Consent, between Salary.com Inc, and Silicon Valley Bank



 EXHIBIT 10.5 
 CONSENT 
 This CONSENT (this “Consent”) is entered into this 10th day of August,
2009, by and between Silicon Valley Bank (“Bank”) and Salary.com, Inc., a Delaware corporation (“Borrower”). 
 RECITALS 
 A.    Bank and Borrower have entered into a certain Loan
and Security Agreement dated as of August 10, 2006, as affected by a certain Waiver Agreement dated as of June 8, 2008, as amended by a certain First Loan Modification Agreement dated as of August 8, 2008, as amended by a certain
Second Loan Modification Agreement dated as of September 17, 2008, as further amended by a certain Third Loan Modification Agreement dated as of October 8, 2008, as further amended by a certain Fourth Loan Modification Agreement dated as
of March 16, 2009, and as further amended by a certain Fifth Loan Modification Agreement dated as of June 29, 2009 (as has been and as may be further amended from time to time, the “Loan Agreement”). Bank has extended credit to
Borrower for the purposes permitted in the Loan Agreement. 
 B.    Borrower has requested that Bank agree to
(i) exclude certain stock repurchases from the definition of Adjusted EBITDA for purposes of calculating Borrower’s Adjusted EBITDA as of the three-month periods ending June 30, 2009, July 31, 2009 and August 31, 2009,
and (ii) increase the basket for stock repurchases in Section 7.7 of the Loan Agreement. 
 C.    Bank
has agreed to so consent to the requested actions, but only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below. 
 AGREEMENT 
 NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the
parties hereto agree as follows: 
 1.    Definitions.  Capitalized terms used but not defined in this
Consent shall have the meanings given to them in the Loan Agreement. 
 2.    Consent. 
 2.1    Adjusted EBITDA.  Bank and Borrower hereby agree that, for purposes of determining Borrower’s Adjusted
EBITDA as of the three-month periods ending June 30, 2009, July 31, 2009 and August 31, 2009, Adjusted EBITDA shall exclude stock repurchases made during June 2009 of up to Three Hundred Thousand Dollars ($300,000.00). 

 2.2    Stock Repurchases.  Borrower and Bank hereby agree that Section 7.7 of the Loan Agreement
shall be amended by deleting “Two Million Two 








 
Hundred Fifty Thousand Dollars ($2,250,000.00)” and inserting in lieu thereof “Two Million Four Hundred Fifty Thousand Dollars
($2,450,000.00)”. 
 3.    Representations and Warranties.  To induce Bank to enter into this
Consent, Borrower hereby represents and warrants to Bank as follows: 
 3.1    Immediately after giving
effect to this Consent (a) 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 (b) no Event of Default has occurred and is continuing; 
 3.2    Borrower has the power and due authority to execute and deliver this Consent; and 
 3.3    The organizational documents of Borrower previously delivered to Bank remain true, accurate and complete and have not been amended, supplemented or restated and are and continue to be in full force and
effect. 
 4.    Integration.  This Consent and the Loan Documents represent the entire agreement
about this subject matter and supersede prior negotiations or agreements. All prior agreements, understandings, representations, warranties, and negotiations between the parties about the subject matter of this Consent and the Loan Documents merge
into this Consent and the Loan Documents. 
 5.    Prior Agreement.  The Loan Documents are
hereby ratified and reaffirmed and shall remain in full force and effect. This Consent is not a novation and the terms and conditions of this Consent shall be in addition to and supplemental to all terms and conditions set forth in the Loan
Documents. In the event of any conflict or inconsistency between this Consent and the terms of such documents, the terms of this Consent shall be controlling, but such document shall not otherwise be affected or the rights therein impaired. 

 6.    Counterparts.  This Consent may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same instrument. 
 7.    Effectiveness.  This Consent shall be deemed effective upon the due execution and delivery to Bank of this Consent by each party hereto. 
 8.    Fees and Expenses.  As required by the Loan Agreement, Borrower shall reimburse Bank for the reasonable legal
fees and expenses incurred in connection with the preparation and execution of this Consent and the contemplated herein. 
 9.    Governing Law.  This Consent and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.








 IN WITNESS WHEREOF, the parties hereto have caused
this Consent to be duly executed and delivered as of the date first written above. 
  

									
	BANK	 		 	BORROWER
			
	SILICON VALLEY BANK	 		 	SALARY.COM, INC.
					
	By:	 	/s/ Larisa B. Chilton	 	 	 	By:	 	/s/ Bryce A. Chicoyne
	Name:	 	Larisa B. Chilton	 		 	Name:	 	Bryce A. Chicoyne
	Title:	 	Vice-President	 		 	Title:	 	CFO

 The undersigned, SALARY.COM SECURITIES CORPORATION (“Salary.com Securities Guarantor”)
hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of October 8, 2008, executed and delivered by Salary.com Securities Guarantor,
pursuant to which Salary.com Securities Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and (b) a certain Security Agreement (the “Security
Agreement”) dated as of October 8, 2008, between Salary.com Securities Guarantor and Bank, pursuant to which Salary.com Securities Guarantor granted Bank a continuing first priority security interest in the Collateral (as the term is
defined therein) to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement. In addition, Salary.com Securities Guarantor acknowledges, confirms and agrees that the Guaranty and
Security Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Consent, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. 
  

			
	SALARY.COM SECURITIES CORPORATION
		
	By:	 	/s/ Bryce A. Chicoyne
	Name:	 	Bryce A. Chicoyne
	Title:	 	Treasurer


 [signatures continue on the next page] 







 The undersigned, SALARY.COM JAMAICA LIMITED (“Salary.com Jamaica Guarantor”) hereby ratifies,
confirms and reaffirms, all and singular, the terms and conditions of a certain Unconditional Guaranty (the “Guaranty”) dated as of December 19, 2008, executed and delivered by Salary.com Jamaica Guarantor, pursuant to which
Salary.com Jamaica Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank. In addition, Salary.com Jamaica Guarantor acknowledges, confirms and agrees that the Guaranty
shall remain in full force and effect and shall in no way be limited by the execution of this Consent, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. 
  

			
	SALARY.COM JAMAICA LIMITED
		
	By:	 	/s/ Nicholas Camelio
	Name:	 	Nicholas Camelio
	Title:	 	Secretary


 The undersigned, GENESYS SOFTWARE SYSTEMS, INC. (“Genesys Software Systems
Guarantor”) hereby ratifies, confirms and reaffirms, all and singular, the terms and conditions of (a) a certain Unconditional Guaranty (the “Guaranty”) dated as of March 16, 2009, executed and delivered by Genesys Software
Systems Guarantor, pursuant to which Genesys Software Systems Guarantor unconditionally guaranteed the prompt, punctual and faithful payment and performance of all Obligations of Borrower to Bank, and (b) a certain Security Agreement (the
“Security Agreement”) dated March 16, 2009, between Borrower and Bank, pursuant to which Genesys Software Systems Guarantor granted Bank a continuing first priority security interest in the Collateral (as the term is defined therein)
to secure the payment and performance of the Obligations under the Guaranty in accordance with the terms of the Security Agreement. In addition, Genesys Software Systems Guarantor acknowledges, confirms and agrees that the Guaranty and Security
Agreement shall remain in full force and effect and shall in no way be limited by the execution of this Consent, or any other documents, instruments and/or agreements executed and/or delivered in connection herewith. 
  

			
	GENESYS SOFTWARE SYSTEMS, INC.
		
	By:	 	/s/ Bryce A. Chicoyne
	Name:	 	Bryce A. Chicoyne
	Title:	 	Treasurer