Loan Modification Agreement - Rentrak Corp. and Silicon Valley Bank
LOAN MODIFICATION AGREEMENT
AMONG: Rentrak Corporation ("Borrower"), whose address is One
Airport Center, 7700 N.E. Ambassador Place, Portland,
Oregon 97220;
AND: Silicon Valley Bank ("Silicon") whose address is
3003 Tasman Drive, Santa Clara, California 95054;
DATE: December 27, 1996.
This Loan Modification Agreement is entered into on the
above date by Borrower and Silicon.
1. Background. Borrower entered into a loan and security
agreement with Silicon dated as of October 12, 1993, which was
subsequently modified (as amended, the "Loan Agreement").
Capitalized terms used in this Loan Modification Agreement shall,
unless otherwise defined in this Agreement, have the meaning
given to such terms in the Loan Agreement.
Silicon and Borrower are entering into this Agreement to
state the terms and conditions of certain modifications to the
Loan Agreement and the Schedule, as modified prior to the date of
this Agreement. Silicon and Borrower are also entering into an
Interest Rate Supplement to Agreement, the terms of which shall
control in the event of any inconsistency with the Loan Agreement
or the Schedule.
2. Modifications to Loan Agreement and Schedule.
(a) The Schedule attached to this Loan Modification
Agreement is a revised and restated Schedule, which modifies
certain terms contained in the Schedule attached to the Loan
Agreement. The Schedule attached to this Loan Modification
supersedes in its entirety the Schedule attached to the Loan
Agreement.
(b) Section 3.7 of the Loan Agreement is deleted and
replaced with the following:
"3.7 Financial Condition and Statements. All
financial statements now or in the future delivered to
Silicon have been, and will be, prepared in conformity
with generally accepted accounting principles and now
and in the future will completely and accurately
reflect the financial condition of the Borrower, at the
times and for the periods therein stated. Since the
last date covered by any such statement there has been
no material adverse change in the financial condition
or business of the Borrower. The Borrower is now and
will continue to be solvent. The Borrower will provide
Silicon: (i) within 45 days after the end of each
quarter (except the fourth fiscal quarter), a quarterly
financial statement (consisting of company-prepared 10Q
reports), including consolidated financial statement
details as determined by Silicon to support
calculations of the financial covenants contained in
the Schedule as prepared by the Borrower and certified
as correct to the best knowledge and belief by the
Borrower's chief financial officer or other officer or
person acceptable to Silicon; (ii) within 20 days after
the end of each month, an accounts receivable report
and an accounts payable report in such form as Silicon
shall reasonably specify; (iii) within 20 days after
the end of each month, a Borrowing Base Certificate in
the form attached to this Agreement as Exhibit A, as
Silicon may reasonably modify such Certificate from
time to time, signed by the Chief Financial Officer of
the Borrower; (iv) within 45 days after the end of the
first three calendar quarters of each year and within
90 days after the end of the last calendar quarter of
each year, a Compliance Certificate in such form as
Silicon shall reasonably specify, signed by the Chief
Financial Officer of the Borrower, certifying that
throughout such quarter the Borrower was in full
compliance with all of the terms and conditions of this
Agreement, and setting forth calculations showing
compliance with the financial covenants set forth on
the Schedule hereto and such other information as
Silicon shall reasonably request; and (v) within 95
days following the end of the Borrower's fiscal year,
complete annual CPA audited financial statements, such
audit being conducted by independent certified public
accountants reasonably acceptable to Silicon."
(c) Section 4.5 of the Loan Agreement is deleted in
its entirety and replaced with the following:
"4.5 Access to Collateral, Books and Records. At
all reasonable times, Silicon, or its agents, shall
have the right to inspect the Collateral, and the right
to audit and copy the Borrower's accounting books,
records, ledgers, journals, or registers and the
Borrower's books and records relating to the
Collateral. Silicon shall take reasonable steps to
keep confidential all information obtained in any such
inspection or audit, but Silicon shall have the right
to disclose any such information to its auditors,
regulatory agencies and attorneys, and pursuant to any
subpoena or other legal process. The foregoing audits
shall be at Silicon's expense, except that the Borrower
shall reimburse Silicon for up to $1,250.00 per audit
for Silicon's reasonable out-of-pocket costs for semi-
annual accounts receivable audits, and Silicon may
debit the Borrower's deposit accounts with Silicon for
the cost of such accounts receivable audits (up to the
limit stated above), in which event Silicon shall send
notification thereof to the Borrower. Notwithstanding
the foregoing, during the continuation of an Event of
Default all audits shall be at the Borrower's expense.
3. No Other Modifications. Except as expressly modified
by this Loan Modification Agreement, the terms of the Loan
Agreement and Schedule, as amended prior to the date of this
Agreement, shall remain unchanged and in full force and effect.
Silicon's agreement to modify the Loan Agreement pursuant to this
Loan Modification Agreement shall not obligate Silicon to make
any future modifications to the Loan Agreement or any other loan
document. Nothing in this Loan Modification Agreement shall
constitute a satisfaction of any indebtedness of any Borrower to
Silicon. It is the intention of Silicon and Borrower to retain
as liable parties all makers and endorsers of the Loan Agreement
or any other loan document. No maker, endorser, or guarantor
shall be released by virtue of this Loan Modification Agreement.
The terms of this paragraph shall apply not only to this Loan
Modification Agreement, but also to all subsequent loan
modification agreements.
4. Representations and Warranties.
(a) The Borrower represents and warrants to Silicon that
the execution, delivery and performance of this Agreement are
within the Borrower's corporate powers, and have been duly
authorized and are not in contravention of law or the terms of
the Borrower's charter, bylaws or other incorporation papers, or
of any undertaking to which the Borrower is a party or by which
it is bound.
(b) The Borrower understands and agrees that in entering
into this Agreement, Silicon is relying upon the Borrower's
representations, warranties and agreements as set forth in the
Loan
Agreement and other loan documents. Borrower hereby reaffirms
all representations and warranties in the Loan Agreement, all of
which are true as of the date of this Agreement.
Borrower:
RENTRAK CORPORATION
By: s/s F. Kim Cox
Title: Vice President/Secretary
Silicon:
SILICON VALLEY BANK
By: s/s Tim Hardin
Title: Senior Vice President
AMENDED AND RESTATED SCHEDULE TO LOAN AND SECURITY AGREEMENT
Borrower: Rentrak Corporation
Address: One Airport Center
7700 N.E. Ambassador Place
Portland, OR 97220
Date: December 27, 1996
Secured Operating Line of Credit
Credit Limit:
(Section 1.1)
An amount not to exceed the lesser of:
(i) $10,000,000.00 at any one time outstanding; or
(ii) 80% of the Net Amount of Borrower's eligible
accounts receivable. "Net Amount" means the gross
amount of the account, minus all applicable sales,
use, excise and other similar taxes and minus all
discounts, credits and allowances of any nature
granted or claimed.
The following accounts will not be
deemed eligible for borrowing: accounts
outstanding for more than 60 days from the invoice
date (except as provided below), accounts subject
to any contingencies (such as payments due only
upon acceptance), accounts owing from governmental
agencies, accounts owing from an account debtor
outside the United States or Canada (except for
those described on the attached Exhibit B or
otherwise pre-approved in writing by Silicon in
its discretion, or backed by a letter of credit
satisfactory to Silicon, or FCIA insured
satisfactory to Silicon), accounts owing from one
account debtor to the extent they exceed 25% of
the total eligible accounts outstanding, accounts
owing from an affiliate of the Borrower, and
accounts owing from an account debtor to whom the
Borrower is or may be liable for goods purchased
from such account debtor or otherwise. In
addition, if more than 25% of the accounts owing
from an account debtor are outstanding more than
60 days from the invoice date or are otherwise not
eligible accounts, then all accounts owing from
that account debtor will be deemed ineligible for
borrowing. All other accounts shall be deemed
eligible accounts unless Silicon, in its
reasonable discretion, deems the account to be
ineligible for valid credit reasons. Accounts
owing from the following customers of Borrower
shall not be deemed ineligible merely because such
accounts may be more than 60 days from the date of
invoice, but shall be ineligible based on age
according to the following eligibility periods:
Customer Eligibility Period
Roadrunner Video 0 to 90 days
Adventures in Video 0 to 90 days
Video Connection 0 to 90 days
Tonight's Feature 0 to 90 days
Palmer Video 0 to 120 days
Hollywood Entertainment 0 to 120 days
Interest Rate:
(Section 1.2)
The interest rate applicable to the
Secured Operating Line of Credit shall be (a) a
rate equal to the "Prime Rate" in effect from
time to time, plus 0.5% per annum, calculated on
the basis of a 360-day year for the actual number
of days elapsed; or (b) a rate equal to the LIBOR
Rate, all as set forth in the Interest Rate
Supplement to Agreement.
Commitment
Fee: (Section 1.3)
$30,000.00, which is fully earned and
payable at closing and which is non-refundable.
Maturity Date:
(Section 1.3)
December 18, 1997, at which time all
unpaid principal and accrued but unpaid interest
shall be due and payable.
Prior Names of National Video, Inc.
Borrower:
(Section 3.2)
Trade Names of See attached Exhibit C
Borrower:
(Section 3.2)
Trademarks of See attached Exhibit C
Borrower:
Other Locations Rentrak Corporation
and Addresses: 3512 State Route 735
(Section 3.3) Wilmington, Ohio 45177
Material Adverse
Litigation: None.
(Section 3.10)
Financial
Covenants:
(Section 4.1)
Borrower shall at all times comply with
all of the following covenants:
Quick Ratio: Borrower shall at all times maintain a ratio
of cash plus accounts receivable to current
liabilities less deferred revenue of not less than
0.45:1.0, measured quarterly, increasing to not
less than 0.65:1.00 for the quarter ending
March 31, 1997, and for each quarter thereafter.
Tangible Net
Worth:
Borrower shall at all times maintain a
Tangible Net Worth (defined below) of not less
than $11,000,000 plus 50% of Borrower's quarterly
net income, beginning with the quarter ending
December 31, 1996. Borrower's Tangible Net Worth
shall be measured on a quarterly basis.
Debt to Tangible
Net Worth Ratio:
Borrower shall at all times maintain a
ratio of total liabilities (excluding deferred
revenues and subordinated debt) to Tangible Net
Worth (defined below) of not more than 2.75:1.00.
To be excluded from liabilities, subordinated debt
must be subordinated to the Obligations pursuant
to a written agreement in form and substance
acceptable to Silicon.
Profitability: Borrower shall not incur a loss in excess of
$500,000 for any fiscal quarter, and shall not
incur any loss in two consecutive quarters. For
purposes of this paragraph, "loss" means net
income, after taxes, of less than $0.00,
determined based on Borrower's financial
statements.
Definitions: "Current Liabilities" shall have the meaning
ascribed to that term in accordance with generally
accepted accounting principles (excluding deferred
revenues).
"Tangible Net Worth" means stockholders'
equity plus debt subordinated to Silicon's debt,
less goodwill, patents, capitalized software
costs, deferred organizational costs, trade names,
trademarks, and all other assets which would be
classified as intangible assets under generally
accepted accounting principles.
Other Covenants:
(Section 4.1)
Borrower shall at all times comply with
all of the following additional covenants:
1. Banking Relationship.
Borrower shall at all times maintain its
primary banking relationship with Silicon.
Borrower shall not establish any deposit
accounts of any type with any bank or other
financial institution other than Silicon
without Silicon's prior written consent.
Conditions to
Closing:
Without in any way limiting the
discretionary nature of advances under this
Agreement, before requesting any such advance, the
Borrower shall satisfy each of the following
conditions:
1. Loan
Documents:
Silicon shall have received this Loan
and Security Agreement, including this Schedule, a
Security Agreement in Copyrighted Works, an
Interest Rate Supplement to Agreement, and such
other loan documents as Silicon shall require,
each duly executed and delivered by the Borrower.
2. Documents
Relating to
Authority,
Etc.:
Silicon shall have received each of the
following in form and substance satisfactory to
it:
(a) Certified Copies of the Articles of
Incorporation and Bylaws of the Borrower;
(b) A Certificate of Good Standing
issued by the Oregon Secretary of State with
respect to the Borrower;
(c) A certified copy of a Resolution
adopted by the Board of Directors of the Borrower
authorizing the execution, delivery and
performance of this Schedule, the Stock Pledge
Agreement and any other documents or certificates
to be executed by the Borrower in connection with
this transaction;
(d) Incumbency Certificates describing
the office and identifying the specimen signatures
of the individuals signing all such loan documents
on behalf of the Borrower; and
3. Perfection
and Priority
of Security:
Silicon shall have received evidence
satisfactory to it that its security interest in
the Collateral has been duly perfected and that
such security interest is prior to all other
liens, charges, security interests, encumbrances
and adverse claims in or to the Collateral other
than Permitted Liens, which evidence shall
include, without limitation, a certificate from
the Oregon State Secretary of State showing the
due filing and first priority of the UCC Financing
Statements to be signed by the Borrower covering
the Collateral, and evidence of the due filing of
the Security Agreement in Copyrighted Works with
the United States Copyright Office.
4. Insurance: Silicon shall have received
evidence satisfactory to it that all insurance
required by this Agreement is in full force and
effect, with loss payee designations and
additional insured designations as required by
this Agreement.
5. Other
Information:
Silicon shall have received such other
statements, opinions, certificates, documents and
information with respect to matters contemplated
by this Agreement as it may reasonably request.
Silicon and the Borrower agree that the terms of this
Schedule supplement the Loan and Security Agreement between
Silicon and the Borrower and agree to be bound by the terms of
this Schedule.
Borrower:
RENTRAK CORPORATION
By: s/s F. Kim Cox
Title: Vice President/Secretary
Silicon:
SILICON VALLEY BANK
By: s/s Tim Hardin
Title: Senior Vice President
INTEREST RATE SUPPLEMENT TO AGREEMENT
This Interest Rate Supplement to Agreement (the
"Supplement") is a supplement to the Loan and Security Agreement
and Schedule (the "Agreement") dated as of October 12, 1993,
between SILICON VALLEY BANK ("Bank") and RENTRAK CORPORATION
("Borrower"), and forms a part of and is incorporated into the
Agreement. Except as otherwise defined in this Supplement,
capitalized terms shall have the meanings assigned in the
Agreement.
1. Definitions.
"Advance" or "Advances" means an advance under the Secured
Operating Line of Credit set forth in the Schedule.
"Business Day" means a day of the year (a) that is not a
Saturday, Sunday or other day on which banks in the State of
California or the City of London are authorized or required to
close and (b) on which dealings are carried on in the interbank
market in which Bank customarily participates.
"Interest Period" means for each LIBOR Rate Advance, a
period of approximately one, two or three months as the Borrower
may elect, provided that the last day of an Interest Period for a
LIBOR Rate Advance shall be determined in accordance with the
practices of the LIBOR interbank market as from time to time in
effect, provided, further, in cases such period shall expire not
later than the applicable Maturity Date.
"Interest Rate" shall mean as to: (a) Prime Rate Advances, a
rate equal to the Prime Rate plus 0.5% per annum; and (b) LIBOR
Rate Advances, a rate of 3.0% per annum in excess of the LIBOR
Rate (based on the LIBOR Rate applicable for the Interest Period
selected by the Borrower).
"LIBOR Base Rate" means, for any Interest Period for a LIBOR
Rate Advance, the rate of interest per annum determined by Bank
to be the per annum rate of interest at which deposits in United
States Dollars are offered to Bank in the London interbank market
in which Bank customarily participates at 11:00 a.m. (local time
in such interbank market) two (2) Business Days before the first
day of such Interest Period for a period approximately equal to
such Interest Period and in an amount approximately equal to the
amount of such Advance.
"LIBOR Rate" shall mean, for any Interest Period for a LIBOR
Rate Advance, a rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) equal to (i) the LIBOR Base Rate for such
Interest Period divided by (ii) 1 minus the Reserve Requirement
for such Interest Period.
"LIBOR Rate Advances" means any Advances made or a portion
thereof on which interest is payable based on the LIBOR Rate in
accordance with the terms hereof.
"Prime Rate" means the rate announced from time to time by
Bank as its "prime rate"; it is a base rate upon which other
rates charged by Silicon are based, and it is not necessarily the
best rate available at Bank. The interest rate applicable to the
monetary Obligations shall change on each date there is a change
in the Prime Rate.
"Prime Rate Advances" means any Advances or Equipment
Advances made or a portion thereof on which interest is payable
based on the Prime Rate in accordance with the terms hereof.
"Regulatory Change" means, with respect to Bank, any change
on or after the date of this Agreement in United States federal,
state or foreign laws or regulations, including Regulation D, or
the adoption or making on or after such date of any
interpretations, directives or requests applying to a class of
lenders including Bank of or under any United States federal or
state, or any foreign, laws or regulations (whether or not having
the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration
thereof.
"Reserve Requirement" means, for any Interest Period, the
average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D against
"Eurocurrency liabilities" (as such term is used in Regulation D)
by member banks of the Federal Reserve System. Without limiting
the effect of the foregoing, the Reserve Requirement shall
reflect any other reserves required to be maintained by Bank by
reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the
LIBOR Rate is to be determined as provided in the definition of
"LIBOR Base Rate" or (ii) any category of extensions of credit or
other assets which include Advances.
"Responsible Officer" means each of the Chief Executive
Officer, the Chief Financial Officer and the Controller of
Borrower.
2. Requests for Advances; Confirmation of Initial
Advances. Each LIBOR Rate Advance shall be made upon the
irrevocable written request of Borrower received by Bank not
later than 11:00 a.m. (Santa Clara, California time) on the
Business Day three (3) Business Days prior to the date such
Advance is to be made. Each such notice shall specify the date
such Advance is to be made, which day shall be a Business Day;
the amount of such Advance, the Interest Period for such Advance,
and comply with such other requirements as Bank determines are
reasonable or desirable in connection therewith.
Each written request for a LIBOR Rate Advance shall be in
the form of a LIBOR Rate Advance Form as set forth on Exhibit A,
which shall be duly executed by a Responsible Officer.
3. Conversion/Continuation of Advances.
(a) Borrower may from time to time submit in writing a
request that Prime Rate Advances be converted to LIBOR Rate
Advances, or that any existing LIBOR Rate Advances continue for
an additional Interest Period. Such request shall specify the
amount of the Prime Rate Advances which will constitute LIBOR
Rate Advances (subject to the limits set forth below) and the
Interest Period to be applicable to such LIBOR Rate Advances.
Each written request for a conversion to a LIBOR Rate Advance or
a continuation of a LIBOR Rate Advance shall be substantially in
the form of a LIBOR Rate Conversion/Continuation Certificate as
set forth on Exhibit B, which shall be duly executed by a
Responsible Officer. Subject to the terms and conditions
contained herein, three (3) Business Days after Bank's receipt of
such a request from Borrower, such Prime Rate Advances shall be
converted to LIBOR Rate Advances or such LIBOR Rate Advances
shall continue, as the case may be, provided, that any conversion
of Prime Rate Advances to LIBOR Rate Advances shall only be made
as of the last day of the applicable Interest Period, and,
provided further, that:
(i) no Event of Default or event which with
notice or passage of time or both would constitute an Event of
Default exists;
(ii) no party hereto shall have sent any notice
of termination of this Supplement or of the Agreement;
(iii) Borrower shall have complied with such
customary procedures as Bank has established from time to time
for Borrower's requests for LIBOR Rate Advances;
(iv) the amount of a LIBOR Rate Advance shall be
$500,000 or such greater amount which is an integral multiple of
$50,000; and
(v) Bank shall have determined that the Interest
Period or LIBOR Rate is available to Bank which can be readily
determined as of the date of the request for such LIBOR Rate
Advance.
Any request by Borrower to convert Prime Rate Advances to
LIBOR Rate Advances or continue any existing LIBOR Rate Advances
shall be irrevocable. Notwithstanding anything to the contrary
contained herein, Bank shall not be required to purchase United
States Dollar deposits in the London interbank market or other
applicable LIBOR Rate market to fund any LIBOR Rate Advances, but
the provisions hereof shall be deemed to apply as if Bank had
purchased such deposits to fund the LIBOR Rate Advances.
(b) Any LIBOR Rate Advances shall automatically
convert to Prime Rate Advances upon the last day of the
applicable Interest Period, unless Bank has received and approved
a complete and proper request to continue such LIBOR Rate Advance
at least three (3) Business Days prior to such last day in
accordance with the terms hereof. Any LIBOR Rate Advances shall,
at Bank's option, convert to Prime Rate Advances in the event
that (i) an Event of Default, or event which with the notice or
passage of time or both would constitute an Event of Default,
shall exist, (ii) this Supplement or the Agreement shall
terminate, or (iii) the aggregate principal amount of the Prime
Rate Advances which have previously been converted to LIBOR Rate
Advances, or the aggregate principal amount of existing LIBOR
Rate Advances continued, as the case may be, at the beginning of
an Interest Period shall at any time during such Interest Period
exceed the Credit Limit for the Secured Operating Line of Credit.
Borrower agrees to apply to Bank, upon demand by Bank (or Bank
may, at its option, charge Borrower's deposit account) any
amounts required to compensate Bank for any loss (including loss
of anticipated profits), cost or expense incurred by such person,
as a result of the conversion of LIBOR Rate Advances to Prime
Rate Advances pursuant to any of the foregoing.
(c) On all Advances interest shall be payable by
Borrower to Bank monthly in arrears not later than the twenty-
second (22nd) day of each calendar month at the applicable
Interest Rate.
4. Additional Requirements/Provisions Regarding LIBOR Rate
Advances; Etc.
(a) If for any reason (including voluntary or
mandatory prepayment or acceleration), Bank receives all or part
of the principal amount of a LIBOR Rate Advance prior to the last
day of the Interest Period for such Advance, Borrower shall
immediately notify Borrower's account officer at Bank and, on
demand by Bank, pay Bank the amount (if any) by which (i) the
additional interest which would have been payable on the amount
so received had it not been received until the last day of such
Interest Period exceeds (ii) the interest which would have been
recoverable by Bank by placing the amount so received on deposit
in the certificate of deposit markets or the offshore currency
interbank markets or United States Treasury investment products,
as the case may be, for a period starting on the date on which it
was so received and ending on the last day of such Interest
Period at the interest rate determined by Bank in its reasonable
discretion. Bank's determination as to such amount shall be
conclusive absent manifest error.
(b) Borrower shall pay to Bank, upon demand by Bank,
from time to time such amounts as Bank may determine to be
necessary to compensate it for any costs incurred by Bank that
Bank determines are attributable to its making or maintaining of
any amount receivable by Bank hereunder in respect of any
Advances relating thereto (such increases in costs and reductions
in amounts receivable being herein called "Additional Costs"), in
each case resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts
payable to Bank under this Supplement in respect of any Advances
(other than changes which affect taxes measured by or imposed on
the overall net income of Bank by the jurisdiction in which such
Bank has its principal office); or
(ii) imposes or modifies any reserve, special
deposit or similar requirements relating to any extensions of
credit or other assets of, or any deposits with or other
liabilities of Bank (including any Advances or any deposits
referred to in the definition of "LIBOR Base Rate"); or
(iii) imposes any other condition affecting
this Supplement (or any of such extensions of credit or
liabilities).
Bank will notify Borrower of any event occurring after the date
of the Agreement which will entitle Bank to compensation pursuant
to this section as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation.
Bank will furnish Borrower with a statement setting forth the
basis and amount of each request by Bank for compensation under
this Section 4. Determinations and allocations by Bank for
purposes of this Section 4 of the effect of any Regulatory Change
on its costs of maintaining its obligations to make Advances or
of making or maintaining Advances or on amounts receivable by it
in respect of Advances, and of the additional amounts required to
compensate Bank in respect of any Additional Costs, shall be
conclusive absent manifest error.
(c) Borrower shall pay to Bank, upon the request of
Bank, such amount or amounts as shall be sufficient (in the sole
good faith opinion of such Bank) to compensate it for any loss,
costs or expense incurred by it as a result of any failure by
Borrower to borrow a LIBOR Rate Advance on the date for such
borrowing specified in the relevant notice of borrowing
hereunder.
(d) If Bank shall determine that the adoption or
implementation of any applicable law, rule, regulation or treaty
regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any
governmental authority, control bank or comparable agency charged
with the interpretation or administration thereof, or compliance
by Bank (or its applicable lending office) in any respect with
any directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the
rate of return on capital of Bank or any person or entity
controlling Bank (a "Parent") as a consequence of its obligations
hereunder to a level below that which Bank (or its Parent) could
have achieved but for such adoption, change or compliance (taking
into consideration its policies with respect to capital adequacy)
by an amount deemed by Bank to be material, then from time to
time, within 15 days after demand by Bank, Borrower shall pay to
Bank such additional amount or amounts as will compensate Bank
for such reduction. A statement of Bank claiming compensation
under this Section and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive absent
manifest error.
(e) If at any time Bank, in its sole and absolute
discretion, determines that: (i) the amount of the LIBOR Rate
Advances for periods equal to the corresponding Interest Periods
are not available to Bank in the offshore currency interbank
markets, or (ii) the LIBOR Rate does not accurately reflect the
cost to Bank of lending the LIBOR Rate Advance, then Bank shall
promptly give notice thereof to Borrower, and upon the giving of
such notice Bank's obligation to make the LIBOR Rate Advances
shall terminate, unless Bank and Borrower agree in writing to a
different interest rate applicable to LIBOR Rate Advances. If it
shall become unlawful for Bank to continue to fund or maintain
any Advances, or to perform its obligations hereunder, upon
demand by Bank, Borrower shall prepay the Advances in full with
accrued interest thereon and all other amounts payable by
Borrower hereunder (including, without limitation, any amount
payable in connection with such prepayment pursuant to Section
4(a)).
5. Advance Procedure. Whenever Borrower desires an
Advance, Borrower will notify Bank by facsimile transmission or
telephone no later than 3:00 p.m. California time, on the
Business day that the Advance is to be made. each such
notification shall be promptly confirmed by a Payment/Advance
Form in substantially the form delivered by Bank to Borrower from
time to time or a LIBOR Rate Advance Form in substantially the
for of Exhibit A hereto. Bank is authorized to make Advances
under the Agreement or under this Supplement, based upon
instructions received from a Responsible Officer, or without
instructions if in Bank's discretion such Advances are necessary
to meet Obligations which have become due and remain unpaid.
Bank shall be entitled to rely on any telephonic notice given by
a person who Bank reasonably believes to be a Responsible
Officer, and Borrower shall indemnify and hold Bank harmless for
any damages or loss suffered by Bank as a result of such
reliance. Bank will credit the amount of Advances to Borrower'
deposit account.
IN WITNESS WHEREOF, the undersigned have executed this
Interest Rate Supplement to Agreement as of the first date above
written.
RENTRAK CORPORATION
By: s/s F. Kim Cox
Title: Vice President/Secretary
SILICON VALLEY BANK
By: s/s Tim Hardin
Title: Senior Vice President
EXHIBIT A
LIBOR RATE ADVANCE FORM
The undersigned hereby certifies as follows:
I, _________________________, am the duly elected and acting
____________________ of Rentrak Corporation ("Borrower").
This certificate is delivered pursuant to Section 2 of that
certain Interest Rate Supplement to Agreement together with the
Loan Agreement by and between Borrower and Silicon Valley Bank
("Bank") (the "Agreement"). The terms used in this Borrowing
Certificate which are defined int he Agreement have the same
meaning herein as ascribed to them therein.
(1) Borrower hereby requests on ____________________,
19_____ a LIBOR Rate Advance (the "Advance") as follows:
(a) The date on which the Advance is to be made is
____________________, 19____.
(b) The amount of the Advance is to be
_________________________ ($______________), for an Interest
Period of one/two/three month(s).
All representations and warranties of Borrower stated in the
Agreement are true, correct and complete in all material respects
as of the date of this request for a loan; provided, however,
that those representations and warranties expressly referring to
another date shall be true, correct and complete in all material
respects as of such date.
IN WITNESS WHEREOF, this LIBOR Rate Advance Form is executed
by the undersigned as of this _____ day of ____________________,
19_____.
RENTRAK CORPORATION
By:
Title:
For Internal Bank Use Only
LIBOR Pricing D LIBOR Rate LIBOR Rate Var Maturity Date
ate iance
_____%
EXHIBIT B
LIBOR RATE CONVERSION/CONTINUATION CERTIFICATE
The undersigned hereby certifies as follows:
I, ____________________, am the duly elected and acting
____________________ of Rentrak Corporation ("Borrower").
This certificate is delivered pursuant to Section 2 of that
certain Interest Rate Supplement to Agreement together with the
Loan Agreement by and between Borrower and Silicon Valley Bank
("Bank") (the "Agreement"). The terms used in this LIBOR Rate
Conversion/Continuation Certificate which are defined in the
Agreement have the same meaning herein as ascribed to them
therein.
Borrower hereby requests on ____________________, 19_____ a
LIBOR Rate Advance (the "Advance") as follows:
(a) _____ (i) A rate conversion of an
existing Prime Rate Advance from a Prime Rate
Advance to a LIBOR Rate Advance; or
_____ (ii) A continuation of an
existing LIBOR Rate Advance as a LIBOR Rate
Advance.
[Check (i) or (ii) above]
(b) The date on which the Advance is to be made is
____________________, 19_____.
(c) The amount of the Advance is to be ____________________
($_______________), for an Interest Period of __________
month(s).
All representations and warranties of Borrower stated in the
Agreement are true, correct and complete in all material respects
as of the date of this request for a loan; provided, however,
that those representations and warranties expressly referring to
another date shall be true, correct and complete in all material
respects as of such date.
IN WITNESS WHEREOF, this LIBOR Rate Conversion/Continuation
Certificate is executed by the undersigned as of this _____ day
____________________, 19_____.
RENTRAK CORPORATION
By:
Title:
For Internal Bank Use Only
LIBOR Pricing D LIBOR Rate LIBOR Rate Var Maturity Date
ate iance
_____%