WELLS FARGO BANK, NATIONAL ASSOCIATION c/o Wells Fargo Capital Finance, LLC
Exhibit 10.1
XXXXX FARGO BANK, NATIONAL ASSOCIATION
c/x Xxxxx Fargo Capital Finance, LLC
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, XX 00000
Dated as of November 30, 2013
SABA SOFTWARE, INC.
0000 Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Fax No.: (000) 000-0000
Re: | Extension under Credit Agreement, Amendment Number Three to Credit Agreement and Waiver |
Ladies and Gentlemen:
Reference is made to: (i) that certain AMENDED 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 among XXXXX FARGO BANK, NATIONAL ASSOCIATION (“Lender”), each of the Domestic Subsidiaries (as defined in therein) of Borrower party thereto as Subsidiary Guarantors, and SABA 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 in Section 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, | ||
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Lender | ||
By: | /s/ Xxxxxx Xxxxxxxx | |
Name: | Xxxxxx Xxxxxxxx | |
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/ Xxxxx Xxxxxxxx | |
Name: Xxxxx Xxxxxxxx | ||
Title: Executive Vice President | ||
HAL ACQUISITION SUB INC., a Delaware corporation, as a Subsidiary Guarantor | ||
By: |
/s/ Xxxxx Xxxxxxxx | |
Name: Xxxxx Xxxxxxxx | ||
Title: | ||
HUMANCONCEPTS, LLC, a California limited liability company, as a Subsidiary Guarantor | ||
By: |
/s/ Xxxxx Xxxxxxxx | |
Name: Xxxxx Xxxxxxxx | ||
Title: |
[SIGNATURE PAGE TO EXTENSION, AMENDMENT AND WAIVER LETTER]