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Confidential treatment has been
requested for portions of this exhibit. The copy filed herewith
omits the information subject to the confidentiality request.
Omissions are designated as [***]. A complete version of this
exhibit has been filed separately with the Securities and Exchange
Commission.
Exhibit 10.1
SECOND AMENDMENT AND
WAIVER
This Second Amendment and
Waiver (this “ Second Amendment ”), dated as of
February 1, 2008, is among XM Satellite Radio Inc. (the
“ Borrower ”), XM Satellite Radio Holdings Inc.
(“ Holdings ”), the undersigned lenders party to
the Credit Agreement referred to below (the “ Lenders
”) and the Administrative Agent party to the Credit Agreement
referred to below.
Reference is made to that
certain Credit Agreement, dated as of May 5, 2006 (as amended,
restated, supplemented or otherwise modified from time to time, the
“ Credit Agreement ”), among the Borrower,
Holdings, the lenders party thereto, JPMorgan Chase Bank, N.A., as
administrative agent (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. Capitalized terms used but not defined
herein have the meanings given such terms in the Credit
Agreement.
On February 19, 2007,
Holdings and Sirius Satellite Radio Inc. (“ SIRIUS
”) entered into an Agreement and Plan of Merger, pursuant to
which Holdings and SIRIUS proposed to combine their businesses
through a merger of Holdings and a newly formed, wholly owned
subsidiary of SIRIUS (such transaction, together with any
amendments, supplements or modifications thereto that would not
have an adverse effect on the interests of the Lenders, the “
Merger ”), with Holdings remaining as the surviving
corporation following the Merger. A copy of such Agreement and Plan
of Merger was filed by Holdings with the SEC on February 21,
2007 as Exhibit 2.1 to the Form 8-K filed on such date (such
Agreement and Plan of Merger, together with any amendments,
supplements or modifications thereto that would not have an adverse
effect on the interests of the Lenders, the “ Merger
Agreement ”).
The Borrower and Holdings
have requested that the Administrative Agent and the Lenders, in
connection with the Merger, (1) agree to amend the Credit
Agreement to make the changes set forth herein, which include,
among other things, certain changes to the definition of
“Change in Control” and certain permitted uses of funds
and Loan proceeds for obtaining extensions, waivers and other
permitted purposes in connection with the Merger, and
(2) waive, immediately prior to the effective time of the
Merger (such time, the “ Merger Effective Time
”), the potential Default (the “ Potential
Default ”) under clause (f)(2) of Article VII of the
Credit Agreement that would occur as a result of the Borrower being
required to (a) make a “Change of Control Offer”
under the New Senior Notes and the Existing 10% Notes or
(b) make an “Offer to Purchase or Refinance”
pursuant to Section 11.07 of the Participation Agreement (as
defined below), in each case as a result of the Merger and/or as a
result of any Merger Related Event (as defined below).
Accordingly, (a) the
parties hereto hereby amend the Credit Agreement and (b) the
Lenders and the Administrative Agent hereby waive the Potential
Default immediately prior to the Merger Effective Time, in each
case as set forth herein:
1. Section 1.01 of the Credit
Agreement is hereby amended by adding the following definitions in
proper alphabetical sequence:
“ Amendment Fee
” has the meaning assigned to such term in Section 13 of
the Second Amendment.
“ Beneficial
Interest ” has the meaning assigned to such term in the
Participation Agreement.
“ Beneficial
Interest Purchase Date ” means any date on which the
Borrower and/or Holdings is required to purchase any or all of the
Beneficial Interest pursuant to the terms of the XM-4 Sale and
Leaseback Offer to Purchase or Refinance and in accordance with the
terms of the Participation Agreement and this Agreement; provided,
however, that if the Beneficial Interest is purchased for a note or
other evidence of Indebtedness permitted to be incurred under the
Credit Agreement (including any Permitted Beneficial Interest
Indebtedness), the Beneficial Interest Purchase Date shall not
occur until the date on which any or all of the principal amount of
such Indebtedness shall have been paid.
“ Existing 10% Notes
Change of Control Offer ” means a Change of Control Offer
(as defined in the Noteholders Agreement) with respect to the
Existing 10% Notes made by the Borrower in connection with the
Merger and/or any Merger Related Event pursuant to the terms of
Section 8.7 of the Noteholders Agreement.
“ Existing 10% Notes
Extension ” means each extension, in accordance with the
terms of the Note Purchase Agreement, of the date on which the
Borrower is required to make a Change of Control Offer (as defined
in the Noteholders Agreement) with respect to all of the Existing
10% Notes as a result of any Change of Control (under and as
defined in the Note Purchase Agreement) that occurs or will occur
in connection with the Merger and/or any Merger Related
Event.
“ Existing 10% Notes
Waiver ” means a waiver, in accordance with the terms of
the Note Purchase Agreement, of any Change of Control (under and as
defined in the Note Purchase Agreement) with respect to all of the
Existing 10% Notes that occurs or will occur in connection with the
Merger and/or any Merger Related Event and the consequences of such
Change of Control (including the requirement that the Borrower make
a Change of Control Offer (as defined in the Noteholders
Agreement)).
“ Merger ”
has the meaning assigned to such term in the recitals to the Second
Amendment.
“ Merger
Agreement ” has the meaning assigned to such term in the
recitals to the Second Amendment.
“ Merger Effective
Time ” has the meaning assigned to such term in the
recitals to the Second Amendment.
“ Merger Related
Event ” means any event or condition directly related to,
and that occurs or will occur as a result of, the Merger
(including, without limitation, changes in the composition of the
Board of Directors of the Borrower and/or Holdings) that would
constitute a “Change of Control” under and as defined
in each of the Senior Notes Indentures, the Note Purchase Agreement
and/or the Participation Agreement.
“ New Senior Notes
Change of Control Offers ” means each Change of Control
Offer (as defined in the Senior Notes Indentures) with respect to
the Senior Notes made by the Borrower in connection with the Merger
and/or any Merger Related Event pursuant to the terms of
Section 4.14 of each Senior Notes Indenture.
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“ New Senior Notes
Change of Control Offers Payment Date ” means each
“Change of Control Offer Payment Date” as defined in
Section 4.14 of each Senior Notes Indenture with respect to
the Senior Notes and set forth in each New Senior Notes Change of
Control Offer.
“ New Senior Notes
Extension ” means each extension, in accordance with the
terms of the Senior Notes Indentures, of the date on which the
Borrower is required to make a Change of Control Offer (as defined
in the Senior Notes Indentures) with respect to all of the New
Senior Notes as a result of any Change of Control (under and as
defined in the Senior Notes Indentures) that occurs or will occur
in connection with the Merger and/or any Merger Related
Event.
“ New Senior Notes
Refinance Date ” means any date on which all of the New
Senior Notes have been refinanced (with the proceeds of Permitted
Refinancing Indebtedness or the proceeds from the issuance of
Equity Interests of Holdings (prior to the Merger) or SIRIUS
(following the Merger)) in accordance with the terms of the Senior
Notes Indentures and this Agreement.
“ New Senior Notes
Waiver ” means a waiver, in accordance with the terms of
the Senior Notes Indentures, of any Change of Control (under and as
defined in the Senior Notes Indentures) with respect to all of the
New Senior Notes that occurs or will occur in connection with the
Merger and/or any Merger Related Event and the consequences of such
Change of Control (including the requirement that the Borrower make
a Change of Control Offer (as defined in the Senior Notes
Indentures)).
“ New Senior Notes
Waiver Date ” means any date on which any New Senior
Notes Waiver shall be effective in accordance with its terms with
respect to all of the New Senior Notes.
“ Noteholders
Agreement ” means that certain Third Amended and Restated
Shareholders and Noteholders Agreement, dated as of June 16,
2003, by and among Holdings and the other parties named on the
signature pages thereof, as such agreement has been or may be
amended, modified or supplemented from time to time.
“ Owner Trustee
” has the meaning assigned to such term in the defined term
“Participation Agreement.”
“ Owner Trustee
Indenture ” means that certain Indenture dated as of
February 13, 2007, between the Owner Trustee and The Bank of
New York, a New York banking corporation, not in its individual
capacity, except as otherwise expressly set forth therein, but
solely as Indenture Trustee under the Indenture, as such Indenture
may be amended, modified or supplemented from time to
time.
“ Owner Trustee
Notes ” means the Notes issued by the Owner Trustee
pursuant to the Owner Trustee Indenture.
“ Owner Trustee
Notes Refinance Date ” means any date on which all of the
outstanding Owner Trustee Notes have been refinanced with the
proceeds of Permitted Refinancing Indebtedness (provided that,
notwithstanding clause (e) of the definition of Permitted
Refinancing Indebtedness, such Permitted Refinancing Indebtedness
may be incurred by Holdings) or the proceeds from the issuance of
Equity Interests of Holdings (prior to the Merger) or
SIRIUS
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(following the Merger), in each case
pursuant to the terms of the XM-4 Sale and Leaseback Offer to
Purchase or Refinance and in accordance with the terms of the
Participation Agreement and this Agreement.
“ Owner Trustee
Notes Repurchase Date ” means any date on which the
Borrower or Holdings is required to repurchase any or all of the
outstanding Owner Trustee Notes pursuant to the terms of the XM-4
Sale and Leaseback Offer to Purchase or Refinance and in accordance
with the terms of the Participation Agreement and this
Agreement.
“ Participation
Agreement ” means that certain Participation Agreement
dated as of February 13, 2007 among Holdings, as Seller, the
Borrower, as Lessee, Satellite Leasing (702-4), LLC, a Delaware
limited liability company, as Owner Participant, Wells Fargo Bank
Northwest, National Association, a national banking association,
not in its individual capacity, except as otherwise expressly set
forth therein, but solely in its capacity as Owner Trustee (the
“ Owner Trustee ”) and as Lessor, The Bank of
New York, a New York banking corporation, as Indenture Trustee, and
the purchasers identified on the signature pages thereto, as
initial purchasers of the Owner Trustee Notes, entered into in
connection with that certain XM-4 Sale and Leaseback Transaction,
as such agreement may be amended, modified or supplemented from
time to time.
“ Permitted
Beneficial Interest Indebtedness ” means any Indebtedness
of the Borrower or any of its Material Subsidiaries the net
proceeds of which are used to purchase, refinance or replace the
Beneficial Interest; provided that:
(a) the aggregate principal
amount (or accreted value, if applicable) of such Permitted
Beneficial Interest Indebtedness does not exceed $85.0
million;
(b) such Permitted Beneficial
Interest Indebtedness shall have a final maturity date later than
the final maturity date of the Loans, and shall not require payment
of any or all of the principal amount of such Permitted Beneficial
Interest Indebtedness prior to the final maturity date of the
Loans; and
(c) such Permitted Beneficial
Interest Indebtedness is either unsecured or is secured on terms at
least as favorable to the Lenders as those contained in the
documentation governing the Beneficial Interest.
“ Second
Amendment ” means that certain Second Amendment and
Waiver dated as of February 1, 2008 among Holdings, the
Borrower, the Administrative Agent and the Lenders listed on the
signature pages thereto.
“ Second Amendment
Effective Date ” has the meaning assigned to such term in
Section 12 of the Second Amendment.
“ SIRIUS ”
means Sirius Satellite Radio Inc.
“ Waiver Effective
Date ” has the meaning assigned to such term in
Section 11 of the Second Amendment.
“ Waiver Expiration
Date ” means the first date on which any or all of the
following shall have occurred: (a) a New Senior Notes Change
of Control Offer Payment Date, (b) an Owner Trustee Notes
Repurchase Date, (c) a Beneficial Interest Purchase Date,
(d) an XM-4 Sale and Leaseback Repurchase Date or (e) the
first Business Day immediately following the Merger Effective Time,
if the Administrative Agent has not received the Amendment Fee
pursuant to Second Amendment on or prior to such date.
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“ Waiver/Refinance
Event Date ” means the latest to occur of the following
(it being understood that the Waiver/Refinance Event Date shall not
occur until each of clauses (a) and (b) has occurred):
(a) the date that is the earlier of (i) the New Senior
Notes Waiver Date and (ii) the New Senior Notes Refinance
Date; and (b) the date that is the earlier of (i) the
XM-4 Sale and Leaseback Waiver Date and (ii) the Owner Trustee
Notes Refinance Date.
“ XM-4 Sale and
Leaseback Extension ” means either (i) each
extension, in accordance with the terms of the Participation
Agreement, by the Lessor (as defined in the Participation
Agreement), the Owner Participant (as defined in the Participation
Agreement), the holders of the Owner Trustee Notes and each other
applicable party in respect of the XM-4 Sale and Leaseback
Transaction consummated pursuant to the Participation Agreement
(each such foregoing Person, an “ XM-4 Sale and Leaseback
Party ”) of the date on which the Borrower is required to
make an XM-4 Sale and Leaseback Offer to Purchase or Refinance as a
result of any “Change of Control” or “SDARS
License Event” (each term under and as defined in the
Participation Agreement) that occurs or will occur in connection
with the Merger and/or any Merger Related Event or (ii) each
declining, in accordance with the terms of the Participation
Agreement, of an XM-4 Sale and Leaseback Offer to Purchase or
Refinance that occurs or will occur in connection with the Merger
and/or any Merger Related Event in exchange for a commitment by the
Borrower to make another such offer, for one or both of the
Beneficial Interest or the Owner Trustee Notes, at a later
date.
“ XM-4 Sale and
Leaseback Party ” has the meaning assigned to such term
in t
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