Third amendment to the Amended and Restated Loan and Security Agreement, dated November 6, 2019, by and between the Registrant and the Silicon Valley Bank

THIS Third AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into as of November 6, 2019, between SILICON VALLEY BANK, a California corporation with a loan production office located at 387 Park Avenue South, 2nd Floor, New York, New York 10016 (“Bank”), and (b) TELARIA, INC. (f/k/a Tremor Video, Inc.), a Delaware corporation, with its chief executive office located at 222 Broadway, 16th Floor, New York, New York 10038 (the “Borrower”).

1.Definitions. Capitalized terms used but not defined in this Amendment shall have the meanings given to them in the Loan Agreement.

a.
Section 6.2 (Financial Statements, Reports, Certificates). Subsection (b) of Section 6.2 is hereby deleted in its entirety and replaced with the following:

“ (b)  Borrowing Base Reports. A Borrowing Base Report (and any schedules related thereto and including any other information requested by Bank with respect to Borrower’s Accounts) within (i) fourteen (14) days after the end of each month with respect to which there were Advances outstanding or requested at any time during the period commencing on the first day of such month through and including the date that is fourteen (14) days after the last day of such month and (ii) thirty (30) days after the last day of each calendar quarter with respect to which a Borrowing Base Report was not required for any month in such calendar quarter pursuant to subsection (i);” 

b.
Section 6.7 (Financial Covenants). Subsection (a) of Section 6.7 is hereby deleted in its entirety and replaced with the following:

c.
Section 6.7 (Financial Covenants). The last sentence in Section 6.7(b) is hereby deleted in its entirety and replaced with the following:

d.
Section 7.1 (Dispositions). The following text appearing in Section 7.1 of the Loan Agreement is deleted:

“Convey, sell, lease, transfer, assign, or otherwise dispose of (collectively, “Transfer”)”

and replaced with the following:

“Convey, sell, lease, transfer, assign, or otherwise dispose of (including, without limitation, pursuant to a Division) (collectively, “Transfer”)”

e.
Section 7.3 (Mergers or Acquisitions). The first sentence of Section 7.3 is deleted in its entirety and replaced with the following:

“Merge or consolidate, or permit any of its Subsidiaries to merge or consolidate, with any other Person, or acquire, or permit any of its Subsidiaries to acquire, all or substantially all of the capital stock or property of another Person (including, without limitation, by the formation of any Subsidiary or pursuant to a Division).”

f.
Section 10 (Notices). Section 10 is amended by deleting the “with a copy” notice information with respect to Bank and replacing it with the following:

g.
Section 13.1 (Definitions). The following defined term and its definition set forth in Section 13.1 is hereby deleted in its entirety and replaced with the following:

h.
Section 13.1 (Definitions). The following new defined terms are hereby inserted alphabetically in Section 13.1:

i.
Exhibit C (Compliance Certificate). The Compliance Certificate appearing as Exhibit C to the Loan Agreement is deleted in its entirety and replaced with the Compliance Certificate attached as Schedule 1 hereto.

4.Representations and Warranties. To induce Bank to enter into this Amendment, Borrower hereby represents and warrants to Bank as follows:

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 November 6, 2019, and acknowledges, confirms and agrees the disclosures and

information Borrower provided to Bank in said Perfection Certificate have not changed, as of the date hereof.

6.Release by Borrower.

a.
FOR GOOD AND VALUABLE CONSIDERATION, Borrower hereby forever relieves, releases, and discharges Bank and its present or former employees, officers, directors, agents, representatives, attorneys, and each of them, from any and all claims, debts, liabilities, demands, obligations, promises, acts, agreements, costs and expenses, actions and causes of action, of every type, kind, nature, description or character whatsoever, whether known or unknown, suspected or unsuspected, absolute or contingent, arising out of or in any manner whatsoever connected with or related to facts, circumstances, issues, controversies or claims existing or arising from the beginning of time through and including the date of execution of this Amendment (collectively “Released Claims”). Without limiting the foregoing, the Released Claims shall include any and all liabilities or claims arising out of or in any manner whatsoever connected with or related to the Loan Documents, the Recitals hereto, any instruments, agreements or documents executed in connection with any of the foregoing or the origination, negotiation, administration, servicing and/or enforcement of any of the foregoing.

“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” (Emphasis added.)

(i)Except as expressly stated in this Amendment, neither Bank nor any agent, employee or representative of Bank has made any statement or representation to Borrower regarding any fact relied upon by Borrower in entering into this Amendment.

(ii)Borrower has made such investigation of the facts pertaining to this Amendment and all of the matters appertaining thereto, as it deems necessary.

(iii)The terms of this Amendment are contractual and not a mere recital.

(iv)This Amendment has been carefully read by Borrower, the contents hereof are known and understood by Borrower, and this Amendment is signed freely, and without duress, by Borrower.

(v)Borrower represents and warrants that it is the sole and lawful owner of all right, title and interest in and to every claim and every other matter which it releases herein, and that it has not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm or entity any claims or other matters herein released. Borrower shall indemnify Bank, defend and hold it harmless from and against all claims based upon or arising in connection with prior assignments or purported assignments or transfers of any claims or matters released herein.

7.Integration. This Amendment 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 Amendment and the Loan Documents merge into this Amendment and the Loan Documents.

8.Counterparts. This Amendment 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.

9.Effectiveness. This Amendment shall be deemed effective upon (a) the due execution and delivery to Bank of this Amendment by each party hereto, and (b) Borrower’s payment of a fully-earned, non-refundable amendment fee in an amount equal to Twenty Thousand Dollars ($20,000.00). In addition, Borrower shall pay Bank’s legal fees and expenses incurred in connection with this Amendment.

                 Date:     

TO: SILICON VALLEY BANK      

FROM: TELARIA, INC.

The undersigned authorized officer of TELARIA, INC. (“Borrower”) certifies that under the terms and conditions of the Amended and Restated Loan and Security Agreement between Borrower and Bank (the “Agreement”):

(1) Borrower is in complete compliance for the period ending _______________ with all required covenants except as noted below; (2) there are no Events of Default; (3) all representations and warranties in the Agreement are true and correct in all material respects on this date except as noted below; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date; (4) Borrower, and each of its Subsidiaries, has timely filed all required tax returns and reports, and Borrower has timely paid all foreign, federal, state and local taxes, assessments, deposits and contributions owed by Borrower except as otherwise permitted pursuant to the terms of Section 5.9 of the Agreement; and (5) no Liens have been levied or claims made against Borrower or any of its Subsidiaries relating to unpaid employee payroll or benefits of which Borrower has not previously provided written notification to Bank.

Attached are the required documents as appropriate supporting the certification. The undersigned certifies that these are prepared in accordance with GAAP consistently applied from one period to the next except as explained in an accompanying letter or footnotes. The undersigned acknowledges that no borrowings may be requested at any time or date of determination that Borrower is not in compliance with any of the terms of the Agreement, and that compliance is determined not just at the date this certificate is delivered. Capitalized terms used but not otherwise defined herein shall have the meanings given them in the Agreement.

* As set forth in Section 6.7(b) of the Agreement

** Testing waived for any month for which the Net Cash requirements set forth in Section 6.7(a) are satisfied

*** Testing waived for any quarter for which the Net Cash requirements set forth in Section 6.7(b) are satisfied

g

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II. Adjusted EBITDA (tested quarterly) (Section 6.7(b))

Required: $_________________*

*As set forth in Section 6.7(b) of the Agreement. Note: Testing waived for any quarter for which the Net Cash requirements set forth in Section 6.7(b) are satisfied

Actual:  $_________________

Is line C equal to or greater than the required amount set forth above?

           No, not in compliance       Yes, in compliance