Amendment No. 6, Amended and Restated Loan and Security Agreement



 Exhibit 10.3 
  
 AMENDMENT NO. 6 
 TO 
 AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT 
  
 THIS AMENDMENT NO. 6 TO AMENDED
AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into this 13th day of January, 2006, by and between
SABA SOFTWARE, INC., a Delaware corporation (“Borrower”), and SILICON VALLEY BANK
(“Bank”). Capitalized terms used herein without definition shall have the same meanings given them in the Loan Agreement (as defined below). 
  
 RECITALS 
  
 A. Borrower and Bank have entered into that certain Amended and Restated Loan and Security Agreement dated as of October 31, 2003, as amended
by (i) that certain Amendment No. 1 to Amended and Restated Loan and Security Agreement dated as of February 10, 2004, (ii) that certain Amendment No. 2 to Amended and Restated Loan and Security Agreement dated as of
May 25, 2004, (iii) that certain Amendment No. 3 to Amended and Restated Loan and Security Agreement dated as of August 20, 2004, (iv) that certain Amendment No. 4 to Amended and Restated Loan and Security Agreement
dated as of the Fourth Amendment Effective Date, and (v) that certain Amendment No. 5 to Amended and Restated Loan and Security Agreement dated as of November 10, 2005 (all of which may be further amended, restated, or otherwise
modified, the “Loan Agreement”), pursuant to which the Bank has agreed to extend and make available to Borrower certain advances of money. 
  
 B. Borrower desires that Bank amend the Loan Agreement upon the terms and conditions more fully set forth herein.

  
 C. Subject to the representations and warranties of
Borrower herein and upon the terms and conditions set forth in this Amendment, Bank is willing to so amend the Loan Agreement. 
  
 AGREEMENT 
  
 NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally bound, the parties hereto agree as follows: 
  

	 	1.	Amendment to Loan Agreement. 

  
 1.1 Section 6.8 (Financial Covenant). Section 6.8 is amended in its entirety by replacing the text thereof with the following:

  
 6.8 Financial Covenants. 
  
 Beginning on the Fourth Amendment Effective Date, Borrower
shall have unrestricted cash and cash equivalents (net of Credit Extensions) as follows: 








				
	 Period

	  	Minimum Cash and
Cash Equivalents


	 For any date that is a fiscal quarter end from the Fourth Amendment Effective Date through May 30, 2006
	  	$	11,000,000
		
	 For any date that is not a fiscal quarter end from the Fourth Amendment Effective Date through September 15, 2005, and from March 1,
2006 through May 30, 2006
	  	$	10,000,000
		
	 For any date that is not a fiscal quarter end from September 16, 2005 through November 29, 2005
	  	$	8,000,000
		
	 For any date that is not a fiscal quarter end from December 1, 2005 through February 27, 2006
	  	$	7,500,000
		
	 At any time from May 31, 2006, through May 30, 2007
	  	$	9,000,000
		
	 At any time from May 31, 2007, and any date thereafter
	  	$	7,500,000

  
 1.2 Exhibit D,
“Compliance Certificate” is hereby amended by deleting it in its entirety and replacing it with Exhibit A attached hereto. 
  
 2. BORROWER’S REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants that: 
  
 (a)
immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such
representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing; 
  
 (b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its
obligations under the Loan Agreement, as amended by this Amendment; 
  
 (c) the certificate of incorporation and bylaws of Borrower (collectively, “Organizational Documents”) delivered to Bank on or prior to the Fourth Amendment Effective Date are true, accurate and complete and have not been
amended, supplemented or restated and are and continue to be in full force and effect as of the date hereof, and Borrower shall promptly deliver to Bank any amendments, supplements, restatements or other modifications to such Organizational
Documents; 
  
 (d) the execution and delivery by Borrower
of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower; 







 (e) this Amendment has been duly executed and delivered by the Borrower and is the binding
obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable
principles relating to or affecting creditors’ rights; and 
  
 (f) as of the date hereof, it has no defenses against the obligations to pay any amounts under the Obligations. Borrower acknowledges that Bank has acted in good faith and has conducted in a commercially reasonable manner its
relationships with Borrower in connection with this Amendment and in connection with the Loan Documents. 
  
 Borrower understands and acknowledges that Bank is entering into this Amendment in reliance upon, and in partial consideration for, the above
representations and warranties, and agrees that such reliance is reasonable and appropriate. 
  
 3. LIMITATION. The consent and amendments set forth in this Amendment shall be limited precisely as written and shall not be deemed (a) to be a waiver or modification of any other term or
condition of the Loan Agreement or of any other instrument or agreement referred to therein or to prejudice any right or remedy which Bank may now have or may have in the future under or in connection with the Loan Agreement or any instrument or
agreement referred to therein; or (b) to be a consent to any future amendment or modification or waiver to any instrument or agreement the execution and delivery of which is consented to hereby, or to any waiver of any of the provisions thereof.
Except as expressly amended hereby, the Loan Agreement shall continue in full force and effect. 
  
 4. EFFECTIVENESS. This Amendment shall become effective upon the satisfaction of all the following conditions precedent: 

 
 4.1 Amendment. Borrower and Bank shall have duly executed and
delivered this Amendment to Bank. 
  
 4.2 Payment of Bank
Expenses. Borrower shall have paid all Bank Expenses (including all reasonable attorneys’ fees and reasonable expenses) incurred through the date of this Amendment. 
  
 4.3 Amendment Fee. Borrower shall have paid to Bank an amendment fee in the amount of $1,500.00. 
  
 5. COUNTERPARTS. This Amendment may be
signed in any number of counterparts, and by different parties hereto in separate counterparts, with the same effect as if the signatures to each such counterpart were upon a single instrument. All counterparts shall be deemed an original of this
Amendment. 
  
 6.
INTEGRATION. This Amendment and any documents executed in connection herewith or pursuant hereto contain the entire agreement between the parties with respect to the subject matter hereof and supersede all prior
agreements, understandings, offers and negotiations, oral or written, with respect thereto and no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this Amendment; except that any financing
statements or other agreements or instruments filed by Bank with respect to Borrower shall remain in full force and effect. 







 7. GOVERNING LAW; VENUE. THIS AMENDMENT SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA. Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal courts in Santa Clara County, California. 
  
 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above. 
  

											
	BORROWER:	 	 	 	SABA SOFTWARE, INC.
	 	 	 	 	a Delaware corporation
				
	 	 	 	 	By:	 	/s/    PETER
WILLIAMS        
	 	 	 	 	Printed Name:	 	Peter Williams
	 	 	 	 	Title:	 	Chief Financial Officer
			
	BANK:	 	 	 	SILICON VALLEY BANK
	 	 	 	 	 
				
	 	 	 	 	By:	 	/s/    NICK
TSIAGKAS        
	 	 	 	 	Printed Name:	 	Nick Tsiagkas
	 	 	 	 	Title:	 	Relationship Manager








 Exhibit A 
  

EXHIBIT D 
  
 COMPLIANCE CERTIFICATE 
  

			
	TO:	 	SILICON VALLEY BANK
	 	 	3003 Tasman Drive
	 	 	Santa Clara, CA 95054
		
	FROM:	 	SABA SOFTWARE, INC.
	 	 	2400 Bridge Parkway
	 	 	Redwood Shores, CA 94065

  
 The undersigned
authorized officer of SABA SOFTWARE, INC. (“Borrower”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (as further amended, restated, or otherwise modified
from time to time, the “Agreement”), (i) Borrower is in complete compliance for the period ending
                             with all required covenants except as noted below and (ii) all
representations and warranties in the Agreement are true and correct in all material respects on this date. Attached are the required documents supporting the certification. In addition, the undersigned authorized officer of Borrower certifies that
Borrower and each of its Subsidiaries (x) has timely filed all required tax returns and paid, or made adequate provision to pay, all material taxes, except those being contested in good faith with adequate reserves under Generally Accepted
Accounting Principles (“GAAP”) and (y) does not have any legal actions pending or threatened against Borrower or any Subsidiary, which could result in damages or costs to Borrower or any Subsidiary of $500,000 or more and of which
Borrower has not previously notified in writing to Bank. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The
undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is
delivered. 
  
 Please indicate compliance status by circling
Yes/No under “Complies” column. 
  

							
	 Reporting Covenant

	  	 Required

	  	Complies


	Monthly financial statements + CC	  	Monthly within 45 days	  	Yes	  	No
	Annual (Audited)	  	FYE within 120 days	  	Yes	  	No
	SEC Filings not available on EDGAR	  	Within 5 days after filing with SEC	  	Yes	  	No
	Annual Financial Projections	  	FYE within 45 days	  	Yes	  	No

  
 [continued on next
page] 








													
	 Financial Covenant

	  	 Required

	  	 	  	Actual

	  	Complies


	Unrestricted cash and cash equivalents (net of Credit Extensions) on Borrower’s balance sheet as set forth in the Table 1.	  	 	  	 	 	  	 	 	  	 	  	 
	 	  	Table 1.	  	 	 	  	 	 	  	 	  	 
	 	  	 Period

	  	Minimum Cash
and Cash
Equivalents

	  	 	  	 	  	 
	 	  	For any date that is a fiscal quarter end from the Fourth Amendment Effective Date through 5/30/06	  	$	11,000,000	  	$	            	  	Yes	  	No
						
	 	  	For any date that is not a fiscal quarter end from Fourth Amendment Effective Date through 9/15/05, and from 3/1/06 through 5/30/06	  	$	10,000,000	  	$	            	  	Yes	  	No
						
	 	  	For any date that is not a fiscal quarter end from 9/16/05 through 11/29/05	  	$	8,000,000	  	$	            	  	Yes	  	No
						
	 	  	For any date that is not a fiscal quarter end from 12/1/05 through 2/27/06	  	$	7,500,000	  	$	            	  	Yes	  	No
						
	 	  	At any time from 5/31/06 through 5/30/07	  	$	9,000,000	  	$	            	  	Yes	  	No
						
	 	  	At any time from 5/31/07 and thereafter	  	$	7,500,000	  	$	            	  	Yes	  	No

  
  

									
	 Comments Regarding Exceptions: See Attached.
	  	 	  	 	  	 	  	 
					
	 Sincerely,
	  	 	  	 	  	 	  	 
					
	 SABA SOFTWARE, INC.
	  	 	  	 	  	 	  	 
					
	
	  	 	  	 	  	 	  	 
	 SIGNATURE
	  	 	  	 	  	 	  	 
					
	
	  	 	  	 	  	 	  	 
	 TITLE
	  	 	  	 	  	 	  	 
					
	 Date:
	  	 	  	 	  	 	  	 

  

					
	BANK USE ONLY	 	 
	
	 Received by:


	 AUTHORIZED SIGNER

	
	 Date:


	
	 Verified:


	
	AUTHORIZED SIGNER
	
	 Date:


			
	Compliance Status:	 	 	 	Yes    No