{"id":40075,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/loan-and-security-agreement-at-home-corp-byron-smith-and-beth.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"loan-and-security-agreement-at-home-corp-byron-smith-and-beth","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/loan-and-security-agreement-at-home-corp-byron-smith-and-beth.html","title":{"rendered":"Loan and Security Agreement &#8211; At Home Corp., Byron Smith and Beth Smith"},"content":{"rendered":"<pre>                          LOAN AND SECURITY AGREEMENT\n\n     This Loan and Security Agreement (as from time to time amended,\nsupplemented, restated, or otherwise modified, this \"Agreement\") is entered into\neffective July 28, 2000 (the \"Effective Date\") by and among At Home Corporation,\na Delaware corporation (\"Lender\") and Byron Smith, an individual and Beth Smith,\nhis spouse (collectively, \"Borrower\"). This Agreement, the Note (defined in\nSection 1.2), the Second Deed of Trust (defined in Section 1.3) and any other\ndocuments entered into pursuant to this Agreement or in connection with this\nLoan (defined in Section 1.1) are hereinafter sometimes collectively referred to\nas the \"Loan Documents.\"\n\n     WHEREAS, Lender desires to loan a certain sum to Borrower and Borrower\nwishes to borrow a certain sum from Lender in order that Borrower may purchase a\nprimary residence in the San Francisco Bay area (the \"Property\");\n\n     NOW, THEREFORE, in consideration of the mutual promises, representations,\nwarranties and covenants set forth in this Agreement, Lender and Borrower hereby\nagree as follows:\n\n     1.  AMOUNT AND TERMS OF LOAN.\n         ------------------------ \n\n          1.1  Loan.  Subject to the terms and conditions of this Agreement, and\n               ----                                                             \nin reliance on the representations, warranties and covenants of Borrower in this\nAgreement, Lender shall loan Borrower the principal amount of Four Hundred\nThousand Dollars ($400,000) (this \"Loan\") for the purchase of the Property.\nBorrower's indebtedness to Lender under the Loan Documents will be evidenced by\na Secured Promissory Note executed by Borrower substantially in the form\nattached hereto as Exhibit A (the \"Note\").\n                   ---------              \n\n          1.2  Interest.  The Note will provide that semi-annually compounded\n               --------                                                      \ninterest on the unpaid principal of this Loan (except as provided in Section\n1.5) will accrue at a rate equal to six and fifty-one hundredths percent (6.51%)\nper annum.  Interest will continue to accrue until the date on which all amounts\nowing under the Loan Documents have been repaid in full.\n\n          1.3  Security.  Borrower's indebtedness to Lender under the Loan\n               --------                                                   \nDocuments will be secured by a second deed of trust in customary form (the\n\"Second Deed of Trust\") on the Property.  The Second Deed of Trust will be\nexecuted by Borrower in favor of Lender, with North American Title Company\nacting as trustee.  In the event that Borrower has a first lender for the\nProperty, Lender agrees not to file the Second Deed of Trust with the County\nRecorder until Borrower's first lender has filed its deed of trust on the\nProperty.\n\n          1.4  Maturity of Loan.  The unpaid principal amount of this Loan and\n               ----------------                                               \nall unpaid interest accrued thereon, together with any other related fees,\nexpenses or costs, will be immediately due and payable to Lender in full on the\ndate (the \"Maturity Date\") that is the earlier to occur of: (a) July 28, 2004,\nor (b) the date on which the unpaid principal amount and interest due under this\nLoan becomes due and payable under Section 3.1.\n\n \n          1.5  Forgiveness of Loan.  On each of July 28, 2001, 2002, 2003 and\n               -------------------                                           \n2004, unless the unpaid principal amount and interest due under this Loan has\nbecome due and payable under Section 3.1 on or before such date, Lender shall\nforgive $100,000 of the principal amount of this Loan and all unpaid interest\naccrued thereon as of such date.\n\n          1.6  Tax.  For each year that Lender forgives a portion of the Loan\n               ---                                                           \npursuant to Section 1.6, Lender will also pay Borrower, on December 31 of each\nsuch year, a cash amount equal to Borrower's tax liability for such Loan\nforgiveness.  Borrower will be responsible for any other tax liability it incurs\nin connection with this Loan and its repayment.\n\n          1.7  Prepayment.  Borrower may prepay the unpaid principal and\n               ----------                                               \ninterest due under this Loan at any time, without penalty, in whole or in part\nin amounts of at least Ten Thousand Dollars ($10,000).  Each prepayment will be\napplied as follows: (a) first to the payment of accrued interest, and (b)\nsecond, to the extent that the amount of such prepayment exceeds the amount of\nall such accrued interest, to the payment of principal on this Loan.\n\n\n          1.8  At Will Employment.  Borrower is an \"at will\" employee of Lender,\n               ------------------                                               \nand nothing in this Agreement or any exhibit shall be construed as a promise of\ncontinued employment.\n\n     2.  COVENANTS OF BORROWER.\n         --------------------- \n\n          2.1  Use of Loan Proceeds.  Borrower will apply the entire Loan\n               --------------------                                      \nproceeds towards the purchase of the Property.  Borrower agrees to return any\nLoan proceeds which are not used for the purchase of the Property to Lender\nwithin thirty (30) days following the closing of the purchase of the Property.\nIf Borrower does not purchase the Property on or before the date that is one\nyear after the date of this Agreement, Borrower shall immediately pay to Lender\nthe unpaid principal amount of this Loan and all unpaid interest accrued thereon\nin full as one balloon payment.\n\n          2.2  Requirements for Purchase of Property.  Borrower shall purchase\n               -------------------------------------                          \nthe Property in an arm's length transaction.  Borrower shall not purchase the\nProperty until Borrower has made reasonable efforts to ensure that the Property\nis free and clear of all mortgages, deeds of trust, liens, encumbrances and\nsecurity interests, except: (a) if Borrower has a first lender for the Property,\nthe first deed of trust filed by such first lender; (b) statutory liens for the\npayment of current taxes that are not yet delinquent; and (c) as otherwise\napproved in writing by Lender.  Upon executing an agreement to purchase the\nProperty: (i) Borrower shall immediately notify Lender; (ii) the address of the\nProperty shall be identified on the signature page to this Agreement; and (iii)\nBorrower shall provide a preliminary and final title report to Borrower when\nsuch items become available.\n\n          2.3  Second Deed of Trust.  Borrower will, upon execution of an\n               --------------------                                      \nagreement to purchase a residence in the San Francisco Bay area, duly execute\nthe Second Deed of Trust and deliver it to Lender.\n\n                                      -2-\n\n \n          2.4  Insurance Covering Collateral.  Borrower shall maintain all risk\n               -----------------------------                                   \nproperty damage insurance policies covering the Property in an amount at least\nequal to the value of the dwelling on the Property.\n\n\n          2.5  Further Assurances.  In addition to the obligations and documents\n               ------------------                                               \nthat this Agreement expressly requires Borrower to execute, deliver and perform,\nBorrower will execute, deliver and perform any and all further acts or documents\nwhich Lender may reasonably require in order to carry out the purposes of this\nAgreement or any of the other Loan Documents.\n\n     3.   DEFAULT BY BORROWER.\n          ------------------- \n\n          3.1  Acceleration.  The unpaid principal and interest due under this\n               ------------                                                   \nLoan will become immediately due and payable, without the need for any further\naction on the part of Lender or any other holder of the Note: (a) on the date\nthat is ninety (90) days after the date of termination of Borrower's employment\nwith Lender for any reason other than termination without cause by Lender (as\n\"cause\" is defined in Lender's employment offer letter to Borrower dated January\n4, 2000, as amended (the \"Offer Letter\")); (b) upon violation by Borrower of any\nof the covenants set forth in Article 2 of this Agreement; or (c) upon\nBorrower's sale, gift, assignment or other transfer of the Property, except for\ntransfers which, by law, cannot be restricted by a due-on-sale clause.\n\n          3.2  Default.  Borrower will be deemed to be in default of this Loan\n               -------                                                        \nif: (a) Borrower fails to pay Lender (or, in the event another party holds the\nNote, such holder) the full amount of unpaid principal and interest due under\nthis Loan on or before the Maturity Date, and (b) Borrower does not cure this\nfailure to pay within five (5) calendar days after Lender gives Borrower written\nnotice of such failure to pay.\n\n          3.3  Remedies Upon Default.  Upon Borrower's default of this Loan,\n               ---------------------                                        \nLender may pursue its rights under the Note and the Second Deed of Trust.  The\nrights and remedies of Lender herein provided are cumulative, and are not\nexclusive of any other rights or remedies provided by law or otherwise.\n\n     4.   MISCELLANEOUS.\n          ------------- \n\n          4.1  Entire Agreement.  Except for the mortgage assistance payments\n               ----------------                                              \nprovided for in the Offer Letter, the Loan Documents constitute the entire\nagreement and understanding among the parties with respect to the subject matter\nthereof and supersede any prior understandings or agreements of the parties with\nrespect to such subject matter.\n\n          4.2  Successors and Assigns.  The terms and conditions of this\n               ----------------------                                   \nAgreement will inure to the benefit of and be binding upon the respective\nsuccessors and assigns of the parties, including any subsequent holders of the\nNote; provided, however, that Borrower may not assign or delegate any of its\n      --------  -------                                                     \nrights or obligations hereunder or under any other Loan Document or any interest\nherein or therein without Lender's prior written consent.\n\n                                      -3-\n\n \n          4.3  No Third Party Beneficiaries.   Nothing in this Agreement,\n               ----------------------------                              \nexpress or implied, is intended to confer upon any third party any rights,\nremedies, obligations, or liabilities under or by reason of this Agreement,\nexcept as expressly provided in this Agreement.\n\n          4.4  Construction.  This Agreement and its exhibits are the result of\n               ------------                                                    \nnegotiations between the parties and have been reviewed by each party hereto.\nAccordingly, this Agreement will be deemed to be the product of the parties\nhereto and no ambiguity will be construed in favor of or against any party.\n\n          4.5  Section Titles.  The Section titles contained in this Agreement\n               --------------                                                 \nare and will be without substantive meaning or content of any kind and are not\npart of this Agreement.\n\n          4.6  Modification; Waiver.  This Agreement may be modified or amended\n               --------------------                                            \nonly by a writing signed by both parties hereto.  No waiver or consent with\nrespect to this Agreement will be binding unless it is set forth in writing and\nsigned by the party against whom such waiver is asserted.  No course of dealing\nbetween Borrower and Lender will operate as a waiver or modification of any\nparty's rights under this Agreement or any other Loan Document.  No delay or\nfailure on the part of either party in exercising any right or remedy under this\nAgreement or any other Loan Document will operate as a waiver of such right or\nany other right.  A waiver given on one occasion will not be construed as a bar\nto, or as a waiver of, any right or remedy on any future occasion.\n\n          4.7  Severability.  The invalidity or unenforceability of any term or\n               ------------                                                    \nprovision of this Agreement will not affect the validity or enforceability of\nany other term or provision.\n\n          4.8  Governing Law.  This Agreement will be exclusively governed by\n               -------------                                                 \nand construed in accordance with the internal laws of the State of California,\nas applied to agreements entered into solely between residents of and to be\nperformed entirely in the State of California, without reference to that body of\nlaw relating to conflicts of law or choice of law.\n\n          4.9  Jurisdiction.  The parties agree that any controversy or claim\n               ------------                                                  \narising out of or relating to this Agreement shall be tried and litigated\nexclusively in a state or federal court with jurisdiction located in San Mateo\nCounty in the State of California.\n\n          4.10  Waiver of Jury Trial.  The parties waive any right they may have\n                --------------------                                            \nto a trial by jury in respect of any litigation based on, or arising out of,\nunder or in connection with, this Agreement or any other Loan Document, or any\ncourse of conduct, course of dealing, verbal or written statement or other\naction of any loan party or any secured party.\n\n          4.11  Attorneys' Fees.  If either party hereto commences or maintains\n                ---------------                                                \nany action at law or in equity (including counterclaims or cross-complaints)\nagainst the other party hereto by reason of the breach or default or claimed\nbreach or default of any term or provision of this Agreement or any other Loan\nDocument, then the prevailing party in said action will be entitled to recover\nits reasonable attorneys' fees and court costs incurred therein.  This provision\ndoes not limit Lender's ability to recover additional expenses under the Note.\n\n                                      -4-\n\n \n  4.12  Counterparts.  This Agreement may be executed in one or two\n        ------------                                               \ncounterparts, each of which will be deemed an original, but together will\nconstitute one and the same instrument.\n\n\n          [The remainder of this page was left blank intentionally.]\n\n                                      -5-\n\n \n     IN WITNESS WHEREOF, the parties have duly executed and delivered this\nAgreement as of the Effective Date.\n\nBORROWER:                               LENDER:\n                                        At Home Corporation\n\n\/s\/ Byron Smith                         \/s\/ George Bell\n__________________________              _______________________________ \nByron Smith                             George Bell, Chairman and\n                                        Chief Executive Officer\n\n\/s\/ Beth Smith\n__________________________ \nBeth Smith\n\n\n\nADDRESS OF PROPERTY\n-------------------\n(to be completed upon Borrower's execution of an agreement to purchase the\nProperty):\n\n\n__________________________________\n\n__________________________________ \n\n \n\nAttachments:\n----------- \n\nExhibit A - Secured Promissory Note\n\n                                      -6-\n\n \n                            SECURED PROMISSORY NOTE\n                            -----------------------\n\n                                                        Redwood City, California\n\n$400,000                                                July 28, 2000\n\n     For value received, Byron Smith, an individual, and Beth Smith, his spouse\n(collectively, \"Borrower\") hereby promise to pay to the order of At Home\nCorporation, a Delaware corporation (the \"Company\") on or before July 28, 2004\n(the \"Maturity Date\"), at the Company's principal place of business at 450\nBroadway Street, Redwood City, California 94603, or at such other place as the\nCompany may direct, the principal sum of Four Hundred Thousand Dollars\n($400,000), together with interest at the rate of six and fifty-one hundredths\npercent (6.51%) compounded semi-annually, which rate is the minimum rate\nestablished pursuant to Section 1274(d) of the Internal Revenue Code of 1986, as\namended, for July 2000; provided, however, that the rate at which interest will\n                        --------  -------                                      \naccrue on unpaid principal under this secured promissory note (as may be\namended, restated, supplemented, or otherwise modified from time to time, this\n\"Note\") will not exceed the highest rate permitted by applicable law.  Except as\nprovided by Section 2, accrued interest is payable in full on the Maturity Date.\nInterest will continue to accrue until the date on which all amounts owing on\nthis Note have been repaid in full.\n\n     This Note is issued pursuant to that certain Loan and Security Agreement\ndated as of the date hereof between the Company and Borrower (the \"Loan\nAgreement\").  The following is a statement of the additional rights and\nobligations of the holder of this Note and the terms and conditions to which\nthis note is subject, and to which the holder, by the acceptance of this Note,\nagrees as follows:\n\n     1.  Security.  Payment of this Note is secured by a second deed of trust on\n         --------                                                               \nthe real property purchased by Borrower with the proceeds from this Note (the\n\"Property\"), the address of which shall be identified on the signature page of\nthis Note upon Borrower's execution of an agreement to purchase the Property.\n\n     2.  Acceleration.  The unpaid principal and interest due under this Note\n         ------------                                                        \nwill become immediately due and payable, without the need for any further action\non the part of the Company or any other holder of this Note: (a) on the date\nthat is ninety (90) days after the date of termination of Borrower's employment\nwith the Company for any reason other than termination without cause by the\nCompany (as \"cause\" is defined in the Company's employment offer letter to\nBorrower dated January 4, 2000, as amended (the \"Offer Letter\")); (b) upon\nviolation by Borrower of any of the covenants set forth in Article 2 of the Loan\nAgreement; or (c) upon Borrower's sale, gift, assignment or other transfer of\nthe Property, except for transfers which, by law, cannot be restricted by a due-\non-sale clause.  Each of the events described in this Section 2 constitutes an\n\"Acceleration Event\".\n\n \n     3.  Default.  Borrower will be deemed to be in default under this Note if:\n         -------                                                               \n(a) Borrower fails to pay the holder of this Note the full amount of unpaid\nprincipal and interest due under this Note on or before: (i) the date that is\nfour years after the date of this Note, or (ii) such earlier date as dictated by\nthe occurrence of an Acceleration Event; and (b) Borrower does not cure this\nfailure to pay within five (5) calendar days after the Company gives Borrower\nwritten notice of such failure to pay.\n\n     4.  Prepayment. Borrower may prepay the unpaid principal and interest due\n         ----------                                                           \nunder this Note at any time, without penalty, in whole or in part in amounts of\nat least Ten Thousand Dollars ($10,000).  Each prepayment will be applied as\nfollows: (a) first to the payment of accrued interest, and (b) second, to the\nextent that the amount of such prepayment exceeds the amount of all such accrued\ninterest, to the payment of principal on this Note.\n\n     5.  Assignment.  This Note is freely transferable and assignable by the\n         ----------                                                         \nCompany and each subsequent holder, provided that such transfer is made in\ncompliance with all applicable state and federal securities laws.  Any reference\nto the Company herein will be deemed to refer to any subsequent transferee of\nthis Note at such time as such transferee holds this Note.   Borrower may not\nassign or delegate this Note, whether by voluntary assignment or transfer,\noperation of law or otherwise.\n\n     6.  Governing Law.  This Note will be exclusively governed by and construed\n         -------------                                                          \nin accordance with the internal laws of the State of California, as applied to\nagreements entered into solely between residents of and to be performed entirely\nin the State of California, without reference to that body of law relating to\nconflicts of law or choice of law.\n\n     7.  Waivers by Borrower; Amendment.  Borrower hereby waives presentment,\n         ------------------------------                                      \nnotice of non-payment, notice of dishonor, protest, demand and diligence.  This\nNote may be amended only by a writing executed by Borrower and the Company.\n\n                                      -2-\n\n \n     IN WITNESS WHEREOF, Borrower has executed this Note as of the date and year\nfirst above written.\n\n\n                              BORROWER:\n\n                              \/s\/ Byron Smith \n                              ______________________________ \n                              Byron Smith\n\n                              \/s\/ Beth Smith\n                              _______________________________ \n                              Beth Smith\n\n\n\nACCEPTED AND ACKNOWLEDGED:\n\nTHE COMPANY:\n\nAt Home Corporation\n\n\n\/s\/ George Bell\n______________________________ \nGeorge Bell, Chairman and\nChief Executive Officer\n\n\n\n\nADDRESS OF PROPERTY\n-------------------\n(to be completed upon Borrower's execution of an agreement to purchase the\nProperty):\n\n\n_____________________________________\n\n_____________________________________ \n\n                                     -3- \n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6782],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9544],"class_list":["post-40075","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-at-home-corp","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40075","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40075"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40075"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40075"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40075"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}