Loan and Security Agreement - Silicon Valley Bank, Kanbay LLC, Kanbay Inc., Kanbay Europe Ltd., Kanbay Australia Pty. Ltd., Megatec Pty. Ltd. and Kanbay HK Ltd.
LOAN AND SECURITY AGREEMENT
BY AND AMONG
SILICON VALLEY BANK
AND
KANBAY LLC,
KANBAY INCORPORATED, KANBAY EUROPE LTD.,
KANBAY AUSTRALIA PTY. LTD.,
MEGATEC PTY. LTD., KANBAY HK LTD.
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THIS LOAN AND SECURITY AGREEMENT (this "Agreement"), dated as of April
19, 2000, by and among SILICON VALLEY BANK ("Bank"), a California-chartered bank
("Bank"), with its principal place of business at 3003 Tasman Drive, Santa
Clara, CA 95054, and with a loan production office located at 9701 West Higgins
Road, Suite 150, Rosemont, IL 60018, KANBAY LLC, a Delaware limited liability
company ("Kanbay"), with its principal place of business at 6400 Shafer Court,
Suite 100, Rosemont, IL 60018, KANBAY INCORPORATED, an Illinois corporation
("Kanbay Inc."), with its principal place of business at 6400 Shafer Court,
Suite 100, Rosemont, IL 60018, KANBAY EUROPE LTD., a company formed under the
laws of the United Kingdom ("Kanbay Europe"), with its principal place of
business at Compass House, Vision Park, Histon, Cambridge, UK CBD 9AD, KANBAY
AUSTRALIA PTY. LTD., a company formed under the laws of Australia ("Kanbay
Australia"), with its principal place of business at 602 Whitehorse Road,
Mitcham, Victoria 3132, Australia, MEGATEC PTY. LTD., a company formed under the
laws of Australia ("Megatec"), with its principal place of business at 602
Whitehorse Road, Mitcham, Victoria 3132, Australia, and KANBAY HK LTD., a
company formed under the laws of Hong Kong ("Kanbay HK"), with its principal
place of business at 12th Floor Shiu Fung Hong Bldg., Suite 1201, 23 Wing Lok
Street, Sheung Wan, Hong Kong (Kanbay and Kanbay Inc. being sometimes herein
called collectively the "Domestic Borrowers" and each individually a "Domestic
Borrower", Kanbay Europe, Kanbay Australia, Megatec and Kanbay HK being
sometimes herein called collectively the "Foreign Borrowers" and each
individually a "Foreign Borrower", and the Domestic Borrowers and Foreign
Borrowers being sometimes herein called collectively the "Borrowers" and each
individually a "Borrower"), provides the terms on which Bank will lend to
Borrowers and Borrowers will, jointly and severally, repay Bank.
WITNESSETH:
WHEREAS, each of Kanbay Inc., Kanbay Europe, Kanbay Australia, Megatec
and Kanbay HK are directly or indirectly wholly-owned (or 99.9% owned)
subsidiaries of Kanbay; and
WHEREAS, each of the Borrowers desires the Bank to make Credit
Extensions to Kanbay as herein set forth to provide for the Borrowers' general
corporate purposes and working capital needs and each Borrower expects to derive
direct or indirect benefits from the Credit Extensions, and it is understood and
acknowledged that Credit Extensions made hereunder, whether made to or for the
benefit of Kanbay or to any other Borrower, are for the benefit of Kanbay and
each of the other Borrowers;
NOW, THEREFORE, in consideration of the premises hereof (which the
parties agree are hereby incorporated into and made a part of their agreement
herein), of the mutual agreements herein contained, and of any loans, advances
or other financial accommodations or extensions of credit now or hereafter made
to or for the benefit of any of Borrowers by Bank, the parties hereby agree as
follows:
1 ACCOUNTING AND OTHER TERMS
Accounting terms not defined in this Agreement will be construed
following GAAP. Calculations and determinations must be made following GAAP. The
term "financial statements" includes the notes and schedules. The terms
"including" and "includes" always mean "including (or includes) without
limitation" in this Agreement or any Loan Document. Capitalized terms in this
Agreement that are not otherwise defined herein shall have the meanings set
forth in Section 13. THIS AGREEMENT SHALL BE CONSTRUED TO IMPART UPON BANK A
DUTY TO ACT REASONABLY AT ALL TIMES.
2 LOAN AND TERMS OF PAYMENT
2.1 CREDIT EXTENSIONS. Borrowers will pay Bank in accordance with the terms
of this Agreement the unpaid principal amount of all Credit Extensions and
interest on the unpaid principal amount of the Credit Extensions. It is
understood and agreed that all Credit Extensions shall be to or for the account
of Kanbay, and Kanbay shall distribute or use same to or for the account of the
other Borrowers as it determines (subject to the terms and conditions hereof).
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2.1.1 REVOLVING ADVANCES.
(a) Bank will make Advances to Kanbay not exceeding the Committed
Guaranteed Revolving Line. Advances will be made under the Committed Guaranteed
Revolving Line prior to making any Advances under the Committed A/R Revolving
Line and no Advances will be made under the Committed A/R Revolving Line unless
and until Advances exhausting all of the Committed Guaranteed Revolving Line are
outstanding. Amounts borrowed under the Committed Guaranteed Revolving Line may
be repaid and reborrowed during the Term of this Agreement prior to the
Revolving Maturity Date; provided, however, that any amounts outstanding at any
time under the Committed Guaranteed Revolving Line may not be repaid in whole or
in part, unless and until (i) all amounts borrowed under the Committed A/R
Revolving Line AND all amounts borrowed under the Term Loan are fully repaid and
not outstanding, or (ii) all amounts borrowed under the Committed A/R Revolving
Line are fully repaid and not outstanding AND Kanbay has achieved quarterly
profitability on a consolidated basis for two consecutive quarters adequate for
Debt Service Coverage of 2.00X with respect to the Term Loan (herein called
"Required Profitability"), or (iii) Kanbay has raised at least $3,000,000 in new
equity. For purposes hereof, the term "Debt Service Coverage" for any quarter
shall mean (A) Kanbay's consolidated quarterly Earnings before Interest, Taxes,
Depreciation and Amortization ("EBITDA"), divided by (B) the sum of (1) the
current maturities under the Term Loan divided by 4, plus (2) the Interest
Expense for the Term Loan for such quarter.
(b) In addition to Advances made under the Committed Guaranteed
Revolving Line, Bank will make Advances to Kanbay not exceeding (A) the
Committed A/R Revolving Line minus the FX Reserve then being used, or (B) the
Borrowing Base less the amount outstanding under the Term Loan until such time
as Kanbay has achieved Required Profitability, whichever is less, in each case
minus the amount of all outstanding Letters of Credit (including drawn but
unreimbursed Letters of Credit). Amounts borrowed under the Committed A/R
Revolving Line may be repaid and reborrowed during the term of this Agreement
prior to the Revolving Maturity Date.
(c) To obtain an Advance, Borrowers must notify Bank by facsimile or
telephone by 3:00 p.m. Pacific time on the Business Day the Advance is to be
made. Borrowers must promptly confirm the notification by delivering to Bank the
Payment/Advance Form attached as Exhibit B. Bank will credit Advances to
Kanbay's deposit account. Bank may make Advances under this Agreement based on
instructions from a Responsible Officer or his or her designee or without
instructions if the Advances are necessary to meet Obligations which have become
due, in which event the Bank will provide reasonable prompt notice to Borrowers
of such Advance made without instructions. Bank may rely on any telephone notice
given by a Person whom Bank believes is a Responsible Officer or designee.
Borrowers will indemnify Bank for any loss Bank suffers due to that reliance.
(d) Each of the Committed Guaranteed Revolving Line and Committed A/R
Revolving Line terminates on the Revolving Maturity Date, when all Advances are
immediately payable.
2.1.2 LETTERS OF CREDIT. Bank will issue or have issued Letters of Credit for
Borrowers' account not exceeding (i) the lesser of the Committed A/R Revolving
Line or the Borrowing Base minus (ii) the outstanding principal balance of the
Advances made under the Committed A/R Revolving Line, but the face amount of
outstanding Letters of Credit (including drawn but unreimbursed Letters of
Credit and any Letter of Credit Reserve) may not exceed $250,000.00. Each Letter
of Credit will expire no later than the earlier of (i) one year after the
issuance thereof (i.e. on the first anniversary of the date of issuance
thereof), or (ii) 180 days after the Revolving Maturity Date, provided
Borrowers' Letter of Credit reimbursement obligation is secured by cash on terms
acceptable to Bank at any time after the Revolving Maturity Date if the term of
this Agreement is not extended by Bank. Letters of Credit will be evidenced by
and issued, pursuant to the Bank's normal application therefor completed by
Borrowers and shall be subject to all customary terms and conditions and
customary fees and charges imposed by the Bank for Letters of Credit.
2.1.3 FOREIGN EXCHANGE SUBLIMIT. If there is availability under the Committed
A/R Revolving Line and the Borrowing Base, then Borrowers may enter in foreign
exchange forward contracts with the Bank under which Borrowers commit to
purchase from or sell to Bank a set amount of foreign currency more than one
business day after the contract date (the "FX Forward Contract"). Bank will
subtract 10% of each outstanding FX
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Forward Contract from the foreign exchange sublimit which is a maximum of
$100,000.00 (the "FX Reserve"). The total FX Forward Contracts at any one time
may not exceed 10 times the amount of the FX Reserve. Bank may terminate the FX
Forward Contracts if an Event of Default occurs.
2.1.4 TERM LOAN.
(a) Bank will make a Term Loan available to Borrowers on the Closing
Date only. The Term Loan may be used only to pay off and refinance existing
lease/Equipment indebtedness currently owed by Kanbay Inc. to Bank One. The
amount outstanding under the Term Loan will be subject to the Borrowing Base
unless and until such time as Kanbay achieves Required Profitability.
(b) Borrowers will pay thirty (30) equal monthly installments of
principal plus Interest thereon (the "Term Loan Payment"). Each Term Loan
Payment is payable on the 18th day of each month during the term of the Term
Loan. Borrowers' final Term Loan Payment due on the Term Loan Maturity Date
includes all outstanding Term Loan principal and accrued interest. Borrowers
will deliver to Bank with the request for the Term Loan an invoice for Equipment
being refinanced.
(c) The Term Loan accrues interest at 2.00 percentage points above
the Prime Rate.
2.2 OVERADVANCES. If Borrowers' Obligations under Sections 2.1.1(b), 2.1.2
and 2.1.3 exceed the lesser of either (i) the Committed A/R Revolving Line or
(ii) the Borrowing Base, Borrowers must immediately pay in cash to Bank the
excess.
2.3 REVOLVING LINE INTEREST RATES; PAYMENTS.
(a) Interest Rate. Advances made under the Committed Guaranteed
Revolving Line accrue interest on the outstanding principal balance at a per
annum rate of 75 basis points (.75 percentage points) above the Prime Rate.
Advances made under the Committed A/R Revolving Line accrue interest on the
outstanding principal balance at a per annum rate one and one-half (1 1/2)
percentage points above the Prime Rate. After an Event of Default, all
Obligations accrue interest at 5 percent above the rate effective immediately
before the Event of Default. The interest rate increases or decreases when the
Prime Rate changes. Interest is computed on a 360 day year for the actual number
of days elapsed.
(b) Payments. Interest is payable in arrears on the first (1st) day of
each month. Bank may debit any of Domestic Borrowers' deposit accounts including
Account Number 3300229901 for principal and interest payments then due and
payable or any amounts Borrowers owe Bank. Bank will notify Kanbay when it
debits Kanbay's accounts. These debits are not a set-off. Payments received
after 12:00 noon Pacific time are considered received at the opening of business
on the next Business Day. When a payment is due on a day that is not a Business
Day, the payment is due the next Business Day and additional fees or interest
accrue at the then applicable rate.
2.4 FEES. Borrowers will pay to Bank:
(a) Facility Fee. A fully earned, non-refundable facility fee of
$30,000.00 is due on the Closing Date; and
(b) Bank Expenses. All Bank Expenses (including reasonable attorneys'
fees and expenses for documentation and negotiation of this Agreement) incurred
through and after the Closing Date when due.
2.5 ADDITIONAL COSTS. If any law or regulation increases Bank's costs or
reduces its income for any loan, Borrowers will pay the increase in cost or
reduction in income or additional expense. Bank agrees that it will allocate any
increased costs among its customers similarly affected in good faith and in a
manner consistent with Bank's customary practice.
2.6 MAXIMUM INTEREST. It is the intention of Bank and Borrowers to comply
with the laws of the State of Illinois, and notwithstanding any provision to the
contrary contained herein or any other Loan Document, the
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Borrowers shall not be required to pay, and Bank shall not be permitted to
collect, any amount in excess of the maximum amount of interest permitted by
applicable law ("Excess Interest"). If any Excess Interest is provided for or
determined to have been provided for by a court of competent jurisdiction in
this Agreement or in any of the other Loan Documents, then in such event (i) the
Borrowers shall not be obligated to pay any Excess Interest, (ii) any Excess
Interest that the Bank may have received hereunder shall be, at the Bank's sole
option, (A) applied as a credit against either the outstanding principal balance
of the Advances or accrued and unpaid interest hereon, (B) refunded to the payor
thereof, or (C) any combination of the foregoing; (iii) the interest rate(s)
provided for herein shall be automatically reduced to the maximum rate allowed
under applicable law, and this Agreement and the other Loan Documents shall be
deemed to have been, and shall be, reformed and modified to reflect such
reduction; and (iv) the Borrowers shall not have any action against the Bank for
any damages arising out of the payment or collection of any Excess Interest.
Notwithstanding the foregoing, if any interest payment or other charge or fee
payable hereunder or under any of the other Loan Documents exceeds the maximum
amount then permitted by applicable law, then to the extent permitted by law,
the Borrowers shall be obligated to pay the maximum amount then permitted by
applicable law and the Borrowers shall continue to pay the maximum amount from
time to time permitted by applicable law until all such interest payments and
other charge and fees otherwise due (in the absence of such restraint imposed by
applicable law) have been paid in full.
2.7 LOCK BOX ACCOUNT. Domestic Borrowers shall establish a lock box account
in Kanbay Inc.'s name with Bank by simultaneously herewith executing the Bank's
Lockbox Service Subscriber Agreement (the "lock box agreement") to which
Domestic Borrowers will cause to be deposited all remittances in the identical
form in which such payment was made, whether by cash, check or otherwise.
Domestic Borrowers will notify all customers to remit all payments directly to
said lock box account as provided in said lock box agreement. When any Event of
Default occurs and continues, Domestic Borrowers agree that all payments made to
such lock box or otherwise received by Bank, whether on the Accounts or as
proceeds of other Collateral or otherwise, at Bank's sole discretion, will be
the sole and exclusive property of Bank and applied on account of the
Obligations and, if Bank so elects to apply said payments to the Obligations,
after allowing one (1) business day for collection, Bank may credit (conditional
upon final collection) all payments received through the lock box to the account
of Borrowers; and after and during the continuance of any Event of Default,
Borrowers and any Affiliates, subsidiaries, shareholders, directors, officers,
employees, agent or other Persons acting for or in concert with Borrowers shall,
acting as Trustee for Bank, receive, as the sole and exclusive property of Bank,
any monies, checks, notes, drafts or any other payments relating to and/or
proceeds of Accounts or other Collateral that come into their possession or
under their control and immediately upon receipt thereof, Borrowers shall remit
the same or cause the same to be remitted to Bank. Borrowers agree to pay to
Bank any and all customary fees, costs and expenses that Bank incurs in
connection with opening, operating and maintaining the lock box and depositing
for collection by Bank any check or item of payment received and/or delivered to
the Bank on account of the Obligations and Borrowers further agree to reimburse
Bank for any claims asserted by any party in connection with the lock box or any
returned or uncollected checks received by Bank as proceeds of the Collateral.
3 CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION. Bank's obligation to
make the initial Credit Extension is subject to the condition precedent that it
receive the agreements, documents and fees it requires. Borrowers will deliver
to Bank with the request for the initial Advance under the Committed Guaranteed
Revolving Line and the Term Loan a payoff letter from Banc One.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS. Bank's obligations to
make each Credit Extension, including the initial Credit Extension, is subject
to the following:
(a) timely receipt of any Payment/Advance Form; and
(b) the representations and warranties in Section 5 must be
materially true on the date of the Payment/Advance Form and on the effective
date of each Credit Extension and no Event of Default may have occurred and be
continuing, or shall result from the Credit Extension. Each Credit Extension is
Borrowers'
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representation and warranty on that date that the representations and warranties
in Section 5 remain materially true.
4 CREATION OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST. Borrowers grant Bank a continuing security
interest in all presently existing and later acquired Collateral to secure all
Obligations and performance of each of Borrowers' duties under the Loan
Documents. Except for Permitted Liens (other than the liens arising under this
Agreement or other Loan Documents), any security interest granted under this
Agreement or any other Loan Document will be a first priority security interest
in the Collateral owned by any Domestic Borrower and located in the United
States. Bank may place a "hold" on any deposit account pledged as Collateral. If
the Agreement is terminated, Bank's lien and security interest in the Collateral
will continue until Borrowers fully satisfy their Obligations. In addition, each
of the Foreign Borrowers agree upon request by the Bank to enter into an
additional agreement or agreements granting Bank a security interest in all
presently existing and later-acquired Collateral owned by such Foreign Borrower
in substantially the form and substance of the grant of security interest
hereunder with applicable changes as required by applicable local law. The grant
of security in the Collateral owned by such Foreign Borrower shall be perfected
in accordance with applicable local law and as provided in said agreement(s) and
shall be accompanied by an opinion or opinions of local counsel furnished by
such Foreign Borrower satisfactory to Bank.
4.2 ADDITIONAL COLLATERAL - STOCK PLEDGE. The payment and performance of the
Obligations are also secured by a certain Stock Pledge Agreement, of even date
herewith, by Kanbay in favor of the Bank, pursuant to which Kanbay pledges all
of the stock of Kanbay Inc. Such pledge shall be perfected by delivery of
possession to Bank of certificates evidencing the stock of Kanbay Inc. together
with stock powers executed in blank as provided in said Stock Pledge Agreement.
In addition, Kanbay agrees upon request at any time by Bank to enter into and
cause any applicable Subsidiary to enter into an additional stock pledge
agreement or agreements in favor of the Bank to further secure the payment and
performance of the Obligations, pursuant to which Kanbay and such Subsidiaries
will pledge all of their stock in the Foreign Borrowers, in substantially
similar form as the said Stock Pledge Agreement with applicable changes required
by applicable local law. The pledge in the stock of the Foreign Borrowers shall
be perfected in accordance with applicable local law and as provided in said
stock pledge agreement(s) and shall be accompanied by an opinion or opinions of
local counsel furnished by Kanbay satisfactory to Bank.
5 REPRESENTATIONS AND WARRANTIES
Borrowers represent and warrant as follows:
5.1 DUE ORGANIZATION AND AUTHORIZATION. Each Borrower and each of their
respective Subsidiaries is duly existing and in good standing in its state or
country of formation and qualified and licensed to do business in, and in good
standing in, any state or other jurisdiction in which the conduct of its
business or its ownership of property requires that it be qualified, except
where the failure to do so could not reasonably be expected to cause a Material
Adverse Change.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not conflict with any Borrower's formations documents,
nor constitute an event of default under any material agreement by which any
Borrower is bound. No Borrower is in default under any agreement to which or by
which it is bound in which the default could reasonably be expected to cause a
Material Adverse Change.
5.2 COLLATERAL. Borrowers have good title to the Collateral, free of Liens
except Permitted Liens. Except as disclosed on the Schedule attached hereto, no
other Person has any blanket lien covering all or a substantial part of the
Collateral owned by any Foreign Borrower. The Eligible Accounts are bona fide,
existing obligations, and the service or property has been performed or
delivered to the account debtor or its agent for immediate shipment to and
unconditional acceptance by the account debtor (subject to usual and customary
warranties with respect to such service or property issued by Borrowers in the
ordinary course of business). No Borrower has notice of any actual or imminent
Insolvency Proceeding of any account debtor whose accounts are an Eligible
Account in any Borrowing Base Certificate. Any Inventory is in all material
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respects of good and marketable quality, free from material defects. Borrower is
the sole owner of the Intellectual Property, except for non-exclusive licenses
granted to its customers in the ordinary course of business. To Borrowers'
knowledge, each Patent is valid and enforceable and no part of the Intellectual
Property has been judged invalid or unenforceable, in whole or in part, and no
claim has been made that any part of the Intellectual Property violates the
rights of any third party.
5.3 LITIGATION. Except as shown in the Schedule, there are no actions or
proceedings pending or, to any Borrower's knowledge, threatened by or against
any Borrower or any Subsidiary in which an adverse decision could reasonably be
expected to cause a Material Adverse Change.
5.4 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All consolidated
financial statements for Kanbay and any Subsidiary delivered to Bank fairly
present in all material respects Kanbay's consolidated financial condition and
Kanbay's consolidated results of operations. There has not been any material
deterioration in Kanbay's consolidated financial condition since the date of the
most recent financial statements submitted to Bank.
5.5 SOLVENCY. Each Borrower is able to pay its debts (including trade debts)
as they mature.
5.6 REGULATORY COMPLIANCE. No Borrower is an "investment company" or a
company "controlled" by an "investment company" under the Investment Company
Act. No Borrower is engaged as one of its important activities in extending
credit for margin stock (under Regulations T and U of the Federal Reserve Board
of Governors). Each Domestic Borrower has complied with the Federal Fair Labor
Standards Act. No Borrower has violated any laws, ordinances or rules, the
violation of which could cause a Material Adverse Change. None of any Borrower's
or any Subsidiary's properties or assets has been used by any Borrower or any
Subsidiary or, to the best of Borrowers' knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous substance
other than legally. Each Borrower and each Subsidiary has timely filed all
required tax returns and paid, or made adequate provision to pay, all material
taxes. Each Borrower and each Subsidiary has obtained all consents, approvals
and authorizations of, made all declarations or filings with, and given all
notices to, all government authorities that are necessary to continue its
business as currently conducted, except where the failure to do so could not
reasonably be expected to cause a Material Adverse Change.
5.7 SUBSIDIARIES. No Borrower owns any stock, partnership interest or other
equity securities except for Permitted Investments and except for Kanbay's
ownership of all of the issued and outstanding capital stock of Kanbay Inc., all
(or 99.9%) of the issued and outstanding capital stock of Kanbay Australia and
Kanbay Europe, and indirect ownership of all (or 99.9%) of the issued and
outstanding capital stock of Kanbay HK, and Kanbay Australia's ownership of all
(or 99.9%) of the issued and outstanding capital stock of Megatec.
5.8 FULL DISCLOSURE. No representation, warranty or other statement of any
Borrower in any certificate or written statement given to Bank contains any
untrue statement of a material fact or omits to state a material fact necessary
to make such representations, warranties and statements contained in such
certificates or written statements not misleading.
6 AFFIRMATIVE COVENANTS
Borrowers will do all of the following:
6.1 GOVERNMENT COMPLIANCE. Each Borrower will maintain its and all its
Subsidiaries' corporate existence and good standing in its jurisdiction of
incorporation and maintain qualification in each jurisdiction in which the
failure to so qualify could have a material adverse effect on such Borrower's
business or operations. Each Borrower will comply, and have each of its
Subsidiaries comply, with all laws, ordinances and regulations to which it is
subject, noncompliance with which could have a material adverse effect on such
Borrower's business or operations or cause a Material Adverse Change.
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6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrowers will deliver to Bank: (i) as soon as available, but no
later than 30 days after the last day of each month, company prepared
consolidated and consolidating balance sheets, income statements and statements
of cash flows covering Kanbay's consolidated operations during the period, in a
form acceptable to Bank and certified by a Responsible Officer; (ii) as soon as
available, but no later than 90 days after the end of Kanbay's fiscal year,
audited consolidated and consolidating financial statements prepared in
accordance with GAAP, consistently applied, together with an unqualified opinion
on the financial statements from an independent certified public accounting firm
acceptable to Bank; (iii) within 5 days after any Members, Managers or Board of
Directors meeting, copies of all materials, reports and packages submitted to
the members, managers or directors; (iv) a prompt report of any legal actions
pending or, to Borrower's knowledge, threatened against any Borrower or any
Subsidiary that could result in damages or costs to any Borrower or any
Subsidiary of $100,000 or more; (v) prompt notice of any material change in the
composition of the Intellectual Property, including any subsequent ownership
right of any Borrower in or to any Copyright, Patent or Trademark or knowledge
of an event that materially adversely affects the value of the Intellectual
Property; (vi) budgets, booking/backlog reports, sales projections, operating
plans or other financial information Bank reasonably requests; and (vii) as soon
as available, but no later than 90 days after the end of Kanbay's fiscal year a
company prepared balance sheet, income statement and statement of cash flows for
each Foreign Borrower covering such Foreign Borrower's operations during the
fiscal year, in a form reasonably acceptable to Bank and certified by a
Responsible Officer.
(b) Within 20 days after the last day of each month during which any
Credit Extension is outstanding, Borrowers will deliver to Bank a Borrowing Base
Certificate signed by a Responsible Officer in the form of Exhibit C, with aged
listings of Kanbay Inc.'s accounts receivable and accounts payable.
(c) Within 30 days after the last day of each month, Borrowers will
deliver to Bank with the monthly financial statements a Compliance Certificate
signed by a Responsible Officer in the form of Exhibit D.
(d) Within 90 days after the end of Kanbay's fiscal year, Borrowers will
deliver to Bank with the audited financial statements, a Compliance Certificate
signed by a Responsible Officer in the form of Exhibit D and a CPA Management
Letter to be requested by Kanbay.
(e) Bank has the right to audit Kanbay Inc.'s Accounts at Borrowers'
expense, but the audits will be conducted no more often than twice every 12
months unless an Event of Default has occurred and is continuing. The first such
audit will be conducted within 45 days after the initial Credit Extension.
6.3 INVENTORY; RETURNS. Borrowers will keep all Inventory, if any, in good
and marketable condition, free from material defects. Returns and allowances
between each Borrower and its account debtors will follow such Borrower's
customary practices as they exist at the Closing Date. Borrowers must promptly
notify Bank of all returns, recoveries, disputes and claims that involve more
than $50,000.
6.4 TAXES. Each Borrower will make, and cause each of its Susbsidiaries to
make, timely payment of all material foreign, federal, state, and local taxes or
assessments and will deliver to Bank, on demand, appropriate certificates
attesting to the payment.
6.5 INSURANCE. Borrowers will keep their businesses and the Collateral
insured for risks and in amounts as is customary for companies engaged in
similar business as Borrowers'; provided, however, that after the occurrence of
any Event of Default, Borrowers will keep their businesses and the Collateral
insured for risks and in amounts as Bank reasonably requests. Insurance policies
will be in a form and with companies that are satisfactory to Bank. All property
policies will have a lender's loss payable endorsement showing Bank as a loss
payee and all liability policies will show the Bank as an additional insured and
provide that the insurer must give Bank at least 20 days notice before canceling
its policy. At Bank's request, Borrowers will deliver certified copies of
policies and evidence of all premium payments. Proceeds payable under any policy
will, at Bank's option, be payable to Bank on account of the Obligations.
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Unless Borrowers provide Bank with evidence of the insurance coverage
required herein, Bank may purchase insurance at Borrowers' expense to protect
its interests in the Collateral. This insurance may, but need not, protect
Borrowers' interests. The coverage that Bank purchases may not pay any claim
that any Borrower makes or any claim that is made against any Borrower in
connection with the Collateral. Borrowers may later cancel any insurance
purchased by Bank, but only after providing Bank with evidence that Borrowers
obtained insurance as required by this Agreement. If Bank purchases insurance
for the Collateral, Borrowers will be responsible for the costs of that
insurance, including interest and any other charges Bank may impose in
connection with the placement of the insurance, until the effective date of the
cancellation or expiration of the insurance. The costs of the insurance may be
added to Borrowers' total outstanding balance or obligation. The costs of the
insurance may be more than the cost of insurance Borrowers may be able to obtain
on their own.
6.6 PRIMARY ACCOUNTS. Domestic Borrowers will maintain their primary
depository and operating accounts with Bank.
6.7 FINANCIAL COVENANTS.
Borrowers will maintain as of the last day of each month, unless
otherwise noted:
(a) QUICK RATIO. A ratio of Quick Assets to Current Liabilities minus
Deferred Revenue and any current portions of Subordinated Debt and/or the
Committed Guaranteed Revolving Line, of at least 0.80 to 1.00 through September
30, 2000, and of at least 1.00 to 1.00 from and after September 30, 2000.
(b) PROFITABILITY. Kanbay may not incur a consolidated Loss for the
quarter ended December 31, 1999 in excess of $3,000,000.00, incur a consolidated
Loss for the quarter ending March 31, 2000 in excess of $1,500,000.00, incur a
consolidated Loss for the quarter ending June 30, 2000 in excess of $250,000.00,
or fail to earn a Profit on a consolidated basis for any subsequent quarter.
6.8 REGISTRATION OF INTELLECTUAL PROPERTY RIGHTS. At Bank's request,
Borrowers will register with the United States Copyright Office any software
material to the business of Borrowers any Borrower has, develops or acquires,
and thereafter additional software rights developed or acquired, including
significant revisions, additions or improvements to the software or revisions,
additions or improvements which significantly improve the functionality of the
software, before the sale or licensing to any third party of the software or any
product based on or containing any software. Borrowers will promptly notify Bank
upon any Borrower's filing of any application or registration of any
Intellectual Property rights with the United States Patent and Trademark Office
and Borrowers will execute and deliver any and all instruments and documents as
Bank may require to evidence or perfect Bank's security interest in such
application or registration.
At all times during the term of this Agreement, Borrowers will: (i) in
Borrowers' business judgment protect, defend and maintain the validity and
enforceability of the Intellectual Property; (ii) promptly advise Bank in
writing of material infringements of the Intellectual Property; and (iii) not
allow any Intellectual Property to be abandoned, forfeited or dedicated to the
public without Bank's written consent.
6.9 FURTHER ASSURANCES. Each Borrower will execute any further instruments
and take further action as Bank requests to perfect or continue Bank's security
interest in the Collateral or to effect the purposes of this Agreement.
7 NEGATIVE COVENANTS
No Borrower will do any of the following without the Bank's written
consent, which will not be unreasonably withheld:
7.1 DISPOSITIONS. Convey, sell, lease, transfer or otherwise dispose of
(collectively a "Transfer"), or permit any of its Subsidiaries to Transfer, all
or any part of its business or property, including intellectual Property, other
than a Transfer (i) of Inventory in the ordinary course of business; (ii) of
non-exclusive licenses and similar arrangements for the use of the property of
such Borrower or its Subsidiaries in the ordinary
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course of business; (iii) of worn-out or obsolete Equipment; (iv) between
Borrowers (provided that Transfers to Foreign Borrowers in the aggregate do not
exceed $500,000.00 in any fiscal year, less the aggregate amount of Permitted
Investments by Domestic Borrowers in Foreign Borrowers and Foreign Subsidiaries
in such fiscal year); (v) by Kanbay Inc. in the ordinary course of business to
Kanbay Software (India) Pvt. Ltd., a Subsidiary, to pay for services performed
on behalf of Kanbay Inc. for its customers, to the extent same are billed to
such customers, or (vi) other Transfers which in the aggregate do not exceed
$50,000 in any fiscal year.
7.2 CHANGES IN BUSINESS, OWNERSHIP, MANAGEMENT OR BUSINESS LOCATIONS. Engage
in or permit any of its Subsidiaries to engage in any business other than the
businesses currently engaged in by such Borrower or reasonably related thereto
or have a change in its ownership (other than the sale of Kanbay's equity
securities in a public offering or to qualified investors) of greater of 25% or
if Raymond Spencer ceases to be chief executive officer of Kanbay Inc. No
Domestic Borrower will, without at least 30 days prior written notice to Bank,
relocate its principal executive office or add any new office or business
location.
7.3 MERGERS OR ACQUISITIONS. Merge or consolidate, or permit any of its
Subsidiaries to merge or consolidate, with any other Person, or acquire, or
permit any of its Subsidiaries to acquire, all or substantially all of the
capital stock or property of another Person except where (i) such transactions
do not in the aggregate exceed $2,500,000.00, (ii) no Event of Default has
occurred and is continuing or would exist after giving effect to the
transactions, and (iii) Kanbay or such Subsidiary shall be the surviving
corporation. A Subsidiary may merge or consolidate into another Subsidiary or
into any Borrower provided that a Domestic Borrower may only merge or
consolidate into another Domestic Borrower.
7.4 INDEBTEDNESS. Create, incur, assume, or be liable for any Indebtedness,
or permit any Subsidiary to do so, other than Permitted Indebtedness.
7.5 ENCUMBRANCE. Create, incur, or allow any Lien on any of its property,
including Intellectual Property, or assign or convey any right to receive
income, including the sale of any Accounts, or permit any of its Subsidiaries to
do so, except for Permitted Liens, or permit any Collateral not to be subject to
Bank's first priority security interest granted herein, subject only to
Permitted Liens.
7.6 INVESTMENTS; DISTRIBUTIONS. (i) Except as permitted in Section 7.3
hereof, directly or indirectly acquire or own any Person, or make any Investment
in any Person, other than Permitted Investments, or permit any of its
Subsidiaries to do so; or (ii) pay any dividends or make any distribution or
payment or redeem, retire or purchase any capital stock; PROVIDED that dividends
and distributions by Subsidiaries of any Borrower paid to such Borrower shall be
permitted hereunder.
7.7 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter or permit any
material transaction with any Affiliate, except transactions that are in the
ordinary course of such Borrower's business and on terms no less favorable to
such Borrower than would be obtained in an arm's length transaction with a
non-affiliated Person.
7.8 SUBORDINATED DEBT. Make or permit any payment on any Subordinated Debt,
except under the terms of the Subordinated Debt, or amend any provision in any
document relating to the Subordinated Debt, without Bank's prior written
consent.
7.9 COMPLIANCE. Undertake as one of its important activities extending
credit to purchase or carry margin stock, or use the proceeds of any Advance for
that purpose; fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; fail
to comply with the Federal Fair Labor Standards Act or violate any other law or
regulation, if the violation could have a material adverse effect on such
Borrower's business or operations or cause a Material Adverse Change, or permit
any of its Subsidiaries to do so.
7.10 FUNDAMENTAL CHANGES. Amend, modify or waive any term or provision of its
organizational documents, including without limitation its articles or
certificate of organization, articles or certificate of incorporation,
certificates of designations pertaining to preferred units or preferred stock,
by-laws, or operating agreement, unless required by law. Notwithstanding the
foregoing, Kanbay shall be permitted to convert from a limited liability company
to a Delaware corporation by transferring all of the assets and liabilities of
Kanbay to
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a wholly-owned subsidiary in return for all of the capital stock of such
subsidiary and the subsequent liquidation of Kanbay and distribution of such
capital stock to the members of Kanbay, so long as and provided that (i) at
least five (5) business days prior to such conversion, Kanbay provides Bank with
copies of all agreements, instruments and documents evidencing such conversion,
which shall be in form and substance reasonably satisfactory to Bank, and (ii)
the successor corporation shall execute and deliver and cause to be delivered to
Bank UCC financing statements, agreements and other documents as Bank may
request, including without limitation a document ratifying the Loan Documents
and assuming all of Kanbay's obligations thereunder, certified copies of the
successor corporation's organizational documents, a Warrant to Purchase
Preferred Stock (in lieu of the Warrant to Purchase Preferred Units) and an
opinion of the successor corporation's counsel, in form and substance reasonably
satisfactory to Bank.
8 EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 PAYMENT DEFAULT. Borrowers fail to pay any of the Obligations within
3 days after their due date. During the 3-day additional period the failure to
cure the default is not an Event of Default (but no Credit Extensions will be
made during the cure period);
8.2 COVENANT DEFAULT. Borrowers do not perform any obligation in Section 6
or Borrowers violate any covenant in Section 7 or Borrowers do not perform or
observe any other material term, condition or covenant in this Agreement, any
Loan Document, or in any agreement between any Borrower and Bank and as to any
default under a term, condition or covenant that can be cured, have not cured
the default within 10 days after it occurs, or if the default cannot be cured
within 10 days or cannot be cured after Borrowers' attempts in the 10 day
period, and the default may be cured within a reasonable time, then Borrowers
have an additional time (of not more than 30 days) to attempt to cure the
default. During the additional period the failure to cure the default is not an
Event of Default (but no Credit Extensions will be made during the cure period);
8.3 MATERIAL ADVERSE CHANGE. (i) A material impairment in the perfection or
priority of Bank's security interest in the Collateral or in the value of such
Collateral which is not covered by adequate insurance occurs; (ii) a material
adverse change in the business, operations, or condition (financial or
otherwise) of Borrowers on a consolidated basis occurs; or (iii) a material
impairment of the prospect of repayment of any portion of the Obligations
occurs.
8.4 ATTACHMENT. (i) Any material portion of Borrowers' assets in the
aggregate, or of the assets of any Domestic Borrower, is attached, seized,
levied on, or comes into possession of a trustee or receiver and the attachment,
seizure or levy is not removed in 10 days; (ii) any Borrower is enjoined,
restrained, or prevented by court order from conducting a material part of its
business; (iii) a judgment or other claim becomes a Lien on a material portion
of any Borrower's assets; or (iv) a notice of lien, levy, or assessment is filed
against any Borrower's assets by any government agency and not paid within 10
days after such Borrower receives notice. These are not Events of Default if
stayed or if a bond is posted pending contest by such Borrower (but no Credit
Extensions will be made during the cure period);
8.5 INSOLVENCY. (i) Any Borrower shall be generally unable to pay its debts
as such debts become due; (ii) any Borrower begins an Insolvency Proceeding; or
(iii) an Insolvency Proceeding is begun against any Borrower and not dismissed
or stayed within 45 days (but no Credit Extensions will be made before any
Insolvency Proceeding is dismissed);
8.6 OTHER AGREEMENTS. There is a default in any agreement between any
Borrower and a third party that gives the third party the right to accelerate
any indebtedness exceeding $100,000.00 or that could reasonably be expected to
cause a Material Adverse Change;
8.7 JUDGMENTS. A money judgment(s) in the aggregate of at least $100,000.00
not covered by insurance is rendered against any Borrower and is unsatisfied and
unstayed for 30 days (but no Credit Extensions will be made before the judgment
is stayed or satisfied);
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8.8 MISREPRESENTATIONS. If any Borrower or any Person acting for any
Borrower makes any material misrepresentation or material misstatement now or
later in any warranty or representation in this Agreement, any Loan Document, or
in any communication delivered to Bank or to induce Bank to enter this Agreement
or any Loan Document.
8.9 GUARANTY. Any guaranty of any Obligations hereafter issued ceases for
any reason to be in full force or any Guarantor breaches any covenant or does
not perform any obligation under any such guaranty of the Obligations, or any
material misrepresentation or material misstatement exists then or thereafter in
any warranty or representation in any such guaranty of the Obligations or in any
certificate delivered to Bank in connection with any such guaranty, or any
circumstance described in Sections 8.4, 8.5 or 8.7 occurs to any Guarantor.
8.10 OPINIONS OF COUNSEL. Foreign Borrowers fail to provide Opinion(s) of
Counsel, in form and substance reasonably satisfactory to Bank's counsel, within
thirty (30) days immediately following the Closing.
9 BANK'S RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES. When an Event of Default occurs and continues Bank
may, without notice or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but if an Event
of Default described in Section 8.5 occurs all Obligations are immediately due
and payable without any action by Bank);
(b) Stop advancing money or extending credit for any Borrower's benefit
under this Agreement or under any other agreement between any Borrower and Bank;
(c) Settle or adjust disputes and claims directly with account debtors
for amounts, on terms and in any order that Bank considers advisable;
(d) Make any payments and do any acts it considers necessary or
reasonable to protect its security interest in the Collateral. Borrowers will
assemble the Collateral if Bank requests and make it available as Bank
designates. Bank may enter premises where the Collateral is located, take and
maintain possession of any part of the Collateral, and pay, purchase, contest,
or compromise any Lien which appears to be prior or superior to its security
interest and pay all expenses incurred. Each Borrower grants Bank a license to
enter and occupy any of its premises, without charge, to exercise any of Bank's
rights or remedies;
(e) Apply to the Obligations any (i) balances and deposits of any
Borrower it holds, or (ii) any amount held by Bank owing to or for the credit or
the account of Borrower;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for
sale, advertise for sale, and sell the Collateral. Bank is granted a
non-exclusive, royalty-free license or other right to use, without charge, each
Borrower's labels, Patents, Copyrights, Mask Works, rights of use of any name,
trade secrets, trade names, Trademarks, service marks, and advertising matter,
or any similar property as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Bank's exercise of its rights under this Section, each
Borrower's rights under all licenses and all franchise agreements inure to
Bank's benefit; and
(g) Dispose of the Collateral according to the Code.
9.2 POWER OF ATTORNEY. When an Event of Default occurs and continues, each
Borrower irrevocably appoints Bank as its lawful attorney to: (i) endorse such
Borrower's name on any checks or other forms of payment or security; (ii) sign
such Borrower's name on any invoice or bill of lading for any Account or drafts
against account debtors, (iii) make, settle, and adjust all claims under such
Borrower's insurance policies; (iv) settle and adjust disputes and claims about
the Accounts directly with account debtors, for amounts and on terms Bank
determines reasonable; and (v) transfer the Collateral into the name of Bank or
a third party as the Code permits. Bank may exercise the power of attorney to
sign any one or more Borrower's name(s) on any
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documents necessary to perfect or continue the perfection of any security
interest regardless of whether an Event of Default has occurred. Bank's
appointment as Borrowers' attorney in fact, and all of Bank's rights and powers,
coupled with an interest, are irrevocable until all Obligations have been fully
repaid and performed and Bank's obligation to provide Credit Extensions
terminates.
9.3 ACCOUNTS COLLECTION. When an Event of Default occurs and continues, Bank
may notify any Person owing any Borrower money of Bank's security interest in
the funds and verify the amount of the Account. Each Borrower must collect all
payments in trust for Bank and, if requested by Bank, immediately deliver the
payments to Bank in the form received from the account debtor, with proper
endorsements for deposit.
9.4 BANK EXPENSES. If any Borrower fails to pay any amount or furnish any
required proof of payment to third persons Bank may make all or part of the
payment or obtain insurance policies required in Section 6.5, and take any
action under the policies Bank deems prudent. Any amounts paid by Bank are Bank
Expenses and immediately due and payable, bearing interest at the then
applicable rate and secured by the Collateral. No payments by Bank are deemed an
agreement to make similar payments in the future or Bank's waiver of any Event
of Default.
9.5 BANK'S LIABILITY FOR COLLATERAL. If Bank complies with reasonable
banking practices, Borrower bears all risk of loss, damage or destruction of the
Collateral and Bank shall not be liable or responsible for: (a) the safekeeping
of the Collateral; (b) any loss or damage to the Collateral; (c) any diminution
in the value of the Collateral; or (d) any act or default of any carrier,
warehouseman, bailee, or other person.
9.6 REMEDIES CUMULATIVE. Bank's rights and remedies under this Agreement,
the Loan Documents, and all other agreements are cumulative. Bank has all rights
and remedies provided under the Code, by law, or in equity. Bank's exercise of
one right or remedy is not an election, and Bank's waiver of any Event of
Default is not a continuing waiver. Bank's delay is not a waiver, election, or
acquiescence. No waiver is effective unless signed by Bank and then is only
effective for the specific instance and purpose for which it was given.
9.7 DEMAND WAIVER. Each Borrower waives demand, notice of default or
dishonor, notice of payment and nonpayment, notice of any default, nonpayment at
maturity, release, compromise, settlement, extension, or renewal of accounts,
documents, instruments, chattel paper, and guaranties held by Bank on which such
Borrower is liable.
10 NOTICES
All notices, requests, demands and other communications hereunder shall
be in writing, and shall be deemed to have been given when delivered in person
or received by registered or certified U.S. mail, return receipt requested,
postage and registration or certification fees prepaid, or delivered by reliable
overnight delivery service, providing a receipt evidencing delivery, or by
facsimile with a copy also delivered by any of the foregoing means:
If to Bank, to:
Silicon Valley Bank
9701 West Higgins Road, Suite 150
Rosemont, IL 60018
Attention: David Dailey, Vice President
Fax: (847)698-0635
If to Borrowers, or any of them, to:
Kanbay LLC
6400 Shafer Court, Suite 100
Rosemont, IL 60018
Attention: William Weissman, Chief Financial Officer
Fax: (847)318-1594
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or at such other address as hereafter shall be furnished by a notice sent in
like manner by such addressee to the others.
11 CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
BORROWERS AND BANK HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE THAT ALL
DISPUTES BETWEEN THEM ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT,
WHETHER ARISING IN CONTRACT, TORT, EQUITY OR OTHERWISE, THAT CANNOT BE RESOLVED
BY THE PARTIES SHALL BE RESOLVED ONLY BY THE STATE OR FEDERAL COURTS LOCATED IN
COOK COUNTY, ILLINOIS. BORROWERS WAIVE IN ALL DISPUTES ANY OBJECTION THAT IT MAY
HAVE TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE.
BORROWERS HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE THAT SERVICE OF
PROCESS IN CONNECTION WITH ANY ACTION OR PROCEEDING INSTITUTED BY BANK IN THE
STATE OR FEDERAL COURTS LOCATED IN COOK COUNTY, ILLINOIS SHALL BE EFFECTIVE AS
TO ALL BORROWERS IF SERVED UPON KANBAY AT 6400 SHAFER COURT, SUITE 100,
ROSEMONT, IL 60018.
BORROWERS AND BANK EACH HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENTS
AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS
LOCATED IN COOK COUNTY, ILLINOIS, AND WAIVE IN CONNECTION WITH ANY ACTION OR
PROCEEDING ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME.
BORROWERS AND BANK EACH IRREVOCABLY WAIVE THEIR RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, ANY COUNTERCLAIM)
ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER
CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS
AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12 GENERAL PROVISIONS
12.1 SUCCESSORS AND ASSIGNS. This Agreement binds and is for the benefit of
the successors and permitted assigns of each party. No Borrower may assign this
Agreement or any rights or Obligations under it without Bank's prior written
consent which may be granted or withheld in Bank's discretion. Bank has the
right, without the consent of or notice to Borrower, to sell, transfer,
negotiate, or grant participation in all or any part of, or any interest in,
Bank's obligations, rights and benefits under this Agreement, the Loan Documents
or any related agreement.
12.2 INDEMNIFICATION. Borrowers will indemnify, defend and hold harmless Bank
and its officers, employees and agents against: (a) all obligations, demands,
claims, and liabilities asserted by any other party in connection with the
transactions contemplated by the Loan Documents, except for losses caused by
Bank's gross negligence or willful misconduct; and (b) all losses or Bank
Expenses incurred, or paid by Bank from, following, or consequential to
transactions between Bank and any Borrower (including reasonable attorneys' fees
and expenses), except for losses caused by Bank's gross negligence or willful
misconduct.
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12.3 TIME OF ESSENCE. Time is of the essence for the performance of all
Obligations in this Agreement.
12.4 SEVERABILITY OF PROVISION. Each provision of this Agreement is severable
from every other provision in determining the enforceability of any provision.
12.5 AMENDMENTS IN WRITING, INTEGRATION. All amendments to this Agreement
must be in writing signed by both Bank and Borrowers. This Agreement and the
Loan Documents represent the entire agreement about this subject matter, and
supersedes prior or contemporaneous negotiations or agreements. All prior or
contemporaneous agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement and
the Loan Documents merge into this Agreement and the Loan Documents.
12.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, are an original, and all taken together, are one
Agreement.
12.7 SURVIVAL. All covenants, representations and warranties made in this
Agreement continue in full force while any Obligations remain outstanding. The
obligations of Borrowers in Section 12.2 to indemnity Bank will survive until 30
days after all statutes of limitations for actions that may be brought against
Bank have run.
12.8 CONFIDENTIALITY. In handling any confidential information, Bank will
exercise the same degree of care that it exercises for its own proprietary
information, but disclosure of information may be made; (i) to Bank's
subsidiaries or affiliates in connection with their present or prospective
business relations with Borrowers; (ii) to prospective transferees or purchasers
of any interest in the Loans; (iii) as required by law, regulation, subpoena, or
other order, (iv) as required in connection with Bank's examination or audit;
and (v) as Bank considers appropriate in exercising remedies under this
Agreement. Confidential information does not include information that either:
(a) is in the public domain or in Bank's possession when disclosed to Bank, or
becomes part of the public domain after disclosure to Bank through no breach of
this Section 12.8 by Bank; or (b) is disclosed to Bank by a third party, if Bank
does not know that the third party is prohibited from disclosing the
information.
12.9 ATTORNEYS' FEES, COSTS AND EXPENSES. In any action or proceeding between
any Borrower and Bank arising out of the Loan Documents, the prevailing party
will be entitled to recover its reasonable attorneys' fees and other costs and
expenses incurred, in addition to any other relief to which it may be entitled,
whether or not a lawsuit is filed.
12.10 GENDER AND NUMBER: HEADINGS. Whenever the context requires or permits,
words used in the singular shall be construed to mean or include the plural and
vice-versa, and pronouns of any gender or neuter shall be deemed to mean or
include any other gender or neuter. The headings of various Articles and
Sections of this Agreement have been inserted for convenience only, are not part
of this Agreement, and shall not be deemed in any manner to modify, explain,
enlarge or restrict any of the provisions of this Agreement.
12.11 JOINT AND SEVERAL LIABILITY. Borrowers shall be jointly and severally
liable for the Obligations and all representations, warranties, covenants,
indemnifications, duties and obligations of Borrowers or any Borrower.
12.12 REPRESENTATIVE OF BORROWERS. Each Borrower hereby irrevocably designates
and appoints Kanbay as agent, representative and attorney-in-fact for each of
them, in their names and on their behalf, (i) to receive all notices and take
any and all actions Kanbay may deem appropriate in connection with this
Agreement, the other Loan Documents and any of the transactions contemplated
hereunder, as fully and effectively as each of them could act themselves, (ii)
for the receipt of any services or notice of process, and (iii) for the
settlement of any dispute or controversy arising hereunder or under any of the
other Loan Documents.
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13 DEFINITIONS
13.1 DEFINITIONS.
In addition to other terms defined elsewhere in this Agreement, the
following terms shall have the meanings set forth below for purposes of this
Agreement:
"ACCOUNTS" are all existing and later arising accounts, contract rights,
and other obligations owed any Borrower in connection with its sale or lease of
goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by any Borrower and such Borrower's Books relating to any
of the foregoing.
"ADVANCE" or "ADVANCES" is a loan advance (or advances) under the
Committed A/R Revolving Line or Committed Guaranteed Revolving Line.
"AFFILIATE" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"BANK EXPENSES" are all audit fees and expenses and reasonable costs or
expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"BORROWER'S BOOKS" are all of any Borrower's books and records including
ledgers, records regarding any Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"BORROWING BASE" is (i) 85% of Eligible Accounts of Kanbay Inc., plus
(ii) up to the lesser of (A) 50% of all unbilled Accounts of Kanbay Inc, that
are no older than 30 days from the date of performance, or (B) $750,000.00, as
determined by Bank from Borrower's most recent Borrowing Base Certificate.
"BUSINESS DAY" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"CLOSING DATE" is April 20, 2000.
"CODE" is the Illinois Uniform Commercial Code.
"COLLATERAL" is the property described on EXHIBIT A.
"COMMITTED A/R REVOLVING LINE" is an aggregate Credit Extension of up to
a total of $4,500,000.00.
"COMMITTED GUARANTEED REVOLVING LINE" is an aggregate Credit Extension
of up to a total of $3,000,000.00.
"CONTINGENT OBLIGATION" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (i) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (ii) any obligations for undrawn letters of credit for the account of
that Person; and (iii) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other
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support arrangement.
"COPYRIGHTS" are all copyright rights, applications or registrations and
like protections in each work or authorship or derivative work, whether
published or not (whether or not it is a trade secret) now or later existing,
created, acquired or held.
"CREDIT EXTENSION" is each Advance, Letter of Credit, or any other
extension of credit by Bank for Borrowers' benefit.
"CURRENT ASSETS" are amounts that under GAAP should be included on that
date as current assets on Kanbay's consolidated balance sheet.
"CURRENT LIABILITIES" are the aggregate amount of Borrowers' Total
Liabilities which mature within one (1) year.
"DEBT SERVICE COVERAGE" shall have the meaning set forth in Section
2.1.1(a).
"DEFERRED REVENUE" is all amounts received in advance of delivery or
performance and not yet recognized as revenue, including without limitation
customer deposits, except to the extent that Bank deems any such amount as
unacceptably at risk with respect to any failure by Borrowers to deliver or
perform under the agreement creating such Deferred Revenue.
"ELIGIBLE ACCOUNTS" are Accounts billed in the ordinary course of
Domestic Borrowers' business that are owned to any Domestic Borrower and meet
all Borrowers' representations and warranties in Section 5.2; BUT Bank may
change eligibility standards by giving Borrowers 30 days prior written notice.
Unless Bank agrees otherwise in writing, Eligible Accounts will not include:
(a) Accounts that the account debtor has not paid within 75 days of
invoice date;
(b) Accounts for an account debtor, 50% or more of whose Accounts have
not been paid within 75 days of invoice date;
(c) Credit balances over 75 days from invoice date;
(d) Accounts for an account debtor, including Affiliates, whose total
obligations to Borrower exceed 30% of all Accounts, for the amounts that exceed
that percentage, unless Bank approves in writing;
(e) Accounts for which the account debtor does not have its principal
place of business in the United States except for Accounts for which the account
debtor is located in Canada (excluding the provinces of Quebec, Newfoundland,
Nova Scotia and Prince Edward Island);
(f) Accounts for which the account debtor is a federal, state or local
government entity or any department, agency, or instrumentality ("Government
Accounts"), except for Accounts of the United States if the payee has assigned
its payment rights to Bank and the assignment has been acknowledged under the
Assignment of Claims Act of 1940 (31 U.S.C. 3727) and except for up to
$250,000.00 other Government Accounts;
(g) Accounts for which any Borrower owes the account debtor, but only up
to the amount owed (sometimes called "contra" accounts, accounts payable,
customer deposits or credit accounts);
(h) Accounts for demonstration or promotional equipment, or in which
goods are consigned, sales guaranteed, sale or return, sale on approval, bill
and hold, or other terms if account debtor's payment may be conditional;
(i) Accounts for which the account debtor is any Borrower's Affiliate,
officer, employee, or agent;
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(j) Accounts in which the account debtor disputes liability or makes any
claim and Bank believes there may be a basis for dispute (but only up to the
disputed or claimed amount), or if the Account Debtor is subject to an
Insolvency Proceeding, or becomes insolvent, or goes out of business;
(k) Accounts for which Bank reasonably determines collection to be
doubtful.
"EQUIPMENT" is all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which any Borrower has any interest.
"ERISA" is the Employee Retirement Income Security Act of 1974, and its
regulations.
"FX FORWARD CONTRACT" is defined in Section 2.1.3.
"FX RESERVE" is defined in Section 2.1.3.
"GAAP" is generally accepted accounting principles.
"GUARANTOR" is any present or future guarantor of the Obligations.
"INDEBTEDNESS" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"INSOLVENCY PROCEEDING" is any proceeding by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, compositions, extensions
generally with its creditors, or proceedings seeking reorganization,
arrangement, or other relief.
"INTELLECTUAL PROPERTY" is:
(a) Copyrights, Trademarks, Patents, and Mask Works including
amendments, renewals, extensions, and all licenses or other rights to use and
all license fees and royalties from the use;
(b) Any trade secrets and any intellectual property rights in computer
software and computer software products now or later existing, created (other
than work for hire created for any customer through services rendered by any
Borrower), acquired or held;
(c) All design rights which may be available to any Borrower now or
later created, acquired or held;
(d) Any claims for damages (past, present or future) for infringement of
any of the rights above, with the right, but not the obligation, to sue and
collect damages for use or infringement of the intellectual property rights
above;
All proceeds and products of the foregoing, including all insurance,
indemnity or warranty payments.
"INVENTORY" is present and future inventory in which any Borrower has
any interest, including merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products intended for sale or
lease or to be furnished under a contract of service, of every kind and
description now or later owned by or in the custody or possession, actual or
constructive, of any Borrower, including inventory temporarily out of its
custody or possession or in transit and including returns on any accounts or
other proceeds (including insurance proceeds) from the sale or disposition of
any of the foregoing and any documents of title.
"INVESTMENT" is any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
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"LIEN" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" are, collectively, this Agreement, any note, or notes
or guaranties executed by any Borrower or Guarantor, and any other present or
future agreement between any Borrower and/or for the benefit of Bank in
connection with this Agreement, including without limitation the Warrant to
Purchase Preferred Units and Stock Pledge Agreement, both of even date herewith,
between Kanbay and the Bank, all as amended, extended or restated.
"MATERIAL ADVERSE CHANGE" is defined in Section 8.3.
"MASK WORKS" are all mask works or similar rights available for the
protection of semiconductor chips, now owned or later acquired.
"MATURITY DATE" is the Revolving Maturity Date.
"OBLIGATIONS" are debts, principal, interest, Bank Expenses and other
amounts any Borrower owes Bank now or later, including letters of credit and
foreign exchange contracts, if any, and including interest accruing after
Insolvency Proceedings begin and debts, liabilities, or obligations of any
Borrower assigned to Bank.
"PATENTS" are patents, patent applications and like protections,
including improvements, divisions, continuations, renewals, reissues, extensions
and continuations-in-part of the same.
"PERMITTED INDEBTEDNESS" is:
(a) Borrowers' indebtedness to Bank under this Agreement or the Loan
Documents;
(b) Indebtedness existing on the Closing Date and shown on the Schedule;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course of
business; and
(e) Indebtedness secured by Permitted Liens;
(f) (i) Indebtedness of any Domestic Borrower to any other Domestic
Borrower; (ii) Indebtedness of any Domestic Borrower to any Foreign Borrower or
foreign Subsidiary; (iii) Indebtedness of any Foreign Borrower or foreign
Subsidiary to any other Foreign Borrower or foreign subsidiary: and (iv)
Indebtedness of all of the Foreign Borrowers and foreign Subsidiaries to all
Domestic Borrowers in an aggregate amount not to exceed $50,000.00 outstanding
at any one time.
(g) Other Indebtedness not otherwise permitted by Section 7.4 not
exceeding $50,000 in the aggregate outstanding at any time; and
(h) Any extension, refinancing, modification, amendment or restatement
of any item of Permitted Indebtedness (a) through (f) above, provided that the
principal amount thereof is not increased or the terms thereof are not modified
to impose more burdensome terms, taken as a whole, upon the applicable Borrower
or its Subsidiary, as the case may be.
"PERMITTED INVESTMENTS" are:
(a) Investments shown on the Schedule and existing on the Closing Date;
and
(b) (i) marketable direct obligations issued or unconditionally
guaranteed by the United States or its agency or any State maturing within 1
year from its acquisition, (ii) commercial paper maturing no more than 1
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year after its creation and having the highest rating from either Standard &
Poor's Corporation or Moody's Investors Service, Inc., and (iii) Bank's
certificates of deposit maturing no more than 1 year after issue and (iv) any
Investments permitted by Borrower's investment policy, as amended from time to
time, provided that such investment policy (and any such amendment thereto) has
been approved by Kanbay's Managers (or, after conversion to a corporation, its
Board of Directors);
(c) Investments consisting of the endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
Borrower;
(d) Investments accepted in connection with Transfers permitted by
Section 7.1;
(e) Investments of Subsidiaries in or to other Subsidiaries or any
Borrower and Investments by any Borrower in Subsidiaries, provided, however,
that Investments by Domestic Borrowers in Foreign Borrowers and foreign
Subsidiaries shall not exceed $500,000.00 in the aggregate in any fiscal year,
less the aggregate amount of Transfers to Foreign Borrowers in such fiscal year;
(f) Investments consisting of (i) travel advances and employee
relocation loans and other employee loans and advances in the ordinary course of
business, and (ii) loans to employees, officers or directors relating to the
purchase of equity securities of Kanbay pursuant to employee stock purchase
plans or agreements approved by Kanbay's Managers (or, after conversion to a
corporation, its Board of Directors);
(g) Investments (including debt obligations) received in connection with
the bankruptcy or reorganization of customers or suppliers and in settlement of
delinquent obligations of, and other disputes with, customers or suppliers
arising in the ordinary course of business;
(h) Investments consisting of notes receivable of, or prepaid royalties
and other credit extensions, to customers and suppliers who are not Affiliates,
in the ordinary course of business; provided that this paragraph (h) shall not
apply to Investments of any Borrower in any Subsidiary; and
(i) Investments in equity interests (including stock and/or warrants) in
customers of Borrowers or their Subsidiaries, either as partial consideration
for services rendered or as payment of past due amounts, provided that the cash
portion of the fees charged to such customer are sufficient to cover Kanbay's
projected costs of providing services, i.e. that the equity participation
portion of the fees comes out of Kanbay's Profit, but will not result in a Loss
on the transaction.
(j) Other Investments not otherwise permitted by section 7.7 not
exceeding $50,000 in the aggregate outstanding at any time.
"PERMITTED LIENS" are:
(a) Liens existing on the Closing Date and shown on the Schedule or
arising under this Agreement or other Loan Documents;
(b) Liens for taxes, fees, assessments or other government charges or
levies, either not delinquent or being contested in good faith and for which any
Borrower maintains adequate reserves on its Books, IF they have no priority over
any of Bank's security interests;
(c) Purchase money Liens (i) on Equipment acquired or held by any
Borrower or its Subsidiaries incurred for financing the acquisition of the
Equipment, or (ii) existing on equipment when acquired, IF the Lien is confined
to the property and improvements and the proceeds of the equipment;
(d) Leases or subleases and licenses or sublicenses granted in the
ordinary course of Borrowers' business, IF the leases, subleases, licenses and
sublicenses permit granting Bank a security interest;
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(e) Liens incurred in the extension, renewal or refinancing of the
indebtedness secured by Liens described in (a) through (c), BUT any extension,
renewal or replacement Lien must be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness may not increase.
"PERSON" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm, joint
stock company, estate, entity or government agency.
"PRIME RATE" is Bank's most recently announced "prime rate," even if it
is not Bank's lowest rate.
"PROFIT" or "LOSS" is net income or loss determined according to GAAP.
"QUICK ASSETS" is, on any date, Kanbay's consolidated, unrestricted
cash, cash equivalents, billed trade accounts receivable (with maturities of
less than twelve (12) months) net of allowance for bad debts determined
according to GAAP.
"REQUIRED PROFITABILITY" shall have the meaning set forth in Section
2.1.1(a).
"RESPONSIBLE OFFICER" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Controller of Kanbay.
"REVOLVING MATURITY DATE" is April 18, 2001.
"SCHEDULE" is any attached schedule of exceptions.
"SUBORDINATED DEBT" is debt incurred by any Borrower subordinated to
Borrowers' indebtedness owed to Bank and which is reflected in a written
agreement in a manner and form acceptable to Bank and approved by Bank in
writing.
"SUBSIDIARY" is for any Person, joint venture, or any other business
entity of which more than 50% of the voting stock or other equity interests is
owned or controlled, directly or indirectly, by the Person or one or more
Affiliates of the Person.
"TERM LOAN" is a Credit Extension of $750,000.00, to be advanced at
Closing only.
"TERM LOAN MATURITY DATE" is September 18, 2002.
"TOTAL LIABILITIES" is on any day, obligations that should, under GAAP,
be classified as liabilities on Borrowers' consolidated balance sheet, including
all Indebtedness, and current portion Subordinated Debt allowed to be paid, but
excluding all other Subordinated Debt.
"TRADEMARKS" are trademark and service mark rights, registered or not,
applications to register and registrations and like protections, and the entire
goodwill of the business of any Borrower connected with the trademarks.
BORROWERS:
KANBAY LLC KANBAY AUSTRALIA PTY, LTD.
By: /s/ William Weissman By: /s/ William Weissman
------------------------------------ -------------------------------
Title: CFO & Secretary Title: Director/CFO
--------------------------------- ---------------------------
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KANBAY INCORPORATED MEGATEC PTY, LTD.
By: /s/ William Weissman By: /s/ William Weissman
------------------------------------ -------------------------------
Title: CFO & Secretary Title: Director/CFO
--------------------------------- ---------------------------
KANBAY EUROPE LTD. KANBAY HK LTD.
By: /s/ William Weissman By: /s/ William Weissman
------------------------------------ -------------------------------
Title: Director/CFO Title: Director/CFO
--------------------------------- ---------------------------
BANK:
SILICON VALLEY BANK
By: /s/ Authorized Party
------------------------------------
Title: Authorized Party
---------------------------------
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EXHIBIT A
COLLATERAL
The Collateral consists of all of each Borrower's right, title and
interest in and to the following:
All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions and improvements
to any of the foregoing, wherever located;
All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products, including such
inventory as is temporarily out of any Borrower's custody or possession or in
transit, and including any returns upon any accounts or other proceeds,
including insurance proceeds, resulting from the sale or disposition of any of
the foregoing and any documents of title representing any of the above;
All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, service marks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
disks, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to any
Borrower arising out of the sale or lease of goods, the licensing of technology
or the rendering of services by any Borrower, whether or not earned by
performance, and any and all credit insurance, guaranties, and other security
therefor, as well as all merchandise returned to or reclaimed by any Borrower;
All documents, cash, deposit accounts, securities, securities
entitlements, securities accounts, investment property, financial assets,
letters of credit, certificates of deposit, instruments and chattel paper now
owned or hereafter acquired and each Borrower's Books relating to the foregoing;
All copyright rights, copyright applications, copyright registrations
and like protections in each work of authorship and derivative work thereof,
whether published or unpublished, now owned or hereafter acquired; all trade
secret rights, including all rights to unpatented inventions, know-how,
operating manuals, license rights and agreements and confidential information,
now owned or hereafter acquired; all mask work or similar rights available for
the protection of semiconductor chips, now owned or hereafter acquired; all
claims for damages by way of any past, present and future infringement of any of
the foregoing; and
Each Borrower's Books relating to the foregoing and any and all claims,
rights and interests in any of the above and all substitutions for, additions
and accessions to and proceeds thereof.
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