FIRST AMENDMENT
TO FOURTH AMENDED AND RESTATED REVOLVING LOAN
AGREEMENT
This First
Amendment to Fourth Amended and Restated Revolving Loan Agreement
(this “Amendment”) is entered into as of
September 30, 2009, by and between ViaSat, Inc., a Delaware
corporation (“Borrower”), each lender from time to time
party to the Credit Agreement (as defined below) (collectively, the
“Lenders” and individually, a “Lender”),
UNION BANK, N.A., as Administrative Agent (in such capacity,
“Administrative Agent”), BANK OF AMERICA, N.A., as
Syndication Agent, JPMORGAN CHASE BANK, N.A., as Documentation
Agent, BANC OF AMERICA SECURITIES LLC and UNION BANK, N.A., as
Joint Lead Arrangers and Joint Book Runners and UNION BANK, N.A.,
as Collateral Agent (in such capacity, “Collateral
Agent;” collectively, the “Agents”).
Borrower, Agents
and the Lenders are parties to that certain Fourth Amended and
Restated Revolving Loan Agreement dated as of July 1, 2009 (as
amended from time to time, the “Credit Agreement”). The
parties desire to amend the Credit Agreement in accordance with the
terms of this Amendment. Unless otherwise defined, all initially
capitalized terms in this Amendment shall be as defined in the
Credit Agreement.
NOW, THEREFORE,
the parties agree as follows:
1. The
following defined terms hereby are added, amended and or restated
in Section 1.1 of the Credit Agreement to read as
follows:
“
Addendum to Credit Agreement ” means that certain
Addendum to Fourth Amended and Restated Revolving Loan Agreement
attached hereto as Annex II.
“
Additional Covenant ” means any affirmative or
negative covenant or similar restriction applicable to the Borrower
or any Subsidiary (regardless of whether such provision is labeled
or otherwise characterized as a covenant) the subject matter of
which either (i) is similar to that of any covenant in
Section 5 or 6 of this Agreement, or related definitions in
Section 1 of this Agreement, but contains one or more
percentages, amounts or formulas that is more restrictive than
those set forth herein or more beneficial to the lenders under the
Second Lien Loan Agreement (and such covenant or similar
restriction shall be deemed an Additional Covenant only to the
extent that it is more restrictive or more beneficial) or
(ii) is different from the subject matter of any covenant in
Section 5 or 6 of this Agreement, or related definitions in
Section 1 of this Agreement.
“
Additional Default ” means any provision contained in
the Second Lien Loan Agreement which permits the lenders
thereunder, or the Collateral Agent or the Administrative Agent
thereunder (and as defined therein), to accelerate (with the
passage of time or giving of notice or both) the maturity thereof
or otherwise requires the Borrower or any Subsidiary to purchase
the Indebtedness under the Second Lien Loan Agreement prior to the
stated maturity thereof and which either (i) is similar to any
Default or Event of Default contained in Section 9 of this
Agreement, or related definitions in Section 1 of this
Agreement, but contains one or more percentages, amounts or
formulas that is more restrictive or has a shorter grace period
than those set forth herein or is more beneficial to the lenders
under the Second Lien Loan Agreement (and such provision shall be
deemed an Additional Default only to the extent that it is more
restrictive, has a shorter grace period or is more beneficial) or
(ii) is different from the subject matter of any Default or
Event of Default contained in Section 9 of this Agreement, or
related definitions in Section 1 of this Agreement.
“
EchoBlue ” means EchoBlue Rural Broadband, LLC, a
joint venture between WildBlue and EchoStar Broadband II L.L.C., in
which WildBlue owns a fifty percent (50%) interest.
“
First Amendment Date ” means September 30,
2009.
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“
Intercreditor Agreement ” means that certain
Intercreditor Agreement among the Collateral Agent, the Second Lien
Agent and the Borrower, dated on or about the closing of the
WildBlue Acquisition, substantially in the form attached hereto as
Annex I (or otherwise in form and content reasonably acceptable to
the Requisite Lenders).
“
Outside Date ” means September 22, 2010, provided
that this date may be extended by Borrower upon the prior written
consent of the Requisite Lenders, not to be unreasonably
withheld.
“
Permitted Additional Senior Indebtedness ” means,
collectively, (i) senior unsecured or senior secured
Indebtedness of the Borrower issued under an indenture under the
Trust Indenture Act of 1939; provided that, in the event such
Indebtedness is secured, (a) the maturity date under the
indenture for such Indebtedness shall in no event occur before the
Maturity Date hereunder, (b) the indenture for such Indebtedness
shall not contain any covenants that require Borrower to maintain
certain specified levels of earnings, leverage or similar financial
tests (provided that the foregoing shall not preclude such
indenture from containing any such tests as a condition to entering
into and/or consummating certain transactions, such as the
incurrence of other indebtedness, making of investments or payments
of dividends and other restricted payments; provided the same are
on market terms and conditions (as determined in the reasonable
discretion of the Requisite Lenders)), (c) such Indebtedness
shall not be secured by more or different Collateral than that
securing the Obligations, nor guaranteed by more or different
obligors than those guaranteeing the Obligations, and any documents
evidencing such security and/or such guaranties shall be
substantially the same as, and no more burdensome to the obligors
than, the Security Agreements covering the same Collateral and/or
the Guaranties covering the Guaranty Obligations and (d) the
terms and conditions of such Indebtedness pursuant to any indenture
or other agreement executed in connection therewith shall not
impose restrictions that prevent any obligor under the Loan
Documents from complying with the Loan Documents to which such
obligor is a Party; (ii) Indebtedness of the Subsidiary Guarantors
under any Guaranty Obligations in respect thereof; and
(iii) any Permitted Refinancing Indebtedness in respect
thereof; provided that (x) the principal amount thereof does
not exceed $300,000,000 in the aggregate at any time; and
(y) the same shall (to the extent secured) be subject to the
terms and conditions of an intercreditor agreement on substantially
the terms and conditions of the Intercreditor Agreement (or terms
no less favorable to the Lenders than the terms and conditions of
the Intercreditor Agreement, as determined in the reasonable
discretion of the Requisite Lenders).
“
Permitted Refinancing Indebtedness ” shall mean
Indebtedness issued or incurred to refinance, refund, extend, renew
or replace all or a portion of Permitted Senior Indebtedness
(“Refinanced Indebtedness”); provided that (i) the
principal amount of such refinancing, refunding, extending,
renewing or replacing Indebtedness is not greater than the
principal amount of such Refinanced Indebtedness, (ii) such
refinancing, refunding, extending, renewing or replacing
Indebtedness has a final maturity that is no earlier than such
Refinanced Indebtedness, (iii) if such Refinanced Indebtedness
or any Guaranty Obligations thereof are subordinated to the
Obligations, such refinancing, refunding, extending, renewing or
replacing Indebtedness and any Guaranty Obligations thereof remain
so subordinated on terms, when taken as a whole, no less favorable
to the Lenders, and (iv) to the extent such Indebtedness will
be secured by the Collateral, the relevant holders of such
refinancing, refunding, extending, renewing or replacing
Indebtedness become party to the Intercreditor
Agreement.
“
Permitted Senior Indebtedness ” means, collectively,
(i) Permitted Senior Secured Indebtedness and
(ii) Permitted Additional Senior Indebtedness; provided that
the principal amount thereof does not exceed $350,000,000 in the
aggregate at any time.
“
Permitted Senior Secured Indebtedness ” means,
collectively, (i) Indebtedness of the Borrower under the
Second Lien Loan Agreement, (ii) Indebtedness of the
Subsidiary Guarantors under any Guaranty Obligations in respect
thereof and (iii) any Permitted Refinancing Indebtedness in
respect thereof; provided that (x) the principal amount
thereof does not exceed $350,000,000 in the aggregate at any time;
and (y) the same shall be subject to the terms and conditions
of the Intercreditor Agreement.
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“
Second Lien Agent ” means the entity that acts as
collateral agent on behalf of the lenders under the Second Lien
Loan Agreement, in its capacity as such.
“
Second Lien Loan Agreement ” means that certain Second
Lien Loan Agreement among the Second Lien Agent, the Borrower and
the other lenders and financial institutions party thereto from
time to time, to become effective (if at all) on or about the date
of the closing of the WildBlue Acquisition; substantially in the
form of Exhibit N attached hereto or otherwise in form and
content reasonably acceptable to the Requisite Lenders.
“
Second Lien Loan Documents ” means the Second Lien
Loan Agreement, together with all Schedules and Exhibits thereto,
and all documents or instruments to be executed or delivered in
connection therewith; all substantially in the form of the
documents attached hereto as Exhibit N or otherwise in form
and content reasonably acceptable to the Requisite
Lenders.
“
Senior Secured Leverage Ratio ” means, as of any date
of determination, the ratio of (a) all secured Indebtedness of
Borrower and its Subsidiaries on that date to (b) EBITDA for
the fiscal period consisting of the four (4) Fiscal Quarters
ended on that date.
“
WB Canada ” means WildBlue Communications Canada
Corp., a Subsidiary of WildBlue organized under the laws of
Canada.
“
WildBlue ” means WildBlue Holding, Inc., a Delaware
corporation.
“
WildBlue Acquisition ” means the Acquisition of
WildBlue by Borrower or a Wholly-Owned Subsidiary of Borrower,
whether through the acquisition of capital stock or a merger with
or into WildBlue or a parent entity thereof; provided that WildBlue
shall be a Wholly-Owned Subsidiary of Borrower after giving effect
to the WildBlue Acquisition.
“
WildBlue Acquisition Documents ” means that certain
Agreement and Plan of Merger by and among Borrower, [Merger Sub]
and WildBlue, dated as of September 30, 2009, together with
all Schedules and Exhibits thereto, and all documents or
instruments to be executed or delivered in connection therewith;
all in substantially the form of Exhibit O hereto or otherwise
on terms and conditions reasonably acceptable to Agents and the
Requisite Lenders.
“
WildBlue Companies ” means WildBlue (and/or the
surviving company of the merger of WildBlue pursuant to the
WildBlue Acquisition), its Subsidiaries and any other Person
acquired in connection with the WildBlue Acquisition pursuant to
the WildBlue Acquisition Documents.
1.1
Clause (iii)(a) of the defined term “ Permitted
Acquisition ” hereby is amended and restated in its
entirety to read as follows:
“(a) Borrower
would have been in compliance with the financial covenants set
forth in Sections 6.13 , 6.14 and 6.15 of
this Agreement throughout the period of the four (4) Fiscal
Quarters most recently ended prior to the date of such Acquisition
(or such shorter period in which the target has been in existence)
and.”
1.2
The definition of the term “ Permitted Encumbrances
” hereby is amended by (i) deleting the word
“and” at the end of clause (s) thereof;
(ii) deleting the period at the end of clause (t) thereof
and replacing it with “; and”; and (iii) inserting
new clause (u) immediately after clause (t), to read as
follows:
“(u) Liens
securing Permitted Senior Indebtedness (to the extent secured);
provided that (i) in the case of Permitted Senior Secured
Indebtedness, Borrower has (A) consummated the WildBlue
Acquisition, (B) by no later than the Outside Date; and
(ii) such Liens are junior in priority to the Liens securing
the Obligations, pursuant to the terms and conditions of the
Intercreditor Agreement
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(or an
intercreditor agreement on substantially the terms and conditions
of the Intercreditor Agreement or otherwise on terms no less
favorable to the Lenders than the terms and conditions of the
Intercreditor Agreement, as determined in the reasonable discretion
of the Requisite Lenders).”
1.3
The definition of the term “ Subsidiary ” hereby
is amended by inserting the section reference “ 6.15
” between the references therein to sections “
6.14 ” and “ 7.1(a) .”
2. Section 2.8(a)(ii)
of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
“each
individual request for an increase shall be in the minimum amount
of $10,000,000.”
3. The last
sentence of Section 5.12 of the Credit Agreement hereby is
amended and restated in its entirety to read as follows:
“Notwithstanding
the foregoing or any other provision of this Agreement,
(x) ViaSat Satellite Ventures, LLC, ViaSat Credit and each of
the ViaSat-1 Holding Companies shall each execute and deliver to
the Administrative Agent on the Closing Date a Subsidiary Guaranty,
a Subsidiary Security Agreement and a Subsidiary Pledge Agreement;
and (y) neither WB Canada nor EchoBlue shall be required to
execute or deliver to the Administrative Agent a Subsidiary
Guaranty, a Subsidiary Security Agreement or a Subsidiary Pledge
Agreement, unless and until each, respectively, becomes a
Significant Subsidiary.”
4. New
Section 5.13 hereby is added to the Credit Agreement to read
as follows:
“5.13
Additional Covenants and Additional Defaults Under Second Lien
Loan Agreement .
(a) If
after the First Amendment Date the Borrower enters into any
amendment to the Second Lien Loan Agreement, which contains one or
more Additional Covenants or Additional Defaults that are not
included in the Second Lien Loan Agreement attached hereto, the
terms of this Agreement shall, without any further action on the
part of the Borrower or any of the Lenders or the Administrative
Agent, be deemed to be amended automatically to include (and give
immediate effect to) each such Additional Covenant and each such
Additional Default contained in such amendment.
(b) The
Borrower, the Collateral Agent and the Requisite Lenders further
covenant to promptly execute and deliver, at the expense of the
Borrower, an amendment to this Agreement in form and substance
reasonably satisfactory to the Requisite Lenders evidencing the
amendment of this Agreement (as contemplated by
Section 5.13(a) , above) to include such Additional
Covenants and Additional Defaults, provided that each party
hereto hereby agrees that the execution and delivery of such
amendment shall not be a precondition to the effectiveness of such
amendment as provided for in this Section 5.13 but
shall merely be for the convenience of the parties
hereto.
Notwithstanding
the foregoing, any Additional Covenants and/or Additional Defaults
added to this Agreement pursuant to this Section 5.13
shall only become effective if and when any Loan under (and as
defined in) the Second Lien Credit Agreement (or any Permitted
Refinancing Indebtedness with respect thereto) remains outstanding
and any commitment to lend thereunder exists, and shall thereafter
be deemed to be removed from this Agreement and of no further force
or effect.”
5. Section 6.3(a)
of the Credit Agreement hereby is amended by (i) inserting
between the words “other” and “and” the
phrase “, (b) the WildBlue Acquisition” and
(ii) deleting the signal “(b)” therein (as in
effect prior to the First Amendment Date) and replacing it with the
signal “(c)”.
6. Section 6.5
of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
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“6.5
Acquisitions . Make any Acquisition other than (a) a
Permitted Acquisition and (b) the WildBlue Acquisition
(provided that Borrower has consummated the WildBlue Acquisition by
no later than the Outside Date); in each case, provided that no
Default or Event of Default has occurred prior to or would result
after giving effect to such Acquisition.”
7. Section 6.10
of the Credit Agreement is hereby amended by (i) deleting the
word “and” at the end of clause (i) thereof;
(ii) deleting the period at the end of clause (j) thereof
and replacing it with “; and”; and (iii) inserting
new clauses (k) and (l) immediately after clause (j), to
read as follows:
“(k)
Permitted Additional Senior Indebtedness; provided that Borrower
shall apply one hundred percent (100%) of the net proceeds of the
Permitted Additional Senior Indebtedness permanently to reduce the
Permitted Senior Secured Indebtedness (if incurred); and
(l) Permitted
Senior Secured Indebtedness incurred in connection with the
WildBlue Acquisition; provided that Borrower has
(i) consummated the WildBlue Acquisition (ii) by no later
than the Outside Date;
provided that
the aggregate amount Permitted Additional Senior Indebtedness and
Permitted Senior Secured Indebtedness shall not exceed $350,000,000
at any time.”
8. Section 6.12
of the Credit Agreement hereby is amended by adding the following
language at the beginning thereof: “Except as set forth in
the documents implementing any Permitted Additional Senior
Indebtedness and in the Second Lien Loan
Documents.”
9. Section 6.13
of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
“6.13
Leverage Ratio . Permit the Leverage Ratio at any time,
measured quarterly, to be greater than (x) prior to the
incurrence of any Permitted Senior Indebtedness and in the event
Borrower does not incur any Permitted Senior Indebtedness by the
Outside Date, 2.50 to 1.00; and (y) at all other times, 3.50
to 1.00.”
10. Section 6.14
of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
“6.14
Interest Coverage Ratio . Permit the Interest Coverage Ratio
at the end of each Fiscal Quarter to be less than (x) prior to
the incurrence of any Permitted Senior Indebtedness and in the
event Borrower does not incur any Permitted Senior Indebtedness by
the Outside Date, 4.00 to 1.00; and (y) at all other times,
3.00 to 1.00.”
11. Section 6.15
of the Credit Agreement hereby is amended and restated in its
entirety to read as follows:
“
Senior Secured Leverage Ratio . Permit the Senior Secured
Leverage Ratio at any time, measured quarterly, to be greater than
(a) 2.50 to 1.00 from the date of incurrence of any Permitted
Senior Indebtedness through the day before the end of
Borrower’s 2011 Fiscal Year; and (b) 2.00 to 1.00
thereafter; provided that, in the event Borrower does not incur any
Permitted Senior Indebtedness by the Outside Date, Borrower shall
not be required to comply with this covenant, which shall be deemed
to be null and void and of no force or effect.”
12. Exhibit B
to the Credit Agreement hereby is replaced in its entirety with
Exhibit B attached hereto.
13. The
Schedules to the Credit Agreement hereby are replaced in their
entirety with the Schedules attached hereto.
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15. No course
of dealing on the part of Lenders, Agents or their officers, nor
any failure or delay in the exercise of any right by any Agent or
any Lender, shall operate as a waiver thereof, and any single or
partial exercise of any such right shall not preclude any later
exercise of any such right. Agents’ or Lenders’ failure
at any time to require strict performance by Borrower of any
provision of any Loan Document shall not affect any right of
Lenders or Agents thereafter to demand strict compliance and
performance. Any suspension or waiver of a right must be in writing
signed by an officer of Administrative Agent, in accordance with
the terms of the Credit Agreement.
16. The
Credit Agreement, as amended hereby, shall be and remain in full
force and effect in accordance with its respective terms and hereby
is ratified and confirmed in all respects. Except as expressly set
forth herein, the execution, delivery, and performance of this
Amendment shall not operate as a waiver of, or as an amendment of,
any right, power, or remedy of Agents or Lenders under the Credit
Agreement, as in effect prior to the date hereof.
17. All
Representations and Warranties contained in the Credit Agreement or
in any other document or documents relating thereto shall survive
the execution and delivery of this Amendment. 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 Credit Agreement.
18. Borrower
shall deliver to Administrative Agent, as and when entered into (if
at all), the following:
(a) fully
executed copies of the Second Lien Loan Documents;
(b) fully
executed copies of the documents evidencing the Permitted
Additional Senior Indebtedness; and
(c) the
Intercreditor Agreement, duly executed by the Second Lien Agent and
the Borrower.
19. As a
condition to the effectiveness of this Amendment, Administrative
Agent and the Requisite Lenders shall have received (or, in the
case of (f), below, reviewed), in form and substance reasonably
satisfactory to Administrative Agent and the Requisite Lenders, the
following:
(a) this
Amendment, duly executed by Borrower, Collateral Agent and the
Requisite Lenders;
(b) an
Affirmation of Subsidiary Guaranty and Security Agreement, duly
executed by each Guarantor;
(c) Resolutions
of the Board of Directors of Borrower authorizing the execution,
delivery and performance of this Amendment, with an incumbency
certificate; each in form and content reasonably acceptable to
Administrative Agent;
(d) fully
executed copies of the WildBlue Acquisition Documents;
(e) an
amendment fee, payable to Administrative Agent for the ratable
benefit of each Lender which executes this Amendment, according to
the Pro Rata Share of each such Lender, in the amount of one
quarter of one percent (0.25%) of each such Lender’s Pro Rata
Share;
(f) the
draft Houlihan Lokey valuation and fairness opinion reports that
were performed on WildBlue and completed during
September 2009;
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(g) appropriate
biographies of the members of WildBlue’s management team that
will be retained post-WildBlue Acquisition (based upon the most
current merger discussions between the Borrower and WildBlue)
(subject to satisfactory review by the Requisite Lenders, in their
reasonable discretion);
(h) a
certificate signed by a Responsible Official of Borrower certifying
that the condition specified in Section 8.1(e) of the Existing
Loan Agreement is true and correct as of the First Amendment
Date;
(i) all
reasonable attorneys’ fees and costs incurred by
Agents’ counsel through the date of this Amendment, which may
be debited from any of Borrower’s accounts (following
Borrower’s authorization of such fees and costs);
and
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