Exhibit 10.3
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:
Applicable Margin
Pricing Level
I 0
II 25
III 50
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'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:
Commitment Fee
Applicable
Pricing Level
I 25
II 37.5
III 50
'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 175
II 200
III 225
'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
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
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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)."
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:
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"(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 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.
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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:
"(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
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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 $4,000,000."
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.
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
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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 $30,000 (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.
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.
(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,
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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.
(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,
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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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EXHIBIT K
PRICING CERTIFICATE
TO: UNION BANK OF CALIFORNIA, N.A., as Administrative Agent
Reference is made to the Amended and Restated Revolving Loan
Agreement, dated as of December 31, 2002, as amended (the "Loan Agreement"), by
and among ViaSat, Inc., a Delaware corporation ("Borrower"), the Lenders therein
named, Comerica Bank, as Collateral Agent for the Lenders, Union Bank of
California, N.A., as Administrative Agent for the Lenders. Capitalized terms
defined in the Loan Agreement and not otherwise defined herein shall have the
meanings given them in the Loan Agreement.
This Pricing Certificate (this "Certificate") is delivered in
accordance with Section 7.1(b) of the Loan Agreement by a Senior Officer of
Borrower with respect to the Pricing Period commencing ___________, ____, and
ending on _____________, ____ (the "Subject Pricing Period"). Computations used
to determine the Applicable Pricing Level for the Subject Pricing Period are set
forth below:
I. APPLICABLE PRICING LEVEL. Subject to later adjustment as provided in
the Loan Agreement, the Applicable Pricing Level for the Subject Pricing
Period shall be Level ______1.
The Applicable Pricing Level set forth above was determined on the basis of the
following:
LEVERAGE RATIO. As of the last day (the "Determination Date") of the
Fiscal Quarter ended ____________ (the "Test Fiscal Quarter"), the Leverage
Ratio was _____ : 1.00 (as calculated below).
LEVERAGE RATIO - Calculation:
(a) all Indebtedness of Borrower and its Subsidiaries on the Determination Date $_________
divided by
(b) EBITDA for the fiscal period consisting of the four (4) Fiscal Quarters ended on the $_________
Determination Date (as calculated below)
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1 Insert Level I, II, III, IV or V in accordance with the terms of the Loan
Agreement based upon the determination of the Leverage Ratio.
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equals Leverage Ratio [(a)/(b)] ______:1.00
EBITDA - Component Calculations
(a) Net Income from operations $_________
plus
(e) depreciation $_________
plus
(f) amortization $_________
Equals EBITDA [(a)+(b)+(c)] $_________
II. I further certify that the calculations made and the information
contained herein are derived from the books and records of Borrower and its
Subsidiaries, as applicable, and that to the best of my knowledge, in my
capacity as a Senior Officer of Borrower, each and every matter correctly
reflects those books and records.
IN WITNESS WHEREOF, I have signed this Pricing Certificate on this
_______ day of __________, ____.
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[Printed Name and Title of Senior
Officer of ViaSat, Inc.]
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