Exhibit 10.59
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
This FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED DISTRIBUTION AGREEMENT is dated as of
January 13, 2004 (this “ Amendment ”) and
entered into by and among OnStar Corporation, XM Satellite Radio
Holdings Inc., and XM Satellite Radio Inc. (collectively the
“ Parties ,” and each, a “ Party
”).
WITNESSETH:
WHEREAS , the Parties have entered into a Second Amended
and Restated Distribution Agreement dated as of January 28, 2003
(the “ Original Agreement ”); and
WHEREAS , the Parties desire to amend the Original
Agreement pursuant to the terms hereof to provide, among other
things, for certain payments under the Original Agreement to be
made on a semi-annual basis; and
WHEREAS , certain capitalized terms used herein without
definition shall have the respective meanings set forth in the
Original Agreement.
NOW , THEREFORE , for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE I
AMENDMENTS
1.1 Addition of New
Definitions. Section
1 of the Original Agreement is amended by inserting the following
new definitions in alphabetical order:
“ Payment Date ”
means June 30, 2003, December 31, 2003, and the 26
th
day of January and the
26 th day of July of each calendar year,
beginning on July 26, 2004.
“ Payment Period
” means each period commencing on and including a Payment
Date through, but not including, the next following Payment
Date.
1.2 Amendment to Existing
Definition. Section
1.1 of the Original Agreement is amended by amending and restating
the following definition in its entirety:
“ Stock Fair Market
Value ” means, with respect to the Class A Common Stock,
the last reported sale price during regular trading hours on the
date in question (or, if there is no reported sale on such date,
the mean between the last high bid and low asked quotations on such
date (it being understood that if the date in question is not a
trading day, then the date in question shall be the immediately
f
