Amendment to Note Purchase Agreement among XM Satellite Radio Inc., XM Satellite Radio Holdings Inc., and Consenting Investors
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This amendment updates the Note Purchase Agreement originally signed on December 21, 2002, between XM Satellite Radio Inc., XM Satellite Radio Holdings Inc., and several investors. The amendment allows the company to issue and sell up to an additional $25 million in notes, increasing the total possible issuance to $415.8 million. It also permits new investors to join by signing a joinder agreement, subject to required consents and applicable laws. All parties agree to execute further documents as needed to implement these changes.
EX-10.3 17 dex103.txt EXHIBIT 10.3 Exhibit 10.3 AMENDMENT TO NOTE PURCHASE AGREEMENT This Amendment (this "Amendment") to that certain Note Purchase Agreement, dated as of December 21, 2002 (the "Agreement"), by and among XM SATELLITE RADIO INC., a Delaware corporation (the "Company"), XM SATELLITE RADIO HOLDINGS INC., a Delaware corporation and the sole stockholder of the Company ("Holdings" and, together with the Company, the "Obligors"), and each of the investors identified on the signature pages hereto (the "Consenting Investors" and, together with the Obligors, each, individually, a "Party" and, collectively, the "Parties") is made as of January 16, 2003. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Agreement. RECITALS WHEREAS, the Obligors and the Investors, including the Consenting Investors, have entered into the Agreement pursuant to which the Obligors have agreed to issue and sell, and the Investors have agreed to purchase, an aggregate of $185,000,000 in Initial Value of Notes; WHEREAS, following execution of the definitive documentation for the placement of the Notes to the Investors, the Obligors desire to raise additional funds to further improve their liquidity position through the issuance and sale of securities and to that end have approached the Investors for their consent in permitting the Obligors to issue and sell additional Notes of the same series to the Investors or other Persons; WHEREAS, the Parties wish to amend the terms of the Agreement in order to permit the Obligors to issue and sell at the Closing up to an additional $25,000,000 in Initial Value of Notes; and WHEREAS, the Consenting Investors constitute Majority Holders and, as such, are permitted and authorized to enter into this Amendment on behalf of the Investors. AGREEMENT NOW, THEREFORE, in consideration of the mutual promises and representations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, and intending to be bound hereby, the Parties hereby agree as follows: 1. AMENDMENTS TO THE AGREEMENT. The following provisions of the Agreement shall be amended as set forth below: (a) Each of the title page and Section 2(a) of the Agreement shall be amended to delete the reference to "$366,300,000" therein and to substitute "$415,800,000" therefor. (b) The term "Investors" shall be amended for all purposes of the Agreement to mean (i) the Investors as defined for purposes of the Agreement as initially executed and (ii) each other Person that enters into a joinder agreement in the form of Exhibit A hereto (each a "Joinder Agreement"). (c) Attachment 1 to the Agreement shall be amended from time to time as contemplated by Section 2(b) below. (d) Appropriate revisions shall be made to each of the forms attached as exhibits to the Agreement prior to execution in order to reflect the issuance and sale of up to an aggregate of $25,000,000 in Initial Value of Notes to those Persons that enter into a Joinder Agreement. 2. ADDITIONAL INVESTORS (a) The Company may, in its discretion, enter into one or more Joinder Agreements from time to time after the date hereof and prior to the Closing. It is the intention of the Parties, that, upon execution of a Joinder Agreement with each of the Obligors, a Person shall become obligated with respect to the purchase of the Initial Value of Notes set forth in such Joinder Agreement to the same extent, and otherwise on the same terms, as if such Person were an Investor that had executed and delivered the Agreement as initially executed. Without limiting the foregoing, such Person shall, subject to the terms and conditions of the Agreement (as amended hereby or from time to time hereafter), severally agree to purchase for cash from the Obligors at the Closing, and the Obligors shall agree to sell and issue to such Person at the Closing, a Note with a principal amount at maturity equal to the Accreted Value as of December 31, 2005 of a Note with an Initial Value set forth in such Person's Joinder Agreement. (b) In connection with their execution and delivery of a Joinder Agreement with any Person, the Obligors shall make appropriate revisions to Attachment 1 to the Agreement (as then in effect) and such revised Attachment 1 shall thereafter constitute "Attachment 1" for all purposes of the Agreement (as then amended). Promptly after executing and delivering any Joinder Agreement, the Obligors shall provide each Investor with a copy of such Joinder Agreement, together with a copy of Attachment 1 to the Agreement as then in effect, in accordance with Section 17 of the Agreement (as then amended). (c) Notwithstanding Section 2(a) hereof or any provision of the Agreement, the obligations of the Obligors to issue and sell Notes to any Person pursuant to a Joinder Agreement, and the obligations of any such Person to purchase such Notes under such Joinder Agreement, shall be subject to (i) the receipt by the Obligors, at or prior to the Closing, of all consents required with respect thereto under any of the Transaction Documents, and (ii) applicable law and regulation. 2 3. MISCELLANEOUS (a) The Parties agree to execute and deliver all such further documents, agreements and instruments and take such other and further action as may be necessary or appropriate to carry out the purposes and intent of this Amendment. (b) This Agreement may be executed in counterparts, which, when taken together, shall constitute an original. * * * * * 3 IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly signed as of January 16, 2003.
Amendment to NPA Signature Page
Amendment to NPA Signature Page Amendment to NPA Signature Page
Amendment to NPA Signature Page ATTACHMENT 1
EXHIBIT A FORM OF JOINDER AGREEMENT This JOINDER AGREEMENT, dated ______________, 2003, is delivered pursuant to the Note Purchase Agreement, dated as of December 21, 2002 (as amended by the Amendment to Note Purchase Agreement dated as of January 16, 2003 and as otherwise amended, the "AGREEMENT"), among XM Satellite Radio Inc., XM Satellite Radio Holdings Inc. and the Investors set forth on the signature pages thereto. Capitalized terms used herein not otherwise defined herein shall have the meanings ascribed to them in the Agreement. SECTION 1. AGREEMENT TO PURCHASE. Subject to the terms and conditions of this Joinder Agreement and the Agreement, the undersigned hereby agrees to purchase for cash from the Obligors at the Closing, and the Obligors agree to sell and issue to the undersigned, a Note with a principal amount at maturity equal to the Accreted Value as of December 31, 2005 of a Note with an Initial Value as set forth opposite the signature of the undersigned below. The undersigned hereby acknowledges, agrees and confirms that, by its execution of this Joinder Agreement, the undersigned will be deemed to be a party to the Agreement and the other Transaction Documents to which the Investors are a party for all purposes of the Agreement and such other Transaction Documents, and shall have all of the rights and obligations of an Investor thereunder as fully as if it had executed the Agreement and such other Transaction Documents. The undersigned hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the Agreement and in such other Transaction Documents. SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE OBLIGORS. The representations and warranties of the Obligors set forth in Section 4 of the Agreement are true and correct in all material respects as of the date hereof with the same force and effect as if they had been made on the date hereof (unless any representation or warranty refers to a specific earlier date, in which case such representation and warranty was true and correct in all material respects as of such date). Each of the Obligors agrees to perform or cause to be performed all covenants, agreements and conditions to be performed by the Obligors or any Subsidiaries under the Agreement and other Transaction Documents to which it is a party. SECTION 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE UNDERSIGNED. The undersigned represents and warrants to the Obligors that the representations and warranties set forth in Section 5 of the Agreement (other than Section 5.11 thereof) are true and correct representations and warranties of the undersigned as of the date hereof. The undersigned covenants and agrees to perform or cause to be performed all covenants, agreements and conditions to be performed by the undersigned under the Agreement and other Transaction Documents to which the undersigned is a party. The undersigned acknowledges that (a) the Notes are being issued with an "original issue discount" for federal and state tax purposes and (b) the Notes to be purchased by it at Closing, and any Securities obtained upon exchange or conversion thereof, will bear the transfer restrictions and display the legends as set forth in Section 6 of the Agreement. A-1 SECTION 4. CONDITIONS TO OBLIGATION OF THE OBLIGORS. The obligation of the Obligors to issue the Notes to be issued to the undersigned under this Joinder Agreement at the Closing is subject to (a) the conditions set forth in Section 13.2 of the Agreement, (b) the receipt by the Obligors, at or prior to the Closing, of all consents required with respect the sale and issuance of the Notes to the undersigned under any of the Transaction Documents and (c) compliance with applicable law and regulation. SECTION 5. CONDITIONS TO THE OBLIGATION OF THE UNDERSIGNED. The obligation of the undersigned to purchase the Notes to be purchased at the Closing by the undersigned under this Joinder Agreement is subject to (a) the conditions set forth in Section 13.1 of the Agreement (including paragraph (g) thereof), (b) the receipt by the Obligors, at or prior to the Closing, of all consents required with respect the sale and issuance of the Notes to the undersigned under any of the Transaction Documents and (c) compliance with applicable law and regulations. [Signature Page Follows] A-2 IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered by its duly authorized officer as of __________, 2003. [NAME OF ADDITIONAL INVESTOR] Initial Value of the Notes to be Purchased: By: -------------------------------- - ------------------ Name: Title: Address: ------------------------------------ ------------------------------------ ------------------------------------ XM SATELLITE RADIO HOLDINGS INC. XM SATELLITE RADIO INC. By: By: ------------------------------------- --------------------------------- Name: Name: Title: Title: A-3
