EXHIBIT 10.1
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT.
AMENDMENT NO. 3 TO
REVOLVING/TERM LOAN AGREEMENT
THIS AMENDMENT NO. 3 TO REVOLVING/TERM LOAN AGREEMENT (this
"Amendment"), dated as of September 30, 2002, is entered into by and among the
financial institutions listed on the signature pages hereof (individually, a
"Lender" and collectively, the "Lenders"), Union Bank of California, N.A., as
Administrative Agent (in such capacity, the "Administrative Agent"), and ViaSat,
Inc., a Delaware corporation (the "Borrower"), with reference to the following
facts:
RECITALS
A. The Borrower, the Lenders and the Administrative Agent are
parties to that certain Revolving/Term Loan Agreement, dated as of June 21,
2001, as amended (the "Loan Agreement"), pursuant to which the Lenders have
provided the Borrower with certain credit facilities.
B. The Borrower, the Lenders and the Administrative Agent wish to
amend the Loan Agreement as set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. Defined Terms. Any and all initially capitalized terms used in this
Amendment (including, without limitation, in the recitals hereto) without
definition shall have the respective meanings specified in the Loan Agreement.
2. Deletion of Performance-Based Interest Pricing Definitions. Section
1.1 of the Loan Agreement is hereby amended by deleting the definitions of
"Applicable Alternate Base Rate Margin" and "Applicable Eurodollar Rate Margin"
in their entirety.
3. Amendment to Definition of "Alternate Base Rate"; Deletion of Federal
Funds Rate Pricing Option.
A. Amendment to Definition of "Alternative Base Rate". Section
1.1 of the Loan Agreement is hereby further amended such that the definition of
"Alternate Base Rate" shall read in full as follows:
"'Alternate Base Rate' means, as of any date of
determination, the rate per annum (rounded upwards, if necessary, to the
next 1/100 of 1%) equal to the Prime Rate in effect on such date."
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B. Deletion of Definition of "Federal Funds Rate". Section 1.1 of
the Loan Agreement is hereby further amended by deleting therefrom the
definition of "Federal Funds Rate" in its entirety.
4. Deletion of Eligible Inventory Component from Borrowing Base
Effective August 31, 2002.
A. Deletion of Definitions of "Eligible Inventory Component" and
"Eligible Inventory". Section 1.1 of the Loan Agreement is hereby further
amended such that effective August 31, 2002, the definitions of "Eligible
Inventory Component" and "Eligible Inventory" shall be deleted in their
entirety.
B. Amendment to Definition of "Borrowing Base". Section 1.1 of
the Loan Agreement is hereby further amended such that effective August 31,
2002, the definition of "Borrowing Base" shall read in full as follows:
"'Borrowing Base' means, as of any date of determination,
an amount determined by the Administrative Agent, in its reasonable
discretion, with reference to the most recent Borrowing Base Certificate
delivered by the Borrower to the Administrative Agent pursuant to
Section 7.3, to be equal to the Eligible Accounts Component."
5. Amendment to Definition of Eurodollar Period; Deletion of 6-, 9- and
12-month Eurodollar Periods. Section 1.1 of the Loan Agreement is hereby further
amended by deleting the words "1, 2, 3, 6, 9 or 12 months" from the definition
of Eurodollar Period and by substituting therefor a reference to "1, 2 or 3
months".
6. Reduction of Revolving Commitment. Section 1.1 of the Loan Agreement
is hereby further amended such that the definition of "Revolving Commitment"
shall read in full as follows:
"'Revolving Commitment' means, subject to Section 2.5,
$20,000,000. The respective Pro Rata Shares of the Lenders with respect
to the Revolving Commitment are set forth in Section 1.1."
7. Amendment to Definition of Revolving Loan Maturity Date. Section 1.1
of the Loan Agreement is hereby further amended such that the definition of
"Revolving Loan Maturity Date" shall read in full as follows:
"'Revolving Loan Maturity Date' means December 27, 2002."
8. Amendment to Alternate Base Rate Margin Provision. Section 3.1(b) of
the Loan Agreement is hereby amended such that the second sentence thereof shall
read in full as follows:
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"Except as otherwise provided in Sections 3.1(d) and 3.8,
the unpaid principal amount of any Alternate Base Rate Loan shall bear
interest at a fluctuation rate per annum equal to the Alternate Base
Rate plus ***%."
9. Amendment to LIBOR Margin Provision. Section 3.1(c) of the Loan
Agreement is hereby amended such that the third sentence thereof shall read in
full as follows:
"Except as otherwise provided in Sections 3.1(d) and 3.8,
the unpaid principal amount of any Eurodollar Rate Loan shall bear
interest at a rate per annum equal to the Eurodollar Rate for that
Eurodollar Rate Loan plus ***%."
10. Amendment to Maximum Leverage Ratio Covenant for September 30, 2002
Measurement Date. Section 6.12 of the Loan Agreement is hereby amended to read
in full as follow:
"6.12 Leverage Ratio. Permit the Leverage Ratio as of
September 30, 2002 to be greater than 2.00 to 1.00."
11. Amendment to Minimum EBITDA Covenant for June 30, 2002 and September
30, 2002 Measurement Dates. Section 6.13 of the Loan Agreement is hereby amended
to read in full as follows:
"6.13 EBITDA. Permit EBITDA for the Fiscal Quarter ending
June 30, 2002 to be less than $**** or permit EBITDA for the Fiscal
Quarter ending September 30, 2002 to be less than $****, provided that
up to $**** of one-time, non-recurring costs of the Borrower shall be
added to the Borrower's net profit after taxes in determining EBITDA for
the Fiscal Quarter ending September 30, 2002."
12. Additional Financial Reporting Requirements. Article 7 of the Loan
Agreement is hereby amended and supplemented by adding therein a new Section 7.4
as follows:
"7.4 Additional Financial Reports. As soon as practicable,
and in any event not later than thirty (30) days after the end of each
month, commencing with the month ending September 30, 2002, the
following financial reports, each in form and substance reasonably
satisfactory to the Administrative Agent: (i) an accounts receivable
roll forward report; (ii) an inventory roll forward report; and (iii) an
accounts payable aging report. In addition, as soon as practicable, and
in any event not later than sixty (60) days after the end of each month,
commencing with the month ending
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September 30, 2002, a contract status report, in form and substance
reasonably satisfactory to the Administrative Agent."
13. Amendment to Schedule of Commitments. Schedule 1.1 of the Loan
Agreement is hereby amended to read in full as set forth on Schedule 1.1 to this
Amendment.
14. Amendment Fee. In consideration of the Lenders' agreement to enter
into this Amendment and provide the Borrower with the accommodations described
herein, on the effective date of this Amendment, the Borrower shall pay to the
Administrative Agent, for the ratable benefit of the Lenders, a one-time fee of
$50,000 (the "Amendment Fee"). The Borrower acknowledges and agrees that, at the
Administrative Agent's option, the Administrative Agent may effect payment of
the Amendment Fee by charging the full amount of such fee, when due, to the
Borrower's Revolving Loan account or to the Borrower's checking account at Union
Bank of California, N.A.
15. Conditions Precedent. The effectiveness of this Amendment shall be
subject to the prior satisfaction of each of the following conditions:
(a) This Amendment. The Administrative Agent shall have
received an original of this Amendment, duly executed by
the Borrower and each of the Lenders; and
(b) Other Documents. The Borrower shall have executed and
delivered to the Administrative Agent such other
documents and instruments as the Administrative Agent
may reasonably require.
16. Miscellaneous.
(a) Survival of Representations and Warranties. All
representations and warranties made in the Loan
Agreement or in any other document or documents relating
thereto, including, without limitation, any Loan
Document furnished in connection with this Amendment,
shall survive the execution and delivery of this
Amendment and the other Loan Documents, and no
investigation by the Administrative Agent or the Lenders
or any closing shall affect the representations and
warranties or the right of the Administrative Agent or
any Lender to rely thereon.
(b) No Events of Default. Except for the Existing Event of
Default, the Borrower is not aware of any events which
now
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constitute, or with the passage of time or the giving of
notice, or both, would constitute, an Event of Default
under the Loan Agreement.
(c) Reference to Loan Agreement. The Loan Agreement, each of
the other Loan Documents, and any and all other
agreements, documents or instruments now or hereafter
executed and delivered pursuant to the terms hereof, or
pursuant to the terms of the Loan Agreement as amended
hereby, are hereby amended so that any reference therein
to the Loan Agreement shall mean a reference to the Loan
Agreement as amended hereby.
(d) Loan Agreement Remains in Effect. The Loan Agreement and
the other Loan Documents remain in full force and effect
and the Borrower ratifies and confirms its agreements
and covenants contained therein. The Borrower hereby
confirms that, after giving effect to this Amendment, no
Event of Default or Default exists as of such date.
(e) Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or
unenforceable shall not impair or invalidate the
remainder of this Amendment and the effect thereof shall
be confined to the provision so held to be invalid or
unenforceable.
(f) APPLICABLE LAW. THIS AMENDMENT AND ALL OTHER LOAN
DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO
HAVE BEEN MADE AND TO BE PERFORMABLE IN THE STATE OF
CALIFORNIA AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
(g) Successors and Assigns. This Amendment is binding upon
and shall inure to the benefit of the Lenders and the
Borrower and their respective successors and assigns;
provided, however, that the Borrower may not assign or
transfer any of its rights or obligations hereunder
without the prior written consent of the Lenders.
(h) Counterparts. This Amendment may be executed in one or
more counterparts, each of which when so executed shall
be
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deemed to be an original, but all of which when taken
together shall constitute one and the same instrument.
(i) Headings. The headings, captions and arrangements used
in this Amendment are for convenience only and shall not
affect the interpretation of this Amendment.
(j) NO ORAL AGREEMENTS. THIS AMENDMENT, TOGETHER WITH THE
OTHER LOAN DOCUMENTS AS WRITTEN, REPRESENTS THE FINAL
AGREEMENT BETWEEN THE LENDERS AND THE BORROWER AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE LENDERS AND THE BORROWER.
IN WITNESS WHEREOF, the parties have entered into this Amendment
by their respective duly authorized officers as of the date first above written.
VIASAT, INC.
By: /s/ Ronald G. Wangerin
--------------------------------------
Ronald G. Wangerin
Vice President and Chief
Financial Officer
Address:
ViaSat, Inc.
6155 El Camino Real
Carlsbad, California 92009
Attn: Mr. Ronald G. Wangerin
Vice President and Chief
Financial Officer
Telecopier: (760) 476-2200
Telephone: (760) 929-3926
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UNION BANK OF CALIFORNIA, N.A.,
as the Administrative Agent
By: /s/ Douglas S. Lambell
--------------------------------------
Douglas S. Lambell
Vice President
Address:
Union Bank of California, N.A.
San Diego Commercial Banking Office
530 "B" Street, 4th Floor, S-420
San Diego, California 92101-4407
Attn: Mr. Douglas S. Lambell
Telecopier: (619) 230-3766
Telephone: (619) 230-3029
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Douglas S. Lambell
--------------------------------------
Douglas S. Lambell
Vice President
Address:
Union Bank of California, N.A.
San Diego Commercial Banking Office
530 "B" Street, 4th Floor, S-420
San Diego, California 92101-4407
Attn: Mr. Douglas S. Lambell
Telecopier: (619) 230-3766
Telephone: (619) 230-3029
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U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Maureen Sullivan
--------------------------------------
Maureen Sullivan
Vice President
Address:
U.S. Bank National Association
4180 La Jolla Village Drive, Suite 125
La Jolla, California 92037
Attn: Maureen Sullivan
Telecopier: (858) 597-6651
Telephone: (858) 597-1055
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SCHEDULE 1.1
LENDER COMMITMENTS
Revolving
Commitment Amount Pro Rata Share
----------------- --------------
Union Bank of California, N.A $10,000,000 50%
U.S. Bank National Association $10,000,000 50%
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Total: $20,000,000 100%
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