EXHIBIT 10.3
UNSECURED 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 $500,000
VIASAT, INC.
UNSECURED 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 Five Hundred Thousand Dollars
($500,000), 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 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 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 Unsecured 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 or in part at any time;
provided, however, that such prepayment shall also include all accrued interest
on any principal amount prepaid.
3. Application of Payments. The proceeds of any payment or prepayment of
this Note (including, without limitation, offsets pursuant to Section 4 hereof)
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. Unless otherwise
agreed to by ViaSat and Wildblue, all payments (other than those setoffs
identified in Sections 4 or 5 hereof) shall be by certified check and sent to
the address set forth for Wildblue in the Agreement.
4. Deliveries under Section 17.1 of the New Development Agreement. If
prior to the Maturity Date any NRE Payments (as defined in Section 17.1 of the
New Development Agreement ("Section 17.1")) become due and payable as a result
of a delivery by ViaSat to Wildblue as identified in the column entitled "NRE
Payment Event" of the table set forth in Section 17.1 (the "Table"), ViaSat
shall be entitled to offset, as of the date of such delivery, the amount set
forth in the column entitled "NRE Payment Amount" of the Table corresponding to
such delivery, against any amounts due and owing to Wildblue under this Note.
5. Offset of Payments into Escrow. In accordance with Section 5(e) of
the Agreement, ViaSat and Wildblue will enter into an escrow agreement on or
prior to the Maturity Date to provide security for Wildblue's payment
obligations to ViaSat under the New Development Agreement. All deposits made by
ViaSat into the escrow under such escrow agreement shall be offset against
amounts due and owing to Wildblue under this Note.
6. Recording of Payments. All payments and prepayments of the principal
and interest hereunder (including, without limitation, offsets pursuant to
Section 4 and Section 5 hereof) 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.
7. Assignment. Wildblue may not transfer its interest under this Note,
in whole or in part, 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.
8. Remedies. Upon a default by ViaSat hereunder, Wildblue shall be
entitled to exercise all remedies otherwise permitted it by applicable law.
9. 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. The nonexercise by Wildblue of any of its rights hereunder shall not
constitute a waiver thereof in that or any subsequent instance.
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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
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By: Gregory D. Monahan
Its: Vice President--Administration,
General Counsel and Secretary
ATTEST:
/s/ Keven K. Lippert
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Name: Keven K. Lippert
[SIGNATURE PAGE TO UNSECURED NOTE]