EXHIBIT 10.04
LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement (as from time to time amended,
supplemented, restated, or otherwise modified, this "Agreement") is entered into
effective August 17, 2000 (the "Effective Date") by and among At Home
Corporation, a Delaware corporation ("Lender") and Xxxx X. XxXxxxxx, an
individual and Xxxxxx XxXxxxxx, his spouse (collectively, "Borrower"). This
Agreement, the Note (defined in Section 1.1), the Stock Pledge Agreement
(defined in Section 1.3) and any other documents entered into pursuant to this
Agreement or in connection with this Loan (defined in Section 1.1) are
hereinafter sometimes collectively referred to as the "Loan Documents."
WHEREAS, Lender desires to loan a certain sum to Borrower and Borrower
wishes to borrow a certain sum from Lender;
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties and covenants set forth in this Agreement, Lender and Borrower hereby
agree as follows:
1. AMOUNT AND TERMS OF LOAN.
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1.1 Loan. Subject to the terms and conditions of this Agreement, and
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in reliance on the representations, warranties and covenants of Borrower in this
Agreement, Lender shall loan Borrower the principal amount of One Million Five
Hundred Thousand Dollars ($1,500,000) (this "Loan"). Borrower's indebtedness to
Lender under the Loan Documents will be evidenced by a Secured Promissory Note
executed by Borrower substantially in the form attached hereto as Exhibit A (the
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"Note").
1.2 Interest. The Note will provide that semi-annually compounded
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interest on the unpaid principal of this Loan (except as provided in Section
1.5) will accrue at a rate equal to six and twenty-three hundredths percent
(6.23%) per annum. Interest will continue to accrue until the date on which all
amounts owing under the Loan Documents have been repaid in full.
1.3 Security. Borrower's indebtedness to Lender under the Loan
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Documents will be secured by Borrower's pledge of certain shares of Lender
equity securities (the "Pledged Shares") in accordance with the terms of a stock
pledge agreement, dated of even date herewith, substantially in the form
attached as Exhibit B (the "Stock Pledge Agreement"). Borrower shall
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immediately submit to Lender upon issuance all Lender equity securities that
Borrower acquires pursuant to: (a) Borrower's exercise of options to purchase
Lender equity securities under Lender's 1997 Equity Incentive Plan, 2000 Stock
Incentive Plan or any subsequent or similar stock option plan of Lender, (b)
1997 Employee Stock Purchase Plan or any subsequent or similar employee stock
purchase agreement, or (c) any other similar employee benefit plan of Lender.
1.4 Maturity of Loan. The unpaid principal amount of this Loan and
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all unpaid interest accrued thereon, together with any other related fees,
expenses or costs, will be immediately due and payable to Lender in full on the
date (the "Maturity Date") that is the
earlier to occur of: (a) August 17, 2004, or (b) the date on which the unpaid
principal amount and interest due under this Loan becomes due and payable under
Section 2.1.
1.5 Forgiveness of Loan. On each of August 17, 2001, 2002, 2003 and
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2004, unless the unpaid principal amount and interest due under this Loan has
become due and payable under Section 2.1 on or before such date, Lender shall
forgive $375,000 of the principal amount of this Loan and all unpaid interest
accrued thereon as of such date.
1.6 Tax. For each year that Lender forgives a portion of the Loan
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pursuant to Section 1.5, Lender will also pay Borrower, on December 31 of each
such year, a cash amount equal to Borrower's tax liability for such Loan
forgiveness. Borrower will be responsible for any other tax liability it incurs
in connection with this Loan and its repayment.
1.7 Prepayment. Borrower may prepay the unpaid principal and
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interest due under this Loan at any time, without penalty, in whole or in part
in amounts of at least Ten Thousand Dollars ($10,000). Each prepayment will be
applied as follows: (a) first to the payment of accrued interest, and (b)
second, to the extent that the amount of such prepayment exceeds the amount of
all such accrued interest, to the payment of principal on this Loan. Borrower
also agrees that, until this Loan is paid in full, Borrower shall: (i) if no
default event has occurred under the Loan Documents and is continuing,
immediately apply fifty percent (50%) of the net before tax proceeds from any
sale by Borrower of the Pledged Shares, or (ii) if a default event has occurred
and is continuing, immediately apply one hundred percent (100%) of the net
before tax proceeds from any sale by Borrower of the Pledged Shares, to pay down
this Loan in accordance with this Agreement.
1.8 At Will Employment. Borrower is an "at will" employee of Lender,
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and nothing in this Agreement or any exhibit shall be construed as a promise of
continued employment.
2. DEFAULT BY BORROWER.
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2.1 Acceleration. The unpaid principal and interest due under this
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Loan will become immediately due and payable, without the need for any further
action on the part of Lender or any other holder of the Note: (a) on the date
that is ninety (90) days after the date of termination of Borrower's employment
with Lender for any reason other than termination without cause by Lender (as
"cause" is defined in Lender's employment offer letter to Borrower dated June
29, 2000 (the "Offer Letter")); or (b) upon Borrower's failure to apply the
appropriate proceeds of any sale of Pledged Shares to pay down this Loan in
accordance with Section 1.7.
2.2 Default. Borrower will be deemed to be in default of this Loan
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if: (a) Borrower fails to pay Lender (or, in the event another party holds the
Note, such holder) the full amount of unpaid principal and interest due under
this Loan on or before the Maturity Date, and (b) Borrower does not cure this
failure to pay within five (5) calendar days after Lender gives Borrower written
notice of such failure to pay.
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2.3 Remedies Upon Default. Upon Borrower's default of this Loan,
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Lender may pursue its rights under the Note and the Stock Pledge Agreement. The
rights and remedies of Lender herein provided are cumulative, and are not
exclusive of any other rights or remedies provided by law or otherwise.
3. MISCELLANEOUS.
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3.1 Entire Agreement. The Loan Documents constitute the entire
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agreement and understanding among the parties with respect to the subject matter
thereof and supersedes any prior understandings or agreements of the parties
with respect to such subject matter.
3.2 Successors and Assigns. The terms and conditions of this
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Agreement will inure to the benefit of and be binding upon the respective
successors and assigns of the parties, including any subsequent holders of the
Note; provided, however, that Borrower may not assign or delegate any of its
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rights or obligations hereunder or under any other Loan Document or any interest
herein or therein without Lender's prior written consent.
3.3 No Third Party Beneficiaries. Nothing in this Agreement,
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express or implied, is intended to confer upon any third party any rights,
remedies, obligations, or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
3.4 Construction. This Agreement and its exhibits are the result of
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negotiations between the parties and have been reviewed by each party hereto.
Accordingly, this Agreement will be deemed to be the product of the parties
hereto and no ambiguity will be construed in favor of or against any party.
3.5 Section Titles. The Section titles contained in this Agreement
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are and will be without substantive meaning or content of any kind and are not
part of this Agreement.
3.6 Modification; Waiver. This Agreement may be modified or amended
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only by a writing signed by both parties hereto. No waiver or consent with
respect to this Agreement will be binding unless it is set forth in writing and
signed by the party against whom such waiver is asserted. No course of dealing
between Borrower and Lender will operate as a waiver or modification of any
party's rights under this Agreement or any other Loan Document. No delay or
failure on the part of either party in exercising any right or remedy under this
Agreement or any other Loan Document will operate as a waiver of such right or
any other right. A waiver given on one occasion will not be construed as a bar
to, or as a waiver of, any right or remedy on any future occasion.
3.7 Further Assurances. In addition to the obligations and documents
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that this Agreement expressly requires Borrower to execute, deliver and perform,
Borrower will execute, deliver and perform any and all further acts or documents
which Lender may reasonably require in order to carry out the purposes of this
Agreement or any of the other Loan Documents.
3.8 Severability. The invalidity or unenforceability of any term or
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provision of this Agreement will not affect the validity or enforceability of
any other term or provision.
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3.9 Governing Law. This Agreement will be exclusively governed by
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and construed in accordance with the internal laws of the State of California,
as applied to agreements entered into solely between residents of and to be
performed entirely in the State of California, without reference to that body of
law relating to conflicts of law or choice of law.
3.10 Jurisdiction. The parties agree that any controversy or claim
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arising out of or relating to this Agreement shall be tried and litigated
exclusively in a state or federal court with jurisdiction located in San Mateo
County in the State of California.
3.11 Waiver of Jury Trial. The parties waive any right they may have
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to a trial by jury in respect of any litigation based on, or arising out of,
under or in connection with, this Agreement or any other Loan Document, or any
course of conduct, course of dealing, verbal or written statement or other
action of any loan party or any secured party.
3.12 Attorneys' Fees. If either party hereto commences or maintains
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any action at law or in equity (including counterclaims or cross-complaints)
against the other party hereto by reason of the breach or default or claimed
breach or default of any term or provision of this Agreement or any other Loan
Document, then the prevailing party in said action will be entitled to recover
its reasonable attorneys' fees and court costs incurred therein. This provision
does not limit Lender's ability to recover additional expenses under the Note.
3.13 Counterparts. This Agreement may be executed in one or two
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counterparts, each of which will be deemed an original, but together will
constitute one and the same instrument.
[The remainder of this page was left blank intentionally.]
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the Effective Date.
BORROWER: LENDER:
At Home Corporation
/s/ Xxxx X. XxXxxxxx /s/ Xxxxxx Xxxx
____________________________ _________________________________
Xxxx X. XxXxxxxx Xxxxxx Xxxx, Chairman and
Chief Executive Officer
____________________________
_____________
Attachments:
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Exhibit A - Secured Promissory Note
Exhibit B - Stock Pledge Agreement
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SECURED PROMISSORY NOTE
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Redwood City, California
$1,500,000 August 17, 2000
For value received, Xxxx X. XxXxxxxx, an individual, and Xxxxxx XxXxxxxx,
his spouse (collectively, "Borrower") hereby promise to pay to the order of At
Home Corporation, a Delaware corporation (the "Company") on or before August 17,
2004 (the "Maturity Date"), at the Company's principal place of business at 000
Xxxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, or at such other place as the
Company may direct, the principal sum of One Million Five Hundred Thousand
Dollars ($1,500,000), together with interest at the rate of six and twenty-three
hundredths percent (6.23%) compounded semi-annually, which rate is the minimum
rate established pursuant to Section 1274(d) of the Internal Revenue Code of
1986, as amended, for August 2000; provided, however, that the rate at which
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interest will accrue on unpaid principal under this secured promissory note (as
may be amended, restated, supplemented, or otherwise modified from time to time,
this "Note") will not exceed the highest rate permitted by applicable law.
Except as provided by Section 2, accrued interest is payable in full on the
Maturity Date. Interest will continue to accrue until the date on which all
amounts owing on this Note have been repaid in full.
This Note is issued pursuant to that certain Loan and Security Agreement
dated as of the date hereof between the Company and Borrower (the "Loan
Agreement"). The following is a statement of the additional rights and
obligations of the holder of this Note and the terms and conditions to which
this note is subject, and to which the holder, by the acceptance of this Note,
agrees as follows:
1. Security. Payment of this Note is secured by Borrower's pledge of
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certain shares of Company equity securities (the "Pledged Shares") in accordance
with the terms of a stock pledge agreement between the Company and Borrower.
2. Acceleration. The unpaid principal and interest due under this Note
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will become immediately due and payable, without the need for any further action
on the part of the Company or any other holder of this Note: (a) on the date
that is ninety (90) days after the date of termination of Borrower's employment
with the Company for any reason other than termination without cause by the
Company (as "cause" is defined in the Company's employment offer letter to
Borrower dated June 29, 2000 (the "Offer Letter")); or (b) upon Borrower's
failure to apply the appropriate proceeds of any sale of Pledged Shares to pay
down this Note in accordance with Section 4. Each of the events described in
this Section 2 constitutes an "Acceleration Event".
3. Default. Borrower will be deemed to be in default under this Note if:
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(a) Borrower fails to pay the holder of this Note the full amount of unpaid
principal and interest due under this Note on or before: (i) the date that is
four years after the date of this Note, or (ii) such
earlier date as dictated by the occurrence of an Acceleration Event; and (b)
Borrower does not cure this failure to pay within five (5) calendar days after
the Company gives Borrower written notice of such failure to pay.
4. Prepayment. Borrower may prepay the unpaid principal and interest due
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under this Note at any time, without penalty, in whole or in part in amounts of
at least Ten Thousand Dollars ($10,000). Each prepayment will be applied as
follows: (a) first to the payment of accrued interest, and (b) second, to the
extent that the amount of such prepayment exceeds the amount of all such accrued
interest, to the payment of principal on this Note. Borrower also agrees that,
until this Note is paid in full, Borrower shall immediately apply: (i) if no
default event has occurred and is continuing, fifty percent (50%) of the net
before tax proceeds from any sale by Borrower of the Pledged Shares, or (ii) if
a default event has occurred and is continuing, one hundred percent (100%) of
the net before tax proceeds from any sale by Borrower of the Pledged Shares, to
pay down this Note in accordance with this Note and the Loan Agreement.
5. Assignment. This Note is freely transferable and assignable by the
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Company and each subsequent holder, provided that such transfer is made in
compliance with all applicable state and federal securities laws. Any reference
to the Company herein will be deemed to refer to any subsequent transferee of
this Note at such time as such transferee holds this Note. Borrower may not
assign or delegate this Note, whether by voluntary assignment or transfer,
operation of law or otherwise.
6. Governing Law. This Note will be exclusively governed by and construed
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in accordance with the internal laws of the State of California, as applied to
agreements entered into solely between residents of and to be performed entirely
in the State of California, without reference to that body of law relating to
conflicts of law or choice of law.
7. Waivers by Borrower; Amendment. Borrower hereby waives presentment,
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notice of non-payment, notice of dishonor, protest, demand and diligence. This
Note may be amended only by a writing executed by Borrower and the Company.
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IN WITNESS WHEREOF, Borrower has executed this Note as of the date and year
first above written.
BORROWER:
/s/ Xxxx X. XxXxxxxx
_________________________________
Xxxx X. XxXxxxxx
_________________________________
_________________
ACCEPTED AND ACKNOWLEDGED:
THE COMPANY:
At Home Corporation
/s/ Xxxxxx Xxxx
______________________________
Xxxxxx Xxxx, Chairman and
Chief Executive Officer
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STOCK PLEDGE AGREEMENT
This Stock Pledge Agreement is entered into effective August 17, 2000 (as
from time to time amended, restated, supplemented, or otherwise modified, this
"Agreement"), by Xxxx X. XxXxxxxx, an individual and Xxxxxx XxXxxxxx, his spouse
(collectively, "Pledgor") in favor of At Home Corporation, a Delaware
corporation ("Secured Party").
WHEREAS, Pledgor and Secured Party have entered into that certain Loan and
Security Agreement dated as of the date hereof (as may be amended, supplemented
or otherwise modified from time to time, the "Loan Agreement"). The term "Loan
Documents" and all other capitalized terms used in this Agreement that are not
otherwise defined in this Agreement shall have the meanings ascribed to such
terms in the Loan Agreement; and
WHEREAS, all shares of Secured Party capital stock or other equity
securities that Borrower acquires pursuant to: (a) Pledgor's exercise of options
to purchase Secured Party equity securities under Secured Party's 1997 Equity
Incentive Plan, 2000 Stock Incentive Plan or any subsequent or similar stock
option plan of Secured Party, (b) Secured Party's 1997 Employee Stock Purchase
Plan or any subsequent or similar employee stock purchase agreement, or (c) any
other similar employee benefit plan of Secured Party, are to be issued by
Secured Party subject to the terms of this Agreement immediately upon their
issuance. All such Secured Party equity securities shall be identified on
Schedule 1 or on an Addendum to Schedule 1 upon their issuance; and
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WHEREAS, Pledgor is the legal and beneficial owner of the shares of capital
stock or other equity securities identified on such Schedule 1 or addenda as
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being owned by Pledgor (collectively, the "Pledged Shares"); and
WHEREAS, it is a condition precedent under the Loan Agreement to making the
Loan that Pledgor shall agree to make the pledges contemplated by this
Agreement;
NOW, THEREFORE, in consideration of the promises set forth in this
Agreement and to induce Secured Party to make the Loan, Pledgor hereby agrees
with Secured Party as follows:
1. STOCK PLEDGE PROVISIONS.
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1.1 Pledge. Pledgor hereby pledges to Secured Party, and grants to
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Secured Party a security interest in, all of Pledgor's, right, title, and
interest in and to the following (the "Pledged Collateral"): (a) all of the
Pledged Shares; (b) the certificates, if any, representing the Pledged Shares;
and (c) all dividends, cash, instruments and other property or proceeds, from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares.
1.2 Security Interest. This Agreement secures, and the Pledged
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Collateral is security for, the full and prompt payment by Pledgor when due
(whether at stated maturity, by acceleration or otherwise) of, and the
performance by Pledgor of, all of Pledgor's current and future obligations under
this Agreement and each of the Loan Documents to which Pledgor is a party,
including without limitation principal, interest, fees, and expenses (including
any interest, fees, or expenses that, but for the provisions of the Bankruptcy
code, would have accrued). The security interest in the Pledged Collateral
created by this Agreement will continue, and the provisions of this Agreement
will remain in full force and effect, until the termination of this Agreement
pursuant to Section 1.7.
1.3 Representations and Warranties. Pledgor hereby represents and
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warrants to the Secured Party that, as of the date each of the Pledged Shares is
issued: (a) Pledgor is the legal and beneficial owner of the Pledged Collateral
free and clear of any lien, and (b) Pledgor has the right to pledge and grant to
the Secured Party a security interest in the Pledged Collateral.
1.4 Transfers and Other Liens. Pledgor agrees that Pledgor will not:
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(a) sell or otherwise dispose of, or grant any option or warrant with respect
to, any of the Pledged Collateral except as permitted by the Loan Agreement, or
(b) create or permit to exist any lien upon or with respect to any of the
Pledged Collateral, except for the lien created pursuant to this Agreement.
1.5 Further Assurances. Pledgor agrees to promptly execute and
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deliver all further instruments and documents, and take all further action that
may be necessary or desirable, or that Secured Party may reasonably request, in
order to perfect and protect the lien granted or purported to be granted hereby
or to enable Secured Party to exercise and enforce its rights and remedies with
respect to any Pledged Collateral. Pledgor agrees to defend the title to the
Pledged Collateral and Secured Party's lien on the Pledged Collateral against
the claim of any other person and to maintain and preserve such lien until
indefeasible payment in full of all obligations.
1.6 Secured Party May Perform. If Pledgor fails to perform any
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agreement contained in this Agreement, Secured Party may itself perform, or
cause performance of such agreement, and the expenses of Secured Party incurred
in connection therewith shall be payable by Pledgor under Section 3.1 and
constitute obligations secured by this Agreement.
1.7 Termination of Security Interest. This Agreement, and the
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security interests created or granted by this Agreement, shall automatically
terminate and be released on the date at which the Loan has been fully and
finally paid in cash (or forgiven by Secured Party in accordance with the Loan
Agreement). Upon any release of the security interest created by this Agreement
in any of the Pledged Collateral pursuant to this Section 1.7, Secured Party
(without recourse upon, or any representation or warranty whatsoever by, Secured
Party) shall promptly:
(a) return, transfer and deliver to Pledgor all certificates,
instruments and other property held by Secured Party pursuant to this
Agreement representing or
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evidencing such Pledged Collateral as shall not have been sold or otherwise
applied pursuant to the terms of this Agreement, all without recourse upon, or
representation or warranty whatsoever by, Secured Party, except that the same
shall be free and clear of any claims, liens or encumbrances created by or in
respect of Secured Party, and at the cost and expense of Pledgor, and
(b) execute and deliver to Pledgor such instruments as may be
reasonably requested by Pledgor acknowledging the release of such security
interest with respect to such Pledged Collateral.
2. DELIVERY AND POSSESSION OF PLEDGED COLLATERAL.
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2.1 Delivery of Pledged Collateral. All certificates or instruments,
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if any, representing or evidencing the Pledged Collateral shall be issued to and
held by or on behalf of Secured Party pursuant to this Agreement and shall be in
suitable form for transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and substance
satisfactory to Secured Party.
2.2 Rights to Vote, Receive Dividends from and Sell (No Default).
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As long as no event of default shall have occurred under the Loan Agreement and
be continuing:
(a) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Agreement or
any other Loan Documents;
(b) Pledgor shall be entitled to receive and retain (subject to
any lien thereon in favor of Secured Party) any and all dividends or
distributions paid in respect of the Pledged Collateral, other than any and
all:
(i) dividends paid or payable other than in cash in
respect of, and instruments and other property received receivable or
otherwise distributed in respect of, or in exchange for, any Pledged
Collateral;
(ii) dividends and other distributions paid or payable in
cash in respect of any Pledged Shares in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital,
capital surplus or paid-in-surplus; and
(iii) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Pledged Collateral;
all of which shall be forthwith delivered to Secured Party;
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(c) Secured Party shall execute and deliver (or cause to be executed
and delivered) to Pledgor all such proxies and other instruments as Pledgor
may reasonably request for the purpose of enabling Pledgor to exercise the
voting and other rights which it is entitled to exercise pursuant to Section
2.2(a) and to receive the dividends or distributions which it is authorized to
receive and retain pursuant to Section 2.2(b); and
(d) Pledgor shall have the power to require Secured Party to sell
any or all of the Pledged Shares in an arms length transaction through a
securities brokerage firm, provided that such sale complies with and does not
violate any applicable law, and further provided that Pledgor shall pay fifty
percent (50%) of the net before tax proceeds from any such sale directly to
Secured Party to pay down the Loan in accordance with the Loan Agreement.
2.3 Adjustments. Secured Party shall have the right at any time to
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exchange certificates representing or evidencing any of the Pledged Collateral
for certificates of smaller or larger denominations.
2.4 Reasonable Care. Secured Party shall be deemed to have exercised
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reasonable care in the custody and preservation of the Pledged Collateral in its
possession if the Pledged Collateral is accorded treatment substantially equal
to that which Secured Party accords its own property, it being understood that
Secured Party shall not have any responsibility for: (a) ascertaining or taking
action with respect to calls, conversions, exchanges, maturities, tenders or
other matters relative to any Pledged Collateral, whether or not Secured Party
has or is deemed to have knowledge of any such matter, or (b) taking any
necessary steps to preserve rights against any person with respect to any
Pledged Collateral.
3. ADDITIONAL PROVISIONS UPON DEFAULT.
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3.1 Remedies Upon Default. The rights and remedies granted to
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Secured Party by this Article 3 will be in addition to all the rights, powers
and remedies of Secured Party under the Loan Documents. All such rights and
remedies will be cumulative and not exclusive of any other rights or remedies
provided by law or otherwise. If any event of default under the Loan Agreement
shall have occurred and be continuing:
(a) Secured Party may exercise in respect of the Pledged Collateral,
in addition to other rights and remedies provided for in this Agreement or
otherwise available to it, all the rights and remedies of a secured party
after default under the California Commercial Code or any other applicable law
in effect in the State of California at that time, and Secured Party may also,
without notice except as specified below, sell the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any
exchange, broker's board or at any office of Secured Party or elsewhere, for
cash, on credit or for future delivery, and upon such other terms as Secured
Party may deem commercially reasonable. Pledgor agrees that, to the extent
notice of sale shall be required by law, at least ten days' notice to Pledgor
of the time and place of any public sale or the time after which any private
sale is to be made shall constitute reasonable notification. Secured Party
shall not be obligated to make any sale
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of Pledged Collateral regardless of notice of sale having been given. Secured
Party may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned. Pledgor
hereby waives any claims against Secured Party arising by reason of the fact
that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a
public sale, even if Secured Party accepts the first offer received and does
not officer such Pledged Collateral to more than one offeree. With respect to
Pledged Collateral consisting of securities registered under the Securities
Act of 1933, as amended (the "Securities Act"), Secured Party will comply with
applicable securities laws in connection with any foreclosure sale.
(b) Pledgor recognizes that by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws, Secured
Party may be compelled, with respect to any sale of all or any part of the
Pledged Collateral, to limit purchasers to those which will agree, among other
things, to acquire such securities for their own account, for investment, and
not with a view to the distribution or resale. Pledgor acknowledges and
agrees that any such sale may result in prices and other terms less favorable
to the seller than if such sale were a public sale without such restrictions
and, notwithstanding such circumstances, agrees that any such sale shall be
deemed to have been made in a commercially reasonable manner. Secured Party
shall be under no obligation to delay the sale of any of the Pledged
Collateral for the period of time necessary to permit Pledgor to register such
securities for public sale under the Securities Act, or under applicable state
securities laws, even if Pledgor would agree to do so.
(c) In the event of a sale of Pledged Collateral in accordance
with the provisions of this Section 3.1, notwithstanding anything to the
contrary contained in Section 2.2(d) or elsewhere in this Agreement, all of
the net before tax proceeds from any such sale shall be applied by Secured
Party, or paid directly to Secured Party, to pay down the Loan in accordance
with the Loan Agreement.
3.2 Rights in Pledged Collateral Upon Default. Upon the occurrence
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and during the continuance of an event of default under the Loan Agreement:
(a) upon notice by Secured Party to Pledgor, all rights of
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 2.2(a) shall cease, and
all such rights shall thereupon become vested in Secured Party who shall
thereupon have the sole right to exercise such voting and other consensual
rights;
(b) all rights of Pledgor to receive the dividends or
distributions which it would otherwise be authorized to receive and retain
pursuant to Section 2.2(b) shall cease, and all such rights shall thereupon
become vested in Secured Party who shall thereupon have the sole right to
receive and hold as Pledged Collateral such dividends or distributions;
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(c) All dividends or distributions which are received by Pledgor
contrary to the provisions of Section 3.2(b) shall be received in trust for
the benefit of Secured Party, shall be segregated from other property or funds
of Pledgor and shall be forthwith delivered to Secured Party;
(d) Pledgor shall, if necessary to permit Secured Party to
exercise the voting and other rights which it may be entitled to exercise
pursuant to Section 2.2(a) and to receive all dividends and distributions
which it may be entitled to receive under Section 2.2(b), execute and deliver
to Secured Party, from time to time and upon written notice of Secured Party,
appropriate proxies and other instruments as Secured Party may reasonably
request; and
(e) Secured Party shall have the right to the extent permitted
under any applicable law, at any time in its discretion and without notice to
Pledgor, to transfer to or to register in its name or in the name of any of
its nominees any or all of the Pledged Collateral.
The foregoing shall not in any way limit Secured Party's power and authority
granted pursuant to Section 3.3.
3.3 Secured Party Appointed Attorney-in-Fact and Proxy. Subject to
--------------------------------------------------
Section 3.1, Pledgor hereby irrevocably constitutes and appoints Secured Party
and any officer or agent of Secured Party, effective upon the occurrence and
during the continuance of an event of default under the Loan Agreement, with
full power of substitution, as its true and lawful attorney-in-fact and proxy
with full irrevocable power and authority in the place and stead of Pledgor and
in the name of Pledgor or in its own name, from time to time in Secured Party's
discretion, for the purpose of carrying out the terms of this Agreement, to take
any and all appropriate action and to execute and deliver any and all documents
and instruments which Secured Party may deem necessary or advisable to
accomplish the purposes of this Agreement. Without limiting the generality of
the foregoing, Pledgor hereby gives Secured Party the power and right, on behalf
of Pledgor, upon the occurrence and during the continuance of an event of
default under the Loan Agreement, to receive, endorse and collect all
instruments made payable to Pledgor representing any dividend or distribution in
respect of the Pledged Collateral or any part thereof, to give full discharge
for the same, and to vote or grant any consent in respect of the Pledged Shares
authorized by Section 3.1. Pledgor hereby ratifies, to the extent permitted by
law, all that any said attorney shall lawfully do or cause to be done by virtue
hereof. This power, being coupled with an interest, is irrevocable until, and
shall automatically terminate upon, the termination of this Agreement pursuant
to Section 1.7.
4. GENERAL PROVISIONS.
------------------
4.1 Successors and Assigns. The terms and conditions of this
----------------------
Agreement will be binding upon Pledgor, its successors and assigns, and inure,
together with the rights and remedies of Secured Party hereunder, to the benefit
of and be enforceable by Secured Party and its successors, transferees and
assigns.
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4.2 Modification; Waiver. This Agreement may be modified or
--------------------
amended only by a writing signed by both parties hereto. No waiver or consent
with respect to this Agreement will be binding unless it is set forth in writing
and signed by the party against whom such waiver is asserted. No course of
dealing between Borrower and Secured Party will operate as a waiver or
modification of any party's rights under this Agreement or any other Loan
Document. No delay or failure on the part of either party in exercising any
right or remedy under this Agreement or any other Loan Document will operate as
a waiver of such right or any other right. A waiver given on one occasion will
not be construed as a bar to, or as a waiver of, any right or remedy on any
future occasion.
4.3 Severability. The invalidity or unenforceability of any term or
------------
provision of this Agreement will not affect the validity or enforceability of
any other term or provision.
4.4 Governing Law. This Agreement will be exclusively governed by
-------------
and construed in accordance with the internal laws of the State of California,
as applied to agreements entered into solely between residents of and to be
performed entirely in the State of California, without reference to that body of
law relating to conflicts of law or choice of law.
4.5 Jurisdiction. The parties agree that any controversy or claim
------------
arising out of or relating to this Agreement shall be tried and litigated
exclusively in a state or federal court with jurisdiction located in San Mateo
County in the State of California.
4.6 Waiver of Jury Trial. Pledgor and Secured Party waive any right
--------------------
they may have to a trial by jury in respect of any litigation based on, or
arising out of, under or in connection with, this Agreement or any other Loan
Document, or any course of conduct, course of dealing, verbal or written
statement or other action of any loan party or any secured party.
4.7 Section Titles. The Section titles contained in this Agreement
--------------
are and will be without substantive meaning or content of any kind and are not
part of this Agreement.
4.8 Counterparts. This Agreement may be executed in one or two
------------
counterparts, each of which will be deemed an original, but together will
constitute one and the same instrument.
[The remainder of this page was left blank intentionally.]
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IN WITNESS WHEREOF, Pledgor has caused this Agreement to be duly executed
and delivered by its duly authorized officer on the date first above written.
PLEDGOR:
/s/ Xxxx X. XxXxxxxx
______________________________
Xxxx X. XxXxxxxx
______________________________
____________
ACCEPTED AND ACKNOWLEDGED:
SECURED PARTY
At Home Corporation
/s/ Xxxxxx Xxxx
____________________________
Xxxxxx Xxxx, Chairman and
Chief Executive Officer
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