EXHIBIT 10.3
*** 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
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
THIS AMENDMENT NO. 3 TO AMENDED AND RESTATED REVOLVING LOAN
AGREEMENT (this "Amendment"), dated as of August 12, 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 (formerly Comerica Bank-California), as Collateral Agent,
and ViaSat, Inc., a Delaware corporation (the "Borrower"), with reference to the
following facts:
RECITALS
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.
The parties wish to amend the Loan Agreement as set forth below.
AGREEMENT
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. New Grid Pricing Definitions. Section 1.1 of the Loan Agreement is
hereby amended and supplemented by adding the following new definitions in
appropriate alphabetical order:
"'Applicable Base Rate Margin' means, for each Pricing Period,
the interest rate margin set forth below (expressed in basis
points per annum) opposite the Applicable Pricing Level for that
Pricing Period:
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Applicable Margin
Pricing Level
-------------
I ***
II ***
III ***
'Applicable Commitment Fee Rate' means, for each Pricing Period, the
rate set forth below (expressed in basis points per annum) opposite the
Applicable Pricing Level for that Pricing Period:
Applicable Commitment
Pricing Level Fee
------------- ----------
I ***
II ***
III ***
'Applicable Eurodollar Rate Margin' means, for each Pricing Period, the
interest rate margin set forth below (expressed in basis points per
annum) opposite the Applicable Pricing Level for that Pricing Period:
Applicable
Pricing Level Margin
------------- ------
I ***
II ***
III ***
'Applicable Pricing Level' means, for each Pricing Period, the pricing
level set forth below opposite the Leverage Ratio as of the last day of
the Fiscal Quarter most recently ended prior to the commencement of that
Pricing Period:
Pricing Level Leverage Ratio
------------- --------------
I Less than 1.00 to 1.00
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II Greater than or equal to 1.00 to
1.00, but less than 1.50 to 1.00
III Greater than or equal to 1.50 to 1.00
provided that (i) in the event that Borrower does not deliver a
Pricing Certificate to the Administrative Agent with respect to
any Pricing Period prior to the commencement of such Pricing
Period, then until such Pricing Certificate is delivered to the
Administrative Agent, the Applicable Pricing Level for that
Pricing Period shall be Pricing Level III, but once Borrower has
delivered a Pricing Certificate with respect to such Pricing
Period, then any resulting change in the Applicable Pricing Level
shall be made retroactively to the beginning of such Pricing
Period, and (ii) if any Pricing Certificate is subsequently
determined to be in error, then any resulting change in the
Applicable Pricing Level shall be made retroactively to the
beginning of the relevant Pricing Period.
'Pricing Certificate' means a certificate in the form of Exhibit
K, properly completed and signed by a Senior Officer or his or
her designated representative of Borrower.
'Pricing Period' means (a) the period commencing on August 16,
2003 and ending on November 17, 2003, (b) the period commencing
on November 18, 2003 and ending on February 16, 2003, and (c)
thereafter the period commencing on each May 19, August 18,
November 17 and February 16 and ending on the next following
August 17, November 16, February 15, or May 18, respectively. "
3. Amendment to Commitment: Section 1.1 of the Loan Agreement is hereby
amended such that the definition of "Commitment" set forth therein is amended to
read in full as follows:
"`Commitment' means, subject to Section 2.5, $30,000,000. The
respective Pro Rata Shares of the Lenders with respect to the
Commitment are set forth in Schedule 1.1."
4. Amendment to Commitment: Section 1.1 of the Loan Agreement is hereby
amended such that the definition of "EBITDA" set forth therein is amended to
read in full as follows:
"'EBITDA' means, with respect to any fiscal period and with
respect to Borrower and its Subsidiaries on a consolidated basis, the sum of (a)
income from operations as set forth on the Borrower's GAAP statement of
operation, plus (b) depreciation, plus (c) amortization (without duplication)."
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5. Amendment to Revolving Loan Maturity Date: Section 1.1 of the Loan
Agreement is hereby amended such that the definition of "Revolving Loan Maturity
Date" set forth therein is amended to read in full as follows:
"'Revolving Loan Maturity Date' means September 30, 2004."
6. Amendment to Letters of Credit. Section 2.4(a) of the Loan Agreement
is hereby amended to read in full as follows:
"(a) The Existing Letters of Credit described in Schedule 2.4
shall be Letters of Credit for all purposes under this Agreement.
(1) Subject to the terms and conditions hereof, at any time
and from time to time from the Closing Date through the
Revolving Loan Maturity Date, the Issuing Lender shall
issue such Letters of Credit under the Commitment as
Borrower may request by a Request for Letter of Credit;
provided that:
(i) giving effect to all such Letters of Credit, the sum
of:
(A) the aggregate principal amount outstanding under
the Revolving Notes; plus
(B) the Aggregate Effective Amount of all outstanding
Letters of Credit, does not exceed the then
applicable Commitment; and
(ii) the Aggregate Effective Amount under all outstanding
Letters of Credit does not exceed $10,000,000.
(2) Each Letter of Credit shall be in a form reasonably
acceptable to the Issuing Lender.
(3) Unless all the Lenders otherwise consent in a writing
delivered to the Administrative Agent, the term of any
Letter of Credit (other than any Existing Letters of
Credit) shall not exceed one (1) year.
(4) The term of any Letter of Credit (other than any Existing
Letters of Credit) shall not extend one hundred eighty
(180) days beyond the Revolving Loan Maturity Date unless:
i) all the Lenders otherwise consent in a writing
delivered to the Administrative Agent;
ii) the Borrower provides the Issuing Lender with cash
collateral in the amount equal to 100% of the face
amount of the Requested Letter of Credit (or such
lesser amount as shall then
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be available for drawing under the Requested Letter
of Credit); or
iii) the Borrower provides the Issuing Lender with a
"back-up" standby letter of credit in the full face
amount of the Requested Letter of Credit (or such
lesser amount as shall then be available under the
Requested Letter of Credit) issued by a bank
acceptable to the Issuing Bank in its reasonable
discretion.
7. Amendment to Base Rate Interest Rate Provision. Section 3.1(b) is
hereby amended to read in full as follows:
"(b) Interest accrued on each Base Rate Loan shall be due and
payable on each Monthly Payment Date. Except as otherwise
provided in Sections 3.1(d) and 3.8, the unpaid principal amount
of any Base Rate Loan shall bear interest at a fluctuating rate
per annum equal to the Base Rate plus the Applicable Base Rate
Margin. Each change in the interest rate under this Section
3.1(b) due to a change in the Base Rate shall take effect
simultaneously with the corresponding change in the Base Rate."
8. Amendment to Eurodollar Rate Interest Rate Provision. Section 3.1(c)
is hereby amended to read in full as follows:
"(c) Interest accrued on each Eurodollar Rate Loan shall be due
and payable on the last day of the related Eurodollar Period.
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 the Applicable Eurodollar Rate
Margin."
9. Amendment to Commitment Fee. Section 3.3 is hereby amended to read in
full as follows:
" 3.3 Commitment Fee. From the Closing Date through the Revolving
Loan Maturity Date, Borrower shall pay to the Administrative
Agent, for the ratable accounts of the Lenders pro rata according
to their Pro Rata Share of the Revolving Commitment, a commitment
fee equal to the Applicable Commitment Fee Rate per annum times
the average daily amount by which the Commitment exceeds the (i)
aggregate daily principal Indebtedness evidenced by the Revolving
Notes plus (ii) the Aggregate Effective Amount of all Letters of
Credit then outstanding. The commitment fee shall be payable
quarterly in arrears as of each Quarterly Payment Date within ten
(10) days after receipt by Borrower of an invoice therefor from
the Administrative Agent."
10. Amendment to Letter of Credit Fee. Section 3.4(a) is hereby amended
to read in full as follows:
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"(a) concurrently with the issuance of each Standby Letter of
Credit, to the Administrative Agent a standby letter of credit
fee in an amount equal to the Applicable Eurodollar Margin per
annum times the face amount of such Standby Letter of Credit
through the termination or expiration of such Standby Letter of
Credit, the first 10% of which fee the Administrative Agent shall
promptly pay to UBOC and the remainder of which fee the
Administrative Agent shall promptly pay to the Lenders ratably,
in accordance with their respective Pro Rata Shares of the
Commitment;"
11. Amendment to Eurodollar Prepayment Fee. Section 3.6(e)(2) is hereby
amended to read in full as follows:
"(e)(2) the amount, if any, by which (i) the additional interest
would have accrued on the amount prepaid or not borrowed at the
Eurodollar Rate plus the Applicable Eurodollar Rate Margin if
that amount had remained or been outstanding through the last day
of the applicable Eurodollar Period exceeds (ii) the interest
that the Lender could recover by placing such amount on deposit
in the Designated Eurodollar Market for a period beginning on the
date of the prepayment or failure to borrow and ending on the
last day of the applicable Eurodollar Period (or, if no deposit
rate quotation is available for such period, for the most
comparable period for which a deposit rate quotation may be
obtained); plus"
12. Amendment to Minimum EBITDA Covenant. Section 6.13 of the Loan
Agreement is hereby amended to read in full as follows:
"6.13 EBITDA. Permit EBITDA for any Fiscal Quarter of Borrower
to be less than $***."
13. Delivery of Pricing Certificate. Section 7.1(b) of the Loan
Agreement is hereby amended to read in full as follows:
"(b) As soon as practicable, and in any event within 45 days
after the end of each Fiscal Quarter, a Pricing Certificate
setting forth a calculation of the Leverage Ratio as of the last
day of such Fiscal Quarter, and providing reasonable detail as to
the calculation thereof, which calculations in the case of the
fourth Fiscal Quarter in any Fiscal Year shall be based on the
preliminary unaudited financial statements of Borrower and its
Subsidiaries for such Fiscal Quarter, and as soon as practicable
thereafter, in the event of any material variance in the actual
calculation of the Leverage Ratio from such preliminary
calculation, a revised Pricing Certificate setting forth the
actual calculation thereof;"
14. Amendment to Schedule of Commitments. Schedule 1.1 to the Loan
Agreement is hereby amended and replaced by Schedule 1.1 to this Amendment.
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15. New Pricing Certificate. The Loan Agreement is hereby further
amended and supplemented by adding a new Exhibit K thereto in the form of
Exhibit K to this Amendment. Borrower represents and warrants that Borrower will
deliver a completed Pricing Certificate no later than August 15, 2003 with
regard to the pricing period ended June 30, 2003.
16. 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
$*** (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.
17. Condition Precedent. The effectiveness of this Amendment shall be
subject to the prior satisfaction of each of the following conditions:
(b) This Amendment. The Agent shall have received an original of
this Amendment, duly executed by the Borrower and each of the
Lenders;
(c) Certificate. The Assistant Secretary of Borrower shall have
executed the Certificate of Resolution attached to this
Amendment;
(d) Revolving Note to Union Bank. Borrower shall have executed a
Revolving Note, in the original principal amount of $15,00,000,
to the order of Union Bank of California, N.A;
(e) Revolving Note to Comerica Bank. Borrower shall have executed a
Revolving Note, in the original principal amount of $15,00,000,
to the order of Comerica Bank - California;
(f) Other Documents. The Borrower shall have executed and delivered
to the Agent such other documents and instruments as the Agent
may reasonably require.
18. 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.
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(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 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.
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(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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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:____________________________
Ronald G. Wangerin
Vice President and Chief
Financial Officer
UNION BANK OF CALIFORNIA, N.A., as
the Administrative Agent
By:
--------------------------------------
Douglas S. Lambell
Vice President
COMERICA BANK-CALIFORNIA,
as the Collateral Agent
By:
--------------------------------------
Stephen M. Cusato
Senior Vice President
UNION BANK OF CALIFORNIA, N.A., as
a Lender
By:
--------------------------------------
Douglas S. Lambell
Vice President
COMERICA BANK - CALIFORNIA,
as a Lender
By:
--------------------------------------
Stephen M. Cusato
Senior Vice President
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SCHEDULE 1.1
LENDER COMMITMENTS
Revolving Commitment Amount Pro Rata Share
--------------------------- --------------
UNION BANK OF CALIFORNIA, N.A. $15,000,000 50%
COMERICA BANK $15,000,000 50%
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Total: $30,000,000 100%
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