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EXHIBIT 10.18
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HERITAGE LEASING CAPITAL
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EQUIPMENT FINANCING COMMITMENT EFA No. 16492
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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 DECEMBER 6, 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 2.542% of advance payable
MONTHLY in ADVANCE. FIRST AND LAST SUCH PAYMENTS ARE DUE
AT TIME OF SCHEDULING.
Commitment Expiration Date: FEBRUARY 2, 1995. 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: ACCEPTED AND AGREED TO:
December 6, 1994 December 6, 1994
HERITAGE LEASING CAPITAL VIASAT, INC.
(Secured Party) (Debtor)
Vice President
By: /s/ Xxxxxx X. Xxxxxx President By: /s/ Xxxxxxx Xxxxxxx of Administration
-------------------------------- --------------------------------------
Xxxxxx X. Xxxxxx (Title) Xxxxxxx Xxxxxxx (Title)
Address: 0000 Xxxxxxxxxx Xxxxx Address: 0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxx, XX 00000
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HERITAGE LEASING CAPITAL
Page 1 of 1
EXHIBIT A TO EQUIPMENT FINANCING COMMITMENT
Accepted by Debtor as of December 6, 1994
These provisions hereby become part of the Equipment Financing Commitment dated
December 6, 1994, between HERITAGE LEASING CAPITAL and its assignee(s), Secured
Party, and VIASAT, INC., Debtor.
In addition to the terms of the Agreement, Debtor 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 $25.42 per $1,000.00 of advance
payable monthly in advance is based on the yield of two-year Treasury
Notes yielding 7.38% as published in the Wall Street Journal on Friday,
December 2, 1994 (the "Index") and will apply for all schedules funded
by January 2, 1995. If a financing schedule is funded after January 2,
1995 the rate shall be increased proportionally to any increase in the
Index. No downward adjustment will be made below the floor index rate
of 7.38%. 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 February 2, 1995 may be extended
sixty (60) days upon review by Secured Party of the Debtor's then
current financial condition. Debtor 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
[ GM ]
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[HERITAGE LEASING CAPITAL LOGO] HERITAGE LEASING CAPITAL
EQUIPMENT FINANCING AGREEMENT
EFA NO. 16492
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 Debtor to
secure performance by Debtor 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. Debtor'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 Debtor hereunder are due upon Debtor'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 Debtor'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 Debtor 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 MANUFACTURE 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 Debtor 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 or 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 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 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 Debtor 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 Debtor'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 with 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 any
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. Debtor
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
(1) 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 within 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; (1) breach by Debtor of any lease
or agreement providing financial accommodation under which Debtor or
its property is bound or (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) xxx 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 of
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. Debtor'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, Debtor 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 hereto.
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, Debtor 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 percent (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 Debtor 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 Debtor'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 Debtor 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
-5-
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 6th
day of December, 1994.
HERITAGE LEASING CAPITAL VIASAT, INC.
(Secured Party) --------------------------------------
(Debtor)
Vice President
By: By: /s/ Xxxxxxx Xxxxxxx of Administration
-------------------------------- --------------------------------------
(Title) Xxxxxxx Xxxxxxx (Title)
By:
--------------------------------------
(Title)
Address: 0000 Xxxxxxxxxx Xxxxx Address: 0000 Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 ---------------------------------
Xxxxxxxx, XX 00000
---------------------------------
8
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.
16492
--------------------------------------------------------------------------------
1. DEBTOR (LAST NAME FIRST--IF AN INDIVIDUAL) 1A. SOCIAL SECURITY OR FEDERAL TAX NO.
VIASAT, INC. 00-0000000
----------------------------------------------------------------------------------------------------------------------------------
1B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX CODE
0000 Xxxxxx Xxxxx Xxxxxxxx, XX 00000
----------------------------------------------------------------------------------------------------------------------------------
2. ADDITIONAL DEBTOR (IF ANY) (LAST NAME FIRST--IF AN INDIVIDUAL) 2A. SOCIAL SECURITY OR FEDERAL TAX NO.
----------------------------------------------------------------------------------------------------------------------------------
2B. XXXXXXX XXXXXXX 0X. XXXX, XXXXX 0X. XXX 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 0000 Xxxxxxxxxx Xxxxx 00-0000000
XXXX Xxx Xxxxx XXXXX XX 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 ORIX USA CORPORATION
MAILING ADDRESS 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
XXXX Xxx Xxxxxxx XXXXX XX ZIP CODE 90017
----------------------------------------------------------------------------------------------------------------------------------
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 16492 dated as of December 6, 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: 12-6-94 C 10. THIS SPACE FOR USE OF FILING OFFICER
O (DATE, TIME, FILE NUMBER
-- /s/ XXXXXXX XXXXXXX D AND FILING OFFICER)
Xxxxxxx Xxxxxxx, V.P. of Administration E
SIGNATURE(S) OF DEBTOR(S) By:
---------------------------------------------------------------------------------
VIASAT, INC. 1
TYPE OR PRINT NAMES(S) OF DEBTOR(S) 2
---------------------------------------------------------------------------------
-- /s/ [SIG ILLEGIBLE] 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 [ ]
[ P6-0000-262-0 ] 8
ADDRESS [ Heritage Leasing Capital ]
[ 5775 Chesapeake Court ] 9
CITY [ Xxx Xxxxx, XX 00000 ]
[ ] 0
STATE [ ]
[ ]
ZIP CODE [ ]
[ ]
=================================================================================
FORM UCC-1
APPROVED BY THE SECRETARY OF STATE
(4) FILE COPY--DEBTOR
9
INSTRUCTIONS (REV. 1/1/91)
1. PLEASE TYPE THIS FORM USING BLACK TYPEWRITER RIBBON.
2. If the space provided for any item is inadequate:
a. Note "Cont'd." in the appropriate space(s).
b. Continue the item(s) preceded by the Item No. on an additional
8 1/2" x 11" sheet.
c. Head each additional sheet with the Debtor's name (last name
first for individuals) appearing in Item No. 1 of this form.
Be sure to attach a copy of the additional sheet to each
copy of the form.
3. NUMERICAL IDENTIFICATION:
a. If the Debtor, Secured Party or Assignee is an individual,
include Social Security number in the appropriate space.
Disclosure of Social Security number is optional for the filing
of this statement. It will be used to assist in correctly
identifying individuals with similar names. (UCC Section
9403[5])
b. If the Debtor, Secured Party or Assignee is other than an
individual or a bank, show Federal Taxpayer Number in the
appropriate space.
c. If the Secured Party or Assignee is a bank, show Transit and
ABA number in the appropriate space. This must be the complete
10 digit number.
4. COLLATERAL DESCRIPTION--Item 6
a. If the financing statement covers crops growing or to be grown,
the statement must also contain a description of the real estate
concerned in accordance with UCC Section 9402(1).
b. If the financing statement covers timber to be cut or covers
minerals or the like, oil or gas or accounts subject to UCC
Section 9103(5), the statement must show that it covers this
type of collateral and the statement must also show it is to
be recorded in the real estate records, and the financing
statement must contain a description of the real estate
sufficient if it were contained in a mortgage of the real estate
to give constructive notice of the mortgage under the law of
this State. If the debtor does not have an interest of record in
the real estate, the financing statement must show the name
of a record owner in Item No. 6.
5. SIGNATURES:
Before mailing, be sure that the financing statement has been properly
signed. A financing statement requires the signature of the debtor
only except under the following circumstances. If any of these
circumstances apply, check the appropriate box in item 7B and enter
required information in Item 6.
a. Under the provisions of UCC Section 9402(2) a financing
statement is sufficient when it is signed by the secured party
alone if it is filed to perfect a security interest in:
(1) collateral already subject to a security interest in another
jurisdiction when it is brought into this State or when the
debtor's location is changed to this State. Such a financing
statement must state that the collateral was brought into this
State or that the debtor's location was changed to this State.
(2) proceeds under UCC Section 9306, if the security interest
in the original collateral was perfected. Such a financing
statement must describe the original collateral and give the
date of filing and the file number of the prior financing
statement.
(3) collateral as to which the filing has lapsed. Such a
financing statement must include a statement to the effect that
the prior financing statement has lapsed and give the date of
filing and the file number of the prior financing statement.
(4) collateral acquired after a change of name, identity or
corporate structure of the debtor. Such a financing statement
must include a statement that the name, identity or corporate
structure of the debtor has been changed and give the date of
filing and the file number of the prior financing statement
and the name of the debtor as shown in the prior financing
statement.
6. FILING FEE -- PROPER PLACE TO FILE:
Enclose filing fee of dollars payable to the appropriate
Filing Officer. Financing statements and related papers pertaining to
consumer goods should be filed with the County Recorder in the county
of the debtor's residence, or if the debtor is not a resident of this
State, then in the office of the County Recorder of the county in which
the goods are kept. When the collateral is crops growing or to be grown,
timber to be cut, or minerals or the like (including oil and gas), or
accounts subject to UCC Section 9103(5), then filing is with the County
Recorder where the property is located. In all other cases, filing is
with the Secretary of State.
7. REMOVE SECURED PARTY AND DEBTOR COPIES.
Send the original and first copy with interleaved carbon paper to the
Filing Officer with the correct filing fee. The original will be
retained by the Filing Officer. The copy will be returned with the
filing date and time stamped thereon. Indicate the name and mailing
address of the person or firm to whom the copy is to be returned in
Item No. 11.
