EXHIBIT 10.4
EXECUTION COPY
FIRST AMENDMENT TO INTERCREDITOR
AGREEMENT
FIRST AMENDMENT dated as of
June 26, 2008 (this “ Amendment ”) to the
Intercreditor Agreement dated as of May 5, 2006 (as amended
hereby and as further amended, restated, supplemented or otherwise
modified from time to time (the “ Intercreditor
Agreement ”)), by and among THE BANK OF NEW YORK, in its
capacity as collateral agent under that certain (i) FCC
Intercreditor Agreement and (ii) GSA Intercreditor Agreement,
including its successors and assigns from time to time (the “
Collateral Agent ”), JPMORGAN CHASE BANK, N.A.
(“JPM”), in its capacity as administrative agent under
the Revolving Credit Agreement (as defined below), including its
successors and assigns from time to time (the “
Administrative Agent ”), JPM, as New Collateral Agent
for the secured parties under the Collateral Agency Agreement (each
as hereinafter defined) and GENERAL MOTORS CORPORATION (“
GM ”), including their successors and assigns from
time to time (collectively, the “ Second Lien Lenders
”), and acknowledged and agreed to by XM Satellite Radio
Inc., a Delaware corporation (the “ Company ”),
XM Satellite Radio Holdings Inc., a Delaware corporation (“
Holdings ”) and each First Lien Subsidiary Guarantor
(as defined herein). All capitalized terms used and not otherwise
defined herein shall have the meaning ascribed to such terms in the
Intercreditor Agreement.
1. The Company and Holdings are
party to (i) that certain Credit Agreement, dated as of
May 5, 2006 (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “
Revolving Credit Agreement ”) among the Company,
Holdings, the lenders party thereto, the Administrative Agent,
Credit Suisse Securities (USA) LLC, as Syndication Agent, Citicorp
North America Inc., as Documentation Agent, and J.P. Morgan
Securities Inc. and UBS Securities LLC, as Joint Bookrunners and
Joint Lead Arrangers, (ii) that certain Credit Agreement,
dated as of January 28, 2003, as amended by the First
Amendment to Credit Agreement in January 2004, the Second Amendment
to Credit Agreement in December 2005 and the Third Amendment to
Credit Agreement dated as of April 19, 2006, among the
Company, Holdings and GM and (iii) that certain Third Amended
and Restated Distribution Agreement, dated as of February 6,
2008, , among the Company, Holdings and GM.
2. Under Section 2.19 of the
Revolving Credit Agreement, the Borrower may, subject to certain
terms and conditions set forth therein, elect to request an
increase to the existing Commitments by an amount not to exceed
$100.0 million in the aggregate (the “ New Commitments
”).
3. In lieu of such New Commitments,
the Company and Holdings intend to incur on the date hereof a
senior secured term loan facility in an aggregate principal amount
not to exceed $100.0 million, pursuant to a Credit Agreement dated
as of June 26, 2008 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the
“ Term Loan Credit Agreement ” and together with
the Revolving Credit Agreement, the “ First Lien Credit
Agreements ”), by and among
Holdings, the Company, the lenders from time to
time party thereto, UBS AG, Stamford Branch, as administrative
agent (together with its successors in such capacity, the “
Term Loan Administrative Agent ”) and UBS Securities
LLC, as sole lead arranger and sole bookrunner, which senior
secured term loan facility will be secured equally and ratably by
the Collateral, and that in connection with the incurrence of such
senior secured term loan facility the Company will no longer be
permitted to obtain the New Commitments in the future.
4. The Company and Holdings have
requested that the Collateral Agent, the Administrative Agent and
the Second Lien Lenders, in connection with the foregoing, agree to
amend the Intercreditor Agreement to make the changes set forth
herein.
Accordingly, in consideration of the
mutual agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Amendments
.
(a) The Intercreditor Agreement is
hereby amended by (i) replacing the words “First Lien
Credit Agreement” with the words “Revolving Credit
Agreement” and (ii) inserting the words “UBS AG
STAMFORD BRANCH, as administrative agent under the Term Loan Credit
Agreement (as defined below), including its successors and assigns
from time to time (the “ Term Loan Administrative
Agent ”),” immediately after the words “(the
“ Administrative Agent ”)”, in each case
in the preamble thereto.
(b) The Intercreditor Agreement is
hereby further amended by deleting the third and fourth recitals
thereof in its entirety and replacing it with the
following:
“WHEREAS, the Company and
Holdings, have entered into (i) that certain Credit Agreement,
dated as of May 5, 2006 (as amended, restated, amended and
restated, supplemented or otherwise modified from time to time, the
“ Revolving Credit Agreement ”) among the
Company, Holdings, the lenders party thereto, the Administrative
Agent, Credit Suisse Securities (USA) LLC, as Syndication Agent,
Citicorp North America Inc., as Documentation Agent, and J.P.
Morgan Securities Inc. and UBS Securities LLC, as Joint Bookrunners
and Joint Lead Arrangers, providing for a revolving credit facility
and (ii) that certain Credit Agreement dated as of
June 26, 2008, (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “
Term Loan Credit Agreement ”) by and among Holdings,
the Company, the lenders from time to time party thereto, the Term
Loan Administrative Agent and UBS Securities LLC, as sole lead
arranger and sole bookrunner, providing for a term loan credit
facility.
WHEREAS, the Company, Holdings and
General Motors Corporation entered into that certain Third Amended
and Restated
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Distribution and Credit Agreement,
dated as of February 6, 2008, (as amended, restated,
supplemented, modified, replaced or refinanced from time to time,
the “ Second Lien Credit and Distribution Agreement
”);”
(c) The Intercreditor Agreement is
hereby further amended by deleting clause (ii) in the fifth
recital thereof in its entirety and replacing it with the
following:
“(ii) (a) that certain
Guarantee, dated as of May 5, 2006, and (b) that certain
Guarantee, dated as of June 26, 2008, Holdings has agreed to
guarantee the Obligations under the First Lien Credit Agreements
(the “ First Lien Holdings Guarantee ”) and
certain current and future subsidiaries of the Company (such
current and future subsidiaries of the Company, the “
First Lien Subsidiary Guarantors ”) have agreed to
guarantee the Obligations under the First Lien Credit Agreement
(the “ First Lien Subsidiary Guarantee ”)
and”
(d) Section 1.1 of the
Intercreditor Agreement is hereby amended by deleting the
definitions of “GM Credit Agreement” and “OnStar
Distribution Agreement” in their entirety.
(e) Section 1.1 of the
Intercreditor Agreement is hereby amended by adding the following
definitions in proper alphabetical sequence:
(i) “ Collateral Agency
Agreement ” shall mean that certain Collateral Agency
Agreement, dated as of June 26, 2008, among the Administrative
Agent, the Term Loan Administrative Agent and the New Collateral
Agent.
(ii) “ New Collateral
Agent ” means JPMorgan Chase Bank, N.A., in its capacity
as collateral agent under the Collateral Agency Agreement or such
other Person then serving as collateral agent under the Collateral
Agency Agreement.
(iii) “ Revolving Credit
Agreement ” shall have the meaning set forth in the
Recitals to this Agreement.
(iv) “ Term Loan
Administrative Agent ” shall have the meaning set forth
in the Preamble to this Agreement.
(v) “ Term Loan Credit
Agreement ” shall have the meaning set forth in the
Recitals to this Agreement.
(f) The definition of
“Agent” in Section 1.1 is hereby amended by
replacing the words “First Lien Credit Agreement” with
the words “Revolving Credit Agreement”.
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(g) The definition of
“Discharge of First Lien Obligations” is hereby amended
by replacing the words “First Lien Lenders” in clauses
(c) and (e) thereof with the words “First Lien
Claimholders”.
(h) The definition of “First
Lien Agent” in Section 1.1 is hereby amended by
replacing the words “Administrative Agent” with the
words “New Collateral Agent”.
(i) The definition of “First
Lien Credit Agreement” in Section 1.1 is hereby amended
and restated in its entirety as follows:
“ “First Lien Credit
Agreement” shall mean the Revolving Credit Agreement
and/or the Term Loan Credit Agreement, individually or
collectively, as the context m
