by the end of the first quarter of 1999. The Company's computer
hardware platforms, principally servers, have been confirmed as Year 2000
compliant by the server manufacturers and the Company expects to have completed
testing by the end of 1998.
Based on currently available information, the Company believes the expense
associated with these efforts will be immaterial and has provided for the
enhancement of these systems in its operating and capital budgets for the
current fiscal year. However, if compliance efforts of which the Company is not
currently aware are required and are not completed on time, or if the cost of
any required updating, modification or replacement of the Company's IT systems
exceeds the Company's estimates, the Year 2000 issue could have a material
adverse effect on the Company.
In addition to the Company's internal systems, the Company relies on third party
relationships in the conduct of its business. For example, third party vendors
handle the payroll function for the Company, and the Company also relies on the
services of landlords of its facilities, telecommunication companies, banks,
utilities, and commercial airlines, among others. The
18
<PAGE>
Company is currently obtaining assurances from its landlords and material
vendors and suppliers that there will be no interruption of service as a result
of the Year 2000 issue, and to the extent such assurances are not given, the
Company intends to devise contingency plans to ameliorate the negative effects
on the Company in the event the Year 2000 issue results in the unavailability of
services. There can be no assurance that any contingency plans developed by the
Company will prevent any such service interruption on the part of one or more of
the Company's third party vendors or suppliers from having a material adverse
effect on the Company. In addition, the failure on the part of the accounting
systems of the Company's clients due to the Year 2000 issue could result in a
delay in the payment of invoices issued by the Company for services and
expenses. A failure of the accounting systems of a significant number of the
Company's clients would have a material adverse effect on the Company.
The Company is preparing written contingency plans to address failures in its
major IT and non-IT systems. These plans will include identification of major
systems, dependencies on third parties, and resources and strategies necessary
to restore operations or work around failures. The failure of the Company's
accounting systems resulting from a Year 2000 related power system outage at the
Company's central data center, particularly at the end of a fiscal period, could
represent a reasonably likely worst case scenario. The Company's contingency
plan provides for back-up power systems that could support the data center, as
well as the operation of a parallel third party disaster recovery site.
Although the Company's principal service offerings do not include Year 2000
remediation services, former, present and future clients could assert that
certain services performed by the Company involved or are related to the Year
2000 issue. The Company has recommended, implemented and customized various
third-party software packages for its clients, certain of which may not be Year
2000 compliant. Because the Company has designed, developed and implemented
software and systems for a large number of clients since 1991, there can be no
way of assuring that all such software programs and systems will be Year 2000
compliant. In particular, the Company's solution delivery methodology, in many
cases, empowers clients to maintain, alter and upgrade systems after the
completion of an engagement. Due to the potential significance of the Year 2000
issue upon client operations, upon any failure of critical client systems or
processes that may be directly or indirectly connected or related to systems or
software analyzed, designed, developed, or implemented by the Company, the
Company may be subjected to claims regardless of whether the failure is related
to the services provided by the Company. If asserted, the resolution of such
claims (and the associated defense costs) could have a material adverse effect
on the Company.
The Company's policy has been to attempt to include provisions in client
contracts that, among other things, disclaim implied warranties, limit the
duration of express warranties, limit the Company's liability to the amount of
fees paid by the client to the Company in connection with the project, and
disclaim any liability arising from third-party software that is implemented,
customized or installed by the Company. There can be no assurance that the
Company will be able to obtain these contractual protections in agreements
concerning future projects, or that any contractual provisions governing current
and completed projects, will prevent clients from asserting claims against the
Company with respect to the Year 2000 issue. There also can be no assurance that
the contractual protections, if any, obtained by the Company will operate to
protect the Company from, or limit the amount of, any liability arising from
claims asserted against the Company.
19
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NEW ACCOUNTING PRONOUNCEMENTS
In March 1998, Statement of Position 98-1, "Accounting for the Cost of Computer
Software Developed or Obtained for Internal Use" ("SOP 98-1"), was issued (see
Note I of Notes to Consolidated Financial Statements).
In July 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 131, "Disclosures about Segments of an
Enterprise and Related Information" ("SFAS 131"), which is effective for fiscal
years beginning after December 15, 1997. Interim reporting disclosures are not
required in the first year of adoption (see Note I of Notes to Consolidated
Financial Statements).
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" ("SFAS 133"). SFAS 133 is effective for all fiscal
quarters of all fiscal years beginning after June 15, 1999 (January 1, 2000 for
the Company) (see Note I of Notes to Consolidated Financial Statements).
FORWARD-LOOKING STATEMENTS
This Form 10-Q includes forward-looking statements (statements that are not
historical facts) such as statements about future net revenues and profits;
capital expenditures; liquidity sources and needs; working capital needs; the
Year 2000 issue; the impact of the Company's new North American strategic
business unit; increases in personnel and related costs; and opening additional
offices. These forward-looking statements are subject to several risks and
uncertainties and the Company's actual future results may differ significantly
from those stated in any forward-looking statements. While it is impossible to
identify each factor and event that could affect the Company's results,
variations in the Company's revenues and operating results occur from time to
time as a result of a number of factors, such as the significance of client
engagements commenced and completed during the period; the number of working
days in a period; employee hiring, retention, and utilization rates; the
Company's ability to manage its growth; the Year 2000 issue, including the
effect of the Year 2000 issue on client purchasing patterns; competitive
factors; international operations; acceptance and profitability of the Company's
services in new territories; integration of companies acquired; and protection
of intellectual property. The timing of revenues is difficult to forecast
because the Company's sales cycle is relatively long in the case of new clients
and may depend on factors such as the size and scope of the assignments and
general economic conditions. Because a high percentage of the Company's
expenses are relatively fixed, a variation in the timing of the initiation or
the completion of client assignments, particularly at or near the end of any
quarter, can cause significant variations in operating results from period to
period. The Company's Form 10-Q for the quarter ended June 30, 1998 included
forward looking statements concerning the following items as a percentage of net
revenues for the remainder of 1998: project personnel costs; general and
administration expenses; sales and marketing expenses; and other costs. Due to
the recent acquisition of Excell, the downward pressure on North American RAD
revenues, the formation of the North American strategic business unit, and the
continued expansion of the Company's business, the percentage of net revenues
statements identified in the June 30, 1998 Form 10-Q are no longer meaningful
for the remainder of 1998 and should not be relied upon.
20
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PART II - OTHER INFORMATION
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
- ------- -----------------------------------------
In September 1998, the Company amended the Rights Agreement, dated as of
June 23, 1997, by and between the Company and ChaseMellon Shareholder
Services, LLC (the "Rights Agreement"), to delete the "Continuing Director"
provisions of the Rights Agreement. See Exhibits 4.1 and 4.2 to this
Quarterly Report on Form 10-Q.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- ------- --------------------------------
(a) Exhibits:
3.1(1) Amended and Restated Certificate of Incorporation of the Company,
as amended.
3.2(2) Amended and Restated By-laws of the Company.
4.1(3) Rights Agreement dated June 23, 1997 by and between the Company and
ChaseMellon Shareholder Services, LLC (the "Rights Agreement").
4.2(4) Amendment No. 1 to the Rights Agreement dated September 30, 1998
by and between the Company and ChaseMellon Shareholder Services, LLC.
10.1 Credit Agreement dated as of September 10, 1998 by and among the
Company, certain of its subsidiaries, The Chase Manhattan Bank and
Fleet National Bank.
10.2 Guaranty dated September 10, 1998 by certain subsidiaries of the
Company in favor of The Chase Manhattan Bank and Fleet National Bank.
11.1 Statement Regarding Computation of Per Share Earnings.
27 Financial Data Schedule.
- -------------------------------------------------
(1) Incorporated herein by reference to Exhibit 3.1 to the
Company's Report on Form 10-Q for the period ended June 30, 1998.
(2) Incorporated herein by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (File No. 33-56338).
(3) Incorporated herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form 8A/A filed on
September 30, 1998.
(4) Incorporated herein by reference to Exhibit 4.2 to the
Company's Registration Statement on Form 8-A/A filed on
September 30, 1998.
(b) Reports on Form 8-K:
A report on Form 8-K was filed by the Company on September 11, 1998 to
disclose the acquisition by the Company of Excell Data Corporation
("Excell") pursuant to an Agreement and Plan of Merger, dated as of August
31, 1998 by and among the Company, Cambridge/Washington Acquisition Corp.,
a Washington corporation and wholly-owned subsidiary of the Company,
Excell, and the shareholders of Excell.
21
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
Date: November 2, 1998 By: /s/ Arthur M. Toscanini
------------------------
Arthur M. Toscanini
Executive Vice President and
Chief Financial Officer
22
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
3.1(1) Amended and Restated Certificate of Incorporation of the
Company, as amended.
3.2(2) Amended and Restated By-laws of the Company.
4.1(3) Rights Agreement dated June 23, 1997 by and between the
Company and ChaseMellon Shareholder Services, LLC
(the "Rights Agreement").
4.2(4) Amendment No. 1 to the Rights Agreement dated September 30,
1998 by and between the Company and ChaseMellon
Shareholder Services, LLC.
10.1 Credit Agreement dated as of September 10, 1998 by and among
the Company, certain of its subsidiaries, The Chase
Manhattan Bank and Fleet National Bank.
10.2 Guaranty dated September 10, 1998 by certain subsidiaries of
the Company in favor of The Chase Manhattan Bank and Fleet
National Bank.
11.1 Statement Regarding Computation of Per Share Earnings.
27 Financial Data Schedule.
- -------------------------------------------------
(1) Incorporated herein by reference to Exhibit 3.1 to the
Company's Report on Form 10-Q for the period ended
June 30, 1998.
(2) Incorporated herein by reference to Exhibit 3.2 to the
Company's Registration Statement on Form S-1
(File No. 33-56338).
(3) Incorporated herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form 8A/A filed on
September 30, 1998.
(4) Incorporated herein by reference to Exhibit 4.2 to the
Company's Registration Statement on Form 8-A/A filed on
September 30, 1998.
<PAGE>
EXHIBIT 10.1
================================================================================
CREDIT AGREEMENT
dated as of
September 10, 1998
among
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
AND THE OTHER ENTITIES SPECIFIED HEREIN
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
___________________________
CHASE SECURITIES INC.,
as Arranger
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE I Definitions........................................................ 1
SECTION 1.01. Defined Terms............................................ 1
SECTION 1.02. Classification of Loans and Borrowings................... 17
SECTION 1.03. Terms Generally.......................................... 17
SECTION 1.04. Accounting Terms; GAAP................................... 17
ARTICLE II The Credits....................................................... 18
SECTION 2.01. Commitments.............................................. 18
SECTION 2.02. Loans and Borrowings..................................... 18
SECTION 2.03. Requests for Revolving Borrowings........................ 19
SECTION 2.04. Alternate Currency Revolving Loans....................... 20
SECTION 2.05. Swingline Loans.......................................... 20
SECTION 2.06. Letters of Credit........................................ 22
SECTION 2.07. Funding of Borrowings.................................... 26
SECTION 2.08. Interest Elections....................................... 26
SECTION 2.09. Termination and Reduction of Commitments................. 28
SECTION 2.10. Repayment of Loans; Evidence of Debt..................... 29
SECTION 2.11. Prepayment of Loans...................................... 29
SECTION 2.12. Fees..................................................... 30
SECTION 2.13. Interest................................................. 31
SECTION 2.14. Alternate Rate of Interest............................... 32
SECTION 2.15. Increased Costs.......................................... 33
SECTION 2.16. Break Funding Payments................................... 34
SECTION 2.17. Taxes.................................................... 35
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs................................................. 36
SECTION 2.19. Mitigation Obligations; Replacement of Lenders........... 37
ARTICLE III Representations and Warranties................................... 38
SECTION 3.01. Organization; Powers..................................... 38
SECTION 3.02. Authorization; Enforceability............................ 38
SECTION 3.03. Governmental Approvals; No Conflicts..................... 39
SECTION 3.04. Financial Condition; No Material Adverse Change.......... 39
SECTION 3.05. Properties............................................... 39
SECTION 3.06. Litigation and Environmental Matters..................... 40
SECTION 3.07. Compliance with Laws and Agreements...................... 40
SECTION 3.08. Securities Activities.................................... 40
SECTION 3.09. Investment and Holding Company Status.................... 40
SECTION 3.10. Taxes.................................................... 40
SECTION 3.11. ERISA.................................................... 41
SECTION 3.12. Solvency................................................. 41
</TABLE>
(i)
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
SECTION 3.13. Disclosure.............................................. 41
SECTION 3.14. Payments by Subsidiaries................................ 41
SECTION 3.15. Year 2000............................................... 41
ARTICLE IV Conditions....................................................... 42
SECTION 4.01. Effective Date.......................................... 42
SECTION 4.02. Each Credit Event....................................... 43
ARTICLE V Affirmative Covenants............................................. 44
SECTION 5.01. Financial Statements and Other Information.............. 44
SECTION 5.02. Notices of Material Events.............................. 45
SECTION 5.03. Existence; Conduct of Business.......................... 45
SECTION 5.04. Payment of Obligations.................................. 46
SECTION 5.05. Maintenance of Properties; Insurance.................... 46
SECTION 5.06. Books and Records; Inspection Rights.................... 46
SECTION 5.07. Compliance with Laws.................................... 46
SECTION 5.08. Use of Proceeds and Letters of Credit................... 46
ARTICLE VI Negative Covenants............................................... 47
SECTION 6.01. Indebtedness............................................ 47
SECTION 6.02. Liens................................................... 48
SECTION 6.03. Fundamental Changes..................................... 48
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions............................................ 49
SECTION 6.05. Hedging Agreements...................................... 50
SECTION 6.06. Restricted Payments..................................... 50
SECTION 6.07. Transactions with Affiliates............................ 51
SECTION 6.08. Restrictive Agreements.................................. 51
SECTION 6.09. Preferred Stock......................................... 51
SECTION 6.10. Coverage Ratio.......................................... 51
SECTION 6.11. Debt to Capital Percentage.............................. 51
SECTION 6.12. Net Worth............................................... 52
ARTICLE VII Events of Default............................................... 52
ARTICLE VIII The Administrative Agent....................................... 54
ARTICLE IX Miscellaneous.................................................... 56
SECTION 9.01. Notices................................................. 56
SECTION 9.02. Waivers; Amendments..................................... 57
SECTION 9.03. Expenses; Indemnity; Damage Waiver...................... 58
SECTION 9.04. Successors and Assigns.................................. 59
SECTION 9.05. Survival................................................ 61
</TABLE>
(ii)
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
SECTION 9.06. Counterparts; Integration; Effectiveness................ 62
SECTION 9.07. Severability............................................ 62
SECTION 9.08. Right of Setoff......................................... 62
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process.............................................. 62
SECTION 9.10. WAIVER OF JURY TRIAL.................................... 63
SECTION 9.11. Judgment Currency ...................................... 63
SECTION 9.12. No Offset............................................... 63
SECTION 9.13. Headings................................................ 64
SECTION 9.14. Confidentiality......................................... 64
SECTION 9.15. Interest Rate Limitation................................ 65
</TABLE>
SCHEDULES:
- ---------
Schedule I -- Foreign Subsidiary Borrowers
Schedule 2.01 -- Commitment Percentages
Schedule 3.06 -- Disclosed Matters
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.08 -- Existing Restrictions
Schedule 6.09 -- Existing Preferred Stock
EXHIBITS:
- --------
Exhibit A -- Form of Assignment and Acceptance
Exhibit B -- Form of Promissory Note
Exhibit C -- Form of Opinion of Borrower's Counsel
Exhibit D -- Form of Compliance Certificate
(iii)
<PAGE>
CREDIT AGREEMENT dated as of September 10, 1998 among Cambridge Technology
Partners (Massachusetts), Inc., a Delaware corporation ("Cambridge"), and the
---------
entities listed on Schedule I hereto, as joint and several borrowers hereunder
----------
(collectively, the "Borrower"), the LENDERS party hereto, and THE CHASE
--------
MANHATTAN BANK, as Administrative Agent.
WHEREAS, the entities listed on Schedule I hereto are foreign subsidiaries
----------
of Cambridge;
WHEREAS, Cambridge and such foreign subsidiaries are and will be operated
as separate entities but are and will be operated on an integrated basis in
connection with their respective financial resources;
WHEREAS, the operations of the Borrower are conducted on a combined basis
with shared management, purchasing, planning, financial controls and other
functions, and the access of the Borrower to the credit facilities provided
hereunder benefits the Borrower's various businesses; and
WHEREAS, the Borrower desires to arrange for a $50,000,000 credit facility,
the proceeds of which will be used to fund acquisitions and capital
expenditures, and to provide working capital.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
Definitions
-----------
SECTION 1.01 Defined Terms. As used in this Agreement, the following
-------------
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether
---
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing for
------------------
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity as
--------------------
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire in a
----------------------------
form supplied by the Administrative Agent.
<PAGE>
"Affiliate" means, with respect to a specified Person, another Person that
---------
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
-------------------
greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be
effective from and including the effective date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Alternate Currency" means each of the Specified Currencies and any other
------------------
currencies (other than dollars) which the Borrower may borrow hereunder pursuant
to Section 2.04.
"Alternate Currency Borrowing" means each Borrowing made and repayable in
----------------------------
an Alternate Currency.
"Alternate Currency Equivalent" means, at any time for the computation
-----------------------------
thereof, the amount of such applicable Alternate Currency which could be
purchased with the amount of dollars involved in such computation at the spot
exchange rate therefor as quoted by the Administrative Agent as of 11:00 a.m.,
London time, on the date three Business Days prior to the date of any
determination thereof for purchase on such date.
"Alternate Currency Eurocurrency Rate" means, with respect to each
------------------------------------
applicable Alternate Currency, (a) (i) the rate per annum that appears on the
appropriate page of the Dow Jones Telerate Screen (or any successor page) for
deposits of such Alternate Currency with maturities comparable to the Interest
Period applicable to the Alternate Currency Loan subject to the respective
Borrowing, determined as of 11:00 a.m., London time, on the date which is two
Business Days prior to the commencement of such Interest Period or (ii) if such
a rate does not appear on such page of the Dow Jones Telerate Screen (or any
successor page), the offered quotation to first-class banks in the London
interbank Eurocurrency market by the principal London office of the
Administrative Agent for deposits of amounts in immediately available funds
comparable to the amount of the Alternate Currency Loan in question with
maturities comparable to the Interest Period applicable to such Alternate
Currency Loan commencing two Business Days thereafter as of 11:00 a.m., London
time, on the date which is two Business Days prior to the commencement of such
Interest Period, in either case multiplied (and rounded upwards, if necessary,
to the next 1/16 of 1%) by (b) the applicable Statutory Reserve Rate.
"Alternate Currency Loan" means each Loan made and repayable in an
-----------------------
Alternate Currency.
"Alternate Currency Revolving Loan" means each Revolving Loan made and
---------------------------------
repayable in an Alternate Currency.
2
<PAGE>
"Applicable Percentage" means, with respect to any Lender, the percentage
---------------------
of the total Commitments represented by such Lender's Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any ABR Loan,
---------------
Eurodollar Revolving Loan or Alternate Currency Loan, or with respect to the
commitment fees payable hereunder, as the case may be, the applicable rate per
annum set forth below under the caption "ABR Spread", "Eurodollar Spread",
"Alternate Currency Eurocurrency Rate Spread" or "Commitment Fee Rate", as the
case may be, based upon the applicable Total Funded Debt to Total Capitalization
percentage on such date:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------
Alternate
Total Funded Currency
Debt to Total Eurodollar Eurocurrency Commitment
Capitalization ABR Spread Spread Rate Spread Fee Rate
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Greater than: 30% 0.000% 1.250% 1.250% 0.375%
- ------------------------------------------------------------------------------------------------
Greater than: 25% 0.000% 0.875% 0.875% 0.250%
but less than or equal
to: 30%
- ------------------------------------------------------------------------------------------------
Greater than: 20% 0.000% 0.750% 0.750% 0.200%
but less than or equal
to: 25%
- ------------------------------------------------------------------------------------------------
Greater than: 15% 0.000% 0.625% 0.625% 0.150%
but less than or equal
to: 20%
- ------------------------------------------------------------------------------------------------
Less than or equal to: 15% 0.000% 0.500% 0.500% 0.125%
- ------------------------------------------------------------------------------------------------
</TABLE>
Upon delivery of the compliance certificate by the Borrower to the
Administrative Agent pursuant to Section 5.01(c), the applicable ABR Spread,
Eurodollar Spread, Alternate Currency Eurocurrency Rate Spread and Commitment
Fee Rate shall automatically be adjusted in accordance with such certificate,
such adjustment to become effective on the next succeeding Business Day
following the receipt by the Administrative Agent of such certificate; provided,
--------
in the event a compliance certificate is not delivered on or prior to the date
such certificate is required to be delivered pursuant to Section 5.01(c), then
until delivery of such certificate the applicable ABR Spread, Eurodollar Spread,
Alternate Currency Eurocurrency Rate Spread and Commitment Fee Rate shall be
0.000%, 1.250%, 1.250% and 0.375% per annum, respectively; provided further that
-------- -------
if a compliance certificate erroneously indicates an applicable spread more
favorable to the Borrower than would be afforded by the actual calculation of
Total Funded Debt to Total Capitalization, the Borrower shall promptly pay such
additional interest as shall correct for such error.
3
<PAGE>
"Assessment Rate" means, for any day, the annual assessment rate in effect
---------------
on such day that is payable by a member of the Bank Insurance Fund classified as
"well-capitalized" and within supervisory subgroup "B" (or a comparable
successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit Insurance Corporation for insurance
by such Corporation of time deposits made in dollars at the offices of such
member in the United States; provided that if, as a result of any change in any
--------
law, rule or regulation, it is no longer possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall
be determined by the Administrative Agent to be representative of the cost of
such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance entered into
-------------------------
by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
---------
"Availability Period" means the period from and including the Effective
-------------------
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the product of (i) the Three-Month
------------
Secondary CD Rate and (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage, plus (b) the
----
Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System of the
-----
United States of America.
"Borrower" means Cambridge, together with the entities listed on Schedule I
-------- ----------
hereto.
"Borrowing" means (a) Dollar Revolving Loans of the same Type, made,
---------
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect, (b) Alternate Currency Revolving
Loans of the same Type made on the same date and as to which a single Interest
Period is in effect or (c) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
-----------------
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other day on
------------
which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan or
--------
an Alternate Currency Loan, the term "Business Day" shall also exclude any day
------------
on which banks are not open for dealings in dollar deposits or such applicable
Alternate Currency, as the case may be, in the London interbank Eurocurrency
market.
4
<PAGE>
"Capital Lease Obligations" of any Person means the obligations of such
-------------------------
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"C/D Reserve Percentage" means, for any day as applied to any ABR Loan,
----------------------
that percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board, for determining the maximum reserve requirement for a
Depository Institution (as defined in Regulation D of the Board) in respect of
new non-personal time deposits in dollars of $100,000 or more having a maturity
of 30 days or more.
"Change in Control" means (a) the acquisition of ownership, directly or
-----------------
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing more than 33% of the aggregate ordinary voting power represented
by the issued and outstanding capital stock of the Borrower, (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of the
Borrower by Persons who were neither (i) nominated by the board of directors of
the Borrower nor (ii) appointed by directors so nominated, or (c) the
acquisition of direct or indirect Control of the Borrower by any Person or
group.
"Change in Law" means (a) the adoption of any law, rule or regulation after
-------------
the date of this Agreement, (b) any change in any law, rule or regulation or in
the interpretation or application thereof by any Governmental Authority after
the date of this Agreement or (c) compliance by any Lender or the Issuing Bank
(or, for purposes of Section 2.15(b), by any lending office of such Lender or by
such Lender's or the Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether
-----
such Loan, or the Loans comprising such Borrowing, are Dollar Revolving Loans,
Alternate Currency Revolving Loans or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
----
time.
"Commitment" means, with respect to each Lender, the commitment of such
----------
Lender to make Revolving Loans (including the Dollar Equivalent of all Alternate
Currency Revolving Loans) and to acquire participations in Letters of Credit and
Swingline Loans hereunder, expressed as an amount representing the maximum
possible aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section 2.09
and (b) reduced or increased from time to time pursuant to assignments by or to
such Lender pursuant to Section 9.04. The initial amount of each Lender's
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
-------------
pursuant to which such Lender
5
<PAGE>
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments is $50,000,000.
"Consolidated Coverage Ratio" means for each twelve month period ending on
---------------------------
the last day of the accounting period covered by the consolidated financial
statements of the Borrower and its Subsidiaries, the ratio of (a) Consolidated
EBITDA, less capital expenditures, to (b) (i) accrued interest expense, plus
---- ----
(ii) current portion of Indebtedness, plus (iii) taxes, in each case of the
----
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP.
"Consolidated EBITDA" means for each twelve month period ending on the last
-------------------
day of the accounting period covered by the consolidated financial statements of
the Borrower and its Subsidiaries, the sum of (a) Consolidated Net Income (but
excluding any extraordinary losses or nonrecurring expenses, in each case only
to the extent that such amount was otherwise included in the determination of
applicable Consolidated Net Income), plus (b) interest expense, plus (c) taxes
---- ----
deducted in calculating Consolidated Net Income, plus (d) depreciation, plus (e)
---- ----
amortization, in each case of the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP.
"Consolidated Net Income" means the net income (or loss), after taxes, of
-----------------------
the Borrower and its Subsidiaries on a consolidated basis determined in
accordance with GAAP.
"Consolidated Net Worth" means as of the date of determination thereof, the
----------------------
sum of the capital stock (including paid-in-capital) accounts (net of treasury
shares) plus (or minus in the case of a deficit) the retained earnings of the
---- -----
Borrower and its Subsidiaries determined on a consolidated basis in accordance
with GAAP.
"Control" means the possession, directly or indirectly, of the power to
-------
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
- ------------ ----------
"Default" means any event or condition which constitutes an Event of
-------
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
-----------------
environmental matters disclosed in Schedule 3.06.
-------------
"Documentation Agent" means Fleet National Bank, in its capacity as
-------------------
documentation agent for the Lenders hereunder.
"dollars" or "$" refers to lawful money of the United States of America.
------- -
"Dollar Borrowing" means each Borrowing made and repayable in dollars.
----------------
6
<PAGE>
"Dollar Equivalent" means, at any time for the computation thereof, the
-----------------
amount of dollars which could be purchased with the amount of the relevant
Alternate Currency (or, in the case of other Indebtedness denominated in a
currency other than an Alternate Currency, such other currency) involved in such
computation at the spot exchange rate therefor as quoted by the Administrative
Agent as of 11:00 a.m., London time, on the date three Business Days prior to
the date of any determination thereof for purchase on such date.
"Dollar Loan" means each Loan made and repayable in dollars.
-----------
"Dollar Revolving Loan" means each Revolving Loan made and repayable in
---------------------
dollars.
"Domestic Subsidiary" means each Subsidiary that is incorporated or
-------------------
organized in the United States or any state or territory thereof.
"Effective Date" means the date on which the conditions specified in
--------------
Section 4.01 are satisfied (or waived in accordance with Section 9.02).
"Environmental Laws" means all laws, rules, regulations, codes, ordinances,
------------------
orders, decrees, judgments, injunctions, notices or binding agreements issued,
promulgated or entered into by any Governmental Authority, relating in any way
to the environment, preservation or reclamation of natural resources, the
management, release or threatened release of any Hazardous Material or to health
and safety matters.
"Environmental Liability" means any liability, contingent or otherwise
-----------------------
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
---------------
that, together with the Borrower, is treated as a single employer under Section
414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a single employer under Section 414 of
the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section 4043
-----------
of ERISA or the regulations issued thereunder with respect to a Plan (other than
an event for which the 30-day notice period is waived), (b) the existence with
respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or
7
<PAGE>
not waived, (c) the filing pursuant to Section 412(d) of the Code or Section
303(d) of ERISA of an application for a waiver of the minimum funding standard
with respect to any Plan, (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan, (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan, or (g) the receipt by the Borrower or any ERISA Affiliate of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any
ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent
or in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to
----------
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
----------------
"Excluded Taxes" means, with respect to the Administrative Agent, any
--------------
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.19(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this Agreement (or designates a new lending office) or is attributable to
such Foreign Lender's failure to comply with Section 2.17(e), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the
time of designation of a new lending office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax
pursuant to Section 2.17(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
----------------------------
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
8
<PAGE>
"Financial Officer" means the chief financial officer, principal accounting
-----------------
officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws of a
--------------
jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"Foreign Subsidiary" means each Subsidiary that is not a Domestic
------------------
Subsidiary.
"GAAP" means generally accepted accounting principles in the United States
----
of America.
"Governmental Authority" means the government of the United States of
----------------------
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
--------- ---------
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
---------------
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided that the term Guarantee shall not include endorsements for
--------
collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances or
-------------------
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement, foreign
-----------------
currency exchange agreement, commodity price protection agreement or other
interest or currency exchange rate or commodity price hedging arrangement.
9
<PAGE>
"Indebtedness" of any Person means, without duplication, (a) all
------------
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable incurred in the ordinary course of business), (f) all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such Person, whether or not the Indebtedness
secured thereby has been assumed, (g) all Guarantees by such Person of
Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (j) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
-----------------
"Interest Election Request" means a request by the Borrower to convert or
-------------------------
continue a Revolving Borrowing in accordance with Section 2.08.
"Interest Payment Date" means (a) with respect to any ABR Loan (other than
---------------------
a Swingline Loan), the last day of each March, June, September and December, (b)
with respect to any Eurodollar Loan or Alternate Currency Revolving Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing or an Alternate Currency
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period, and (c) with
respect to any Swingline Loan, the day that such Loan is required to be repaid.
"Interest Period" means with respect to any Eurodollar Borrowing or
---------------
Alternate Currency Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as the Borrower may elect;
provided that (i) if any Interest Period would end on a day other than a
- --------
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the next
preceding Business Day and (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period.
For purposes hereof, the date
10
<PAGE>
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its capacity as the
------------
issuer of Letters of Credit hereunder, and its successors in such capacity as
provided in Section 2.06(i). The Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of the Issuing
Bank, in which case the term "Issuing Bank" shall include any such Affiliate
with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to a
---------------
Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
----
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall
be its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other Person
------- -------------
that shall have become a party hereto pursuant to an Assignment and Acceptance,
other than any such Person that ceases to be a party hereto pursuant to an
Assignment and Acceptance. Unless the context otherwise requires, the term
"Lenders" includes the Swingline Lender.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of trust,
----
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the
11
<PAGE>
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
-----
this Agreement.
"Margin Stock" shall have the meaning assigned to that term in Regulation U
------------
of the Board as in effect from time to time.
"Material Adverse Effect" means a material adverse effect on (i) the
-----------------------
business, assets, operations, prospects or condition, financial or otherwise, of
the Borrower and the Subsidiaries taken as a whole, (ii) the ability of the
Borrower to perform any of its obligations under this Agreement or (iii) the
rights of or benefits available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of the Borrower and its Subsidiaries in an aggregate principal amount exceeding
$2,500,000. For purposes of determining Material Indebtedness, the "principal
amount" of the obligations of the Borrower or any Subsidiary in respect of any
Hedging Agreement at any time shall be the maximum aggregate amount (giving
effect to any netting agreements) that the Borrower or such Subsidiary would be
required to pay if such Hedging Agreement were terminated at such time.
"Material Subsidiary" means a Subsidiary which has (a) Net Worth of at
-------------------
least $3,000,000 and (b) for the twelve month period ending on the last day of
the accounting period covered by the consolidated financial statements of the
Borrower and its Subsidiaries, net income before interest and taxes of at least
$1,500,000.
"Maturity Date" means September 10, 2001.
-------------
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Net Worth" means as of the date of determination thereof, the sum of the
---------
capital stock (including paid-in-capital) accounts (net of treasury shares) plus
----
(or minus in the case of a deficit) the retained earnings of a Person determined
-----
in accordance with GAAP.
"Other Taxes" means any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
12
<PAGE>
"Permitted Encumbrances" means:
----------------------
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
- --------
securing Indebtedness.
"Permitted Investments" means:
---------------------
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the
date of acquisition thereof and having, at such date of acquisition, the
highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office
13
<PAGE>
of any commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000; and
(d) fully collateralized repurchase agreements with a term of not more
than 30 days for securities described in clause (a) above and entered into
with a financial institution satisfying the criteria described in clause
(c) above.
"Person" means any natural person, corporation, limited liability company,
------
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"Plan" means any employee pension benefit plan (other than a Multiemployer
----
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced from
----------
time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 9.04.
--------
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing 100% of the sum of the total
Revolving Credit Exposures and unused Commitments at such time.
"Restricted Payment" means any dividend or other distribution (whether in
------------------
cash, securities or other property) with respect to any shares of any class of
capital stock of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such shares of capital stock of the Borrower
or any option, warrant or other right to acquire any such shares of capital
stock of the Borrower; provided, however, that the term "Restricted Payment"
-------- ------- ------------------
shall not include (a) stock splits effected in the form of a stock dividend and
(b) preferred stock purchase rights or similar securities issued to holders of
Cambridge's common stock in connection with a shareholder rights plan.
14
<PAGE>
"Revolving Credit Exposure" means, with respect to any Lender at any time,
-------------------------
the sum of the outstanding principal amount (including the Dollar Equivalent of
all Alternate Currency Revolving Loans) of such Lender's Revolving Loans and its
LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan (including Dollar Revolving Loans and
--------------
Alternate Currency Revolving Loans) made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
---
"Solvent" means, with respect to any Person, that as of the date of
-------
determination both (a) (i) the then fair saleable value of the assets of such
Person is (y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (b) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Specified Currency" means (a) Brazilian Real, (b) Canadian Dollar, (c)
------------------
Japanese Yen, (d) Mexican Peso, (e) Swiss Franc and (f) Venezuelan Bolivar.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
----------------------
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject with
respect to the Adjusted LIBO Rate and the Alternate Currency Eurocurrency Rate,
for eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. Eurodollar Loans and Alternate Currency
Loans shall be deemed to constitute eurocurrency funding and to be subject to
such reserve requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any date,
---------- ------
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent's consolidated financial statements if such financial statements were
prepared in accordance with GAAP as of such date, as well as any other
15
<PAGE>
corporation, limited liability company, partnership, association or other entity
(a) of which securities or other ownership interests representing more than 50%
of the equity or more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, controlled or held, or (b) that is, as of such date, otherwise
Controlled, by the parent or one or more subsidiaries of the parent or by the
parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of Cambridge as of the date of this
----------
Agreement or formed or acquired hereafter, other than Cambridge Technology
Capital Management, Inc., Cambridge Technology Capital Fund I, L.P., Cambridge
Technology GPLP, L.P. and Cambridge Technology CGP, Inc.
"Swingline Exposure" means, at any time, the aggregate principal amount of
------------------
all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means The Chase Manhattan Bank, in its capacity as
----------------
lender of Swingline Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.05.
--------------
"Taxes" means any and all present or future taxes, levies, imposts, duties,
-----
deductions, charges or withholdings imposed by any Governmental Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary market
-----------------------------
rate for three-month certificates of deposit reported as being in effect on such
day (or, if such day is not a Business Day, the next preceding Business Day) by
the Board through the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day) or, if such rate is not so reported on such day or such next
preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Capitalization" means as of the date of any determination thereof,
--------------------
the sum of the Consolidated Net Worth of the Borrower and its Subsidiaries, plus
----
Total Funded Debt.
"Total Funded Debt" means as of the date of any determination thereof, the
-----------------
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis.
16
<PAGE>
"Transactions" means the execution, delivery and performance by the
------------
Borrower of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to whether
----
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate or
the applicable Alternate Currency Eurocurrency Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a result
--------------------
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION l.02 Cassification of Loans and Borrowings. For purposes of this
--------------------------------------
Agreement, Loans may be classified and referred to by Class (e.g., a "Dollar
----
Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
- -----
referred to by Class (e.g., a "Dollar Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
----
Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall
---------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement and (e) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
--------
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request
17
<PAGE>
an amendment to any provision hereof for such purpose), regardless of whether
any such notice is given before or after such change in GAAP or in the
application thereof, then such provision shall be interpreted on the basis of
GAAP as in effect and applied immediately before such change shall have become
effective until such notice shall have been withdrawn or such provision amended
in accordance herewith.
ARTTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
-----------
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
(including the Dollar Equivalent of all Alternate Currency Loans) that will not
result in (a) such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment or (b) the total Revolving Credit Exposures exceeding the total
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02 Loans and Borrowings.
---------------------
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance with
their respective Commitments. The failure of any Lender to make any Loan
required to be made by it shall not relieve any other Lender of its obligations
hereunder; provided that the Commitments of the Lenders are several and no
--------
Lender shall be responsible for any other Lender's failure to make Loans as
required.
(b) Subject to Section 2.14, (i) each Dollar Revolving Loan shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith, and (ii) each Alternate Currency Loan shall be comprised
entirely of the applicable Alternate Currency Eurocurrency Rate Loan as set
forth in Section 2.04. Each Swingline Loan shall be an ABR Loan. Each Lender
at its option may make any Eurodollar Loan or Alternate Currency Loan by causing
any domestic or foreign branch or Affiliate of such Lender to make such Loan;
provided that any exercise of such option shall not affect the obligation of the
- --------
Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount of $500,000
or an integral multiple of $100,000 in excess thereof. At the time that each
ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount
of $500,000 or an integral multiple of $100,000 in excess thereof; provided that
--------
an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Commitments or that is required to finance
the reimbursement of an LC Disbursement as contemplated by Section 2.06(e).
Each Alternate Currency Borrowing shall be in an aggregate amount of the
applicable Alternate Currency
18
<PAGE>
Equivalent of $500,000 or an integral multiple of the applicable Alternate
Currency Equivalent of $100,000 in excess thereof. Each Swingline Loan shall be
in an amount of $500,000 or an integral multiple of $100,000 in excess thereof.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of ten
- --------
Eurodollar Revolving Borrowings outstanding or a total of ten Alternate Currency
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
---------------------------------
Borrowing,the Borrower shall notify the Administrative Agent of such request by
telephone(a) in the case of a Eurodollar Borrowing or an Alternate Currency
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of the proposed Borrowing or (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, one Business Day
before the date of the proposed Borrowing; provided that any such notice of an
--------
ABR Revolving Borrowing to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.06(e) may be given not later than 10:00 a.m., New York
City time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing, a
Eurodollar Borrowing or an Alternate Currency Borrowing;
(iv) in the case of a Eurodollar Borrowing or an Alternate
Currency Borrowing, the initial Interest Period to be applicable
thereto, which shall be a period contemplated by the definition of the
term "Interest Period";
(v) in the case of an Alternate Currency Borrowing, the
currency proposed to be borrowed;
(vi) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.07; and
(vii) the amount, if any, of the requested Borrowing which will
be used to fund acquisitions permitted by Section 6.04(h).
19
<PAGE>
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Borrowing or Alternate
Currency Borrowing, then the Borrower shall be deemed to have selected an
Interest Period of one month's duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Alternate Currency Revolving Loans. The Borrower may
----------------------------------
request in accordance with Section 2.03 an Alternate Currency Borrowing in
Specified Currencies plus any other currencies (i) deposits for which are
regularly offered on the London interbank Eurocurrency market and (ii) which are
acceptable to the Administrative Agent. If the Administrative Agent determines
(which determination shall be conclusive absent manifest error) that the
Alternate Currency proposed to be borrowed is not freely transferable and
convertible into dollars, then the Administrative Agent shall so notify the
Borrower and the requested Alternate Currency Loan shall not be made. All
requests for Alternate Currency Borrowings shall be made by the following entity
with respect to the Specified Currency:
Entity Specified Currency
- ------ ------------------
Cambridge Technology Partners do Brasil S/C LTDA Brazilian Real
Cambridge Technology Partners Ltd. (Ontario) Canadian Dollar
Cambridge Technology Partners Limited Japanese Yen
Cambridge Technology Partners (Mexico), S.A. de C.V. Mexican Peso
Cambridge Technology Partners (Switzerland) S.A. Swiss Franc
Cambridge Technology Partners (Venezuela) C.A. Venezuelan Bolivar
All principal and interest payable with respect to any Alternate Currency Loan
shall be paid in the currency which is the subject of such Loan.
SECTION 2.05. Swingline Loans.
---------------
(a) Subject to the terms and conditions set forth herein, the
Swingline Lender agrees to make Swingline Loans to the Borrower from time to
time during the Availability Period, in an aggregate principal amount at any
time outstanding that will not result in (i) the aggregate principal amount of
outstanding Swingline Loans exceeding $5,000,000 or (ii) the total Revolving
Credit Exposures exceeding the total Commitments; provided that the Swingline
--------
Lender shall not be required to make a Swingline Loan to refinance an
outstanding Swingline Loan. Within the foregoing limits and subject to the
terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Swingline Loans. Swingline Loans may only be made as Dollar Revolving
Loans. Notwithstanding anything to the contrary in this Section 2.05, the
Borrower cannot request a Swingline Loan and a Lender shall not provide any
Swingline Loans until otherwise agreed to by the Swingline Lender.
20
<PAGE>
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, New York City time, on the day of a proposed Swingline
Loan. Each such notice shall be irrevocable and shall specify the requested
date (which shall be a Business Day) and amount of the requested Swingline Loan.
The Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to the general
deposit account of the Borrower with the Swingline Lender (or, in the case of a
Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.06(e), by remittance to the Issuing Bank) by 3:00 p.m.,
New York City time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day require the Lenders to acquire participations on such Business Day
in all or a portion of the Swingline Loans outstanding. Such notice shall
specify the aggregate amount of Swingline Loans in which Lenders will
participate. Promptly upon receipt of such notice, the Administrative Agent
will give notice thereof to each Lender, specifying in such notice such Lender's
Applicable Percentage of such Swingline Loan or Loans. Each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided above,
to pay to the Administrative Agent, for the account of the Swingline Lender,
such Lender's Applicable Percentage of such Swingline Loan or Loans. Each
Lender acknowledges and agrees that its obligation to acquire participations in
Swingline Loans pursuant to this paragraph is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including the occurrence
and continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever. Each Lender shall comply with its obligation under
this paragraph by wire transfer of immediately available funds, in the same
manner as provided in Section 2.07 with respect to Loans made by such Lender
(and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of
------- --------
the Lenders), and the Administrative Agent shall promptly pay to the Swingline
Lender the amounts so received by it from the Lenders. The Administrative Agent
shall notify the Borrower of any participations in any Swingline Loan acquired
pursuant to this paragraph, and thereafter payments in respect of such Swingline
Loan shall be made to the Administrative Agent and not to the Swingline Lender.
Any amounts received by the Swingline Lender from the Borrower (or other party
on behalf of the Borrower) in respect of a Swingline Loan after receipt by the
Swingline Lender of the proceeds of a sale of participations therein shall be
promptly remitted to the Administrative Agent; any such amounts received by the
Administrative Agent shall be promptly remitted by the Administrative Agent to
the Lenders that shall have made their payments pursuant to this paragraph and
to the Swingline Lender, as their interests may appear. The purchase of
participations in a Swingline Loan pursuant to this paragraph shall not relieve
the Borrower of any default in the payment thereof.
21
<PAGE>
SECTION 2.06. Letters of Credit.
-----------------
(a) General. Subject to the terms and conditions set forth herein,
-------
the Borrower may request the issuance of Letters of Credit for its own account,
in a form reasonably acceptable to the Administrative Agent and the Issuing
Bank, at any time and from time to time during the Availability Period. Letters
of Credit may only be issued to be payable in dollars. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the Issuing
Bank relating to any Letter of Credit, the terms and conditions of this
Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
- ----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting the issuance
of a Letter of Credit, or identifying the Letter of Credit to be amended,
renewed or extended, and specifying the date of issuance, amendment, renewal or
extension (which shall be a Business Day), the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. If requested by the Issuing Bank, the Borrower
also shall submit a letter of credit application on the Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Borrower shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed $7,500,000
and (ii) the total Revolving Credit Exposures shall not exceed the total
Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
---------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
--------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. In consideration and in furtherance of the foregoing, each Lender
hereby absolutely and unconditionally agrees to pay to the Administrative Agent,
for the account of the Issuing Bank, such Lender's Applicable Percentage of each
LC Disbursement made by the Issuing Bank and not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or of any
22
<PAGE>
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
-------------
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Borrower shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such time on such
date, then not later than 12:00 noon, New York City time, on (i) the Business
Day that the Borrower receives such notice, if such notice is received prior to
10:00 a.m., New York City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such notice, if such
notice is not received prior to such time on the day of receipt; provided that
--------
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 or 2.05 that such payment be financed
with an ABR Revolving Borrowing or Swingline Loan in an equivalent amount and,
to the extent so financed, the Borrower's obligation to make such payment shall
be discharged and replaced by the resulting ABR Revolving Borrowing or Swingline
Loan. If the Borrower fails to make such payment when due, the Administrative
Agent shall notify each Lender of the applicable LC Disbursement, the payment
then due from the Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the Borrower, in the same manner as provided in Section 2.07 with
respect to Loans made by such Lender (and Section 2.07 shall apply, mutatis
-------
mutandis, to the payment obligations of the Lenders), and the Administrative
- --------
Agent shall promptly pay to the Issuing Bank the amounts so received by it from
the Lenders. Promptly following receipt by the Administrative Agent of any
payment from the Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the extent that the
Lenders have made payments pursuant to this paragraph to reimburse the Issuing
Bank, then to such Lenders and the Issuing Bank as their interests may appear.
Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
--------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other
23
<PAGE>
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly
-----------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
-----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
- --------
pursuant to paragraph (e) of this Section, then Section 2.13(e) shall apply.
Interest accrued pursuant to this
24
<PAGE>
paragraph shall be for the account of the Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section to reimburse the Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be replaced
-------------------------------
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.12(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 66% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
--------
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h), (i) or (j) of Article VII. Such deposit shall be held
by the Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 66% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of
25
<PAGE>
Default, such amount (to the extent not applied as aforesaid) shall be returned
to the Borrower within three Business Days after all Events of Default have been
cured or waived.
SECTION 2.07. Funding of Borrowings.
---------------------
(a) Each Lender shall make each Loan to be made by it hereunder on the
proposed date thereof by wire transfer of immediately available funds by 12:00
noon, New York City time, to the account of the Administrative Agent most
recently designated by it for such purpose by notice to the Lenders; provided
--------
that Swingline Loans shall be made as provided in Section 2.05. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts so received, in like funds, to an account of the Borrower
maintained with the Administrative Agent in New York City and designated by the
Borrower in the applicable Borrowing Request; provided that ABR Revolving Loans
--------
made to finance the reimbursement of an LC Disbursement as provided in Section
2.06(e) shall be remitted by the Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.08. Interest Elections.
------------------
(a) Each Dollar Revolving Borrowing initially shall be of the Type
specified in the applicable Borrowing Request and, in the case of a Eurodollar
Revolving Borrowing, shall have an initial Interest Period as specified in such
Borrowing Request. Thereafter, the Borrower may elect to convert such Borrowing
to a different Type or to continue such Borrowing and, in the case of a
Eurodollar Revolving Borrowing, may elect Interest Periods therefor, all as
provided in this Section. The Borrower may elect different options with respect
to different portions of the affected Borrowing, in which case each such portion
shall be allocated ratably among the Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each such portion shall be considered a
separate Borrowing. This Section shall not apply to Swingline Borrowings, which
may not be converted or continued.
26
<PAGE>
(b) Except as otherwise set forth herein, each Alternate Currency
Borrowing shall at all times bear interest based on the applicable Alternate
Currency Eurocurrency Rate and shall have an initial Interest Period as
specified in the initial Borrowing Request. Thereafter, the Borrower may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different Interest Periods with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(c) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(d) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each
resulting Borrowing (in which case the information to be specified
pursuant to clauses (iii) and (iv) below shall be specified for each
resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Dollar Revolving Borrowing is to be
an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing or an
Alternate Currency Borrowing, the Interest Period to be applicable
thereto after giving effect to such election, which shall be a period
contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing or an
Alternate Currency Borrowing but does not specify an Interest Period, then the
Borrower shall be deemed to have selected an Interest Period of one month's
duration.
(e) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
27
<PAGE>
(f) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. If the Borrower fails to deliver a timely
Interest Election Request with respect to an Alternate Currency Borrowing prior
to the end of the Interest Period applicable thereto, then, unless such
Borrowing is repaid as provided herein, at the end of such Borrowing, the
Borrower shall be deemed to have continued such Borrowing as an Alternate
Currency Eurocurrency Rate Loan and to have selected an Interest Period of one
month's duration. Notwithstanding any contrary provision hereof, if an Event of
Default has occurred and is continuing and the Administrative Agent, at the
request of the Required Lenders, so notifies the Borrower, then, so long as an
Event of Default is continuing (i) no outstanding Dollar Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing, (ii) unless repaid, each
Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at the end
of the Interest Period applicable thereto, and (iii) unless repaid, each
Alternate Currency Borrowing shall be deemed to have an Interest Period of one
month's duration following the end of the Interest Period applicable thereto.
SECTION 2.09. Termination and Reduction of Commitments
----------------------------------------
(a) Unless previously terminated, the Commitments shall terminate on
the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
--------
shall be in an amount that is an integral multiple of $1,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Loans in accordance with Section 2.11, the
Revolving Credit Exposures would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
--------
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, in which case
such notice may be revoked by the Borrower (by notice to the Administrative
Agent on or prior to the specified effective date) if such condition is not
satisfied. Any termination or reduction of the Commitments shall be permanent.
Each reduction of the Commitments shall be made ratably among the Lenders in
accordance with their respective Commitments.
28
<PAGE>
SECTION 2.10. Repayment of Loans; Evidence of Debt
------------------------------------
(a) The Borrower hereby unconditionally promises to pay (i) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Revolving Loan on the Maturity Date and (ii) to the Swingline
Lender the then unpaid principal amount of each Swingline Loan on the earlier of
the Maturity Date and the first date after such Swingline Loan is made that is
the 15th or last day of a calendar month and is at least two Business Days after
such Swingline Loan is made; provided that on each date that a Revolving
--------
Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note substantially in the form of Exhibit B. In such event, the
---------
Borrower shall prepare, execute and deliver to such Lender a promissory note
payable to the order of such Lender (or, if requested by such Lender, to such
Lender and its registered assigns) and in a form approved by the Administrative
Agent. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.11. Prepayment of Loans.
-------------------
(a) The Borrower shall have the right at any time and from time to
time to prepay any Borrowing in whole or in part, subject to prior notice in
accordance with paragraph (b) of this Section. Any prepayment pursuant to this
Section 2.11(a) shall be in an aggregate amount that is an integral multiple of
$100,000 (or the applicable Alternate Currency Equivalent thereof) and not less
than $500,000 (or the applicable Alternate Currency Equivalent thereof).
29
<PAGE>
(b) The Borrower shall be required to pay to the Administrative Agent
for the account of each Lender to be applied ratably to the prepayment of the
Loans without penalty or premium (except for LIBO Rate breakage costs, if any),
(i) the net proceeds received by the Borrower or any of its Subsidiaries from
the sale or disposition (other than in the ordinary course of business for an
aggregate consideration not exceeding $500,000 per year) of all or any part of
the assets of the Borrower or any of its Subsidiaries, (ii) the net proceeds
received by the Borrower from the issuance of any equity or Indebtedness
subordinated to the Loans hereunder, and (iii) any insurance recoveries or
condemnation awards received by the Borrower or any of its Subsidiaries which
are not applied toward the repair or replacement of the damaged or condemned
property within three months of receipt.
(c) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing or an Alternate Currency
Borrowing, not later than 11:00 a.m., New York City time, three Business Days
before the date of prepayment, (ii) in the case of prepayment of an ABR
Revolving Borrowing, not later than 11:00 a.m., New York City time, one Business
Day before the date of prepayment or (iii) in the case of prepayment of a
Swingline Loan, not later than 12:00 noon, New York City time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
--------
a conditional notice of termination of the Commitments as contemplated by
Section 2.09, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.09. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial
prepayment of any Revolving Borrowing shall be in an amount that would be
permitted in the case of an advance of a Revolving Borrowing of the same Type as
provided in Section 2.02. Each prepayment of a Revolving Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by Section 2.13.
SECTION 2.12. Fees.
----
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commitment fee, which shall accrue at the Applicable
Rate on the average daily unused amount of the Commitment of such Lender during
the period ending on the date on which such Commitment terminates; provided
--------
that, if such Lender continues to have any Revolving Credit Exposure after its
Commitment terminates, then such commitment fee shall continue to accrue on the
daily amount of such Lender's Revolving Credit Exposure from and including the
date on which its Commitment terminates to but excluding the date on which such
Lender ceases to have any Revolving Credit Exposure. Accrued commitment fees
shall be payable in arrears on the last day of March, June, September and
December of each year and on the date on which the Commitments terminate,
commencing on the first such date to occur after the date hereof; provided that
--------
any commitment fees accruing after the date on which the Commitments terminate
30
<PAGE>
shall be payable on demand. All commitment fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
Letters of Credit, which shall accrue at the same Applicable Rate as interest on
Eurodollar Revolving Loans on the average daily amount of such Lender's LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date on which such Lender's Commitment terminates and
the date on which such Lender ceases to have any LC Exposure, and (ii) to the
Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per annum
on the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date of
termination of the Commitments and the date on which there ceases to be any LC
Exposure, as well as the Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through
and including the last day of March, June, September and December of each year
shall be payable on the third Business Day following such last day, commencing
on the first such date to occur after the Effective Date; provided that all such
--------
fees shall be payable on the date on which the Commitments terminate and any
such fees accruing after the date on which the Commitments terminate shall be
payable on demand. Any other fees payable to the Issuing Bank pursuant to this
paragraph shall be payable within 10 days after demand. All participation fees
and fronting fees shall be computed on the basis of a year of 360 days and shall
be payable for the actual number of days elapsed (including the first day but
excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.13. Interest.
--------
(a) The Loans comprising each ABR Borrowing (including each Swingline
Loan) shall bear interest at the Alternate Base Rate plus the Applicable Rate.
----
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
- ----
31
<PAGE>
(c) Each Alternate Currency Eurocurrency Rate Loan shall bear interest
at the applicable Alternate Currency Eurocurrency Rate for such currency for the
Interest Period in effect for such Borrowing plus the Applicable Rate.
----
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and upon termination of the Commitments;
provided that (i) interest accrued pursuant to paragraph (d) of this Section
- --------
shall be payable on demand, (ii) in the event of any repayment or prepayment of
any Loan (other than a prepayment of an ABR Revolving Loan prior to the end of
the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar Revolving Loan prior to the end
of the current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or Alternate Currency Eurocurrency Rate shall be determined
by the Administrative Agent, and such determination shall be conclusive absent
manifest error.
SECTION 2.14. Alternate Rate of Interest. If prior to the commencement of
--------------------------
any Interest Period for a Eurodollar Borrowing or an Alternate Currency
Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the Adjusted LIBO Rate or the applicable Alternate
Currency Eurocurrency Rate, as the case may be, for such Interest Period;
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the applicable Alternate Currency Eurocurrency Rate,
as the case may be, for such Interest Period will not adequately and fairly
reflect the cost to such Lenders (or Lender) of making or maintaining their
Loans (or its Loan) included in such Borrowing for such Interest Period; or
32
<PAGE>
(c) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that the Alternate Currency is not freely
transferable and convertible into dollars;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing or such
applicable Alternate Currency Borrowing, as the case may be, shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing or such Alternate Currency Borrowing, such Borrowing shall be made as
an ABR Borrowing; provided that if the circumstances giving rise to such notice
--------
affect only one Type of Borrowings, then the other Type of Borrowings shall be
permitted.
SECTION 2.15. Increased Costs.
---------------
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate or the
applicable Alternate Currency Eurocurrency Rate) or the Issuing Bank;
or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans or applicable Alternate Currency Loans made by such
Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan or applicable Alternate
Currency Loan (or of maintaining its obligation to make any such Loan) or to
increase the cost to such Lender or the Issuing Bank of participating in,
issuing or maintaining any Letter of Credit or to reduce the amount of any sum
received or receivable by such Lender or the Issuing Bank hereunder (whether of
principal, interest or otherwise), then the Borrower will pay to such Lender or
the Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank, as the case may be, for such
additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or the Issuing Bank's capital or on the capital
of such Lender's or the Issuing Bank's holding company, if any, as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by the
33
<PAGE>
Issuing Bank, to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company could have achieved but for
such Change in Law (taking into consideration such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or the Issuing Bank, as the case may be, such additional
amount or amounts as will compensate such Lender or the Issuing Bank or such
Lender's or the Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender or the Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
--------
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 270 days prior to the date that such Lender or the Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
-------- -------
in Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.16. Break Funding Payments. In the event of (a) the payment
----------------------
of any principal of any Eurodollar Loan or Alternate Currency Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan or Alternate
Currency Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Revolving
Loan on the date specified in any notice delivered pursuant hereto (regardless
of whether such notice may be revoked under Section 2.11(b) and is revoked in
accordance therewith), (d) the assignment of any Eurodollar Loan or Alternate
Currency Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.19, then,
in any such event, the Borrower shall compensate each Lender for the loss, cost
and expense attributable to such event. In the case of a Eurodollar Loan or
Alternate Currency Loan, such loss, cost or expense to any Lender shall be
deemed to include an amount determined by such Lender to be the excess, if any,
of (i) the amount of interest which would have accrued on the principal amount
of such Loan had such event not occurred, at the Adjusted LIBO Rate (in the case
of a Eurodollar Loan) or the applicable Alternate Currency Eurocurrency Rate (in
the case of an Alternate Currency Loan) that would have been applicable to such
Loan, for the period from the date of such event to the last day of the then
current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period
34
<PAGE>
for such Loan), over (ii) the amount of interest which would accrue on such
principal amount for such period at the interest rate which such Lender would
bid were it to bid, at the commencement of such period, for deposits of dollars
or the applicable Alternate Currency, as the case may be, of a comparable amount
and period from other banks in the eurodollar or eurocurrency market. A
certificate of any Lender setting forth any amount or amounts that such Lender
is entitled to receive pursuant to this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.17. Taxes.
-----
(a) Any and all payments by or on account of any obligation of the
Borrower hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
--------
required to deduct any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Administrative Agent, Lender or Issuing Bank (as the
case may be) receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Bank,
or by the Administrative Agent on its own behalf or on behalf of a Lender or the
Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
35
<PAGE>
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate.
SECTION 2.18. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
-----------------------------------------------------------
(a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate
36
<PAGE>
amount of principal of and accrued interest on their respective Revolving Loans
and participations in LC Disbursements and Swingline Loans; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing Bank,
as the case may be, the amount due. In such event, if the Borrower has not in
fact made such payment, then each of the Lenders or the Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(c), 2.06(d) or (e), 2.07(b) or 2.18(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.19. Mitigation Obligations; Replacement of Lenders.
----------------------------------------------
(a) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.15 or 2.17, as the case may be,
in the future and (ii) would not subject such
37
<PAGE>
Lender to any unreimbursed cost or expense and would not otherwise be
disadvantageous to such Lender. The Borrower hereby agrees to pay all reasonable
costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.17,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
--------
shall have received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Issuing Bank and Swingline Lender), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements and Swingline Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts) and (iii) in the case
of any such assignment resulting from a claim for compensation under Section
2.15 or payments required to be made pursuant to Section 2.17, such assignment
will result in a reduction in such compensation or payments. A Lender shall not
be required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
--------------------
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions are within
-----------------------------
the Borrower's corporate powers and have been duly authorized by all necessary
corporate and, if required, stockholder action. This Agreement has been duly
executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
38
<PAGE>
moratorium or other laws affecting creditors' rights generally and subject to
general principles of equity, regardless of whether considered in a proceeding
in equity or at law.
SECTION 3.04. Governmental Approvals; No Conflicts. The Transactions
------------------------------------
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Borrower or any of its
Subsidiaries or its assets, or give rise to a right thereunder to require any
payment to be made by the Borrower or any of its Subsidiaries, except which,
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect and (d) will not result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 3.04. Financial Condition; No Material Adverse Change.
-----------------------------------------------
(a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders' equity and
cash flows (i) as of and for the fiscal year ended December 31, 1997, reported
on by PricewaterhouseCoopers LLP, independent public accountants, and (ii) as of
and for the fiscal quarter and the portion of the fiscal year ended March 31,
1998, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results of
operations and cash flows of the Borrower and its consolidated Subsidiaries as
of such dates and for such periods in accordance with GAAP, subject to year-end
audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Since December 31, 1997, there has been no material adverse change
in the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties.
----------
(a) Each of the Borrower and its Subsidiaries has good title to, or
valid leasehold interests in, all its real and personal property material to its
business, except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
39
<PAGE>
SECTION 3.06. Litigation and Environmental Matters.
------------------------------------
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be expected,
individually or in the aggregate, to result in a Material Adverse Effect (other
than the Disclosed Matters) or (ii) that involve this Agreement or the
Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Borrower nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower
-----------------------------------
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. Securities Activities. Neither the Borrower nor any of its
---------------------
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or carrying any
Margin Stock, and none of the proceeds herefrom will be used for such
activities.
SECTION 3.09. Investment and Holding Company Status. Neither the
-------------------------------------
Borrower nor any of its Subsidiaries is (a) an "investment company" within the
meaning of, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" within the meaning of, or subject to regulation
under, the Public Utility Holding Company Act of 1935.
SECTION 3.10. Taxes. Each of the Borrower and its Subsidiaries has
-----
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
40
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SECTION 3.11. ERISA. No ERISA Event has occurred or is reasonably
-----
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $100,000 the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on
the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $100,000 the fair market value of
the assets of all such underfunded Plans.
SECTION 3.12. Solvency. Each of the Borrower and its Subsidiaries is,
--------
and, after giving effect to the Transactions, will be taken together on a
consolidated basis, Solvent.
SECTION 3.13. Disclosure. The Borrower has disclosed to the Lenders all
----------
agreements, instruments and corporate or other restrictions to which it or any
of its Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. None of the reports, financial statements, certificates
or other information furnished by or on behalf of the Borrower to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or delivered hereunder (as modified or supplemented by other
information so furnished) contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
--------
with respect to projected financial or other information, the Borrower
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
SECTION 3.14. Payments by Subsidiaries. There is, and after giving
------------------------
effect to the Transactions, will be, no restriction on the ability of any
Subsidiary to pay dividends or other distributions (whether in cash, securities
or other property) with respect to any shares of its capital stock or to make or
repay loans or advances to the Borrower or to Guarantee Indebtedness of the
Borrower.
SECTION 3.15. Year 2000. Any reprogramming required to permit the proper
---------
functioning, in and following the year 2000, of (i) the Borrower's computer
systems and (ii) equipment containing embedded microchips (including systems and
equipment supplied by others or with which Borrower's systems interface) and the
testing of all such systems and equipment, as so reprogrammed, will be completed
by January 1, 1999. The cost to the Borrower of such reprogramming and testing
and of the reasonably foreseeable consequences of year 2000 to the Borrower
(including, without limitation, reprogramming errors and the failure of others'
systems or equipment) will not result in a Default or a Material Adverse Effect.
Except for such of the reprogramming referred to in this Section 3.15 as may be
necessary, the computer and management information systems of the Borrower and
its
41
<PAGE>
Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be, sufficient to permit the Borrower
to conduct its business without Material Adverse Effect.
ARTICLES IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
--------------
Loans and of the Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of Testa, Hurwitz & Thibeault, LLP, counsel for the Borrower,
substantially in the form of Exhibit C, and covering such other matters relating
---------
to the Borrower, this Agreement or the Transactions as the Required Lenders
shall reasonably request. The Borrower hereby requests such counsel to deliver
such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of the Borrower and
its Subsidiaries, the authorization of the Transactions and any other legal
matters relating to the Borrower, this Agreement or the Transactions, all in
form and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a guarantee signed by
the Domestic Subsidiaries in form and substance satisfactory to the
Administrative Agent and its counsel.
(e) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a Financial
Officer of the Borrower, confirming compliance with the conditions set forth in
paragraphs (a) and (b) of Section 4.02.
42
<PAGE>
(f) The Administrative Agent shall have received a certificate of the
chief financial officer of the Borrower (i) attaching copies of all consents,
authorizations and filings required to consummate the Transactions or, in the
sole discretion of the Administrative Agent, advisable in connection with the
Transactions and the operations of the Borrower and its Subsidiaries, and (ii)
stating that such consents, authorizations and filings are in full force and
effect, and each such consent, authorization and filing shall be in form and
substance satisfactory to the Administrative Agent and its counsel.
(g) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses required
to be reimbursed or paid by the Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
October 5, 1998 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to make a
-----------------
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend any Letter of Credit, is subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such Borrowing
or the date of issuance, amendment, renewal or extension of such Letter of
Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
43
<PAGE>
ARTICLE V
Affirmative Covenants
---------------------
Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid in
full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Borrower
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Borrower,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year, setting
forth in each case in comparative form the figures for the previous fiscal year,
all reported on by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception as to the
scope of such audit) to the effect that such consolidated financial statements
present fairly in all material respects the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated
basis in accordance with GAAP;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrower, its consolidated balance sheet and
related statements of operations, stockholders' equity and cash flows as of the
end of and for such fiscal quarter and the then elapsed portion of the fiscal
year, setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance sheet, as of
the end of) the previous fiscal year, all certified by one of its Financial
Officers as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its consolidated Subsidiaries on a
consolidated basis in accordance with GAAP, subject to normal year-end audit
adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the Borrower
substantially in the form of Exhibit D (i) certifying as to whether a Default
---------
has occurred and, if a Default has occurred, specifying the details thereof and
any action taken or proposed to be taken with respect thereto, (ii) setting
forth in reasonable detail calculations demonstrating compliance with Sections
6.10, 6.11 and 6.12 and (iii) stating whether any change in GAAP or in the
application thereof has occurred since the date of the audited financial
statements referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements accompanying
such certificate;
44
<PAGE>
(d) within the first 15 days of each fiscal year of the Borrower, its
consolidated budget for such fiscal year certified by a Financial Officer of the
Borrower and setting forth in reasonable detail (i) the assumptions made in
connection therewith and (ii) calculations demonstrating compliance with
Sections 6.10, 6.11 and 6.12;
(e) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed by the
Borrower to its shareholders generally, as the case may be; and
(f) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Borrower or any Subsidiary, or compliance with the terms of this Agreement, as
the Administrative Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will furnish to
--------------------------
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect or (ii) that
involves this Agreement or the Transactions;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to result in
liability of the Borrower and its Subsidiaries in an aggregate amount exceeding
$100,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
------------------------------
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and the
rights, licenses, permits, privileges and franchises material to the conduct of
its business; provided that the foregoing shall not prohibit any merger,
--------
consolidation, liquidation or dissolution permitted under Section 6.03.
45
<PAGE>
SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
----------------------
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could result in a Material Adverse Effect before the same
shall become delinquent or in default, except where (a) the validity or amount
thereof is being contested in good faith by appropriate proceedings, (b) the
Borrower or such Subsidiary has set aside on its books adequate reserves with
respect thereto in accordance with GAAP and (c) the act of contesting the
validity or amount thereof, including, among other things, the failure to make
payment pending such contest, could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. The Borrower will, and
------------------------------------
will cause each of its Subsidiaries to, (a) keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted, and (b) maintain, with financially sound and
reputable insurance companies, insurance in such amounts and against such risks
as are customarily maintained by companies engaged in the same or similar
businesses operating in the same or similar locations.
SECTION 5.06. Books and Records; Inspection Rights. The Borrower will, and
------------------------------------
will cause each of its Subsidiaries to, keep proper books of record and account
in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. The Borrower will, and
will cause each of its Subsidiaries to, permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 5.07. Compliance with Laws. The Borrower will, and will cause each
--------------------
of its Subsidiaries to, comply with all laws, rules, regulations and orders of
any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the
-------------------------------------
Loans will be used only for acquisitions permitted under Section 6.04 and
capital expenditures, and to provide working capital. No part of the proceeds of
any Loan will be used, whether directly or indirectly, for any purpose that
entails a violation of any of the Regulations of the Board, including
Regulations U and X. Letters of Credit will be issued only for the payment of
suppliers of the Borrower and for other purposes satisfactory to the
Administrative Agent.
46
<PAGE>
ARTICLE VI
Negative Covenants
------------------
Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Indebtedness. The Borrower will not, and will not permit any
------------
Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule
--------
6.01 and extensions, renewals and replacements of any such Indebtedness that do
- ----
not increase the outstanding principal amount thereof;
(c) Indebtedness of any Subsidiary to the Borrower or any wholly-owned
Subsidiary;
(d) Guarantees existing on the date hereof and set forth in Schedule
--------
6.01 by the Borrower of Indebtedness of any Subsidiary and by any Subsidiary of
- ----
Indebtedness of the Borrower or any other Subsidiary and extensions, renewals
and replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof;
(e) Guarantees by any Subsidiary of Indebtedness of the Borrower
created hereunder;
(f) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof; provided that (i) such Indebtedness is incurred prior to or within 90
--------
days after such acquisition or the completion of such construction or
improvement and (ii) the aggregate principal amount of Indebtedness permitted by
this clause (f) shall not exceed $1,000,000 at any time outstanding;
(g) Indebtedness of the Borrower incurred in connection with the
build-out of the Borrower's headquarters located in Cambridge, Massachusetts up
to an aggregate amount of $7,000,000 (provided that the Borrower's landlord
--------
shall reimburse the Borrower for at least $6,000,000 of such Indebtedness) and,
in connection therewith, Indebtedness of the
47
<PAGE>
Borrower incurred to finance the acquisition of equipment, furniture and related
items for use in the ordinary course of business up to an aggregate amount of
$4,000,000; and
(h) Other Indebtedness; provided that at the time of incurrence
--------
thereof and after giving effect thereto and to the application of the proceeds
thereof, Total Funded Debt does not exceed 40% of Total Capitalization.
SECTION 6.02. Liens. The Borrower will not, and will not permit any
-----
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 6.02; provided
------------- --------
that (i) such Lien shall not apply to any other property or asset of the
Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the date hereof and extensions, renewals and
replacements thereof that do not increase the outstanding principal amount
thereof; and
(c) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Subsidiary; provided that (i) such security interests
--------
secure Indebtedness permitted by clause (f) of Section 6.01, (ii) such security
interests and the Indebtedness secured thereby are incurred prior to or within
90 days after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the
cost of acquiring, constructing or improving such fixed or capital assets and
(iv) such security interests shall not apply to any other property or assets of
the Borrower or any Subsidiary.
SECTION 6.03. Fundamental Changes.
-------------------
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate with any other Person, or permit any other Person to
merge into or consolidate with it, or sell, transfer, lease or otherwise dispose
of (in one transaction or in a series of transactions) all or substantially all
of its assets, or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired), or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
wholly-owned Subsidiary may merge into the Borrower in a transaction in which
the Borrower is the surviving corporation, (ii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets (including the stock of any
other Subsidiary) to the Borrower or any Domestic Subsidiary, (iii) Cambridge
may sell or transfer the stock of any Subsidiary to any entity listed on
Schedule I hereto or, in connection with an acquisition permitted under Section
- ----------
6.04(h), any Domestic Subsidiary, (iv) any Subsidiary may merge
48
<PAGE>
into any Domestic Subsidiary and any Foreign Subsidiary may merge into any other
Foreign Subsidiary as long as (x) both Subsidiaries are engaged in businesses of
the type conducted by Cambridge on the date hereof or businesses reasonably
related thereto and (y) the Net Worth of the surviving corporation on a pro
forma basis does not exceed $5,000,000, (v) any Domestic Subsidiary may merge
with any other Person in connection with an acquisition permitted under Section
6.04(h) as long as the surviving corporation is a wholly-owned Domestic
Subsidiary, (vi) any Person may merge into the Borrower in connection with an
acquisition permitted under Section 6.04(h) as long as the Borrower is the
surviving corporation and (vii) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in the
best interests of the Borrower and does not result in a Material Adverse Effect.
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than businesses of the
type conducted by the Borrower and its Subsidiaries on the date hereof and
businesses reasonably related thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions.
---------------------------------------------------------
The Borrower will not, and will not permit any of its Subsidiaries to, purchase,
hold or acquire (including pursuant to any merger not permitted under Section
6.03(a)) any capital stock, evidences of indebtedness or other securities
(including any option, warrant or other right to acquire any of the foregoing)
of, make or permit to exist any loans or advances to, Guarantee any obligations
of, or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person constituting a business unit,
except:
(a) Permitted Investments;
(b) investments by the Borrower existing on the date hereof in the
capital stock of its Subsidiaries and investments by the Borrower after the date
hereof in the capital stock of (i) its Domestic Subsidiaries existing on the
date hereof and (ii) the entities listed on Schedule I hereto;
----------
(c) investments by the Borrower in the capital stock of Subsidiaries
formed after the date hereof; provided, however, that (i) no investment shall be
-------- -------
made in a Domestic Subsidiary formed after the date hereof unless, prior to or
simultaneously with such investment, such Domestic Subsidiary executes a
guarantee in form and substance satisfactory to the Administrative Agent and its
counsel and (ii) no investment shall be made in a Foreign Subsidiary formed
after the date hereof if after making such investment (x) the aggregate invested
capital in such Foreign Subsidiary exceeds $500,000 or (y) the aggregate
invested capital in all Foreign Subsidiaries formed after the date hereof
exceeds $5,000,000;
(d) direct and indirect investments by the Borrower in Cambridge
Technology Capital Fund I, L.P.; provided that the aggregate amount of
--------
investments permitted by this clause (d) shall not exceed $6,000,000 (including
any such investments made prior to the date hereof);
49
<PAGE>
(e) loans or advances made by any Subsidiary to the Borrower or any
wholly-owned Subsidiary;
(f) loans or advances made by the Borrower or any Subsidiary to its
respective employees in the ordinary course of business in an amount per
employee not to exceed $500,000 and in an aggregate amount to all employees of
the Borrower and its Subsidiaries not to exceed $1,000,000 outstanding at any
time;
(g) Guarantees constituting Indebtedness permitted by Section 6.01;
(h) acquisitions by the Borrower or a Subsidiary as long as (i) the
acquired assets are used for, or the acquired Person is engaged in, businesses
of the type conducted by Cambridge on the date hereof or businesses reasonably
related thereto, (ii) if such acquisition involves the formation or acquisition
by the Borrower of any Person that becomes a Domestic Subsidiary as a result of
or in connection with such acquisition, then, prior to or simultaneously with
such acquisition, such Domestic Subsidiary executes a guarantee in form and
substance satisfactory to the Administrative Agent and its counsel, (iii)
immediately before and immediately after such acquisition, no Default will occur
or exist and (iv) immediately after the completion of the proposed acquisition,
the aggregate principal amount of the Loans outstanding hereunder which were
used to fund acquisitions permitted by this Section 6.04(h) shall not exceed
$25,000,000; and
(i) investments by the Borrower existing on the date hereof and set
forth in Schedule 6.04; provided that the amount of any such investment made by
------------- --------
the Borrower shall not increase after the date hereof.
SECTION 6.05. Hedging Agreements. The Borrower will not, and will not
------------------
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
Hedging Agreements entered into in the ordinary course of business to hedge or
mitigate risks to which the Borrower or any Subsidiary is exposed in the conduct
of its business or the management of its liabilities.
SECTION 6.06. Restricted Payments. The Borrower will not, and will not
-------------------
permit any of its Subsidiaries to, declare or make, or agree to pay or make,
directly or indirectly, any Restricted Payment, except (a) any Subsidiary may
declare and pay dividends ratably with respect to its capital stock, (b) the
Borrower may make Restricted Payments pursuant to and in accordance with stock
option plans or other benefit plans for management or employees of the Borrower
and its Subsidiaries, (c) the Borrower or any Subsidiary may purchase capital
stock of any Subsidiary and (d) the Borrower may repurchase up to a maximum of
$1,000,000 of its capital stock per annum.
50
<PAGE>
SECTION 6.07. Transactions with Affiliates. The Borrower will not, and
----------------------------
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) in the ordinary course of business at prices and on terms
and conditions not less favorable to the Borrower or such Subsidiary than could
be obtained on an arm's-length basis from unrelated third parties, (b)
transactions between or among the Borrower and its wholly-owned Subsidiaries not
involving any other Affiliate, (c) any Restricted Payment permitted under
Section 6.06 and (d) investments permitted under Section 6.04(d).
SECTION 6.08. Restrictive Agreements. The Borrower will not, and will not
----------------------
permit any of its Subsidiaries to, directly or indirectly, enter into, incur or
permit to exist any agreement or other arrangement that prohibits, restricts or
imposes any condition upon (a) the ability of the Borrower or any Subsidiary to
create, incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions
(whether in cash, securities or other property) with respect to any shares of
its capital stock or to make or repay loans or advances to the Borrower or to
Guarantee Indebtedness of the Borrower; provided that (i) the foregoing shall
--------
not apply to restrictions and conditions imposed by law or by this Agreement,
(ii) the foregoing shall not apply to restrictions and conditions existing on
the date hereof identified on Schedule 6.08 (but shall apply to any extension or
-------------
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (iv) clause
(a) of the foregoing shall not apply to customary provisions in leases
restricting the assignment thereof.
SECTION 6.09. Preferred Stock. The Borrower will not permit any of its
---------------
Subsidiaries to issue any preferred stock, except:
(a) preferred stock outstanding on the date hereof and set forth in
Schedule 6.09; and
- -------------
(b) preferred stock issued to the Borrower or a wholly-owned
Subsidiary.
SECTION 6.10. Coverage Ratio. At the end of each quarter of each fiscal
--------------
year and with respect to the twelve month period then ending, the Consolidated
Coverage Ratio shall be no less than 1.25-to-1.00.
SECTION 6.11. Debt to Capital Percentage. At the end of each quarter of
--------------------------
each fiscal year, the percentage of Total Funded Debt to Total Capitalization
shall not exceed 40%.
51
<PAGE>
SECTION 6.12. Net Worth. At the end of each quarter of each fiscal year,
---------
the Consolidated Net Worth of the Borrower and its Subsidiaries shall not be
less than the sum of (a) $149,000,000 plus (b) 50% of Consolidated Net Income
----
(excluding any losses) for each fiscal period beginning after December 31, 1997.
ARTICLE VII
Events of Default
-----------------
If any of the following events ("Events of Default") shall occur:
-----------------
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or any
amendment or modification hereof or waiver hereunder, or in any report,
certificate, financial statement or other document furnished pursuant to or in
connection with this Agreement or any amendment or modification hereof or waiver
hereunder, shall prove to have been incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.02, 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those specified
in clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after notice thereof from the Administrative
Agent to the Borrower (which notice will be given at the request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of any
Material Indebtedness, when and as the same shall become due and payable;
52
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(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits (with or without the giving of notice, the lapse of time or both) the
holder or holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured Indebtedness
--------
that becomes due as a result of the voluntary sale or transfer of the property
or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Borrower or any Subsidiary or its debts, or of a substantial
part of its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Borrower or any Subsidiary or for a substantial part of its assets, and,
in any such case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing shall be
entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency, receivership
or similar law now or hereafter in effect, (ii) consent to the institution of,
or fail to contest in a timely and appropriate manner, any proceeding or
petition described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a petition
filed against it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Borrower or any Subsidiary to enforce any such
judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
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(m) an event or circumstance shall occur or exist which results in
either (i) a Material Adverse Effect or (ii) a material adverse effect on the
business, assets, operations, prospects or condition, financial or otherwise, of
a Material Subsidiary; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h), (i) or (j) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower; and
in case of any event with respect to the Borrower described in clause (h), (i)
or (j) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
------------------------
Each of the Lenders and the Issuing Bank hereby irrevocably appoints the
Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers
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expressly contemplated hereby that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth herein, the Administrative
Agent shall not have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 9.02) or in the absence of its own gross negligence or
wilful misconduct. The Administrative Agent shall be deemed not to have
knowledge of any Default unless and until written notice thereof is given to the
Administrative Agent by the Borrower or a Lender, and the Administrative Agent
shall not be responsible for or have any duty to ascertain or inquire into
(i) any statement, warranty or representation made in or in connection with this
Agreement, (ii) the contents of any certificate, report or other document
delivered hereunder or in connection herewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions set
forth herein, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article IV or elsewhere herein, other
than to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers through
their respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been
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so appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance
upon the Administrative Agent or any other Lender and based on such documents
and information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.
Each of the Lenders hereby agrees that Fleet National Bank shall have the
title of "Documentation Agent" under this Agreement, but shall have no duties,
responsibilities or obligations, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Documentation Agent. The parties
hereto acknowledge and agree that all duties, responsibilities and obligations
under this Agreement shall be performed by the Administrative Agent.
ARTICLE IX
Miscellaneous
-------------
SECTION 9.01. Notices. Except in the case of notices and other
-------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
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(a) if to the Borrower, to it at 304 Vassar Street, Cambridge, MA
02139, Attention of Arthur M. Toscanini, Chief Financial Officer (Telecopy No.
(617) 374-8507), with a copy to Testa, Hurwitz & Thibeault, LLP, 125 High
Street, Boston, MA 02110 Attention of Mark D. Smith, Esq. (Telecopy No. (617)
248-7100);
(b) if to the Administrative Agent, the Issuing Bank or the Swingline
Lender, to The Chase Manhattan Bank, Loan and Agency Services Group, 999 Broad
Street, Bridgeport, CT 06604, Attention of Loan Department (Telecopy No. (203)
382-5360), with a copy to (i) The Chase Manhattan Bank, 85 Wells Avenue, Suite
200, Newton, MA 02159, Attention of Roger A. Stone (Telecopy No. (617) 928-
3057); and (ii) Goodwin, Procter & Hoar LLP, Exchange Place, Boston, MA
02109, Attention of Raymond C. Zemlin, P.C. (Telecopy No. (617) 523-1231); and
(c) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments.
-------------------
(a) No failure or delay by the Administrative Agent, the Issuing Bank
or any Lender in exercising any right or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder are cumulative and are not exclusive of
any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be effec
tive only in the specific instance and for the purpose for which given. Without
limiting the generality of the foregoing, the making of a Loan or issuance of a
Letter of Credit shall not be construed as a waiver of any Default, regardless
of whether the Administrative Agent, any Lender or the Issuing Bank may have had
notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
--------
such agreement shall amend, modify or otherwise affect the rights or duties of
the Administrative Agent, the Issuing Bank or the Swingline Lender hereunder
without the prior written consent of the Administrative Agent, the Issuing Bank
or the Swingline Lender, as the case may be.
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SECTION 9.03. Expenses; Indemnity; Damage Waiver.
----------------------------------
(a) The Borrower shall pay (i) all reasonable out-of-pocket expenses
incurred by the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent, in connection with the syndication of the credit facilities provided for
herein, the preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, the Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, the
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of this
Agreement or any agreement or instrument contemplated hereby, the performance by
the parties hereto of their respective obligations hereunder or the consummation
of the Transactions or any other transactions contemplated hereby, (ii) any Loan
or Letter of Credit or the use of the proceeds therefrom (including any refusal
by the Issuing Bank to honor a demand for payment under a Letter of Credit if
the documents presented in connection with such demand do not strictly comply
with the terms of such Letter of Credit), (iii) any actual or alleged presence
or release of Hazardous Materials on or from any property owned or operated by
the Borrower or any of its Subsidiaries, or any Environmental Liability related
in any way to the Borrower or any of its Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
--------
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as
the case may be, such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
--------
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claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable not later than
three days after written demand therefor.
SECTION 9.04. Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit) and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent, the Issuing Bank and the Lenders) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
--------
in the case of an assignment to a Lender or an Affiliate of a Lender, each of
the Borrower (except in the case an Event of Default shall have occurred and be
continuing) and the Administrative Agent (and, in the case of an assignment of
all or a portion of a Commitment or any Lender's obligations in respect of its
LC Exposure or Swingline Exposure, the Issuing Bank and the Swingline Lender)
must give their prior written consent to such assignment (which consent shall
not be unreasonably withheld), (ii) except in the case of an assignment to a
Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, (iv) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation fee of
$3,500, and (v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further
-------- -------
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that any consent of the Borrower otherwise required under this paragraph shall
not be required if an Event of Default under clause (h) or (i) of Article VII
has occurred and is continuing. Subject to acceptance and recording thereof
pursuant to paragraph (d) of this Section, from and after the effective date
specified in each Assignment and Acceptance the assignee thereunder shall be a
party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.15, 2.16, 2.17 and 9.03). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
--------
the Register shall be conclusive, and the Borrower, the Administrative Agent,
the Issuing Bank and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all purposes
of this Agreement, notwithstanding notice to the contrary. The Register shall
be available for inspection by the Borrower, the Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
-----------
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
- --------
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells
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such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
--------
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in the first proviso to
Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this
Section, the Borrower agrees that each Participant shall be entitled to the
benefits of Sections 2.15, 2.16 and 2.17 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to paragraph (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.18(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater payment
under Section 2.15 or 2.17 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were
a Lender shall not be entitled to the benefits of Section 2.17 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.17(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
--------
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements, representations and
--------
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.15, 2.16, 2.17 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
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SECTION 9.09. Counterparts; Integration; Effectiveness. This Agreement may
----------------------------------------
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
------------
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
---------------
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
----------------------------------------------------------
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment
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in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that the Administrative
Agent, the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement against the Borrower or its properties in
the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in
paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) The Borrower hereby agrees that service of all writs, complaints,
process and summonses in any suit, action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
may be made upon Cambridge (the "Process Agent") with an office on the date
-------------
hereof at 304 Vassar Street, Cambridge, Massachusetts 02139. The Borrower hereby
irrevocably appoints the Process Agent its true and lawful attorney-in-fact in
its name, place and stead to accept such service of any and all such writs,
complaints, process and summonses. The Borrower agrees that any election by the
Administrative Agent or any Lender to give notice of any such service to the
Borrower shall not impair or affect the validity of such service or of the
judgment based thereon.
(e) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
--------------------
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Judgment Currency. If, for the purpose of obtaining judgment
-----------------
in any court or obtaining an order enforcing a judgment, it becomes necessary to
convert any amount due under this Agreement into any Alternate Currency, then
the conversion shall be made at the spot exchange rate therefor as quoted by the
Administrative Agent as of 11:00 a.m., London time, on
63
<PAGE>
the date three Business Days prior to the date on which the judgment is given or
the order is made, as the case may be. In the event that there is a difference
between the rate of exchange on the basis of which the amount of such judgment
or order is determined and the rate of exchange prevailing on the date of
payment, the Borrower hereby agrees to pay such additional amount as may be
necessary to ensure that the amount paid is the amount of such Alternate
Currency which permits the Administrative Agent to purchase the amount of
dollars due under this Agreement when the judgment or order is issued at the
Administrative Agent's spot exchange rate for buying dollars with the Alternate
Currency, in accordance with normal banking procedures, prevailing at the
opening of business on the date of payment. Any amount due from the Borrower to
the Administrative Agent for the account of each Lender under the second
sentence of this Section 9.11 will be due as separate debt of the Borrower to
the Administrative Agent for the account of each Lender and shall not be
affected by any judgment or order being obtained for any other sum. The covenant
in this Section 9.11 shall survive the payment in full of all of the other
obligations of the Borrower hereunder.
SECTION 9.12. No Offset. All payments by the Borrower hereunder shall be
---------
made without setoff or counterclaim and free and clear of and without deduction
for any foreign or domestic taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restriction or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the Borrower is
required by law to make such deduction or withholding. Except as otherwise
expressly provided in this Section 9.12, if any such obligation is imposed upon
the Borrower with respect to any amount payable hereunder, the Borrower will pay
to the Administrative Agent for the account of each Lender, on the date on which
such amount is due and payable hereunder, such additional amount in dollars as
shall be necessary to enable the Administrative Agent to receive the same net
amount which it would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the
Administrative Agent, certificates or other valid vouchers for all taxes or
other charges deducted from or paid with respect to payments made by the
Borrower hereunder.
SECTION 9.13. Headings. Article and Section headings and the Table of
--------
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.14. Confidentiality. Each of the Administrative Agent, the
---------------
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions
64
<PAGE>
substantially the same as those of this Section, to any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, the Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Borrower. For the purposes of this Section,
"Information" means all information received from the Borrower relating to the
- ------------
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided that, in the case of
--------
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.15. Interest Rate Limitation. Notwithstanding anything herein to
------------------------
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
-------
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
------------
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
65
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
By: /s/ A.M. Toscanini
--------------------------------------
Name: Arthur M. Toscanini
Title: Executive Vice President
CAMBRIDGE TECHNOLOGY PARTNERS
DO BRASIL S/C LTDA
By: /s/ A.M. Toscanini
--------------------------------------
Name: Arthur M. Toscanini
Title: On Behalf of the Majority and
Minority Stockholders
CAMBRIDGE TECHNOLOGY PARTNERS LTD.
(ONTARIO)
By: /s/ A.M. Toscanini
--------------------------------------
Name: Arthur M. Toscanini
Title: Treasurer
CAMBRIDGE TECHNOLOGY PARTNERS
LIMITED
By: /s/ A.M. Toscanini
--------------------------------------
Name: Arthur M. Toscanini
Title: Director
66
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS
(MEXICO), S.A. DE C.V.
By: /s/ James P. O'Hare
--------------------------------------
Name: James P. O'Hare
Title: Director
CAMBRIDGE TECHNOLOGY PARTNERS
(SWITZERLAND) S.A.
By: /s/ A.M. Toscanini
--------------------------------------
Name: Arthur M. Toscanini
Title: Chief Executive Officer
CAMBRIDGE TECHNOLOGY PARTNERS
(VENEZUELA) C.A.
By: /s/ A.M. Toscanini
--------------------------------------
Name: Arthur M. Toscanini
Title: Executive Vice President
and Chief Financial Officer
THE CHASE MANHATTAN BANK,
individually and as Administrative Agent
By: /s/ Roger A. Stone
--------------------------------------
Name: Roger A. Stone
Title: Senior Vice President
67
<PAGE>
FLEET NATIONAL BANK,
individually and as Documentation Agent
By: /s/ Olaperi Onipede
--------------------------------------
Name: Olaperi Onipede
Title: Vice President
68
<PAGE>
SCHEDULE I
----------
FOREIGN SUBSIDIARY BORROWERS
Cambridge Technology Partners do Brasil S/C LTDA
Cambridge Technology Partners Ltd. (Ontario)
Cambridge Technology Partners Limited
Cambridge Technology Partners (Mexico), S.A. de C.V.
Cambridge Technology Partners (Switzerland) S.A.
Cambridge Technology Partners (Venezuela) C.A.
69
<PAGE>
SCHEDULE 2.01
-------------
COMMITMENT PERCENTAGES
<TABLE>
<CAPTION>
Commitment Maximum Amount of Revolving
Lender Percentage Credit Exposure
- -------------------------- ----------- ---------------------------
<S> <C> <C>
The Chase Manhattan Bank 50% $25,000,000
Fleet National Bank 50% $25,000,000
</TABLE>
70
<PAGE>
Schedules to
Credit Agreement
dated as of September 10, 1998
by and among
Cambridge Technology Partners (Massachusetts), Inc.
and the other entities specified therein
and
The Chase Manhattan Bank
and Fleet National Bank
Schedule 3.06
-------------
Disclosed Matters
-----------------
None.
71
<PAGE>
Schedule 6.01
-------------
Existing Indebtedness
---------------------
As of June 30, 1998, the Borrower has current capital lease obligations in the
amount of $127,000 and long-term capital lease obligations in the amount of
$225,000.
Excell Data Corp., a Washington corporation (all of the issued and outstanding
stock of which was acquired by Cambridge on August 28, 1998) has a $3,000,000
line of credit from Seattle First National Bank.
Excell Data Corp. Has guaranteed personal loans from Seattle First National Bank
to each of Leonard J. Pacheco and Clint Shinkle in the original principal
amounts of $750,000 and $390,000, respectively.
72
<PAGE>
Schedule 6.02
Existing Liens
--------------
A. Cambridge
---------
Secured Party Date Collateral
------------- ---- ----------
1. Hewlett-Packard Company July 1993 leased equipment
2. Hewlett-Packard Company Sept. 1993 leased equipment
3. Hewlett-Packard Company Jan. 1994 leased equipment
4. Hewlett-Packard Company August 1994 leased equipment
5. Hewlett-Packard Company Sept. 1994 leased equipment
6. AT&T Credit Corporation Feb. 1995 leased equipment
7. Hewlett-Packard Company July 1996 leased equipment
8. AT&T Credit Corporation April 1997 leased equipment
9. AT&T Credit Corporation Aug. 1997 leased equipment
10. AT&T Credit Corporation April 1998 leased equipment
B. Excell Data Corporation
-----------------------
1. Seattle First National Bank November 1991 inventory, chattel paper,
accounts, contract
rights, equipment,
general intangibles
2. Seattle First National Bank August 1993 chattel paper, accounts,
contract rights,
general intangibles
3. US Bank of Washington, N.A. October 1993 leased equipment
4. Coho Equipment Leasing Co, Inc. December 1994 leased equipment
5. Commerce Security Bank April 1995 leased equipment
6. Seattle First National Bank June 1995 leased equipment
7. Seattle First National Bank September 1995 leased equipment
8. Seattle First National Bank January 1996 leased equipment
73
<PAGE>
Schedule 6.04
-------------
Existing Investments
--------------------
The Borrower has an investment in the Common Stock of Corechange, Inc.
The Borrower has an investment in the Common Stock of Diamond Technology
Partners.
74
<PAGE>
Schedule 6.08
-------------
Existing Restrictions
---------------------
None.
75
<PAGE>
Schedule 6.09
-------------
Existing Preferred Stock
------------------------
None.
76
<PAGE>
EXHIBIT A
---------
FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of September 10, 1998
(as amended and in effect on the date hereof, the "Credit Agreement"), among
----------------
Cambridge Technology Partners (Massachusetts), Inc. and the other entities
specified therein, the Lenders named therein and The Chase Manhattan Bank, as
Administrative Agent for the Lenders. Terms defined in the Credit Agreement are
used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns, without
recourse, to the Assignee named on the reverse hereof, and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth on the reverse hereof, the interests set forth on the
reverse hereof (the "Assigned Interest") in the Assignor's rights and
-----------------
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Revolving Loans owing to the Assignor which are
outstanding on the Assignment Date, together with the participations in Letters
of Credit, LC Disbursements and Swingline Loans held by the Assignor on the
Assignment Date, but excluding accrued interest and fees to and excluding the
Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a
party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.17(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE>
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
---------------
- --------------------------------------------------------------------------------
Percentage Assigned of
Facility/Commitment (set forth,
to at least 8 decimals, as a
percentage of the Facility and the
Principal Amount aggregate Commitments of all
Facility Assigned Lenders thereunder)
- -------------------------------------------------------------------------------
Commitment Assigned $ %
- -------------------------------------------------------------------------------
Revolving Loans
- -------------------------------------------------------------------------------
The terms set forth above and on the reverse side hereof are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:
--------------------------------------
Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By:
--------------------------------------
Name:
Title:
2
<PAGE>
The undersigned hereby consent to the within assignment:/1/
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
By:
--------------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
DO BRASIL S/C LTDA
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS LTD.
(ONTARIO)
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
LIMITED
By:
--------------------------------
Name:
Title:
- ------------
/1/ Consents to be included to the extent required by Section 9.04(b) of the
Credit Agreement.
3
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS
(MEXICO), S.A. DE C.V.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
(SWITZERLAND) S.A.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
(VENEZUELA) C.A.
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Swingline Lender
By:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Issuing Bank
By:
--------------------------------
Name:
Title:
4
<PAGE>
EXHIBIT B
---------
FORM OF
PROMISSORY NOTE
Boston, Massachusetts
$ , 1998
----------- -------------
FOR VALUE RECEIVED, the undersigned (collectively, the "Borrower") hereby
--------
jointly and severally promise to pay to the order of
________________________________ or its registered assigns (the "Bank"), in
----
lawful money of the United States of America or the applicable Alternate
Currency Equivalent (as defined in the Agreement referred to below) in
immediately available funds, at the office of the Administrative Agent (as
defined in the Agreement) located at One Chase Manhattan Plaza, New York, NY on
the Maturity Date (as defined in the Agreement) the principal sum of
DOLLARS ($________) or, if less, the then aggregate unpaid principal amount of
all Loans (as defined in the Agreement) made by the Bank pursuant to the
Agreement.
The undersigned also jointly and severally promise to pay interest on the
unpaid principal amount hereof in like money at said office from the date hereof
until paid at the rates and at the times provided in the Agreement.
This Note is subject to the terms of that certain Credit Agreement, dated
as of September 10, 1998, among the Borrower, the financial institutions from
time to time party thereto (including the Bank), and The Chase Manhattan Bank,
as Administrative Agent (as amended, modified or supplemented from time to time,
the "Agreement") and is entitled to the benefits thereof. As provided in the
---------
Agreement, this Note is subject to voluntary prepayment and, in certain
circumstances, mandatory prepayment prior to the Maturity Date, in whole or in
part.
In case an Event of Default (as defined in the Agreement) shall occur and
be continuing, the principal of and accrued interest on this Note may become or
be declared to be due and payable in the manner and with the effect provided in
the Agreement.
The Borrowers hereby waive presentment, demand, protest or notice of any
kind in connection with this Note.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW
OF THE STATE OF NEW YORK.
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
By:
--------------------------------
Name:
Title:
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS
DO BRASIL S/C LTDA
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS LTD.
(ONTARIO)
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS LTD.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
(MEXICO), S.A. DE C.V.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
(SWITZERLAND) S.A.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
(VENEZUELA) C.A.
By:
--------------------------------
Name:
Title:
2
<PAGE>
EXHIBIT C
---------
FORM OF
OPINION OF COUNSEL FOR THE BORROWER
[Effective Date]
To the Lenders and the Administrative
Agent Referred to Below
c/o The Chase Manhattan Bank,
as Administrative Agent
270 Park Avenue
New York, New York 10017
Ladies and Gentlemen:
We have acted as counsel for Cambridge Technology Partners (Massachusetts),
Inc., a Delaware corporation, and the entities listed on Schedule I hereto
----------
(collectively, the "Borrower") and the entities listed on Schedule II hereto
--------
(the "Guarantors"), in connection with (i) the Credit Agreement dated as of
----------
September 10, 1998 (the "Credit Agreement"), among the Borrower, the banks and
----------------
other financial institutions identified therein as Lenders, and The Chase
Manhattan Bank, as Administrative Agent, and (ii) that certain Guarantee dated
as of September 10, 1998 by the Guarantors (the "Guarantee"). Terms defined in
---------
the Credit Agreement are used herein with the same meanings.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. Each of the Borrower and its Subsidiaries (a) is a corporation duly
organized, validly existing and in good standing under the laws of ____________,
(b) has all requisite power and authority to carry on its business as now
conducted and (c) except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, is qualified to do business in, and is in good standing in, every
jurisdiction where such qualification is required.
2. The Transactions are within the Borrower's corporate powers and have
been duly authorized by all necessary corporate and, if required, stockholder
action. The Credit Agreement has been duly executed and delivered by the
Borrower and constitutes a legal, valid and binding obligation of the Borrower,
enforceable in accordance with its terms, subject to
<PAGE>
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
The Guarantee has been duly executed and delivered by the Guarantors and
constitutes a legal, valid and binding obligation of the Guarantors, enforceable
in accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
3. The Transactions (a) do not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (b)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a default
under any indenture, agreement or other instrument binding upon the Borrower or
any of its Subsidiaries or its assets, or give rise to a right thereunder to
require any payment to be made by the Borrower or any of its Subsidiaries,
except which, individually or in the aggregate, could not reasonably be expected
to result in a Material Adverse Effect, or (d) will not result in the creation
or imposition of any Lien on any asset of the Borrower or any of its
Subsidiaries.
4. The Guarantee (i) does not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (ii)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of any Guarantor or any order of any Governmental
Authority, (iii) will not violate or result in a default under any indenture,
agreement or other instrument binding upon any Guarantor or any Guarantor's
assets, or give rise to a right thereunder to require any payment to be made by
any Guarantor, except which, individually or in the aggregate, could not
reasonably be expected to result in a material adverse effect on (x) the
business, assets, operations, prospects or condition, financial or otherwise, of
any Guarantor, (y) the ability of any Guarantor to perform any of its
obligations under the Guarantee or (z) the rights of or benefits available to
the Lenders under the Guarantee, and (iv) will not result in the creation or
imposition of any Lien on any asset of any Guarantor.
5. There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to our knowledge,
threatened against or affecting the Borrower or any of its Subsidiaries (a) as
to which there is a reasonable possibility of an adverse determination and that,
if adversely determined, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect (other than the Disclosed Matters)
or (b) that involve the Credit Agreement, the Guarantee or the Transactions.
6. Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" within the meaning of, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" within the meaning of,
or subject to regulation under, the Public Utility Holding Company Act of 1935.
2
<PAGE>
This opinion may not be relied upon by you for any other purpose or relied
upon by any other Person (other than your successors and assigns as Lenders and
Persons that acquire participations in your Loans) without our prior written
consent.
Very truly yours,
3
<PAGE>
EXHIBIT D
---------
FORM OF
COMPLIANCE CERTIFICATE
The Chase Manhattan Bank
85 Wells Avenue, Suite 200
Newton, MA 02159
Attention: Roger A. Stone
Senior Vice President
Ladies and Gentlemen:
This Compliance Certificate is delivered to you pursuant to Section 5.01(c)
of that certain Credit Agreement, dated as of September 10, 1998, among
Cambridge Technology Partners (Massachusetts), Inc. and its Subsidiaries which
are signatories hereto (collectively, the "Borrower"), the financial
--------
institutions from time to time party thereto (the "Lenders") and The Chase
-------
Manhattan Bank, as Administrative Agent (as amended, supplemented or modified
from time to time, the "Credit Agreement"). Capitalized terms not otherwise
----------------
defined herein shall have the meanings set forth in the Credit Agreement.
The undersigned, as the duly elected, qualified and acting [Chief Financial
Officer] [Principal Accounting Officer] [Treasurer] [Controller] of the
Borrower, hereby certifies on behalf of the Borrower as follows:
1. The undersigned has reviewed and is familiar with the contents of this
Certificate.
2. The undersigned has reviewed the terms of the Credit Agreement and has
made or caused to be made under [his/her] supervision a review in reasonable
detail of the transactions and condition of the Borrower during the accounting
period covered by the financial statements attached hereto as Attachment 1 (the
------------
"Financial Statements"). Such review did not disclose the existence during or
--------------------
at the end of the accounting period covered by the Financial Statements, and the
undersigned has no knowledge of the existence, as of the date of this
Certificate, of any condition or event which constitutes a Default or Event of
Default [, except as set forth below].
3. Attached hereto as Attachment 2 are calculations demonstrating that,
------------
based upon the Financial Statements, and at the date hereof, the Borrower is in
compliance with all financial covenants set forth in Sections 6.10, 6.11 and
6.12 of the Credit Agreement.
4. There has been [no] [the following] changes in GAAP or in the
application thereof since December 31, ____ [and such changes have had the
following effects on the Financial Statements].
<PAGE>
IN WITNESS WHEREOF, the undersigned has executed this Certificate on this
___ day of ______, ____.
CAMBRIDGE TECHNOLOGY PARTNERS
(MASSACHUSETTS), INC.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
DO BRASIL S/C LTDA
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
LTD. (ONTARIO)
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
LIMITED
By:
--------------------------------
Name:
Title:
2
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS
(MEXICO), S.A. DE C.V.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
(SWITZERLAND) S.A.
By:
--------------------------------
Name:
Title:
CAMBRIDGE TECHNOLOGY PARTNERS
(VENEZUELA) C.A.
By:
--------------------------------
Name:
Title:
3
<PAGE>
Exhibit 10.2
GUARANTEE
GUARANTEE dated as of September 10, 1998 made by the guarantors which are
signatories hereto (collectively, the "Guarantors" and individually, each a
----------
"Guarantor"), in favor of THE CHASE MANHATTAN BANK, as administrative agent (in
- ----------
such capacity, the "Administrative Agent") for the lenders (the "Lenders")
-------------------- -------
parties to the Credit Agreement, dated as of the date hereof (as amended,
supplemented, extended or otherwise modified from time to time, the "Credit
------
Agreement"), among Cambridge Technology Partners (Massachusetts), Inc., a
- ---------
Delaware corporation ("Cambridge"), and the entities listed on Schedule I
--------- ----------
thereto (together with Cambridge, the "Borrower"), the Lenders and the
--------
Administrative Agent.
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make the Loans to the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Borrower has entered into the Credit Agreement to arrange for
a $50,000,000 credit facility, the proceeds of which will be used to fund
acquisitions and capital expenditures, and to provide working capital;
WHEREAS, the Guarantors are direct or indirect subsidiaries of Cambridge
Technology Partners (Massachusetts), Inc.; and
WHEREAS, it is a condition precedent to the obligations of the Lenders to
make their respective Loans to the Borrower under the Credit Agreement that the
Guarantors shall have executed and delivered this Guarantee to the
Administrative Agent for the ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of the premises and to induce the
Administrative Agent and the Lenders to enter into the Credit Agreement and to
induce the Lenders to make their respective Loans to the Borrower under the
Credit Agreement, each Guarantor hereby agrees with the Administrative Agent,
for the ratable benefit of the Lenders, as follows:
1. Defined Terms. Capitalized terms not otherwise defined herein shall
-------------
have the meanings set forth in the Credit Agreement.
2. Guarantee.
---------
(a) Each Guarantor hereby jointly and severally, unconditionally and
irrevocably, guarantees to the Administrative Agent for the ratable benefit of
the Lenders and their respective successors, indorsees, transferees and assigns,
the prompt and complete payment and performance by the Borrower when due
(whether at the stated maturity, by acceleration or otherwise) of the unpaid
principal of and interest on the Loans and all other obligations and liabilities
of the Borrower to the Administrative Agent or the Lenders (including interest
accruing at the then applicable rate provided in the Credit Agreement after the
stated maturity, by acceleration or otherwise), whether direct or indirect,
absolute or contingent, due or to become
<PAGE>
due, now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement or any other document made, delivered or
given in connection therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including all reasonable fees and disbursements of counsel to the
Administrative Agent and/or to the Lenders that are required to be paid by the
Borrower pursuant to the terms of the Credit Agreement) (each and all of the
above obligations, collectively, the "Guaranteed Obligations").
----------------------
(b) Each Guarantor further agrees to pay any and all expenses
(including all reasonable fees and disbursements of counsel) which may be paid
or incurred by the Administrative Agent and/or any Lender in enforcing, or
obtaining advice of counsel in respect of, any rights with respect to, or
collecting, any or all of the Guaranteed Obligations and/or enforcing any rights
with respect to, or collecting against, any Guarantor under this Guarantee. This
Guarantee shall remain in full force and effect until the Guaranteed Obligations
and all amounts owing hereunder are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto the Borrower
may be free from any Guaranteed Obligations.
(c) No payment or payments made by the Borrower, any Guarantor or any
other Person or received or collected by the Administrative Agent or any Lender
from the Borrower, any Guarantor or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at any time or from
time to time in reduction of or in payment of any Guaranteed Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment or payments,
remain liable for the Guaranteed Obligations until the Guaranteed Obligations
and all amounts owing hereunder are paid in full and the Commitments are
terminated.
3. Right of Set-off. In addition to any rights now or hereafter granted
----------------
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
the Administrative Agent and each Lender is hereby authorized at any time or
from time to time, without presentment, demand, protest or other notice of any
kind to the Borrower, any Guarantor or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and apply any and
all deposits (general or special, but excluding any deposits in payroll or
escrow accounts) and any other Indebtedness at any time held or owing by the
Administrative Agent or such Lender (including, without limitation, by branches
and agencies of the Administrative Agent or such Lender wherever located) to or
for the credit or the account of any Guarantor against and on account of the
obligations and liabilities of any Guarantor hereunder, and all other claims of
any nature or description arising out of or connected with this Guarantee,
irrespective of whether the Administrative Agent or such Lender shall have made
any demand hereunder and although said obligations, liabilities or claims, or
any of them, shall be contingent or unmatured.
4. No Subrogation. Notwithstanding any payment or payments made by any
--------------
Guarantor hereunder or any set-off or application of funds of any Guarantor by
any Lender, no Guarantor shall be entitled to exercise or enforce any
subrogation rights of the Administrative
2
<PAGE>
Agent or any Lender against the Borrower or any other Person or any guarantee or
right of offset held by the Administrative Agent or any Lender for the payment
of the Guaranteed Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from the Borrower or any other Person in
respect of payments made by any Guarantor hereunder, until all amounts owing to
the Administrative Agent and the Lenders by the Borrower on account of the
Guaranteed Obligations and all amounts owing hereunder are paid in full and the
Commitments are terminated. If any amount shall be paid to any Guarantor on
account of such subrogation rights at any time when all of the Guaranteed
Obligations and all amounts owing hereunder shall not have been paid in full or
the Commitments shall not have been terminated, such amount shall be held by
such Guarantor in trust for the Administrative Agent and the Lenders, segregated
from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Administrative Agent in the exact form received
by such Guarantor (duly indorsed by such Guarantor to the Administrative Agent,
if required), to be applied against such Guaranteed Obligations, whether matured
or unmatured, in such order as the Administrative Agent may determine.
5. Amendments, etc. with respect to the Guaranteed Obligations; Waiver of
----------------------------------------------------------------------
Rights. Each Guarantor shall remain obligated hereunder notwithstanding that,
- ------
without any reservation of rights against such Guarantor and without notice to
or further assent by such Guarantor, any demand for payment of any of the
Guaranteed Obligations made by the Administrative Agent or any Lender may be
rescinded by such party and any of the Guaranteed Obligations continued, and the
Guaranteed Obligations, or the liability of any other party upon or for any part
thereof, or any guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit Agreement may be amended, modified,
supplemented or terminated, in whole or in part, as the Administrative Agent (or
the Required Lenders, as the case may be) may deem advisable from time to time,
and any guarantee or right of offset at any time held by the Administrative
Agent or any Lender for the payment of the Guaranteed Obligations may be waived.
When making any demand hereunder against any Guarantor, the Administrative Agent
or any Lender may, but shall be under no obligation to, make a similar demand on
the Borrower or any other Guarantor, and any failure by the Administrative Agent
or any Lender to make any such demand or to collect any payments from the
Borrower or any other Guarantor or any release of the Borrower or such other
Guarantor shall not relieve any Guarantor, and shall not impair or affect the
rights and remedies, express or implied, or as a matter of law, of the
Administrative Agent or any Lender against any Guarantor. For the purposes
hereof "demand" shall include the commencement and continuance of any legal
proceedings.
6. Guarantee Absolute and Unconditional. Each Guarantor waives any and
------------------------------------
all notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the Administrative
Agent or any Lender upon this Guarantee or acceptance of this Guarantee; the
Guaranteed Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Guarantee; and all dealings between the Borrower and each
Guarantor, on the one hand,
3
<PAGE>
and the Administrative Agent and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in reliance upon this
Guarantee. Each Guarantor waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrower or such
Guarantor with respect to the Guaranteed Obligations. Each Guarantor understands
and agrees that this Guarantee shall be construed as a continuing, absolute and
unconditional guarantee and surety of payment without regard to (a) the
validity, regularity or enforceability of the Credit Agreement, any of the
Guaranteed Obligations or any other guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Borrower or any Guarantor against the Administrative Agent or any Lender, or
(c) any other circumstance whatsoever (with or without notice to or knowledge of
the Borrower or any Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of any Borrower for the Guaranteed
Obligations, or of any Guarantor under this Guarantee, in bankruptcy or in any
other instance. When pursuing its rights and remedies hereunder against any
Guarantor, the Administrative Agent and any Lender may, but shall be under no
obligation to, pursue such rights and remedies as it may have against the
Borrower or any other Person or against any guarantee for the Guaranteed
Obligations or any right of offset with respect thereto, and any failure by the
Administrative Agent or any Lender to pursue such other rights or remedies or to
collect any payments from the Borrower or any such other Person or to realize
upon any guarantee or to exercise any such right of offset, or any release of
the Borrower or any such other Person or any such guarantee or right of offset,
shall not relieve any Guarantor of any liability hereunder, and shall not impair
or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Administrative Agent and the Lenders against any
Guarantor. This Guarantee shall remain in full force and effect and be binding
in accordance with and to the extent of its terms upon each Guarantor and the
successors and assigns thereof, and shall inure to the benefit of the
Administrative Agent and the Lenders, and their respective successors,
indorsees, transferees and assigns, until all the Guaranteed Obligations and the
obligations of each Guarantor under this Guarantee shall have been satisfied by
payment in full and the Commitments shall have been terminated, notwithstanding
that from time to time during the term of the Credit Agreement the Borrower may
be free from any Guaranteed Obligations.
7. Reinstatement. This Guarantee shall continue to be effective, or be
-------------
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Guaranteed Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any Lender upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Borrower or any
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Borrower or any
Guarantor or any substantial part of its property, or otherwise, all as though
such payments had not been made.
8. Payments. Each Guarantor hereby guarantees that payments hereunder
--------
will be paid to the Administrative Agent without set-off or counterclaim in U.S.
Dollars or the applicable Alternate Currency Equivalent at the office of the
Administrative Agent located at One Chase Manhattan Plaza, New York, NY 10081.
4
<PAGE>
9. Representations and Warranties. In order to induce the Lenders to
------------------------------
enter into the Credit Agreement and to make the Loans, the Guarantors hereby
jointly and severally represent and warrant to the Administrative Agent and each
Lender as follows:
(a) Each Guarantor is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to carry on its business as now conducted and,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect (as defined
below), is qualified to do business in, and is in corporate good standing in,
every jurisdiction where such qualification is required.
(b) This Guarantee is within each Guarantor's corporate powers and has
been duly authorized by all necessary corporate and, if required, stockholder
action. This Guarantee has been duly executed and delivered by each Guarantor
and constitutes a legal, valid and binding obligation of each Guarantor,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
(c) This Guarantee (i) does not require any consent or approval of,
registration or filing with, or any other action by, any Governmental Authority,
except such as have been obtained or made and are in full force and effect, (ii)
will not violate any applicable law or regulation or the charter, by-laws or
other organizational documents of any Guarantor or any order of any Governmental
Authority, (iii) will not violate or result in a default under any indenture,
agreement or other instrument binding upon any Guarantor or any Guarantor's
assets, or give rise to a right thereunder to require any payment to be made by
any Guarantor, except which, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect (as defined
below), and (iv) will not result in the creation or imposition of any Lien on
any asset of any Guarantor.
As used herein, the term "Material Adverse Effect" shall mean a material
-----------------------
adverse effect on (x) the business, assets, operations, prospects or condition,
financial or otherwise, of any Guarantor, (y) the ability of any Guarantor to
perform any of its obligations under this Guarantee or (z) the rights of or
benefits available to the Lenders under this Guarantee.
10. Notice. All notices and other communications provided for herein
------
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to any Guarantor, c/o Cambridge Technology Partners
(Massachusetts), Inc. at 304 Vassar Street, Cambridge, MA 02139, Attention of
Arthur M. Toscanini, Chief Financial Officer (Telecopy No. (617) 374-8507), with
a copy to Testa, Hurwitz & Thibeault, LLP, 125 High Street, Boston, MA 02110,
Attention of Mark D. Smith, Esq. (Telecopy No. (617) 248-7100); and
5
<PAGE>
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, 999 Broad Street, Bridgeport, CT 06604, Attention of
Loan Department (Telecopy No. (203) 382-5360), with a copy to (i) The Chase
Manhattan Bank, 85 Wells Avenue, Suite 200, Newton, MA 02159, Attention of
Roger A. Stone (Telecopy No. (617) 928-3057); and (ii) Goodwin, Procter & Hoar
LLP, Exchange Place, Boston, MA 02109, Attention of Raymond C. Zemlin, P.C.
(Telecopy No. (617) 523-1231).
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Guarantee shall be deemed to have been given on the date of receipt.
11. Severability. Any provision of this Guarantee which is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
12. Integration. This Guarantee represents the agreement of the
-----------
Guarantors with respect to the subject matter hereof and there are no promises
or representations by the Administrative Agent or any Lender relative to the
subject matter hereof not reflected herein.
13. Amendments in Writing; No Waiver, Cumulative Remedies.
-----------------------------------------------------
(a) None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except as provided in Section 9.02
of the Credit Agreement.
(b) Neither the Administrative Agent nor any Lender shall by any act
(except by a written instrument pursuant to Section 13(a) hereof), delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default or in any
breach of any of the terms and conditions hereof. No failure to exercise, nor
any delay in exercising, on the part of the Administrative Agent or any Lender
any right power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Administrative Agent or any Lender
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Administrative Agent or such Lender would
otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
6
<PAGE>
14. Section Headings. The section headings used in this Guarantee are for
----------------
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
15. Successors and Assigns. This Guarantee shall be binding upon the
----------------------
successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and, subject to Section 9.04(b) of the
Credit Agreement, their successors and assigns.
16. Governing Law; Jurisdiction; Consent to Service of Process.
----------------------------------------------------------
(a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each Guarantor hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Guarantee, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Guarantee
shall affect any right that the Administrative Agent or any Lender may otherwise
have to bring any action or proceeding relating to this Guarantee against any
Guarantor or its properties in the courts of any jurisdiction.
(c) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guarantee in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each Guarantor hereby agrees that service of all writs,
complaints, process and summonses in any suit, action or proceeding arising out
of or relating to this Guarantee, or for recognition or enforcement of any
judgment, may be made upon Cambridge (the "Process Agent"), with an office on
-------------
the date hereof at 304 Vassar Street, Cambridge, Massachusetts 02139. Each
Guarantor hereby irrevocably appoints the Process Agent its true and lawful
attorney-in-fact in its name, place and stead to accept such service of any and
all such writs, complaints, process and summonses. Each Guarantor agrees that
any election by the Administrative Agent or any Lender to give notice of any
such service to such Guarantor shall not impair or affect the validity of such
service or of the judgment based thereon.
7
<PAGE>
(e) Each party to this Guarantee irrevocably consents to service of
process in the manner provided for notices in Section 10. Nothing in this
Guarantee will affect the right of any party to this Guarantee to serve process
in any other manner permitted by law.
17. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
--------------------
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
18. Judgment Currency. If, for the purpose of obtaining judgment in any
-----------------
court or obtaining an order enforcing a judgment, it becomes necessary to
convert any amount due under this Guarantee into any Alternate Currency, then
the conversion shall be made at the spot exchange rate therefor as quoted by the
Administrative Agent as of 11:00 a.m., London time, on the date three Business
Days prior to the date on which the judgment is given or the order is made, as
the case may be. In the event that there is a difference between the rate of
exchange on the basis of which the amount of such judgment or order is
determined and the rate of exchange prevailing on the date of payment, each
Guarantor hereby agrees to pay such additional amount as may be necessary to
ensure that the amount paid is the amount of such Alternate Currency which
permits the Administrative Agent to purchase the amount of dollars due under
this Agreement when the judgment or order is issued at the Administrative
Agent's spot exchange rate for buying dollars with the Alternate Currency, in
accordance with normal banking procedures, prevailing at the opening of business
on the date of payment. Any amount due from the Guarantors to the
Administrative Agent for the account of each Lender under the second sentence of
this Section 18 will be due as separate debt of the Guarantors to the
Administrative Agent for the account of each Lender and shall not be affected by
any judgment or order being obtained for any other sum. The covenant in this
Section 18 shall survive the payment in full of all of the other obligations of
the Guarantors hereunder.
19. No Offset. All payments by the Guarantors hereunder shall be made
---------
without setoff or counterclaim and free and clear of and without deduction for
any foreign or domestic taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restriction or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless any Guarantor is
required by law to make such deduction or withholding. Except as otherwise
expressly provided in this Section 19, if any such obligation is imposed upon
any Guarantor with respect to any amount payable hereunder, such Guarantor will
pay to the Administrative Agent for the account of each Lender,
8
<PAGE>
on the date on which such amount is due and payable hereunder, such additional
amount in dollars as shall be necessary to enable the Administrative Agent to
receive the same net amount which it would have received on such due date had no
such obligation been imposed upon such Guarantor. The Guarantors will deliver
promptly to the Administrative Agent, certificates or other valid vouchers for
all taxes or other charges deducted from or paid with respect to payments made
by the Guarantors hereunder.
20. Authority of Administrative Agent. Each Guarantor acknowledges that
---------------------------------
the rights and responsibilities of the Administrative Agent under this Guarantee
with respect to any action taken by the Administrative Agent or the exercise or
non-exercise by the Administrative Agent of any option, right, request, judgment
or other right or remedy provided for herein or resulting or arising out of this
Guarantee shall, as between the Administrative Agent and the Lenders, be
governed by the Credit Agreement and by such other agreements with respect
thereto as may exist from time to time among them but, as between the
Administrative Agent and each Guarantor, the Administrative Agent shall be
conclusively presumed to be acting as administrative agent for the Lenders with
full and valid authority so to act or refrain from acting, and no Guarantor
shall be under any obligation, or entitlement, to make any inquiry respecting
such authority.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be
duly executed and delivered by its duly authorized officer as of the day and
year first above written.
CAMBRIDGE TECHNOLOGY PARTNERS
CAMBRIDGE MANAGEMENT
CONSULTING, INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: Vice President and Treasurer
CAMBRIDGE TECHNOLOGY
PARTNERS-ENTERPRISE
RESOURCE SOLUTIONS, INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: Vice President and Treasurer
CAMBRIDGE TECHNOLOGY PARTNERS
SECURITIES CORPORATION
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: Treasurer and Clerk
CAMBRIDGE TECHNOLOGY PARTNERS
(UNITED KINGDOM), INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: President
10
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS
(BENELUX), INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: President
CAMBRIDGE TECHNOLOGY PARTNERS
INTERNATIONAL, INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: Treasurer and Secretary
CAMBRIDGE TECHNOLOGY PARTNERS
(LATIN AMERICA), INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: President
CAMBRIDGE TECHNOLOGY PARTNERS
(EUROPE), INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: Treasurer
11
<PAGE>
CAMBRIDGE TECHNOLOGY PARTNERS
(ASIA), INC.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: Treasurer
CAMBRIDGE PCHL L.L.C.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: Vice President and Treasurer
EXCELL DATA CORP.
By: /s/ A.M. Toscanini
--------------------------------
Name: Arthur M. Toscanini
Title: President
12
<PAGE>
EXHIBIT 11.1
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
STATEMENT REGARDING COMPUTATION OF EARNINGS PER SHARE
(in thousands except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended September 30, Nine Months Ended September 30,
-------------------------------- -------------------------------
1998 1997 1998 1997
------------ ------------- ------------ -------------
<S> <C> <C> <C> <C>
Net income $ 9,675 $ 10,452 $ 35,689 $ 27,950
============ ============== ============ =============
Basic:
Weighted average common
shares outstanding 58,410 54,894 57,846 54,270
============ ============== ============ =============
Net income per share $ .17 $ .19 $ .62 $ .52
============ ============== ============ =============
Diluted:
Weighted average common
shares outstanding 58,410 54,894 57,846 54,270
Dilutive effects of stock options
and warrants 3,485 6,350 4,502 6,057
------------ -------------- ------------ -------------
Weighted average common and
common equivalent shares
outstanding 61,895 61,244 62,348 60,327
============ ============== ============ =============
Net income per share $ .16 $ .17 $ .57 $ .46
============ ============== ============ =============
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-START> JAN-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 64,339
<SECURITIES> 24,112
<RECEIVABLES> 142,781
<ALLOWANCES> 4,312
<INVENTORY> 0
<CURRENT-ASSETS> 274,131
<PP&E> 77,207
<DEPRECIATION> 30,575
<TOTAL-ASSETS> 330,962
<CURRENT-LIABILITIES> 108,660
<BONDS> 0
586
0
<COMMON> 0
<OTHER-SE> 220,558
<TOTAL-LIABILITY-AND-EQUITY> 330,962
<SALES> 0
<TOTAL-REVENUES> 451,875
<CGS> 0
<TOTAL-COSTS> 395,849
<OTHER-EXPENSES> (2,020)
<LOSS-PROVISION> 542
<INTEREST-EXPENSE> 119
<INCOME-PRETAX> 57,927
<INCOME-TAX> 22,238
<INCOME-CONTINUING> 35,689
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 35,689
<EPS-PRIMARY> 0.62
<EPS-DILUTED> 0.57
</TABLE>
