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EXHIBIT 10.17
HERITAGE LEASING CAPITAL
EQUIPMENT FINANCING COMMITMENT EFA No. 16439
Subject to the terms set forth in this commitment, the following equipment
financing transaction is agreed to by the undersigned Debtor and HERITAGE
LEASING CAPITAL ("Secured Party") in connection with the terms of the Equipment
Financing Agreement herein referenced (the "Agreement").
Equipment Financing Agreement: dated as of SEPTEMBER 19, 1994.
Equipment (all Equipment to be acceptable to Secured Party): COMPUTER AND
LABORATORY EQUIPMENT
Commitment Amount: $400,000.00
Installment Payments: FORTY-EIGHT (48) payments of 2.493% of advance payable
MONTHLY in ADVANCE. FIRST AND LAST SUCH PAYMENTS ARE DUE AT TIME OF SCHEDULING.
Commitment Expiration Date: DECEMBER 14, 1994. As more fully explained below,
Secured Party has no obligation to make any advance with respect to Equipment
not covered by a Schedule to the Agreement executed by Secured Party and Debtor
on or prior to this date.
Debtor will comply with, procure, execute and/or have executed, acknowledge,
have acknowledged, deliver to Secured Party, record and file any documents set
forth in Exhibit A or accompanying this commitment. The form, substance and
sufficiency of all documents and showings employed in documenting the
contemplated financing transaction must be acceptable to Secured Party and its
counsel. Debtor will do likewise as to such further documents and showings as
Secured Party and its counsel may now or hereafter deem necessary or advisable
to protect Secured Party's rights under the Agreement and interest in the
Equipment. Debtor will pay as directed by Secured Party or reimburse Secured
Party for all searches, filings, title reports, attorney's services and other
charges incurred by Secured Party in connection with all such documents and
showings and any similar documents and showings Secured Party may procure.
Secured Party may, at its option, terminate its obligations to Debtor hereunder
with respect to any and all unscheduled Items of Equipment: (a) at or
subsequent to the Commitment Expiration Date, (b) upon the advent of a material
adverse change in Debtor's financial condition or Debtor's probable ability to
perform its obligations under the Agreement, (c) if the Agreement or any other
agreement under which Debtor has obligations to Secured Party is in default or
an event which with the giving of notice or lapse of time or both would
constitute such a default has occurred and is continuing or (d) with respect to
which more than fifteen percent (15%) would be advanced for shipping costs,
installation charges and design costs by giving Debtor written notice of such
termination.
ACCEPTED AND AGREED to as of ACCEPTED AND AGREED to as of
September 19, 1994 September 19, 1994
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VIASAT, INC.
Heritage Leasing Capital (Debtor)
(Secured Party)
5775 Chesapeake Court Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Vice President of
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Administration
------------------------------- -------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Title)
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HERITAGE LEASING CAPITAL
Page 1 of 1
EXHIBIT A TO EQUIPMENT FINANCING COMMITMENT
Accepted by ▇▇▇▇▇▇ as of September 19, 1994
These provisions hereby become part of the Equipment Financing Commitment dated
September 19, 1994, between HERITAGE LEASING CAPITAL and its assignee(s),
Secured Party, and VIASAT, INC., Debtor.
In addition to the terms of the Agreement, ▇▇▇▇▇▇ further agrees to the
following additional provisions:
1. UCC SEARCH/RELEASES
The Secured Party may search all public records of Debtor to locate and
identify any conflicting liens against the above referenced Equipment.
Releases from any intervening parties holding a security interest in
said Equipment shall be required prior to funding provided herein.
2. TYPE OF FINANCING
This is a net equipment financing transaction whereby maintenance,
insurance, property taxes, and all items of a similar nature are for the
account of the Debtor.
3. EXPENSES
All expenses associated with the completion of this Agreement including,
but not limited to, UCC filing fees and searches, documentation costs,
legal expenses, and equipment verification costs are for the account of
the Debtor.
4. MASTER AGREEMENT
This is a Master Equipment Financing Agreement whereby Schedules may be
funded as equipment is delivered. Each Schedule to the Agreement,
however, shall cover equipment with a minimum aggregate cost of
$20,000.00.
5. INSTALLMENT PAYMENT AMOUNT
The installment payment amount of $24.93 per $1,000.00 of advance
payable monthly in advance is based on the yield of two-year Treasury
Notes yielding 6.24% as published in the Wall Street Journal on
Thursday, September 15, 1994 (the "Index") and will apply for all
schedules funded by October 31, 1994. If a financing schedule is funded
after October 31, 1994 the rate shall be increased proportionally to any
increase in the Index. No downward adjustment will be made below the
floor index rate of 6.24%. Once a schedule is funded, however, the rate
will then be fixed for the term of the agreement.
6. COMMITMENT EXPIRATION DATE
The commitment expiration date of December 14, 1994 may be extended
ninety (90) days upon review by Secured Party of the Debtor's then
current financial condition. ▇▇▇▇▇▇ agrees to provide Secured Party such
financial information and other information Secured Party may reasonably
request to evaluate Debtor's financial condition for purposes of
granting such extension.
INITIAL
/s/
-------
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[HERITAGE LEASING CAPITAL LOGO]
HERITAGE LEASING CAPITAL
16439
EQUIPMENT FINANCING AGREEMENT
THIS EQUIPMENT FINANCING AGREEMENT ("agreement") is dated as of the date
set forth at the foot hereof and is between HERITAGE LEASING CAPITAL
("Secured Party") and the debtor designated at the foot hereof
("Debtor").
1. EQUIPMENT; SECURITY INTEREST. The terms and conditions of this agreement
cover each item of machinery, equipment and other property (individually
an "Item" or "Item of Equipment" and collectively the "Equipment")
described in a schedule now or hereafter executed by the parties hereto
and made a part hereof (individually a "Schedule" and collectively the
"Schedules"). Debtor hereby grants Secured Party a security interest in
and to all Debtor's right, title and interest in and to the Equipment
under the Uniform Commercial Code, such grant with respect to an Item of
Equipment to be as of Debtor's execution of a related equipment
financing commitment referencing this agreement or, if Debtor then has
no interest in such Item, as of such subsequent time as Debtor acquires
an interest in the Item. Such security interest is granted by ▇▇▇▇▇▇ to
secure performance by ▇▇▇▇▇▇ of Debtor's obligations to Secured Party
hereunder and under any other agreements under which Debtor has or may
hereafter have obligations to Secured Party. Debtor will ensure that
such security interest will be and remain a sole and valid first lien
security interest subject only to the lien of current taxes and
assessments not in default but only if such taxes are entitled to
priority as a matter of law.
2. DEBTOR'S OBLIGATIONS. The obligations of Debtor under this agreement
respecting an Item of Equipment, except the obligation to pay
installment payments with respect thereto which will commence as set
forth in paragraph 3 below, commence upon the grant to Secured Party of
a security interest in the Item. ▇▇▇▇▇▇'s obligations hereunder with
respect to an Item of Equipment and Secured Party's security interest
therein will continue until payment of all amounts due, and performance
of all terms and conditions required, hereunder with respect thereto;
provided, however, that if this agreement is then in default said
obligations and security interest will continue during the continuance
of said default. Upon termination of Secured Party's security interest
in an Item of Equipment, Secured Party will execute such release of
interest with respect thereto as Debtor reasonably requests.
3. INSTALLMENT PAYMENTS AND OTHER PAYMENTS. Debtor will repay advances
Secured Party makes on account of the Equipment together with interest
in installment payments in the amounts and at the times set forth in the
Schedules, whether or not Secured Party has rendered an invoice
therefor, at the office of Secured Party set forth at the foot hereof,
or to such person and/or at such other place as Secured Party may from
time to time designate on notice to Debtor. Any other amounts required
to be paid Secured Party by ▇▇▇▇▇▇ hereunder are due upon ▇▇▇▇▇▇'s
receipt of Secured Party's invoice therefor and will be payable as
directed in the invoice. Payments under this agreement may be applied to
▇▇▇▇▇▇'s then accrued obligations to Secured Party in such order as
Secured Party may choose.
4. NET AGREEMENT; NO OFFSET; SURVIVAL. This agreement is a net agreement,
and ▇▇▇▇▇▇ will not be entitled to any abatement of installment payments
or other payments due hereunder or any reduction thereof under any
circumstances or for any reason whatsoever. Debtor hereby waives any and
all existing and future claims, as offsets, against any installment
payments or other payments due hereunder and agrees to pay the
installment payments and other amounts due hereunder as and when due
regardless of any offset or claim which may be asserted by Debtor or on
its behalf. The obligations and liabilities of Debtor hereunder will
survive the termination of this agreement.
5. FINANCING AGREEMENT. THIS AGREEMENT IS SOLELY A FINANCING AGREEMENT.
DEBTOR ACKNOWLEDGES THAT THE EQUIPMENT HAS OR WILL HAVE BEEN SELECTED
AND ACQUIRED SOLELY BY DEBTOR FOR DEBTOR'S PURPOSES, THAT SECURED PARTY
IS NOT AND WILL NOT BE THE VENDOR OF ANY EQUIPMENT AND THAT SECURED
PARTY HAS NOT MADE AND WILL NOT MAKE ANY AGREEMENT, REPRESENTATION OR
WARRANTY WITH RESPECT TO THE MERCHANTABILITY, CONDITION, QUALIFICATION
OR FITNESS FOR A PARTICULAR PURPOSE OR VALUE OF THE EQUIPMENT OR ANY
OTHER MATTER WITH RESPECT THERETO IN ANY RESPECT WHATSOEVER.
6. NO AGENCY. DEBTOR ACKNOWLEDGES THAT NO AGENT OF THE MANUFACTURER OR
OTHER SUPPLIER OF AN ITEM OF EQUIPMENT OR OF ANY FINANCIAL INTERMEDIARY
IN CONNECTION WITH THIS AGREEMENT IS AN AGENT OF SECURED PARTY. SECURED
PARTY IS NOT BOUND BY A REPRESENTATION OF ANY SUCH PARTY AND, AS
CONTEMPLATED IN PARAGRAPH 27 BELOW, THE ENTIRE AGREEMENT OF SECURED
PARTY AND DEBTOR CONCERNING THE FINANCING OF THE EQUIPMENT IS CONTAINED
IN THIS AGREEMENT AS IT MAY BE AMENDED AS PROVIDED IN THAT PARAGRAPH.
7. ACCEPTANCE. Execution by Debtor and Secured Party of a Schedule covering
the Equipment or any Items thereof will conclusively establish that such
Equipment has been included under and will be subject to all the terms
and conditions of this agreement. If ▇▇▇▇▇▇ has not furnished Secured
Party with a Schedule by the earlier of fourteen (14) days after receipt
thereof or expiration of the commitment period set forth in the
applicable equipment financing commitment, Secured Party may terminate
its obligation to advance funds as to the applicable Equipment.
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8. LOCATION; INSPECTION; USE. Debtor will keep, or in the case of motor
vehicles, permanently garage and not remove from the United States, as
appropriate, each Item of Equipment in Debtor's possession and control
at the Equipment Location designated in the applicable Schedule, or at
such other location to which such Item of Equipment may have been
moved with the prior written consent of Secured Party. Whenever
requested by Secured Party, Debtor will advise Secured Party as to the
exact location of an Item of Equipment. Secured Party will have the
right to inspect the Equipment and observe its use during normal
business hours and to enter into and upon the premises where the
Equipment may be located for such purpose. The Equipment will at all
times be used solely for commercial or business purposes and operated in
a careful and proper manner and in compliance with all applicable laws,
ordinances, rules and regulations, all conditions and requirements of
the policy or policies of insurance required to be carried by Debtor
under the terms of this agreement and all manufacturer's instructions
and warranty requirements. Any modifications or additions to the
Equipment required by any such governmental edict or insurance policy
will be promptly made by Debtor.
9. ALTERATIONS; SECURITY INTEREST COVERAGE. Without the prior written
consent of Secured Party, Debtor will not make any alterations,
additions or improvements to any Item of Equipment which detract from
its economic value or functional utility, except as may be required
pursuant to paragraph 8 above. Secured Party's security interest in the
Equipment will include all modifications and additions thereto and
replacements and substitutions therefor, in whole or in part. Such
reference to replacements and substitutions will not grant Debtor
greater rights to replace or substitute than are provided in paragraph
11 below or as may be allowed upon the prior written consent of Secured
Party.
10. MAINTENANCE. Debtor will maintain the Equipment in good repair,
condition and working order. Debtor also will cause each Item of
Equipment for which a service contract is generally available to the
covered by such a contract which provides coverages typical as to
property of the type involved and is issued by a competent servicing
entity.
11. LOSS AND DAMAGE; CASUALTY VALUE. In the event of the loss of, theft of,
requisition of, damage to or destruction of an Item of Equipment
("Casualty Occurrence") Debtor will give Secured Party prompt notice
thereof and will thereafter place such Item in good repair, condition
and working order; provided, however, that if such Item is determined by
Secured Party to be lost, stolen, destroyed or damaged beyond repair, is
requisitioned or suffers a constructive total loss as defined in any
applicable insurance policy carried by Debtor in accordance with
paragraph 14 below, Debtor, at Secured Party's option, will (a) replace
the Item with like equipment in good repair, condition and working order
whereupon such replacement equipment will be deemed such Item for all
purposes hereof or (b) pay Secured Party the "Casualty Value" of such
Item which will equal the total of (i) all installment payments and
other amounts due from Debtor to Secured Party at the time of such
payment and (ii) each future installment payment due with respect to
such Item with each such payment other than any final uneven payment
discounted at eight percent (8%) per annum simple interest from the date
due to the date of such payment. Any final uneven payment will be due
without discount. The discounting contemplated in this paragraph will be
in accordance with the Financial Compound Interest and Annuity Tables,
Sixth Edition published by the Financial Publishing Company. Upon such
replacement or payment, as appropriate, this agreement and Secured
Party's security interest will terminate with, and only with, respect to
the Item of Equipment so replaced or as to which such payment is made in
accordance with paragraph 2 above.
12. TITLING; REGISTRATION. Each Item of Equipment subject to title
registration laws will at all times be titled and/or registered by
Debtor as Secured Party's agent and attorney-in-fact with full power and
authority to register (but without power to affect title to) the
Equipment in such manner and in such jurisdiction or jurisdictions as
Secured Party directs. Debtor will promptly notify Secured Party of any
necessary or advisable retitling and/or reregistration of an Item of
Equipment in a jurisdiction other than one in which such Item is then
titled and/or registered. Any and all documents of title will be
furnished or caused to be furnished Secured Party by Debtor within sixty
(60) days of the date any titling or registering or retitling or
reregistering, as appropriate, is directed by Secured Party.
13. TAXES. Debtor will make all filings as to and pay when due all personal
property and other ad valorem taxes and all other taxes, fees, charges
and assessments based on the ownership or use of the Equipment and will
pay as directed by Secured Party or reimburse Secured Party for all
taxes, including, but not limited to, gross receipts taxes (exclusive of
federal and state taxes based on Secured Party's net income, unless such
net income taxes are in substitution for or relieve Debtor from any
taxes which Debtor would otherwise be obligated to pay under the terms
of this paragraph 13), fees, charges and assessments whatsoever, however
designated, whether based on the installment payments or other amounts
due hereunder, levied, assessed or imposed upon the Equipment or
otherwise related hereto or to the Equipment, now or hereafter levied,
assessed or imposed under the authority of a federal, state or local
taxing jurisdiction, regardless of when and by whom payable. Filings
with respect to such other amounts will, at Secured Party's option, be
made by Secured Party or by Debtor as directed by Secured Party.
14. INSURANCE. Debtor will procure and continuously maintain all risk
insurance against loss of or damage to the Equipment from any cause
whatsoever for not less than the full replacement value thereof naming
Secured Party as Loss Payee. Such insurance must be in a form and with
companies approved by Secured Party, must provide for at least thirty
(30) days advance written notice to Secured Party of cancellation,
change or modification in any term, condition or amount of protection
provided therein, must provide full breach of warranty protection and
must provide that the coverage is "primary coverage" (does not require
contribution from any other applicable coverage). Debtor will provide
Secured Party with an original policy or certificate evidencing such
insurance. In the event of an assignment of this agreement by Secured
Party of which ▇▇▇▇▇▇ has notice, Debtor will cause such insurance to
provide the same protection to the assignee as its interest may appear.
The proceeds of such insurance, at the option of Secured Party or such
assignee, as appropriate, will be applied toward (a) the repair or
replacement of the appropriate Item or Items of Equipment, (b) payment
of the Casualty Value thereof or (c) payment of, or as provision for,
satisfaction of any other accrued obligations of Debtor hereunder.
Debtor hereby appoints Secured Party as ▇▇▇▇▇▇'s attorney-in-fact with
full power and authority to do all things, including, but not limited
to, making claims, receiving payments and endorsing documents, checks or
drafts, necessary to secure payments due under any policy contemplated
hereby on account of a Casualty Occurrence. Debtor and Secured Party
contemplate that the jurisdictions where the Equipment will be located
will not impose any liability upon Secured Party for personal injury
and/or property damage resulting out of the possession, use, operation
or condition of the Equipment. In the event Secured Party determines
that such is not or may not be the case with respect to a given
jurisdiction, Debtor will provide Secured Party will public liability
and property damage coverage applicable to the Equipment in such amounts
and in such form as Secured Party requires.
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15. SECURED PARTY'S PAYMENT. If Debtor fails to pay any amounts due
hereunder or to perform any of its other obligations under this
agreement, Secured Party may, at its option, but without obligation to
do so, pay such amounts or perform such obligations, and Debtor will
reimburse Secured Party the amount of such payment or cost of such
performance.
16. INDEMNITY. Debtor does hereby assume liability for and does agree to
indemnify, defend, protect, save and keep harmless Secured Party from
and against any and all liabilities, losses, damages, penalties, claims,
actions, suits, costs, expenses and disbursements, including court costs
and legal expenses, of whatever kind and nature, imposed on, incurred by
or asserted against Secured Party (whether or not also indemnified
against by any other person) in any way relating to or arising out of
this agreement or the manufacture, financing, ownership, delivery,
possession, use, operation, condition or disposition of the Equipment by
Secured Party or Debtor, including, without limitation, any claim
alleging latent and other defects, whether or not discoverable by
Secured Party or Debtor, and any other claim arising out of strict
liability in tort, whether or not in either instance relating to an
event occurring while Debtor remains obligated under this agreement, and
any claim for patent, trademark or copyright infringement. ▇▇▇▇▇▇ agrees
to give Secured Party and Secured Party agrees to give Debtor notice of
any claim or liability hereby indemnified against promptly following
learning thereof.
17. DEFAULT. Any of the following will constitute an event of default here
under: (a) Debtor's failure to pay when due any installment payment or
other amount due hereunder, which failure continues for ten (10) days
after the due date thereof; (b) Debtor's default in performing any other
obligation, term or condition of this agreement or any other agreement
between Debtor and Secured Party or default under any further agreement
providing security for the performance by Debtor of its obligations
hereunder,
provided such default has continued for more than twenty (20) days,
except as provided in (c) and (d) hereinbelow, or, without limiting the
generality of subparagraph (l) hereinbelow, default under any lease or
any mortgage or other instrument contemplating the provision of
financial accommodation applicable to the real estate where an Item of
Equipment is located; (c) any writ or order of attachment or execution
or other legal process being levied on or charged against any Item of
Equipment and not being released or satisfied within ten (10) days; (d)
Debtor's failure to comply with its obligations under paragraph 14 above
or any transfer by Debtor in violation of paragraph 21 below; (e) a
non-appealable judgement for the payment of money in excess of $100,000
being rendered by a court of record against Debtor which Debtor does not
discharge or make provision for discharge in accordance with the terms
thereof within ninety (90) days from the date of entry thereof; (f)
death or judicial declaration of incompetency of Debtor, if an
individual; (g) the filing by Debtor of a petition under the Bankruptcy
Act or any amendment thereto or under any other insolvency law or law
providing for the relief of debtors, including, without limitation, a
petition for reorganization, arrangement or extension, or the commission
by Debtor of an act of bankruptcy; (h) the filing against Debtor of any
such petition not dismissed or permanently stayed with thirty (30) days
of the filing thereof; (i) the voluntary or involuntary making of an
assignment of substantial portion of its assets by Debtor for the
benefit of creditors, appointment of a receiver or trustee for Debtor or
for any of Debtor's assets, institution by or against Debtor or any
other type of insolvency proceeding (under the Bankruptcy Code or
otherwise) or of any formal or informal proceeding for dissolution,
liquidation, settlement of claims against or winding up of the affairs
of Debtor, Debtor's cessation of business activities or the making by
Debtor of a transfer of all or a material portion of Debtor's assets or
inventory not in the ordinary course of business; (j) the occurrence of
any event described in parts (e), (f), (g), (h) or (i) hereinabove with
respect to any guarantor or other party liable for payment or
performance of this agreement; (k) any certificate, statement,
representation, warranty or audit heretofore or hereafter furnished with
respect hereto by or on behalf of Debtor or any guarantor or other party
liable for payment or performance of this agreement proving to have been
false in any material respect at the time as of which the facts therein
set forth were stated or certified or having omitted any substantial
contingent or unliquidated liability or claim against Debtor or any such
guarantor or other party; (l) [STRUCK THROUGH TEXT] (m) a transfer of
effective control of Debtor, if an organization.
18. REMEDIES. Upon the occurrence of an event of default, Secured Party will
have the rights, options, duties and remedies of a secured party, and
Debtor will have the rights and duties of a debtor, under the Uniform
Commercial Code (regardless of whether such Code or a law similar
thereto has been enacted in a jurisdiction wherein the rights or
remedies are asserted) and, without limiting the foregoing, Secured
Party may exercise any one or more of the following remedies: (a)
declare the Casualty Value or such lesser amount as may be set by law
immediately due and payable with respect to any or all Items of
Equipment without notice or demand to Debtor; (b) sue from time to time
for and recover all installment payments and other payments then accrued
and which accrue during the pendency of such action with respect to any
or all Items of Equipment; (c) take possession of and, if deemed
appropriate, render unusable any or all Items of Equipment, without
demand or notice, wherever same may be located, without any court order
or other process of law and without liability for any damages occasioned
by such taking of possession and remove, keep and store the same or use
and operate or lease the same until sold; (d) require Debtor to assemble
any or all Items of Equipment at the Equipment Location therefor, such
location to which such Equipment may have been moved with the written
consent of Secured Party or such other location in reasonable proximity
to either of the foregoing as Secured Party designates; (e) upon ten
days notice to Debtor or such other notice as may be required by law,
sell or otherwise dispose of any Item of Equipment, whether or not in
Secured Party's possession, in a commercially reasonable manner at
public or private sale at any place deemed appropriate and apply the net
proceeds of such sale, after deducting all costs of such sale,
including, but not limited to, costs of transportation, repossession,
storage, refurbishing, advertising and broker's fees, to the obligations
of Debtor to Secured Party hereunder or otherwise, with Debtor remaining
liable for any deficiency and with any excess being returned to Debtor;
(f) upon thirty (30) days notice to Debtor, retain any repossessed or
assembled Items of Equipment as Secured Party's own property in full
satisfaction or Debtor's liability for the installment payments due
hereunder with respect thereto, provided that Debtor will have the right
to redeem such Items by payment in full of its obligations to Secured
Party hereunder or otherwise or to require Secured Party to sell or
otherwise dispose of such Items in the manner set forth in subparagraph
(e) hereinabove upon notice to Secured Party within such thirty (30) day
period or (g) utilize any other remedy available to Secured Party under
the Uniform Commercial Code or similar provision of law or otherwise at
law or in equity.
No right or remedy conferred herein is exclusive of any other
right or remedy conferred herein or by law; but all such remedies are
cumulative of every other right or remedy conferred hereunder or at law
or in equity, by statute or otherwise, and may be exercised concurrently
or separately from time to time. Any sale contemplated by subparagraph
(e) of this paragraph 18 may be adjourned from time to time by
announcement at the time and place appointed for such sale, or for any
such adjourned sale, without further published notice, and Secured Party
may bid and become the purchaser at any such sale. Any sale of an Item
of Equipment, whether under said subparagraph or by virtue of judicial
proceedings, will operate to divest all right, title, interest, claim
and demand whatsoever, either at law or in equity, of
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Debtor in and to said Item and will be a perpetual bar to any claim
against such Item, both at law and in equity, against Debtor and all
persons claiming by, through or under Debtor.
19. DISCONTINUANCE OF REMEDIES. If Secured Party proceeds to enforce any
right under this agreement and such proceedings are discontinued or
abandoned for any reason or are determined adversely, then and in every
such case Debtor and Secured Party will be restored to their former
positions and rights thereunder.
20. SECURED PARTY'S EXPENSES. Debtor will pay Secured Party all costs and
expenses, including attorney's fees and court costs and sales costs not
offset against sales proceeds under paragraph 18 above, incurred by
Secured Party in exercising any of its rights or remedies hereunder or
enforcing any of the terms, conditions or provisions hereof. This
obligation includes the payment or reimbursement of all such amounts
whether an action is ultimately filed and whether an action filed is
ultimately dismissed.
21. ASSIGNMENT. Without the prior written consent of Secured Party, Debtor
will not sell, lease, pledge or hypothecate, except as provided in this
agreement, an Item of Equipment or any interest therein or assign,
transfer, pledge or hypothecate this agreement or any interest in this
agreement or permit the Equipment to be subject to any lien, charge or
encumbrance of any nature except the security interest of Secured Party
contemplated hereby. ▇▇▇▇▇▇'s interest herein is not assignable and
will not be assigned or transferred by operation of law. Consent to any
of the foregoing prohibited acts applies only in the given instance and
is not a consent to any subsequent like act by Debtor or any person.
All rights of Secured Party hereunder may be assigned pledged,
mortgaged, transferred or otherwise disposed of, either in whole or in
part, without notice to Debtor but always, however, subject to the
rights of Debtor under this agreement. If Debtor is given notice of any
such assignment, ▇▇▇▇▇▇ will acknowledge receipt thereof in writing. In
the event Secured Party assigns this agreement or the installment
payments due or to become due hereunder or any other interest herein,
whether as security for any of its indebtedness or otherwise, no breach
or default by Secured Party hereunder or pursuant to any other agreement
between Secured Party and Debtor, should there be one, will excuse
performance by Debtor of any provision hereof, it being understood that
in the event of such default or breach by Secured Party that Debtor will
pursue any rights on account thereof solely against Secured Party. No
such assignee, unless such assignee agrees in writing, will be obligated
to perform any duty, covenant or condition required to be performed by
Secured Party in connection with this agreement.
Subject always to the foregoing, this agreement insures to the
benefit of, and is binding upon, the heirs, legatees, personal
representatives, successors and assigns of the parties thereto.
22. MARKINGS; PERSONAL PROPERTY. If Secured Party supplies Debtor with
labels, plates, decals or other markings stating that Secured Party has
an interest in the Equipment, Debtor will affix and keep the same
prominently displayed on the Equipment or will otherwise make the
Equipment or its then location or locations, as appropriate, at Secured
Party's request to indicate Secured Party's security interest in the
Equipment. The Equipment is, and at all times will remain, personal
property notwithstanding that the Equipment or any Item thereof may now
be, or hereafter become, in any manner affixed or attached to, or
embedded in, or permanently resting upon real property or any
improvement thereof or attached in any manner to what is permanent as by
means of cement, plaster, nails, bolts, screws or otherwise. If
requested by Secured Party, ▇▇▇▇▇▇ will obtain and deliver to Secured
Party waivers of interest or liens in recordable form satisfactory to
Secured Party from all persons claiming any interest in the real
property on which an Item of Equipment is or is to be installed or
located.
23. LATE CHARGE. If Debtor fails to pay any installment payment or any other
sum to be paid by Debtor to Secured Party within seven (7) days of when
due, Debtor will pay to Secured Party (a) Secured Party's collection
costs paid third parties relevant to the collection thereof and (b)
interest on such unpaid installment or other amount at the rate of
eighteen (18%) per annum, or at such greater or lesser contract rate as
may be applicable, computed from the date due to the date paid.
24. NON-WAIVER. No covenant or condition of this agreement can be waived
except by the written consent of Secured Party. Forbearance or
indulgence by Secured Party in regard to any breach hereunder will not
constitute a waiver of the related covenant or condition to be performed
by Debtor.
25. ADDITIONAL DOCUMENTS. In connection with and in order to perfect and
evidence the security interest in the Equipment granted Secured Party
hereunder ▇▇▇▇▇▇ will execute and deliver to Secured Party such
financing statements and similar documents as Secured Party requests.
Debtor authorizes Secured Party where permitted by law to make filings
of such financing statements without ▇▇▇▇▇▇'s signature. Debtor further
will furnish Secured Party (a) a fiscal year end financial statement
including balance sheet and profit and loss statement within one hundred
twenty (120) days of the close of each fiscal year, (b) any other
information normally provided by Debtor to the public and (c) such other
financial data or information relative to this agreement and the
Equipment, including, without limitation, copies of vendor proposals and
purchase orders and agreements, listings of serial numbers or other
identification data and confirmations of such information, as Secured
Party may from time to time reasonably request. Debtor will procure
and/or execute, have executed, acknowledge, have acknowledged, deliver
to Secured Party, record and file such other documents and showings as
Secured Party deems necessary or desirable to protect its interest in
and rights under this agreement and interest in the Equipment. Debtor
will pay as directed by Secured Party or reimburse Secured Party for all
filing, search, title report, legal and other fees incurred by Secured
Party in connection with any documents to be provided by Debtor pursuant
to this paragraph or paragraph 22 and any further similar documents
Secured Party may procure.
26. DEBTOR'S WARRANTIES. Debtor certifies and warrants that the financial
data and other information which Debtor has submitted, or will submit,
to Secured Party in connection with this agreement is, or will be at
time of delivery, as appropriate, a true and complete statement of the
matters therein contained. Debtor further certifies and warrants that
(a) this agreement has been duly authorized by ▇▇▇▇▇▇ and when executed
and delivered by the person signing on behalf of Debtor below will
constitute the legal, valid and binding obligation, contract and
agreement of Debtor enforceable against Debtor in accordance with its
respective terms; (b) this agreement and each and every showing provided
by or on behalf of Debtor in connection herewith may be relied upon by
Secured Party in accordance with the terms thereof notwithstanding the
failure of Debtor or other applicable party to ensure proper attestation
thereto, whether by absence of a seal or acknowledgement or otherwise;
(c) Debtor has the right, power and authority to grant a security
interest in the Equipment to Secured Party
7
for the uses and purposes herein set forth and (d) each Item of
Equipment will, at the time such Item becomes subject hereto, be in good
repair, condition and working order.
27. ENTIRE AGREEMENT. This instrument constitutes the entire agreement
between Secured Party and Debtor and will not be amended, altered or
changed except by a written agreement signed by the parties.
28. NOTICES. Notices under this agreement must be in writing and must be
mailed by United States mail, certified mail with return receipt
requested, duly addressed, with postage prepaid, to the party involved
at its respective address set forth at the foot hereof or at such other
address as such party may provide on notice to the other from time to
time. Notices will be effective when deposited. Each party will promptly
notify the other of any change in the first party's address.
29. GENDER; NUMBER; JOINT AND SEVERAL LIABILITY. Whenever the context of
this agreement requires, the neuter gender includes the feminine or
masculine and the singular number includes the plural; and whenever the
words "Secured Party" are used herein, they include all assignees of
Secured Party, it being understood that specific reference to "assignee"
in paragraph 14 above is for further emphasis. If there is more than one
Debtor named in this agreement, the liability of each will be joint and
several.
30. TITLES. The titles to the paragraphs of this agreement are solely for
the convenience of the parties and are not an aid in the interpretation
of the instrument.
31. GOVERNING LAW; VENUE. This agreement will be governed and construed in
accordance with the law of the State of California. Venue for any action
related to this agreement will be in an appropriate court in San Diego
County, California, to which Debtor consents, or in another court
selected by Secured Party which has jurisdiction over the parties. In
the event any provision hereof is declared invalid, such provision will
be deemed severable from the remaining provisions of this agreement
which will remain in full force and effect.
32. TIME. Time is of the essence of this agreement and each and all of its
provisions.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of this
19th day or September, 1994.
HERITAGE LEASING CAPITAL VIASAT, INC.
(Secured Party) -------------------------------
(Debtor)
Vice President of
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Administration
------------------------------- -------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (Title) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Title)
By:_____________________________________
(Title)
Address: 5775 Chesapeake Court Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ -------------------------------
Carlsbad, CA 92009
-------------------------------
8
CERTIFICATE OF SECRETARY
AS TO ADOPTION OF RESOLUTIONS
(CORPORATE CUSTOMER)
The undersigned, ▇▇▇▇ ▇. ▇▇▇▇▇▇ ,
----------------------------------------------
(Corporate Secretary)
▇▇▇▇▇▇ certifies that he/she is now, and at all times herein mentioned has
been, the duly elected, qualified and acting Secretary of
VIASAT, INC. ,
-----------------------------------------------------------------------
(Name of Corporation)
a duly organized and existing corporation, and in charge of the minute book and
corporate records of said corporation; that the following is a full, true and
correct copy of certain resolutions adopted by the Board of Directors of said
corporation at a meeting thereof duly held on
19/Sept. 1994 , at which meet a quorum of said Board was at all times
------------------------ present and acting;
(Date)
and that said resolutions have not been modified nor rescinded and are at the
date of this certificate in full force and effect:
WHEREAS it is in the best interest of this corporation to enter into a certain
Equipment Lease Agreement, Equipment Financing Agreement or other agreement with
HERITAGE LEASING CAPITAL
-------------------------------------------------------------------------------
("Lessor/Secured Party") and, where appropriate, commitments now or hereafter
contemplating the receipt by this corporation of financial accommodation from
Lessor/Secured Party under the terms and conditions of said Equipment Lease
Agreement, Equipment Financing Agreement or other agreement and may in the
future be in this corporation's best interests to enter into further such
agreements or other agreements with Lessor/Secured Party.
NOW THEREFORE BE IT RESOLVED: That the officers of this corporation listed
below, and each of them, are hereby authorized and directed to execute,
acknowledge and deliver in the name of and on behalf of this corporation said
Equipment Lease Agreement, Equipment Financing Agreement or other agreement,
said commitments and any such further agreement.
RESOLVED FURTHER: That the officers, agents and employees of this corporation be
and each of them is hereby authorized and empowered to do and perform such other
acts and things, and to make, execute, acknowledge, procure and deliver all such
other instruments and documents, on behalf of this corporation as may be
necessary or be by such officer, agent or employee deemed appropriate to comply
with, or to evidence compliance with, the terms, conditions or provisions of
said Equipment Lease Agreement, Equipment Financing Agreement or other
agreement, any such commitment or any said further agreement and to consummate
the transactions from time to time contemplated thereby.
RESOLVED FURTHER: That this corporation hereby ratifies and confirms the acts of
the officers, agents or employees of this corporation in heretofore entering
into any Equipment Lease Agreement, Equipment Financing Agreement, commitment or
other agreement with Lessor/Secured Party together with any other acts performed
in relation thereto.
RESOLVED FURTHER: That the Secretary of this corporation be and he/she is hereby
authorized and directed to execute, acknowledge and deliver a certified copy of
these resolutions to Lessor/Secured Party and any other person or agency which
may require a copy of these resolutions.
RESOLVED FURTHER: That the following are the true names and specimen signatures
of the incumbent officers of this corporation authorized by these resolutions to
so execute, acknowledge and deliver said Equipment Lease Agreement, Equipment
Financing Agreement or other agreement, said commitments and said further
agreements.
(Type names below) (For Signature)
, President X
---------------------------- -------------------------------
, Vice Pres. X
---------------------------- -------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ , Secretary X /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- -------------------------------
Vice President,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ , Administration X /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------- -------------------------------
(Title)
RESOLVED FURTHER, That Lessor/Secured Party is authorized to act upon these
resolutions until written notice of the revocation thereof is delivered to
Lessor/Secured Party, any such revocation in no way to affect the obligations
of this corporation to Lessor/Secured Party under any agreements entered into
by this corporation pursuant to the terms of these resolutions prior to receipt
by Lessor/Secured Party of such notice of revocation.
IN WITNESS WHEREOF, the undersigned has executed this Certificate the 19th day
of September, 1994.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ (Secretary)
(Corporate Seal Must Be Affixed
But Failure Not To Affect
Validity Or Reliance)
Heritage Leasing Capital
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
9
CERTIFICATE OF SECRETARY
AS TO ADOPTION OF RESOLUTIONS
(Corporate Customer)
The undersigned, ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------------
(Corporate Secretary)
▇▇▇▇▇▇ certifies that he/she is now, and at all times herein mentioned has been,
the duly elected, qualified and acting Secretary of VIASAT, INC.
---------------------------
(Name of Corporation)
a duly organized and existing corporation, and in charge of the minute book and
corporate records of said corporation; that the following is a full, true and
correct copy of certain resolutions adopted by the Board of Directors of said
corporation at a meeting thereof duly held on
___________________________________________________________, at which meeting a
(Date)
quorum of said Board was at all times present and acting; and that said
resolutions have not been modified nor rescinded and are at the date of this
certificate in full force and effect:
WHEREAS it is in the best interest of this corporation to enter into a
certain Equipment Lease Agreement, Equipment Financing Agreement or
other agreement with HERITAGE LEASING CAPITAL ("Lessor/ Secured Party")
and, where appropriate, commitments now or hereafter contemplating the
receipt by this corporation of financial accommodation from Lessor/
Secured Party under the terms and conditions of said Equipment Lease
Agreement, Equipment Financing Agreement or other agreement and may in
the future be in this corporation's best interests to enter into
further such agreements or other agreements with Lessor/Secured Party.
NOW THEREFORE BE IT RESOLVED: That the officers of this corporation
listed below, and each of them, are hereby authorized and directed to
execute, acknowledge and deliver in the name of and on behalf of this
corporation said Equipment Lease Agreement, Equipment Financing
Agreement or other agreement, said commitments and any such further
agreement.
RESOLVED FURTHER: That the officers, agents and employees of this
corporation be and each of them is hereby authorized and empowered to
do and perform such other acts and things, and to make, execute,
acknowledge, procure and deliver all such other instruments and
documents, on behalf of this corporation as may be necessary or be by
such officer, agent or employee deemed appropriate to comply with, or
to evidence compliance with, the terms, conditions or provisions of
said Equipment Lease Agreement, Equipment Financing Agreement or other
agreement, any such commitment or any said further agreement and to
consummate the transactions from time to time contemplated thereby.
RESOLVED FURTHER: That this corporation hereby ratifies and confirms
the acts of the officers, agents or employees of this corporation in
heretofore entering into any Equipment Lease Agreement, Equipment
Financing Agreement, commitment or other agreement with Lessor/Secured
Party together with any other acts performed in relation thereto.
RESOLVED FURTHER: That the Secretary of this corporation be and he/she
is hereby authorized and directed to execute, acknowledge and deliver a
certified copy of these resolutions to Lessor/Secured Party and any
other person or agency which may require a copy of these resolutions.
RESOLVED FURTHER: That the following are the true names and specimen
signatures of the incumbent officers of this corporation authorized by
these resolutions to so execute, acknowledge and deliver said Equipment
Lease Agreement, Equipment Financing Agreement or other agreement, said
commitments and said further agreements.
10
FROM: VIASAT, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
TO: ▇▇. ▇▇▇▇ ▇▇▇▇▇
▇. ▇. ▇▇▇▇▇▇ & COMPANY
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Dear ▇▇. ▇▇▇▇▇:
We have entered into an equipment financing agreement arranged by HERITAGE
LEASING CAPITAL, for the equipment shown below or on the attached schedule.
EQUIPMENT LOCATION: Same as above
EQUIPMENT DESCRIPTION: Computer and Laboratory Equipment
Please provide Heritage with an insurance certificate with the following
endorsements:
▇▇▇▇▇▇'S LOSS PAYABLE: BANK OF THE WEST
EFA #: 16439
EQUIPMENT COST: $400,000.00
Please FAX A COPY of the Certificate of Insurance to Heritage Leasing at
619/277-0302, and forward the original to:
BANK OF THE WEST
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Very truly yours,
VIASAT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President of Administration
11
IMPORTANT--READ INSTRUCTIONS ON BACK BEFORE FILLING OUT FORM
This FINANCING STATEMENT is presented for filing and will remain effective with
certain exceptions for a period of five years from the date of filing pursuant
to section 9403 of the California Uniform Commercial Code.
16439
--------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
VIASAT, INC. ▇▇-▇▇▇▇▇▇▇
----------------------------------------------------------------------------------------------------------------------------------
1B. MAILING ADDRESS 1C. CITY, STATE 1D. ZIP CODE
2290 Cosmos Court Carlsband, CA 92009
----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
----------------------------------------------------------------------------------------------------------------------------------
2B. MAILING ADDRESS 2C. CITY, STATE 2D. ZIP CODE
----------------------------------------------------------------------------------------------------------------------------------
3. DEBTOR'S TRADE NAMES OR STYLES (IF ANY) 3A. FEDERAL TAX NUMBER
----------------------------------------------------------------------------------------------------------------------------------
4. SECURED PARTY 4A. SOCIAL SECURITY NO., FEDERAL
TAX NO. OR BANK TRANSIT AND
A.B.A. NO.
NAME HERITAGE LEASING CAPITAL
MAILING ADDRESS ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇▇▇▇▇▇
CITY San Diego STATE CA ZIP CODE 92123
----------------------------------------------------------------------------------------------------------------------------------
5. ASSIGNEE OF SECURED PARTY (IF ANY) 5A. SOCIAL SECURITY NO., FEDERAL
TAX NO. OR BANK TRANSIT AND
A.B.A. NO.
NAME Bank of the West, Equipment Leasing
MAILING ADDRESS P.O. Box 8188 ▇▇-▇▇▇▇▇▇▇
CITY Walnut Creek STATE CA ZIP CODE 94596
----------------------------------------------------------------------------------------------------------------------------------
6. This FINANCING STATEMENT covers the following types or items of property (INCLUDE DESCRIPTION OF REAL PROPERTY ON WHICH
LOCATED AND OWNER OF RECORD WHEN REQUIRED BY INSTRUCTION 4).
All equipment and other property now or hereafter covered by that certain Equipment Financing Agreement between Secured
Party and Debtor, EFA Number 16439 dated as of September 19, 1994 and all accessions and additions to, modifications of and
replacements and substitutions for such equipment and other property. Such equipment includes property of the following
type or types:
COMPUTER AND LABORATORY EQUIPMENT
----------------------------------------------------------------------------------------------------------------------------------
7. CHECK [ x ] 7A. [ ] PRODUCTS OF COLLATERAL 7B. DEBTOR(S) SIGNATURE NOT REQUIRED IN ACCORDANCE WITH
IF APPLICABLE ARE ALSO COVERED INSTRUCTION 5(a) ITEM:
[ ] (1) [ ] (2) [ ] (3) [ ] (4)
----------------------------------------------------------------------------------------------------------------------------------
8. CHECK [ x ]
IF APPLICABLE [ ] DEBTOR IS A "TRANSMITTING UTILITY" IN ACCORDANCE WITH UCC SEC. 9105(1)(n)
----------------------------------------------------------------------------------------------------------------------------------
9. DATE: 9-19-94 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
-- /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ D AND FILING OFFICER)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, V.P. of Administration E
SIGNATURE(S) OF DEBTOR(S)
---------------------------------------------------------------------------------
VIASAT, INC. 1
TYPE OR PRINT NAMES(S) OF DEBTOR(S) 2
---------------------------------------------------------------------------------
-- 3
SIGNATURE(S) OF SECURED PARTY(IES) 4
---------------------------------------------------------------------------------
HERITAGE LEASING CAPITAL 5
TYPE OR PRINT NAME(S) OF SECURED PARTY(IES) 6
=================================================================================
11. Return copy to: 7
NAME [ ]
[ ] 8
ADDRESS [ ]
[ ] 9
CITY [ ]
[ ] 0
STATE [ ]
[ ]
ZIP CODE [ ]
=================================================================================
FORM UCC-1
APPROVED BY THE SECRETARY OF STATE
