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.
OBLIGORS:
XM SATELLITE RADIO HOLDINGS INC. XM SATELLITE RADIO INC.
By: /s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------- -------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx
Title: Senior Vice President, General Title: Senior Vice President, General Counsel
Counsel and Secretary and Secretary
CONSENTING INVESTORS:
AMERICAN HONDA MOTOR CO., INC., a
California Corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
BLACK BEAR OFFSHORE MASTER FUND
LIMITED, a Cayman Islands
exempted company
By Eastbourne Capital Management, L.L.C., its
investment adviser and attorney in fact
-
By: /s/ Xxxx X. Xxxxxx
--------------------
Xxxx X. Xxxxxx
Chief Operating Officer
BLACK BEAR FUND I, L.P., a California
limited partnership
By Eastbourne Capital Management, L.L.C.,
its general partner
By: /s/ Xxxx X. Xxxxxx
--------------------
Xxxx X. Xxxxxx
Chief Operating Officer
BLACK BEAR FUND II, L.L.C., a
California limited liability company
By Eastbourne Capital Management, L.L.C., its
manager
By: /s/ Xxxx X. Xxxxxx
--------------------
Xxxx X. Xxxxxx
Chief Operating Officer
BAYSTAR CAPITAL II, L.P., a Delaware
limited partnership
By: BayStar Capital Management, LLC, its
general partner
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Managing Member
BAYSTAR INTERNATIONAL II Ltd., a British
Virgin Islands exempt company
By: BayStar Capital Management, LLC, its
investment partner
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Managing Member
Amendment to NPA Signature Page
COLUMBIA XM RADIO PARTNERS, LLC COLUMBIA XM SATELLITE PARTNERS III,
By: Columbia Capital L.L.C., its Managing LLC
Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxx X. Xxxxxxx, Xx.
Title: Vice President -------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Vice President
COLUMBIA CAPITAL EQUITY COLUMBIA CAPITAL EQUITY
PARTNERS II (QP), L.P. PARTNERS III (QP), L.P.
By Columbia Capital Equity Partners III, By Columbia Capital Equity Partners III, L.P., its
L.P., its General Partner General Partner
By: /s/ Xxxxx X. Xxxxxxx, Xx. By: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------------- -------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx. Name: Xxxxx X. Xxxxxxx, Xx.
Title: Vice President Title: Vice President
AEA XM INVESTORS IA LLC AEA XM INVESTORS IIA LLC
By XM Investors IA LP, its Sole Member By XM Investors IIA LP, its Sole Member
By AEA XM Investors Inc., its General By AEA XM Investors Inc., its General Partner
Partner
By: /s/ Xxxxxxxxx X. Xxxxx
By: /s/ Xxxxxxxxx X. Xxxxx -------------------------------------------
------------------------------------- Name: Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx Title: Vice President
Title: Vice President
SUPERIUS SECURITIES GROUP, INC.
MONEY PURCHASE PLAN
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Trustee
SF CAPITAL PARTNERS, LTD., a British
Virgin Islands company
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Authorized Signatory
HEARST COMMUNICATIONS, INC., a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President, Hearst Interactive Media, a
division of Hearst Communications, Inc.
AVDAN PARTNERS, L.P.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxx, President
MBF Capital Management, Inc.
Its Managing General Partner
Amendment to NPA Signature Page
Amendment to NPA Signature Page
XXXXXX ELECTRONICS
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President, Treasurer and Controller
XXXXXX XXXXXXX XXXXXXX X. XXXXXX
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxxx X. Xxxxxx
------------------------------------- ----------------------------------------
XXXX XXXXXXXXX XXXX XXXXX
/s/ Xxxx Xxxxxxxxx /s/ Xxxx Xxxxx
------------------------------------- ----------------------------------------
A.R. XXXXXXX, JR.
/s/ A.R. Xxxxxxx, Jr.
-------------------------------------
Amendment to NPA Signature Page
ATTACHMENT 1
Investor Aggregate Initial Value of Notes Purchased
AEA
AEA XM Investors IA LLC $ 838,645.50
c/o AEA Investors Inc.
00 X 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: 000-000-0000
AEA XM Investors IIA LLC 6,861,354.50
c/o AEA Investors Inc.
00 X 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Columbia Capital
Columbia Capital Equity Partners II (QP), L.P. 3,085,866.46
c/o Columbia Capital, LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: 000-000-0000
Columbia XM Radio Partners, LLC 3,354,133.54
c/o Columbia Capital, LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: 000-000-0000
Columbia Capital Equity Partners III (QP), L.P. 1,107,920.45
c/o Columbia Capital, LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: 000-000-0000
Columbia XM Satellite Partners III, LLC 952,079.55
c/o Columbia Capital, LLC
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Fax: 000-000-0000
Xxxxxx Electronics Corporation 10,000,000
000 X. Xxxxxxxxx Xxxxxxxxx
Xx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Fax: 000-000-0000
Eastbourne Capital Management, L.L.C.
Black Bear Fund I, L.P. 11,358,000
c/o Eastbourne Capital Management, L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Chief Operating Officer
Fax: 000-000-0000
Black Bear Fund II, L.L.C. 1,343,000
c/o Eastbourne Capital Management, L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Chief Operating Officer
Fax: 000-000-0000
Black Bear Offshore Master Fund Limited 24,599,000
c/o Eastbourne Capital Management, L.L.C.
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Chief Operating Officer
Fax: 000-000-0000
Xxxxxx Xxxxxxx 7,000,000
c/x Xxxxxx & Vris, LLP
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Hearst Communications, Inc. 12,500,000
c/o Hearst Interactive Media
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: President, Hearst Interactive Media
Fax: 000-000-0000
BayStar Group 10,830,000
BayStar Capital II, LP
c/o BayStar Capital Management, LLC
00 X. Xxx Xxxxxxx Xxxxx Xxxx., Xxxxx 0X
Xxxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
BayStar International II, Ltd. 1,170,000
c/o BayStar Capital Management, LLC
00 X. Xxx Xxxxxxx Xxxxx Xxxx., Xxxxx 0X
Xxxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Royal Bank of Canada 27,300,000
c/o RBC Dominion Securities Corporation
000 Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx XX 00000
Attention: Xxxxxxx Xxxxxxx
Fax: 000-000-0000
America Honda Motor Co., Inc. 50,000,000
0000 Xxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxxxxx
Fax: 000-000-0000
Superius Securities Group, Inc. Money Purchase Plan 3,000,000
00 Xxxxx Xxx.
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: 000-000-0000
Xxxx Xxxxx 500,000
c/o XM Satellite Radio Holdings Inc.
0000 Xxxxxxxxx Xxxxx, XX
Xxxxxxxxxx, Xxxxxxxx xx Xxxxxxxx 00000-0000
Fax: 000-000-0000
Avdan Partners, L.P. 700,000
000 Xxxxxxxxx Xxxxxxx, Xxxxx 000-X
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
Xxxxxxx X. Xxxxxx 500,000
c/o Harris & Panels
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Xxxx Xxxxxxxxx 1,500,000
c/o Harris & Panels
000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Fax: 000-000-0000
SF Capital Partners, Ltd. 5,000,000
c/o Staro Asset Management, LLC 2,500,000
0000 Xxxxx Xxxx Xxxxx
Xx. Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: 000-000-0000
Xxxxx Xxxxx and Xxxxxxxx Xxxxx JTWROS 1,500,000
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: 000-000-0000
Xxxxx Xxx Singh Educational Trust 750,000
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
Samir Xxx Xxxxx Educational Trust 750,000
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
XxXxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax: 000-000-0000
A.R. Xxxxxxx, Jr. 1,000,000
0000 Xxxxxxx
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
Prism
Prism Partners Offshore Fund 800,000
c/x Xxxxxxxxx Capital Management LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Prism Partners I, L.P. 100,000
c/x Xxxxxxxxx Capital Management LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Prism Partners II Offshore Fund 1,100,000
c/x Xxxxxxxxx Capital Management LLC
00 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Everest
Everest Capital Master Fund LP 7,500,000
c/o Everest Capital Limited
The Bank of Xxxxxxxxxxx Building, 6th floor
00 Xxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Fax No.: (000) 000-0000
Everest Capital Senior Debt Fund LP 7,500,000
c/o Everest Capital Limited
The Bank of Xxxxxxxxxxx Building, 6th floor
00 Xxxxx Xxxxxx
Xxxxxxxx XX 00, Xxxxxxx
Fax No.: (000) 000-0000
U.S. Trust Company 3,000,000
X.X. Xxx 000
Xxxxx, Xxxxxxxxxxx 00000
------------------------------------------
Total 210,000,000
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
