Exhibit 10.8.4
FOURTH LOAN MODIFICATION
AGREEMENT
This Fourth Loan Modification
Agreement (this “Loan Modification Agreement”) is
entered into as of March 16, 2009, by and between SILICON
VALLEY BANK , a California corporation, with its principal
place of business at 3003 Tasman Drive, Santa Clara,
California 95054 and with a loan production office located at One
Newton Executive Park, Suite 200, 2221 Washington Street, Newton,
Massachusetts 02462 (FAX 617-969-5965) (“Bank”) and
SALARY.COM, INC. a Delaware corporation with offices at 195
West Street, Waltham, Massachusetts 02451
(“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
August 10, 2006, evidenced by, among other documents, 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, between Borrower and Bank (the “Waiver
Agreement”), as amended by a certain First Loan Modification
Agreement dated as of August 8, 2008, between Borrower and
Bank, as further amended by a certain Second Loan Modification
Agreement dated as of September 17, 2008, between Borrower and
Bank, and as further amended by a certain Third Loan Modification
Agreement dated as of October 8, 2008 (as amended from time to
time, 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 .
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A.
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Modifications to Loan Agreement
.
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1
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The Loan
Agreement shall be amended by deleting the following text,
appearing in Section 6.6(a) thereof:
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“Any Guarantor shall maintain
all depository, operating and securities accounts with Bank, or SVB
Securities.”
and inserting in lieu thereof the
following:
“Any Guarantor shall maintain
all depository, operating and securities accounts with Bank, or SVB
Securities; provided, however, Genesys Software Systems, Inc. may
maintain depository, operating and/or securities accounts with Bank
of America or Royal Bank of Canada so long as the aggregate
cumulative amount in such accounts does not exceed One Million
Dollars ($1,000,000.00) at any time (the “Permitted
Accounts”). The investment of such funds of Genesis Software
Systems, Inc. in the Permitted Accounts shall be considered
Permitted Investments.”
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2
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The Loan
Agreement shall be amended by deleting the following text,
appearing in Section 6.7 thereof:
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“All financial covenants in
this Section 6.7 shall be tested with respect to Borrower
(including any entity subsequently added as a
“Borrower” hereunder) and Salary.com Securities
Corporation together.”
and inserting in lieu thereof the
following:
“All financial covenants in
this Section 6.7 shall be tested with respect to Borrower
(including any entity subsequently added as a
“Borrower” hereunder), Salary.com Securities
Corporation, and Genesys Software Systems, Inc.
together.”
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3
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The Loan
Agreement shall be amended by deleting the following definitions,
appearing in Section 13.1 thereof:
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“ “ Guarantor
” is any present or future guarantor of the Obligations,
including, without limitation, Salary.com Securities
Corporation.”
“ “ Secured
Guarantor ” is any present or future guarantor of the
Obligations that has granted a lien to Bank in all of its assets of
the type described on Exhibit A , including, without
limitation, Salary.com Securities Corporation.”
and inserting in lieu thereof the
following:
“ “ Guarantor
” is any present or future guarantor of the Obligations,
including, without limitation, Salary.com Securities Corporation,
Salary.com Jamaica Limited, and Genesys Software Systems,
Inc.”
“ “ Secured
Guarantor ” is any present or future guarantor of the
Obligations that has granted a lien to Bank in all of its assets of
the type described on Exhibit A , including, without
limitation, Salary.com Securities Corporation and Genesys Software
Systems, Inc.”
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4
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The Loan
Agreement shall be amended by deleting the following, appearing as
subsection (c) of the definition of “Permitted
Investments” in Section 13.1 thereof:
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“(c) Investments in Salary.com
Securities Corporation;”
and inserting in lieu thereof the
following:
“(c) Investments in Salary.com
Securities Corporation and Genesys Software Systems,
Inc.;”
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5
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The Loan
Agreement shall be amended by adding the following new subsection
(g) to the definition of “Permitted Investments”
appearing in Section 13.1 thereof:
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“(g) The investment of funds
in the Permitted Accounts per the terms of this
Agreement.”
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6
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The Loan
Agreement shall be amended by inserting the following new
definition, appearing alphabetically in Section 13.1
thereof:
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“ “ Permitted
Accounts ” is defined in
Section 6.6(a).”
4. FEES . Borrower shall
reimburse Bank for all legal fees and expenses incurred in
connection with this amendment to the Existing Loan
Documents.
5. RATIFICATION OF PERFECTION
CERTIFICATE . Borrower hereby ratifies, confirms and reaffirms,
all and singular, the terms and disclosures contained in a certain
Perfection Certificate dated as of October 8, 2008 between
Borrower and Bank, and acknowledges, confirms and agrees the
disclosures and information above Borrower provided to Bank in the
Perfection Certificate have not changed, as of the date
hereof.
6. CONSISTENT CHANGES . The Existing Loan
Documents are hereby amended wherever necessary to reflect the
changes described above.
7. 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 Obligations.
8. NO DEFENSES OF BORROWER
.