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EXHIBIT 10.16
[HERITAGE LEASING CAPITAL LETTERHEAD]
EFA No. 16333
EQUIPMENT FINANCING COMMITMENT
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 May 13, 1994
Equipment (all Equipment to be acceptable to Secured Party): COMPUTER
AND LABORATORY EQUIPMENT.
Commitment Amount: $400,000.00
Installment Payments: 48 payments of 2.442% of advance payable
monthly in advance
First and last such payments due at time of scheduling.
Commitment Expiration Date: June 21, 1994. As more fully explained
below, Security 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
May 13, 1994 May 13, 1994
------------------------------------ -----------------------------------
Heritage Leasing Capital VIASAT, INC.
(Secured Party) -----------------------------------
5775 Chesapeake Court (Debtor)
San Diego, CA 92123
Address 0000 Xxxxxx Xxxxx
----------------------------
By: /s/ XXXXXX X. XXXXXX President
------------------------------- Carlsbad, CA 92009
Xxxxxx X. Xxxxxx (Title) -----------------------------
By: /s/ XXXXXXX XXXXXXX Vice
President
of
Administration
--------------------------------
Xxxxxxx Xxxxxxx (Title)
By:
---------------------------------
(Title)
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Page 1 of 2
EFA No. 16333
[HERITAGE LEASING CAPITAL LETTERHEAD]
EXHIBIT A TO EQUIPMENT FINANCING COMMITMENT
Accepted by Xxxxxx as of May 13, 1994
These provisions hereby become part of the Equipment Financing Commitment dated
May 13, 1994, between HERITAGE LEASING CAPITAL and its assignee(s), Secured
Party, and VIASAT, INC., Debtor.
In addition to the terms of the Agreement, Xxxxxx 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.
INITIAL
/s/
-----------------
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Page 2 of 2
EFA No. 16333
[HERITAGE LEASING CAPITAL LETTERHEAD]
EXHIBIT A TO EQUIPMENT FINANCING COMMITMENT
Accepted by Xxxxxx as of May 13, 1994
5. INSTALLMENT PAYMENT AMOUNT
The installment payment amount of $24.42 per $1,000.00 of advance
payable monthly in advance is based on the yield of two-year Treasury
Notes yielding 5.03% as published in the Wall Street Journal on
Wednesday, March 23, 1994 (the "Index") and will apply for all schedules
funded by April 30, 1994. If a financing schedule is funded after
April 30, 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 5.03%. 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 June 30, 1994 may be extended ninety
(90) days upon review by Secured Party of the Debtor's then current
financial condition. Xxxxxx 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 LETTERHEAD]
EFA No. 16333
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 Xxxxxx to secure performance by Xxxxxx 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. Xxxxxx'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
Xxxxxx hereunder are due upon Xxxxxx'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 Xxxxxx'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
Xxxxxx 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 Xxxxxx 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.
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 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.
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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 will also 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
such 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
other 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, much 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 of which
Xxxxxx has notice, Debtor will cause such insurance to provide the same
protection to the assignee as its interests may appear. The proceeds of
such insurance, at the option of Secured Party or such assignee, as
appropriate, will be applied toward (a) 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 Xxxxxx'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.
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 Xxxxxx 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 of 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. Xxxxxx agrees
to give Secured Party and Secured Party agrees to give Xxxxxx notice of
any claim or liability hereby indemnified against promptly following
learning thereof.
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INITIAL /s/
-----
17. DEFAULT. Any of the following will constitute an event of default hereunder:
(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 judgment 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 Act 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; [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 brokers 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
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
hereunder.
20. SECURED PARTY'S EXPENSES. Debtor will pay Secured Party all costs and
expenses, including attorneys' 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, any 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. Xxxxxx'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 other 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, Xxxxxx 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
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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 inures 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 mark 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, Xxxxxx 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. Forebearance 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 Xxxxxx 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 Xxxxxx'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: (a)
this agreement has been duly authorized by Xxxxxx 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 or 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 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 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 by 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.
8
IN WITNESS WHEREOF, the undersigned have executed this agreement as of
May 13, 1994
HERITAGE LEASING CAPITAL VIASAT, INC.
_______________________________________
(Debtor)
Vice President of
By: /s/ Xxxxxx X. Xxxxxx President /s/ Xxxxxxx Xxxxxxx Administration
________________________________ _______________________________________
Xxxxxx X. Xxxxxx (Title) Xxxxxxx Xxxxxxx (Title)
5775 Chesapeake Court By: ___________________________________
San Diego, CA 92123 (Title)
Address: 0000 Xxxxxx Xxxxx
-----------------------------
Carlsbad, CA 92009
---------------------------------------
(Individual or Partnership
Notarial Acknowledgement)
INDIVIDUAL or PARTNERSHIP:
State of
County of ss:
On this ______ day of ___________________________, 19 ___, before
me ________________________________, a notary public for the County of
____________________________ personally appeared ___________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name (is)(are) subscribed to this instrument, and
acknowledged that (he)(she)(they) executed it (in [his][her][their] capacity as
a partner and as the act of the partnership).
In witness whereof I hereunto set my hand and official seal.
(SEAL)
My commission expires. ___________________________________
Notary Public
9
[HERITAGE LEASING CAPITAL LETTERHEAD]
June 27, 1994
VIASAT, INC.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Gentlemen:
This is written in connection with the Equipment Financing Agreement
between you, as debtor, and us, as secured party, dated as of May 13, 1994 (the
"EFA"), which it is contemplated shall cover certain items of equipment
(collectively the "Equipment" and individually an "Item of Equipment") to be
financed by us thereunder as more fully contemplated in a related commitment
accepted by you as of May 13, 1994 (the "Commitment").
You have requested us to advance your cost for certain of the Equipment
by paying the purchase price therefor for your account to the suppliers thereof
prior to the execution and delivery of the completed Schedule to the EFA
covering such Equipment.
We shall do this subject to the following understandings and agreements:
1. In connection with each request by you to us to make payment
under the terms of this letter, you shall state on a form provided by us that
you (a) accept the Equipment described thereon for all purposes of the EFA and
(b) instruct us to make payment to the suppliers of such Equipment for your
account and/or to reimburse you for your payment to such suppliers, as
appropriate. You understand and agree that your instructions to pay suppliers
for your account and/or to reimburse you under the provisions of this paragraph
are to be issued by you in such a manner as to maximize the amount of each such
payment to be made by us and minimize the number of occasions on which such
payments are to be made and that accordingly each request shall cover Equipment
with a cost of not less than $10,000.00. Your letter transmitting this material
should make reference to this letter agreement.
2. Each Item of Equipment with respect to which we make an advance
in the manner described above shall be covered by the terms and conditions
(including, without limitation, the security interest and insurance terms) of
the EFA and you will pay us interim interest (the "interim interest") equal to
the product of (a) .00034, (b) the advance amount as to such Equipment and (c)
the number of days from the date of the issuance of payment by us to but
excluding the day of the repayment by you under the terms of this letter or the
date of the applicable Schedule to the EFA. Accrued and previously unpaid
interim interest will be payable in arrears on the first day of each month
commencing with the month following our initial advance hereunder.
10
3. When all the Items of Equipment to be covered by a given
Schedule have been delivered to you and accepted or ready for acceptance if the
advance has not previously been made hereunder, as appropriate, for purposes of
the EFA, you shall advise us, we shall prepare the Schedule and provide the
Schedule to you, and you shall execute the Schedule and deliver it to us. We
will separately invoice you and you will pay any then unpaid interim interest.
4. If there occurs an event giving rise to our option to terminate
our obligations under the Commitment, including, but not limited to, a material
adverse change in your financial condition, expiration of the commitment period
contemplated by the Commitment or a default under the EFA, and our exercise of
such option, then our obligations hereunder and under the Commitment will
terminate. You would then be obligated to repay us all amounts which we have
advanced under the terms of this letter plus all accrued but unpaid interim
interest up to and including the date of such repayment. Your payment hereunder
shall be performed upon three (3) days' written notice from us that we have the
right to terminate our obligations hereunder and under the Commitment and have
elected to do so. We would have the various remedies of a secured creditor
contemplated in the EFA in the event of failure by you to make this repayment
as contemplated.
If the terms of this letter are satisfactory to you, please so indicate
by executing at the place provided at the foot of the enclosed copy of this
letter and returning the same to us. The original of this letter is for your
files.
Very truly yours,
HERITAGE LEASING CAPITAL
By: /s/ Xxx Xxxxx
-------------------------------------
Xxx Xxxxx, Executive Vice President
ACCEPTED AND AGREED to this 27th day of June, 1994.
VIASAT INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxxx, Vice President of Administration
11
June 27, 1994
Heritage Leasing Capital
0000 Xxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Gentlemen:
Please refer to the interim payment letter agreement dated June 27, 1994
between our two companies.
Pursuant to paragraph 1 of said letter agreement and with respect to the
invoices, the originals of which are attached hereto, we hereby (a) approve
each of said attached invoice(s), (b) accept each item of Equipment described
thereon for all purposes of the EFA, as defined in such agreement, and (c)
instruct you to make payment for our account to the issuer of each invoice in
accordance therewith.
We have indicated on each of the attached invoices (where it is not otherwise
made clear) the address where each Item of Equipment is to be permanently
located.
The total amount of the attached invoices and the total amount we request you
to pay hereunder is $10,200.00 payable to the following in the amounts
indicated:
Commworld Of San Diego-North, Inc. $10,200.00
We acknowledge that neither Heritage Leasing Capital nor its assignee or
successor shall be responsible for the delivery of any Item of Equipment, and we
will be obligated to repay all amounts you disburse, together with interest as
stated in the interim payment letter agreement whether or not the Equipment is
delivered to and accepted by us.
Very truly yours,
VIASAT, INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Xxxxxxx Xxxxxxx, Vice President of Administration
12
[HERITAGE LEASING CAPITAL LETTERHEAD]
March 28, 1994
Xx. Xxxxxxx Xxxxxxx
Vice President of Administration
ViaSat, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Dear Xxxx:
Enclosed please find a set of Master Equipment Lease documents for your review.
I have elected to change the method of documentation from a Master Equipment
Lease Line of Credit to an Equipment Financing Line of Credit. This change was
prompted by my phone conversation with Xxx XxXxxx who indicated some pieces of
equipment to be financed have been delivered and paid for. Using an Equipment
Financing Agreement (EFA), ViaSat retains title of ownership and Heritage
Leasing takes a security interest in the equipment. To document an equipment
lease, we would need to secure new invoices from vendors showing equipment sold
to Heritage Leasing Capital and the invoices must reflect the total equipment
cost as the balance due on the invoice. To avoid this requirement of new
invoices, we think it is best to document this initial $400,000 equipment
financing transaction using an EFA. Please call me if you have any questions
regarding this documentation.
In addition, I have changed the credit commitment letter to reflect an
equipment financing transaction.
I expect to receive a second credit approval for an additional $400,000 of
equipment financing this week.
I look forward to working with you and Xxx on these financing transactions.
Sincerely,
HERITAGE LEASING CAPITAL
/s/ XXX XXXXX
Xxx Xxxxx, CLP
Executive Vice President
GE:dw
Enclosure
13
[HERITAGE LEASING CAPITAL LETTERHEAD]
March 28, 1994
Xx. Xxxxxxx Xxxxxxx
Vice President of Administration
ViaSat, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000-0000
Dear Xxxx:
We are pleased to present the following Master Equipment Financing Agreement
credit commitment for your review and acceptance. This credit commitment is
subject to receipt and acceptance by Secured Party of a detailed equipment
list, prior to documentation, satisfactory to Secured Party.
BORROWER : ViaSat, Inc.
SECURED PARTY : Heritage Leasing Capital or its nominee.
EQUIPMENT : Personal Computers; Test Equipment;
Laboratory Equipment.
AMOUNT : $400,000.00 line of credit.
TERM : Forty-Eight (48) Months
ADVANCE PAYMENTS : First and Last Months' Payments
PAYMENT AMOUNT : Borrower will make forty-eight (48)
consecutive monthly installment payments,
in advance, at the monthly rate of $24.42
per $1,000 of equipment cost. For an
equipment cost of $400,000.00, the monthly
payment would be $9,768.00.
14
Master Equipment Financing Credit Commitment
ViaSat, Inc.
March 28, 1994
Page Two
MONTHLY RATE
ADJUSTMENT : The above rate is based on the yield of two-year Treasury Notes
yielding 5.03% as published in the Wall Street Journal on
Wednesday, March 23, 1994 (the "Index") and will apply for all
schedules funded by April 30, 1994. If a financing schedule is
funded after April 30, 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 5.03%.
Once a schedule is funded, however, the rate will then be fixed
for the term of the agreement.
BALLOON
PAYMENT : None; this is fully amortized over the term proposed.
MASTER
AGREEMENT : This is a Master Agreement whereby schedules may be funded as
equipment is delivered. Each schedule to the agreement, however,
shall cover an equipment cost with a minimum aggregate cost of
$40,000.00.
TYPE OF
TRANSACTION : This is a net financing transaction whereby maintenance,
insurance, property taxes, documentation costs, and all items
of a similar nature are for the account of the Borrower.
CREDIT
COMMITMENT
EXPIRATION : Equipment financed under the agreement shall be delivered and
funded no later than July 31, 1994.
Xxxx, if this credit commitment is acceptable to you, please indicate by
signing the acceptance on the following page and returning it to Heritage
Leasing Capital.
I look forward to being of service to you in this transaction and will work
closely with you until it is completed to your entire satisfaction.
Sincerely,
HERITAGE LEASING CAPITAL
/s/ Xxx Xxxxx
Xxx Xxxxx
Executive Vice President
15
Master Equipment Financing Credit Commitment
ViaSat, Inc.
March 28, 1994
Page Three
ACCEPTANCE:
VIASAT, INC.
By:_______________________________
Xxxxxxx Xxxxxxx
Title: Vice President of Administration
Date:_____________________________
