Promissory Note - Rentrak Corp. and Ron Berger
PROMISSORY NOTE
Portland, Oregon June 16, 2000
$6,629,386.01
FOR VALUE RECEIVED, the undersigned maker (herein "Maker")
promises to pay to Rentrak Corporation, an Oregon corporation
(herein "Holder"), at its office address of One Airport Center,
7700 N.E. Ambassador Place, Portland, Oregon 97220 or at such
other place as Holder may designate, on or before the Maturity
Date (as defined in the Loan Agreement of even date herewith),
the principal sum of Six Million, Six Hundred Twenty Nine
Thousand, Three Hundred Eighty Six Dollars and One Cent
($6,629,386.01), together with interest thereon as provided
herein.
1. Interest and Payment.
1.1 Interest Rate. Maker promises to pay interest from and
including the date hereof until paid on the unpaid principal
balance hereof at the rate of six and one-half percent (6.5%)
per annum which is the "Federal Funds Rate" as of the date
hereof. Interest shall be computed on the basis of a 360-day
year.
1.2 Interest Payments. On the sixteenth day of June, 2001,
and on the sixteenth day of each twelve-month period thereafter
through and including the Maturity Date, as defined above, Maker
shall pay to the order of Holder all accrued and unpaid interest
as provided for in section 1.1 above.
1.3 Default Interest Rate. After the maturity date
(whether by acceleration or otherwise), any principal not paid
shall bear interest at the annual rate of three percent (3%) over
and above the rate which would otherwise apply hereunder, or the
maximum amount which may be legally charged as interest,
whichever is the lesser, until paid.
1.4 Final Payment. The entire unpaid principal balance
hereof, and all accrued but unpaid interest thereon, shall be
entirely due and payable on the earliest to occur of:
(a) One year prior to the expiration of the
term of Borrower's current employment agreement
with Rentrak; or
(b) One (1) year after Borrower leaves
Rentrak's employ for any other
reason (unless such departure follows a
Change in Control of Rentrak (as defined in
Section 10 of the Loan Agreement); or
(c) Five years from the date of the Loan; or
(d) One year from the date of Borrower's death;
unless accelerated as provided in the Loan Agreement executed
herewith.
1.5 Late Charge. If any payment hereunder is not made
within ten (10) days of the date first due, Maker shall pay to
Holder a late charge in an amount equal to five percent (5%) of
the amount of such payment. Holder's acceptance of such late
charges shall not constitute a waiver of any existing or
subsequent default hereunder.
1.6 Place and Time of Payment. All payments specified
herein shall be deemed made when actually received by Holder.
All payments shall be made to Holder at its address set forth
above, and shall be made without offset and without prior notice
or demand.
1.7 No Prepayment Penalty. This note may be prepaid, in
whole or in part, without penalty to the Maker. A partial
prepayment shall not excuse Maker from making the regular annual
payments required herein nor lessen the amount of such payment.
1.8 Form and Application of Payments. Payments shall be in
lawful money of the United States of America, and when received
by Holder shall be applied first to all amounts due hereunder
other than principal or interest, second to accrued interest,
third upon the portion of the principal balance then due, if any,
and fourth as a principal prepayment.
2. Default.
Time is of the essence of this Promissory Note. A default
shall occur if:
2.1 Failure to Make Payments. Maker fails to make any
payment under this Promissory Note within ten (10) days after
notice from Holder that such payment was not received on or
before the date due.
2.2 Other Failures. Maker fails to perform any other
obligation contained in this Promissory Note or the Loan
Agreement or Pledge Agreement securing this Promissory Note
within ten (10) days after notice from Holder specifying the
nature of the default.
2.3 Bankruptcy. Maker becomes insolvent, a receiver is
appointed to take possession of all or a substantial part of any
Maker's properties, any Maker makes an assignment for the benefit
of creditors or files a voluntary petition in bankruptcy, or any
Maker is the subject of an involuntary petition in bankruptcy.
For purposes of this Section 2.3, (a) if any Maker is a
partnership (general or limited), the term "Maker" includes any
individual or entity which is a general partner of such Maker,
and (b) if this Promissory Note is executed by more than one
maker or co-maker, the term "Maker" means and includes each and
every person or entity which is such a maker or co-maker.
3. Remedies.
In the event of a default, Holder may take any one or more
of the following steps:
3.1 Acceleration. Declare the entire unpaid principal
balance of the debt evidenced hereby, and all interest on such
debt and all other costs and expenses evidenced hereby, to be
immediately due and payable, provided, however that Holder's
recourse shall be limited as provided in Sections 6 and 9 of the
Loan Agreement.
3.2 Other Remedies. Pursue any other right or remedy
provided herein, provided in the Loan Agreement or the Pledge
Agreement, as limited by the provisions of Sections 6 and 9 of
the Loan Agreement. Holder may pursue any such rights or
remedies singly, together or successively. Exercise of any such
right or remedy shall not be deemed an election of remedies.
Failure to exercise any right or remedy shall not be deemed a
waiver of any existing or subsequent default nor a waiver of any
such right or remedy but nothing herein is intended to modify the
provisions of Sections 6 and 9 of the Loan Agreement.
4. Attorney Fees and Collection Costs.
Maker and all sureties and accommodation parties hereof
hereby agree to pay all costs of collection hereunder and/or
under any guaranty executed in connection herewith, including
reasonable attorney fees, whether or not litigation is actually
commenced. In the event the Holder is made party to any
litigation because of the existence of the indebtedness evidenced
by this Promissory Note, Maker shall reimburse Holder for its
costs and attorney fees incurred with respect to such litigation.
In the event litigation is commenced by a party hereto to enforce
or interpret any provision of this Promissory Note, or to collect
any amount due hereunder, the prevailing party in such litigation
shall be entitled to receive, in addition to all other sums and
relief, its reasonable costs and attorney fees, incurred both at
and in preparation for trial and any appeal or review, such
amount to be set by the court(s) before which the matter is
heard. Maker also agrees to pay any attorney fees incurred by
Holder in connection with any bankruptcy or similar proceedings
wherein Maker (as defined in Section 2.3, above) is the "debtor."
5. Governing Law and Usury; Severability.
5.1 Governing Law and Usury. This Promissory Note shall be
deemed to have been executed under and shall be construed and
enforced in accordance with the laws of the State of Oregon
without regard to its conflicts of law principles. The Maker
agrees that any suit or action relating to this Promissory Note
shall be instituted and commenced in the United States District
Court for the District of Oregon, or the Circuit Court of
Multnomah County, State of Oregon, and each of the Makers hereby
waives the right to change such venue. It is expressly
stipulated and agreed to be the intent of Maker, Holder and their
respective affiliates at all times to comply strictly with the
applicable usury laws now or hereafter governing consideration
received under this Promissory Note. If the applicable law is
ever interpreted so as to render usurious any consideration
called for, contracted for, charged, taken, reserved or received
with respect to this Promissory Note, or if any prepayment by
Maker or Holder's exercise of the option herein contained to
accelerate the maturity of this Promissory Note, results in Maker
having paid any interest in excess of that permitted by law, then
notwithstanding anything to the contrary in this Promissory Note,
it is Maker's and Holder's express intent and agreement that all
excess amounts theretofore collected by Holder be credited on the
principal balance of this Promissory Note (or, if this Note has
been paid in full, refunded to Maker) and the provisions of this
Promissory Note shall immediately be deemed reformed and the
amounts thereafter collectible hereunder reduced, without the
necessity of the execution of any new documents, so as to comply
with the then applicable law, but so as to permit the recovery of
the fullest amount otherwise called for hereunder.
5.2 Severability. If any provision of this Promissory Note
is found by a court of competent jurisdiction to be invalid or
unenforceable as written, then the parties intend and desire that
(a) such provision be enforceable to the full extent permitted by
law, and (b) the invalidity or unenforceability of such provision
shall not affect the validity and enforceability of the remainder
of this Promissory Note.
6. Amendment.
This Promissory Note may not be amended, modified or
changed, nor shall any provision hereof be deemed waived,
except only by an instrument in writing signed by the party
against whom enforcement of any such waiver, amendment, change or
modification is sought.
7. Waivers; Joint and Several Liability.
Maker and all sureties and accommodation parties, without
affecting their liability, hereby (a) waive diligence
presentment, protest and demand, (b) waive notice of protest, of
demand, of nonpayment, of dishonor and of maturity, and
(c) consent to any extension or alternation of the time or terms
of payment hereof, any and all renewals, extension or
modification of the terms hereof, any release of all or any part
of any security which may be given for the payment hereof, any
acceptance of additional security of any kind, and any release of
or resort to any party liable for payment hereof, any of which
may be made without notice to any of said parties. All such
parties, including Maker (as defined in Section 2.3, above) and
each constituent person and entity of Maker, agree that they
shall each be jointly and severally liable for full payment of
this Promissory Note and agree to pay the full amount of the
principal and interest of the indebtedness evidenced hereby.
8. Binding Agreement.
This Promissory Note shall be binding upon the successors
and assigns of Maker.
9. Security.
This Promissory Note is secured by a Stock Pledge Agreement
of even date herewith.
IN WITNESS WHEREOF, this Promissory Note has been executed
as of the date and year first above written.
___________________________________
Name: Ron Berger