Rentrak Corp. Contracts
Sample Business Contracts
Promissory Note - Rentrak Corp. and Michael Lightbourne
Promissory Notes
PROMISSORY NOTE
Portland, Oregon August 30, 2000
$355,375
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 Three Hundred Fifty Five Thousand Three Hundred Seventy Five
Dollars ($355,375.00), 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 30th day of August, 2001, and on the 30th
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) Upon 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.
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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.
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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.
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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.
/s/ Michael Lightbourne
Michael Lightbourne
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