Exhibit 10.2
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT
AMENDMENT NO. 2 TO
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED REVOLVING LOAN
AGREEMENT (this "Amendment"), effective as of March 31, 2003 and dated as of May
21, 2003, 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"), Comerica Bank-California, as Collateral
Agent, and ViaSat, Inc., a Delaware corporation (the "Borrower"), with reference
to the following facts:
RECITALS
A. The Borrower, the Lenders, the Administrative Agent and the
Collateral Agent are parties to the Amended and Restated Revolving Loan
Agreement, dated as of December 31, 2002, as amended (the "Loan Agreement"),
pursuant to which the Lenders have provided the Borrower with a Revolving Loan
facility and a subfacility for Letters of Credit.
B. The parties 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. Amendment to Maximum Leverage Ratio Covenant. Section 6.12 of the
Loan Agreement is hereby amended to read in full as follows:
"6.12 Leverage Ratio. Permit the Leverage Ratio to be greater than
*** to 1.0 as of December 31, 2002, greater than *** to 1.0 as of March
31, 2003 and greater than *** to 1.0 as of June 30, 2003."
3. Amendment to Minimum EBITDA Covenant. Section 6.13 of the Loan
Agreement is hereby amended to read in full as follows:
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"6.13 EBITDA. Permit EBITDA for any Fiscal Quarter, commencing with
the Fiscal Quarter ending December 31, 2002 to be less than the
correlative amount set forth below for such Fiscal Quarter:
Fiscal Quarter Ending Minimum EBITDA
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December 31, 2002 $***
March 31, 2003 $***
June 30, 2003 $***."
4. Amendment Fee. In consideration of this Amendment and the other
accommodations described herein, on the effective date of this Amendment,
Borrower shall pay to the Administrative Agent, for the ratable benefit of
Lenders, a one-time amendment fee of $*** (the "Amendment Fee"). 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 Borrower's Revolving Loan account or to
Borrower's checking account at Union Bank of California, N.A.
5. Condition Precedent. The effectiveness of this Amendment shall be
subject to the condition that the Administrative Agent shall have received an
original of this Amendment, duly executed by the Borrower, the Collateral Agent
and each of the Lenders
6. 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. The Borrower is not aware of any events
which now 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
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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 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
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UNWRITTEN ORAL AGREEMENTS BETWEEN THE LENDERS AND THE BORROWER.
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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:
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Ronald G. Wangerin
Vice President and Chief
Financial Officer
UNION BANK OF CALIFORNIA, N.A., as
the Administrative Agent
By:
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Douglas S. Lambell
Vice President
COMERICA BANK-CALIFORNIA,
as the Collateral Agent
By:
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Stephen M. Cusato
Senior Vice President
UNION BANK OF CALIFORNIA, N.A., as
a Lender
By:
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Douglas S. Lambell
Vice President
COMERICA BANK - CALIFORNIA,
as a Lender
By:
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Stephen M. Cusato
Senior Vice President
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