Exhibit 10.17(a)
FOURTH LOAN MODIFICATION AGREEMENT
This Fourth Loan Modification Agreement (this "Loan Modification
Agreement') is entered into as of April 29, 2004, by and between SILICON VALLEY
BANK, a California-chartered bank, with its principal place of business at 0000
Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office
located at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("Bank") and
KANBAY INTERNATIONAL, INC. (successor to Kanbay LLC), a Delaware corporation
("Kanbay International"), with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, KANBAY INCORPORATED, an Illinois
corporation ("Kanbay Inc."), with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000, 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 XXX 0XX, XXXXXX
XXXXXXXXX PTY. LTD., a company formed under the laws of Australia ("Kanbay
Australia"), with its principal place of business at 000 Xxxxxxxxxx Xxxx,
Xxxxxxx, Xxxxxxxx 0000, Xxxxxxxxx, MEGATEC PTY. LTD., a company formed under the
laws of Australia ("Megatec"), with its principal place of business at 000
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 0000, Xxxxxxxxx and KANBAY HK LTD., a company
formed under the laws of Hong Kong ("Kanbay HK"), with its principal place of
business at 12th Floor Xxxx Xxxx Hong Bldg., Suite 1201, 00 Xxxx Xxx Xxxxxx,
Xxxxxx Xxx, Xxxx Xxxx (Kanbay International, Kanbay Inc., Kanbay Europe, Kanbay
Australia, Megatec and Kanbay HK being sometimes herein called collectively the
"Borrowers" and each individually a "Borrower").
1. DESCRIPTION OF EXISTING INDEBTEDNESS AND OBLIGATIONS. Among other
indebtedness and obligations which may be owing by Borrower to Bank, Borrower is
indebted to Bank pursuant to a loan arrangement dated as of April 19, 2000,
evidenced by, among other documents, a certain Loan and Security Agreement dated
as of April 19, 2000, between Kanbay LLC, a Delaware limited liability company
("Kanbay LLC"), Kanbay Inc., Kanbay Europe, Kanbay Australia, Megatec, Kanbay HK
and Bank, as corrected and conformed by a certain Correction Agreement dated as
of May 1, 2000, as amended by a certain Loan Modification Agreement dated as of
March 30, 2001, as further amended by a certain Loan Modification Agreement
dated as of April 20, 2002, and as further amended by a certain Third Loan
Modification Agreement dated as of September 9, 2003 (as amended, the "Loan
Agreement"). Capitalized terms used but not otherwise defined herein shall have
the same meaning as in the Loan Agreement.
2. DESCRIPTION OF COLLATERAL. Repayment of the Obligations is secured by the
Collateral as described in the Loan Agreement (together with any other
collateral security granted to Bank, the "Security Documents").
Hereinafter, the Security Documents, together with all other documents
evidencing or securing the Obligations shall be referred to as the "Existing
Loan Documents".
3. DESCRIPTION OF CHANGE IN TERMS.
MODIFICATIONS TO LOAN AGREEMENT.
1. The Loan Agreement shall be amended by deleting subsection (b) of
Section 2.1.1 thereof, entitled "Revolving Advances" in its
entirety, and inserting in lieu thereof the following:
"(b) Bank shall make Advances to Kanbay not exceeding (i)
the Committed A/R Revolving Line Minus (ii) the amount of
all outstanding Letters of Credit (including drawn but
unreimbursed Letters of Credit), minus (iii) the FX Reserve,
and minus (iv) the aggregate outstanding Advances hereunder.
Amounts borrowed under this Section may be repaid and
reborrowed during the term of this Agreement."
2. The Loan Agreement shall be amended by deleting Section 2.2
thereof, entitled "Overadvances", in its entirety.
3. The Loan Agreement shall be amended by deleting the following
text appearing in Section 2.3 thereof, entitled "Revolving Line
Interest Rates, Payments":
"Advances made under the Committed A/R Revolving Line accrue
interest on the outstanding principal balance at a per annum
rate equal to the aggregate of the Prime Rate, and one half
of one percent (0.5%)."
and inserting in lieu thereof the following:
"Advances made under the Committed A/R Revolving Line accrue
interest on the outstanding principal balance at a per annum
rate equal to the Prime Rate."
4. The Loan Agreement shall be amended by deleting subsection (b) of
Section 6.2 thereof, entitled "Financial Statements, Reports,
Certificates".
5. The Loan Agreement shall be amended by deleting subsection (e) of
Section 6.2 thereof, entitled "Financial Statements, Reports,
Certificates", in its entirety, and inserting in lieu thereof the
following:
"(e) Bank has the right to audit Kanbay, Inc.'s Accounts
at Borrower's expense. Such audits shall be conducted no
more often than once every twelve (12) months unless an
Event of Default has occurred and is continuing."
6. Upon the occurrence of the IPO, the Loan Agreement shall be
amended by deleting Section 6.2 thereof, entitled "Financial
Statements, Reports, Certificates", in its entirety, and
inserting in lieu thereof the following:
"6.2 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES.
(a) Borrower will deliver to Bank: (i) quarterly,
within five (5) days of filing, copies of all reports on
10-Q with the Securities and Exchange Commission; (ii)
annually, within five (5) days of filing, copies of all
reports on Form 10-K with the Securities and Exchange
Commission; (iii) a prompt report of any legal actions
pending or threatened against Borrower or any Subsidiary
that could result in damages or costs to Borrower or any
Subsidiary of One Hundred Thousand Dollars ($100,000.00) or
more; (iv) prompt notice of any material change in the
composition of the Intellectual Property, or the
registration of any copyright, including any subsequent
ownership right of Borrower in or to any Copyright, Patent
or Trademark not shown in any intellectual property security
agreement between Borrower and Bank or knowledge of an event
that materially adversely affects the value of the
Intellectual Property; and (v) budgets, sales projections,
operating plans or other financial information reasonably
requested by Bank.
(b) Quarterly, within five (5) days of the filing of
all reports on Form 10-K with the Securities and Exchange
Commission, Borrowers shall deliver to Bank a Compliance
Certificate signed by a Responsible Officer in the form of
EXHIBIT B."
7. The Loan Agreement shall be amended by deleting subsections (b)
and (c) of Section 6.7 thereof, entitled "Financial Covenants",
and inserting in lieu thereof the following:
"(b) EBITDA RATIO. A ratio of Obligations to EBITDA, to be
tested as of the last day of each quarter, on an annualized
basis, of no greater than 2.0 to 1.0."
8. The Loan Agreement shall be amended by deleting the following
definitions appearing in Section 13.1 thereof:
""EBITDA" is defined in Section 2.1.1(a); provided however
that for purposes Section 6.7(c) the word "quarterly" shall
be deemed to be "monthly".
"REVOLVING MATURITY DATE" is April 30, 2004."
and inserting in lieu thereof the following:
""EBITDA" is defined in Section 2.1.1(a); provided however
that for purposes Section 6.7(b) the word "monthly" shall be
deemed to be "quarterly".
"REVOLVING MATURITY DATE" is April 29, 2005."
9. Notwithstanding anything in the Loan Agreement to the contrary,
Borrower shall deliver the financial statements required pursuant
to Section 6.2(a)(i), as soon as available but no later than
thirty (30) days after the last day of each: (a) quarter, and (b)
month during which: (i) any Credit Extension is requested or
outstanding, or (ii) Borrower fails to maintain a ratio of Quick
Assets to Current Liabilities minus Deferred Revenue and any
current portions of Subordinated Debt of at least 1.50 to 1.00.
10. Notwithstanding anything in the Loan Agreement to the contrary,
Borrower shall deliver the Compliance Certificate required
pursuant to Section 6.2(c), within thirty (30) days after the
last day of each: (a) quarter, and (b) month during which: (i)
any Credit Extension is requested or outstanding, or (ii)
Borrower fails to maintain a ratio of Quick Assets to Current
Liabilities minus Deferred Revenue and any current portions of
Subordinated Debt of at least 1.50 to 1.00.
11. The Loan Agreement shall be amended by deleting the Borrowing
Base Certificate appearing as EXHIBIT C thereto.
12. The Loan Agreement shall be amended by deleting the Compliance
Certificate appearing as EXHIBIT D thereto, and replacing it with
EXHIBIT A attached hereto.
13. Upon the occurrence of the IPO, the Loan Agreement shall be
amended by deleting the Compliance Certificate appearing as
EXHIBIT D thereto, and replacing it with EXHIBIT B attached
hereto.
14. As used herein, "IPO shall mean Borrower's initial underwritten
public offering and sale of its securities pursuant to an
effective registration statement under the Securities Act of
1933, as amended.
4. FEES. The Borrower shall reimburse Bank for all legal fees and expenses
incurred in connection with this amendment to the Existing Loan Documents.
5. RATIFICATION OF STOCK PLEDGE AGREEMENT. Borrower hereby ratifies, confirms
and reaffirms, all and singular, the terms and conditions of a certain Stock
Pledge Agreement dated as of April 19, 2000 between Borrower and Bank, and
acknowledges, confirms and agrees that said Stock Pledge Agreement shall remain
in full force and effect.
6. ADDITIONAL COVENANTS. Borrower shall not, without providing the Bank with
thirty (30) days subsequent written notice: (i) change its jurisdiction of
organization, or (ii) change its organizational structure or type, (iii) change
its legal name, or (iv) change any organizational number (if any) assigned by
its jurisdiction of organization.
7. CONSISTENT CHANGES. The Existing Loan Documents are hereby amended wherever
necessary to reflect the changes described above.
8. RATIFICATION OF LOAN DOCUMENTS. Borrower hereby ratifies, confirms, and
reaffirms all terms and conditions of all security or other collateral granted
to the Bank, and confirms that the indebtedness secured thereby includes,
without limitation, the Obligation.
9. NO DEFENSES OF BORROWER. Borrower hereby acknowledges and agrees that
Borrower has no offsets, defenses, claims, or counterclaims against Bank with
respect to the Obligations, or otherwise, and that if Borrower now has, or ever
did have, any offsets, defenses, claims, or counterclaims against Bank, whether
known or unknown, at law or equity, all of them are hereby expressly WAIVED and
Borrower hereby RELEASES Bank from any liability thereunder.
10. CONTINUING VALIDITY. Borrower understands and agrees that in modifying the
existing Obligations, Bank is relying upon Borrower's representations,
warranties, and agreements, as set forth in the Existing Loan Documents. Except
as expressly modified pursuant to this Loan Modification Agreement, the terms of
the Existing Loan Documents remain unchanged and in full force and effect.
Bank's agreement to modifications to the existing Obligations pursuant to this
Loan Modification Agreement in no way shall obligate Bank to make any future
modifications to the Obligations. Nothing in this Loan Modification Agreement
shall constitute a satisfaction of the Obligations. It is the intention of Bank
and Borrower to retain as liable parties all makers of Existing Loan Documents,
unless the party is expressly released by Bank in writing. No maker will be
released by virtue of this Loan Modification Agreement.
11. COUNTERSIGNATURE. This Loan Modification Agreement shall become effective
only when it shall have been executed by Borrower and Bank (provided, however,
in no event shall this Loan Modification Agreement become effective until signed
by an officer of Bank in California).
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
This Loan Modification Agreement is executed as a sealed instrument under
the laws of the COMMONWEALTH OF MASSACHUSETTS AS OF THE DATE FIRST WRITTEN
ABOVE.
BORROWER:
KANBAY INTERNATIONAL, INC. KANBAY AUSTRALIA PTY. LTD.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Name: XXXXXXX XXXXXXXX Name: XXXXXXX XXXXXXXX
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Title: VP&CFO Title: DIRECTOR
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KANBAY INCORPORATED KANBAY XXX.XXX.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Name: XXXXXXX XXXXXXXX Name: XXXXXXX XXXXXXXX
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Title: VP&CFO Title: DIRECTOR
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KANBAY EUROPE LTD. KANBAY HK LTD.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Name: XXXXXXX XXXXXXXX Name: XXXXXXX XXXXXXXX
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Title: DIRECTOR Title: DIRECTOR
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BANK:
SILICON VALLEY BANK
By:
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Name:
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Title:
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