Exhibit 10.1
WELLS FARGO BANK, NATIONAL ASSOCIATION
c/o Wells Fargo Capital Finance, LLC
2450 Colorado Avenue, Suite 3000 West
Santa Monica, CA 90404
Dated as of November 30, 2013
SABA SOFTWARE, INC.
2400 Bridge Parkway
Redwood Shores, CA 94065
Attn: Mark Robinson
Fax No.: (650) 581-2545
| Re: | Extension under Credit Agreement, Amendment Number Three to Credit Agreement and Waiver |
Ladies and Gentlemen:
Reference is made to: (i) that certainAMENDED AND RESTATED CREDIT AGREEMENT (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”) dated as of June 27, 2011 by and amongWELLS FARGO BANK, NATIONAL ASSOCIATION (“Lender”), each of the Domestic Subsidiaries (as defined in therein) of Borrower party thereto as Subsidiary Guarantors, andSABA SOFTWARE, INC., a Delaware corporation (“Borrower”) (ii) that certain Extension under Credit Agreement Letter (the “First Extension Letter”) dated as of September 27, 2013 by and among Lender, Borrower and Subsidiary Guarantors, and (iii) that certain Extension under Credit Agreement Letter (the “Second Extension Letter”) dated as of October 28, 2013 by and among Lender, Borrower and Subsidiary Guarantors. All initially capitalized terms used herein without definition shall have the meanings ascribed thereto in the Credit Agreement.
Extension under Credit Agreement
Pursuant to the First Extension Letter and the Second Extension Letter, on or before November 30, 2013 (the “Second Extended Annual Financial Statements Deadline”), Borrower is required to deliver to Lender (a) a copy of its Annual Report on Form 10-K for Borrower’s fiscal year ended May 31, 2012 filed by Borrower with the United States Securities and Exchange Commission (with the requisite financial statements contained therein) as more fully set forth inSection 5.03(i)(a) of the Credit Agreement, (b) consolidating financial statements of Borrower, prepared by Borrower (to include balance sheets, profit and loss statements, statements of cash flows, and reconciliations of net worth) for Borrower’s fiscal year ended May 31, 2012, and (c) a duly completed Compliance Certificate executed by a senior financial officer of Borrower for Borrower’s fiscal year ended May 31, 2012 (collectively, the “Audited Financial Statements Requirements”).
Borrower has requested that Lender extend the Second Extended Annual Financial Statements Deadline to December 31, 2013. Lender is willing to grant the extension requested by Borrower on the terms and conditions specified herein. Accordingly, Lender hereby extends the Second Extended Annual Financial Statements Deadline to December 31, 2013 (the “Third Extended Annual Financial Statements Deadline”). Failure of Borrower to deliver or cause to be delivered to Lender the Audited Financial Statements Requirements by the Third Extended Annual Financial Statements Deadline shall constitute an immediate Event of Default, unless otherwise waived in writing in accordance with the Credit Agreement prior to such time.
Amendments under Credit Agreement
Effective as of the date hereof,Section 5.03(a) of the Credit Agreement is hereby amended and modified by replacing the phrase “the 90th (ninetieth) day following the Restatement Completion” in the fourth line thereof with the phrase “February 28, 2014”.
Effective as of October 15, 2013,Section 3.14 of the Credit Agreement is hereby amended and modified by replacing the phrase “, and February 28, 2013” in the last line thereof with the phrase “, February 28, 2013 and August 31, 2013”.
This letter shall not, except as expressly provided herein, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of Lender under the Credit Agreement or the other Loan Documents, and shall not, except as expressly provided herein, alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or the other Loan Documents. Nothing herein shall be deemed to entitle Borrower or any Subsidiary Guarantor to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or the other Loan Documents in similar or different circumstances. This letter shall be subject to the provisions regarding choice of law and venue and jury trial waiver applicable to the Credit Agreement.
Each of the undersigned Subsidiary Guarantors consents to the extension and amendment contained herein. Although the undersigned Subsidiary Guarantors have been informed of the matters set forth herein and have consented to same, each Subsidiary Guarantor understands that the Lender has no obligation to inform it of such matters in the future or to seek its acknowledgement or agreement to future consents, amendments, or waivers, and nothing herein shall create such a duty.
Each of Borrower and each Subsidiary Guarantor hereby reaffirms its obligations under each Loan Document to which it is a party. All of such obligations owing by Borrower and such Subsidiary Guarantor are unconditionally owing by Borrower and such Subsidiary Guarantor to Lender without offset, defense, withholding, counterclaim or deduction of any kind, nature or description whatsoever. Each of Borrower and each Subsidiary Guarantor hereby further ratifies and reaffirms the validity and enforceability of all of the Loan Documents to which it is a party, including any amendments or modifications or substitutions thereto, and ratifies and reaffirms the validity and enforceability of all of Liens and security interests heretofore granted by it pursuant to or in connection with any Loan Document to Lender, as security for its obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such Liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain in full force and effect on and after the date hereof except as expressly set forth herein.
This letter shall constitute a Loan Document.
[Signature pages to follow.]
| Very Truly Yours, | ||
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Lender | ||
| By: | /s/ Daniel Morihiro | |
| Name: | Daniel Morihiro | |
| Title: | Director | |
[SIGNATURE PAGE TO EXTENSION, AMENDMENT AND WAIVER LETTER]
Acknowledged, agreed and accepted this 30th day of November 2013:
SABA SOFTWARE, INC., a Delaware corporation, as Borrower | ||
By: | /s/ Peter Williams | |
Name: Peter Williams | ||
Title: Executive Vice President | ||
HAL ACQUISITION SUB INC., a Delaware corporation, as a Subsidiary Guarantor | ||
By: | /s/ Peter Williams | |
Name: Peter Williams | ||
Title: | ||
HUMANCONCEPTS, LLC, a California limited liability company, as a Subsidiary Guarantor | ||
By: | /s/ Peter Williams | |
Name: Peter Williams | ||
Title: | ||
[SIGNATURE PAGE TO EXTENSION, AMENDMENT AND WAIVER LETTER]