Exhibit 4.22
FIRST AMENDMENT
FIRST AMENDMENT, dated as of October 20, 2000 (this "Amendment"), to
the Term Loan Agreement, dated as of June 1, 2000 (as amended, supplemented or
otherwise modified from time to time, the "Term Loan Agreement"), among SIRIUS
SATELLITE RADIO INC., a Delaware corporation (the "Borrower"), the several banks
and other financial institutions or entities from time to time parties to the
Term Loan Agreement (the "Lenders"), LEHMAN BROTHERS INC., as advisor, lead
arranger and book manager, LEHMAN COMMERCIAL PAPER INC., as syndication agent,
and LEHMAN COMMERCIAL PAPER INC., as administrative agent (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders amend, and the
Required Lenders have agreed to amend, certain of the provisions of the Term
Loan Agreement, upon the terms and subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other valuable consideration the receipt of which is
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Definitions. Unless otherwise defined herein, terms defined
in the Term Loan Agreement and used herein shall have the meanings given to them
in the Term Loan Agreement.
SECTION 2. Amendment to Section 6.6 (Limitation on Restricted
Payments). Section 6.6 is hereby amended by (i) deleting the "and" at the end of
paragraph (c), (ii) deleting the "." and inserting in lieu thereof "; and" at
the end of paragraph (d) and (iii) inserting the following after paragraph (d):
(e) with respect to the Borrower's 9.2% Series A Junior Cumulative
Convertible Preferred Stock, 9.2% Series B Junior Cumulative Convertible
Preferred Stock and 9.2% Series D Junior Cumulative Convertible Preferred
Stock (collectively, the "Convertible Preferred Stock"), the Borrower may
(i) pay dividends on such Convertible Preferred Stock when due in the form
of additional shares of Convertible Preferred Stock of the same class and
type or in common stock of the Borrower and (ii) pay cash dividends on such
Convertible Preferred Stock when due at a rate per annum no greater than
the rate per annum applicable to such Convertible Preferred Stock on the
original date of issuance thereof, provided that, with respect to any such
cash dividend payments, no Default or Event of Default shall have occurred
and be continuing or would result therefrom; and
(f) with respect to any preferred stock issued after the date hereof
in a transaction permitted by this Agreement, the Borrower may pay
dividends on such preferred stock in the form of additional shares of such
preferred stock, preferred stock junior to such
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preferred stock (so long as the issuance of such junior preferred stock is
permitted by this Agreement) or common stock of the Borrower.
SECTION 3. Representations; No Default. On and as of the date hereof,
and after giving effect to this Amendment, (a) the Borrower certifies that no
Default or Event of Default has occurred or is continuing, and (b) the Borrower
confirms, reaffirms and restates that the representations and warranties set
forth in Section 3 of the Term Loan Agreement are true and correct in all
material respects, except for such representations and warranties expressly
stated to relate to a specific earlier date, in which case such representations
and warranties were true and correct in all material respects as of such earlier
date.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective on and as of the date (the "Amendment Effective Date") that the
Administrative Agent shall have received (a) an executed counterpart of this
Amendment, duly executed and delivered by a duly authorized officer of the
Borrower, (b) executed Lender Consent Letters (or facsimile transmissions
thereof), substantially in the form of Exhibit A hereto ("Lender Consent
Letters"), from the Required Lenders and (c) an executed certificate of an
officer of the Borrower in form reasonably satisfactory to the Administrative
Agent as to the matters set forth in Section 3 of this Amendment and as to such
other customary matters as the Administrative Agent may reasonably request.
SECTION 5. Reference to and Effect on the Loan Documents. On and after
the Amendment Effective Date, each reference in the Term Loan Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the Term
Loan Agreement, and each reference in the other Loan Documents to "the Term Loan
Agreement", "thereunder", "thereof" or words of like import referring to the
Term Loan Agreement, shall mean and be a reference to the Term Loan Agreement as
amended hereby. Except as expressly amended herein, the Term Loan Agreement
shall continue to be, and shall remain, in full force and effect in accordance
with the terms thereof and is hereby in all respects ratified and confirmed.
This Amendment shall not be deemed to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the Term Loan
Agreement or any other Loan Document or to prejudice any other right or rights
which the Agents or the Lenders may now have or may have in the future under or
in connection with the Term Loan Agreement or any of the instruments or
agreements referred to therein, as the same may be amended from time to time.
SECTION 6. Payment of Expenses. The Borrower agrees to pay or reimburse
the Administrative Agent for all of its reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment and any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
SECTION 7. Counterparts. This Amendment may be executed by one or more
of the parties hereto in any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Amendment by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Amendment signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
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SECTION 8. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered by their respective duly authorized officers as of the
date first above written.
SIRIUS SATELLITE RADIO INC.
By: /s/ Michael Haynes
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Michael Haynes
Vice President and Treasurer
LEHMAN COMMERCIAL PAPER INC.,
as Syndication Agent and as
Administrative Agent
By: /s/ G. Andrew Keith
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Authorized Signatory
EXHIBIT A
LENDER CONSENT LETTER
SIRIUS SATELLITE RADIO INC.
TERM LOAN AGREEMENT
DATED AS OF JUNE 1, 2000
To: Lehman Commercial Paper Inc.,
as Syndication Agent and
as Administrative Agent
3 World Financial Center
New York, New York 10285
Ladies and Gentlemen:
Reference is made to the Term Loan Agreement, dated as of June 1, 2000
(as amended, supplemented or otherwise modified from time to time, the "Term
Loan Agreement"), among Sirius Satellite Radio Inc., a Delaware corporation (the
"Borrower"), the Lenders parties thereto, Lehman Brothers Inc., as Arranger, and
Lehman Commercial Paper Inc., as Syndication Agent and as Administrative Agent.
Unless otherwise defined herein, capitalized terms used herein and defined in
the Term Loan Agreement are used herein as therein defined.
The Borrower has requested that the Lenders consent to amend the Term
Loan Agreement on the terms described in the Amendment to which a form of this
Lender Consent Letter is attached as Exhibit A (the "Amendment").
Pursuant to Section 9.1 of the Term Loan Agreement, the undersigned
Lender hereby consents to the execution by the Agents of the Amendment.
Very truly yours,
Lehman Commercial Paper Inc.
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(NAME OF LENDER)
By: /s/ G. Andrew Keith
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Name: Andrew Keith
Title: Authorized Signatory
Dated as of October 20, 2000