CERTAIN MATERIAL (INDICATED BY ASTERISKS) HAS BEEN OMITTED FROM THIS DOCUMENT
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. THE OMITTED MATERIAL HAS BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGES COMMISSION.
EXHIBIT 10.2
SECURED NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
THIS NOTE MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
UNLESS SUCH SALE OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF SAID ACT. COPIES OF THE AGREEMENT COVERING THE
ACQUISITION OF THIS NOTE MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS NOTE TO THE SECRETARY OF VIASAT, INC. AT ITS
PRINCIPAL EXECUTIVE OFFICES.
Date: December 12, 2001 $6,000,000
VIASAT, INC.
SECURED PROMISSORY NOTE
ViaSat, Inc., a Delaware corporation ("ViaSat"), for value received,
promises to pay to Wildblue Communications, Inc., a Delaware corporation
("Wildblue"), a principal amount equal to Six Million Dollars ($6,000,000), in
lawful money of the United States of America, plus interest on the principal
amount hereof, at a rate of interest equal to five percent (5%) per annum (the
"Note Rate"). All principal and interest shall be due and payable on the earlier
of: (i) ***, and (ii) January 31, 2002 (the "Maturity Date"). If payment of the
principal amount of this Note, together with accrued unpaid interest thereon, is
not paid in its entirety on the Maturity Date, then interest shall accrue on
such unpaid principal and interest amount at the Note Rate plus two percent (2%)
from and after such date of default to the date of the payment in full of such
unpaid amount. In no event shall Wildblue be entitled to receive interest at an
effective rate in excess of the maximum rate permitted by law. Following payment
by ViaSat of all of its obligations hereunder, this Note shall be cancelled and
shall no longer evidence an indebtedness for borrowed money.
1. Definitions. This Secured Promissory Note ("Note") has been issued
pursuant to the Unit Purchase Agreement dated as of December 12, 2001 by and
between ViaSat and Wildblue (the "Agreement"). Unless the context indicates
otherwise, capitalized terms used herein shall have the meanings given them in
the Agreement.
2. Prepayment. ViaSat shall be entitled to prepay, without penalty, the
principal balance outstanding under this Note in whole (but not in part) at any
time; provided, however, that such prepayment shall also include all accrued
interest.
3. Application of Payments. The proceeds of any payment or prepayment of
this Note shall be applied in the following order: (a) first, against fees and
expenses due and payable hereunder; (b) then to accrued and unpaid interest; and
(c) finally to the then outstanding and unpaid principal hereunder. All payments
shall be made in immediately available funds to the account and in accordance
with the instructions set forth in Exhibit A hereto.
*** CONFIDENTIAL TREATMENT REQUESTED
4. Recording of Payments. All payments and prepayments of the principal
and interest hereunder shall be recorded by Wildblue on Schedule I annexed
hereto, and constituting a part hereof, which recordations shall constitute
prima facie evidence of the accuracy of the information so recorded; provided,
however, that the failure of Wildblue to make any such recordation shall not
limit or otherwise affect the obligation of ViaSat hereunder or under the
Agreement.
5. Assignment. Wildblue may transfer its interest in up to Five Million
U.S. Dollars ($5,000,000) under this Note to Telesat Canada, in Wildblue's sole
and absolute discretion. Wildblue shall notify ViaSat in writing within two (2)
business days of such transfer. Wildblue shall not transfer all or any portion
of (or any interest in) this Note to any other party, without the prior written
consent of ViaSat, which consent shall not be unreasonably withheld. The
obligations of ViaSat hereunder shall not be transferable or assignable to any
other party without the prior written consent of Wildblue, which consent shall
not be unreasonably withheld.
6. Remedies. Upon a default by ViaSat hereunder, Wildblue shall be
entitled to exercise all remedies otherwise permitted it by applicable law.
7. Certain Waivers. ViaSat hereby waives notice, demand for payment,
presentment for payment, protest, notice to protest, notice of dishonor, notice
of nonpayment, and diligence in taking any action to collect sums owing
hereunder and all duty or obligation of Wildblue to effect, protect, perfect,
retain or enforce any security for the payment of this Note or to proceed
against any collateral before otherwise enforcing this Note. The nonexercise by
Wildblue of any of its rights hereunder in any particular instance shall not
constitute a waiver thereof in that or any subsequent instance.
8. Security. ViaSat's obligations under this Note are secured by a
security interest in 9,692,307.69 Class B Units of U.S. Monolithics, LLC, an
Arizona limited liability company, pursuant to the terms of the Pledge
Agreement, dated as of even date herewith, by and between ViaSat and Wildblue.
9. Full Recourse. This Note is a full recourse obligation of ViaSat.
2
10. Miscellaneous. The provisions set forth in Sections 7(b), 7(c),
7(d), 7(f), 7(g), 7(h), 7(i), 7(j), 7(k), 7(l), 7(n), and 7(o) of the Agreement
are incorporated herein by this reference; provided, however, that all
references to the "Agreement" in such Sections shall mean this Note and not the
Agreement and the terms "herein," "hereof," "hereto," and words of similar
import in such Sections shall be references to this Note and not to the
Agreement.
VIASAT, INC.
/s/ Gregory D. Monahan
---------------------------------
By: Gregory D. Monahan
Its: Vice President--Administration,
General Counsel and Secretary
ATTEST:
/s/ Keven K. Lippert
- --------------------------------
Name: Keven K. Lippert
[SIGNATURE PAGE TO SECURED NOTE]